Northwest Mining Association Comments

on USFS proposed Section 261 Rule changes

July 3, 2007

Forest Service, USDA
Attention:
Director, Minerals and Geology Management (MGM) Staff (2810)
Mail Stop 1126
Washington, DC 20250-1126

Re: Proposed Amendments to 36 CFR 261.2 & 261.10 F2 Fed. Reg. 26578

Northwest Mining Association (NWMA) is a 112 year-old, 1,650 member non-profit, non-partisan trade association based in Spokane, Washington. Our members reside in 33 states and are actively involved in prospecting, exploring, mining, and reclamation closure activities on USFS administered land. Our membership represents every facet of the mining industry, including geology, exploration, mining, engineering, equipment manufacturing, technical services, legal services, and sales of equipment and supplies. Our broad-based membership includes many small miners and exploration geologists, as well as junior and large mining companies. More than 90% of our members are small businesses or work for small businesses.

NWMA’s members have extensive knowledge of the General Mining Laws of the U.S., the 36 CFR 228A and 261 regulations, the Surface Resources Act of 1955, administrative and judicial decisions interpreting those laws, and the issues raised in the proposed rule.

We are aware of case law that supports the Forest Service using 36 CFR 261 for enforcement of its 36 CFR 228A mining regulations in certain circumstances. However, we also are aware of many cases where the Forest Service has inappropriately or illegally used this enforcement regulation. We believe the 261 rule, as proposed, will only increase the potential for misuse by overzealous Forest Service officers and complicate things further for the Forest Service and miners. Thus, we believe the rule needs additional changes and submit the following comments explaining those needed changes.

The Forest Service needs to make it very clear in the proposed rule that for a miner to be charged under 36 CFR 261, the Forest Service must first demonstrate that the miner has violated 36 CFR 228 Subpart A. Thus, the 261 regs need to explain more fully that the phrase added at sections 36 CFR 261.10 (a), (b), and (p) “. . . approved operating plan when such authorization is required” severely restricts Forest Service use of 36 CFR 261 against miners because 261 cannot be used unless the Forest Service first demonstrates that there is a violation of 36 CFR 228A and that a Plan of Operations is required.

The Forest Service also needs to explain in the proposed 261 rule under what circumstances it will use criminal enforcement measures and when it intends to use civil measures. The Forest Service should further explain how the Forest Service Manual (FSM) policy direction fits into this determination, and how the agency will monitor, manage, and restrict rampant abuse by untrained, unqualified and/or hostile Forest Service officers of the criminal citation procedures against miners. At FSM 2817 and elsewhere, the Forest Service commits to only having certified qualified minerals’ administrators and inspectors involved in determining when an operation is in compliance.

2817. Inspector Qualifications. Inspection shall be conducted by Forest officers who are familiar with the equipment and methods needed to find and produce minerals and who can accurately assess the significance of surface resource disturbance. Inspectors should be capable of identifying those activities of an operator which are reasonably necessary to the operation, which ones could perhaps be done differently with less effect on surface resources without endangering or hindering the operation, and which ones are unreasonable or unnecessary.

Consistent with this policy, the proposed amendment to 36 CFR 261 should require a Forest Service law enforcement officer to work only with, and rely upon, an official Forest Service Certified Minerals Administrator to determine and document that an operation is in violation of 36 CFR 228A prior to issuing a violation notice under 261 (emphasis added).

The Forest Service also should explain how it intends to reconcile its use of 36 CFR 261 with the noncompliance procedures already existing at 36 CFR 228.7 (as well as a miner’s appeal rights and the appeal procedures at 36 CFR 251):

Sec. 228.7 Inspection, noncompliance.

(a) Forest Officers shall periodically inspect operations to determine if the operator is complying with the regulations in this part and an approved plan of operations. (b) If an operator fails to comply with the regulations or his approved plan of operations and the noncompliance is unnecessarily or unreasonably causing injury, loss or damage to surface resources the authorized officer shall serve a notice of noncompliance upon the operator or his agent in person or by certified mail. Such notice shall describe the noncompliance and shall specify the action to comply and the time within which such action is to be completed, generally not to exceed thirty (30) days: Provided, however, that days during which the area of operations is inaccessible shall not be included when computing the number of days allowed for compliance.

Note that the above regulation requires a miner to be served notice prior to the FS taking an enforcement action. Since this notice is a Forest Service decision, consistent with 36 CFR 228.14, a miner should be given an opportunity to appeal it under 36 CFR 251. In addition, FSM 2817 requires the Forest Service, except in emergency circumstances, to work with the miner to secure willing compliance, then issue a notice of noncompliance, and then give appeal rights prior to taking action. How does the Forest Service intend to reconcile these requirements with the 36 CFR 261 procedures?

2817.3 – Inspection and Noncompliance

1. Under Approved Operating Plan. When activities are being conducted under an approved operating plan, regular compliance inspections must be conducted to ensure reasonable conformity to the plan and to guard against unforeseen detrimental effects. The frequency, intensity, and complexity of inspection shall be commensurate with the potential for irreparable and unreasonable damage to surface resources.

2. Without Operating Plan. When operations are being conducted without an operating plan because it was determined none was required, the need for regular inspections shall be determined on a case-by-case basis. Timely inspections shall help assure conformance to the environmental protection requirements of the regulations, as well as identify operations that vary from those described in the notice of intention and which may require an operating plan.

3. Detection. Forest officers shall make note of, and report all operations for which there have not been submitted either notices of intention to operate or operating plans. Such operations shall be identified and inspected as soon as practicable to determine if a plan of operations or a notice of intent is required.

4. Inspector Qualifications. Inspection shall be conducted by Forest officers who are familiar with the equipment and methods needed to find and produce minerals and who can accurately assess the significance of surface resource disturbance. Inspectors should be capable of identifying those activities of an operator which are reasonably necessary to the operation, which ones could perhaps be done differently with less effect on surface resources without endangering or hindering the operation, and which ones are unreasonable or unnecessary.

5. Noncompliance. Wherever practicable, acts of noncompliance should be discussed with the operator, either in person or by telephone, in an attempt to secure willing and rapid correction of the noncompliance. Such discussions shall be made a matter of record in the operator’s case file. Where the operator fails to take prompt action to comply and the noncompliance is unnecessarily or unreasonably causing injury, loss or damage to surface resources, the authorized officer must take prompt noncompliance action. For direction to resolve unauthorized residential occupancy on mining claims. See FSM 2818.

a. Notice of Noncompliance. The first step in any noncompliance action is to serve a written notice of noncompliance to the operator or the operator’s agent, in person, by telegram, or by certified mail. This notice must include a description of the objectionable or unapproved activity, an explanation of what must be done to bring the operation into compliance, and a reasonable time period within which compliance must be obtained. Continued refusal of the operator to comply after notice will usually require enforcement action.

b. Enforcement Action. Civil or criminal enforcement, or a combination of both, are available for enforcement of 36 CFR 228. The decision on which procedure, or combination, to use shall depend upon the particular facts in each case and the probability of success and possible consequences. The Regional mineral staff or the local Office of General Counsel shall be consulted for advice prior to any enforcement action to ensure consistency and conformance with mineral law and regulation. The appropriate U.S. Attorney shall be consulted to coordinate the criminal and civil actions.

(1) Civil Action. Two types of civil relief in Federal District Court are available: damage recovery and injunctive. An action to recover costs of repairing damages or to compensate for irreparable damages would be appropriate for those cases where such damages have already occurred and no further operations were being conducted or likely to be conducted. Such damage suits require extended periods of time for completion. Injunctive relief can be obtained quickly when the facts of a particular case warrant such action. There must be strong justification that the party requesting relief is suffering or will suffer irreparable harm and that harm must usually be incompensible. Moreover, it must be likely that the complainant will actually succeed on the merits of the case.

(2) Criminal Action. In cases where unnecessary and unreasonable damage is occurring and where reasonable attempts fail to obtain an operating plan or to secure compliance with an approved operating plan, the operator may be cited for violation of the appropriate section of 36 CFR 261 or 262, according to existing delegation of authority.

The above quoted policy statement from FSM 2817.3 (5)b(2) commits the Forest Service to only using 36 CFR 261 where unnecessary and unreasonable damage is occurring, and where reasonable attempts to obtain compliance with the 36 CFR 228 Subpart A regulations have failed. This means the procedures at 36 CFR 228 Subpart A must be used first to evaluate and demonstrate the need for the Forest Service to take an enforcement action. To avoid premature use and/or misuse of 36 CFR 261, this FSM direction on when to use 261 against miners needs to be incorporated as part of the new proposed 36 CFR 261 regulation.

A good example of potential abuse is the fact that some Forest Service Regions have arbitrarily set a recreational camping time limit of 14 days for all forest users. We believe the Regions should be distinguishing between those users who are just recreationists and those who are miners operating under the General Mining Laws. If an operator asserts he is operating under the Mining Law, documents that he needs to camp at a site beyond 14 days to conduct activities reasonably incident to his mining operations, and shows that his activities are not likely to cause significant disturbance of surface resources, the Forest Service is obligated to consider the facts of the miner’s case prior to taking enforcement action under 36 CFR 261. In other words, the Forest Service must first demonstrate that the activity requires a Plan of Operations and does not qualify for an exemption to a notice of intent or plan of operations under 36 CFR 228.4(a) before using 36 CFR 261:

(1) A notice of intent to operate is not required for:

(i) Operations which will be limited to the use of vehicles on existing public roads or roads used and maintained for National Forest System purposes; (ii) Prospecting and sampling which will not cause significant surface resource disturbance and will not involve removal of more than a reasonable amount of mineral deposit for analysis and study which generally might include searching for and occasionally removing small mineral samples or specimens, gold panning, metal detecting, non-motorized hand sluicing, using battery operated dry washers, and collecting of mineral specimens using hand tools; (iii) Marking and monumenting a mining claim; (iv) Underground operations which will not cause significant surface resource disturbance; (v) Operations, which in their totality, will not cause surface resource disturbance which is substantially different than that caused by other users of the National Forest System who are not required to obtain a Forest Service special use authorization, contract, or other written authorization; (vi) Operations which will not involve the use of mechanized earthmoving equipment, such as bulldozers or backhoes, or the cutting of trees, unless those operations otherwise might cause a significant disturbance of surface resources;

Furthermore, the definition of occupancy/residency is “over the top” and should be revised. Including “caves & cliff ledges” in the definition is ridiculous and unnecessary.

The proposed rule should clarify that under the Mining Laws one may “use & occupy” National Forest lands under a Notice as long as the use and occupancy is reasonably incident to prospecting, exploring, mining and processing, and there is no significant disturbance of surface resources.

Finally, the proposed rule should clarify that the special use regulations do NOT apply to locatable mineral activity on National Forest lands.

Sincerely,

Laura Skaer Executive Director

LS/kw

 
Dave Mack

“Here is some further explaination of the Karuk Tribe Lawsuit against the California DFG to change dredging regulations…”

(Forum post dated 29 January)

Hello Everyone,

The next round of briefs have been filed in the Karuk’s lawsuit against the California Department of Fish & Game (DFG). The key documents can be located on the special page we have created for this litigation. We have not put all of the documents up there, because there are just too many. A lot of effort is going into this litigation from all sides! While you guys are invited and encouraged to read the briefs for yourself, here is my own short summary about what is happening:

There are two important issues to be decided in the case at the present time. I understand both of these motions will be addressed by the Court during the upcoming hearing scheduled for 9 February in Alameda Superior Court.

1) Under The New 49’er banner, we have motioned to Intervene in the litigation. PLP has also submitted a similar motion to Intervene. Our position on this is that the Miners are actually the Real Parties in Interest, since it is our regulations that will potentially affected by the litigation.

In opposition to our Motion to Intervene, the Karuks have argued that we don’t really have any property rights because we are just a bunch of recreationalists with no rights under the mining laws. DFG has argued that even if we do have a property interest in the mining claims, we do not have any property interest in the annual permits which California issues to dredgers. Therefore, DFG has argued that we should not be allowed any standing in the ongoing litigation.

I believe our attorneys have done an excellent job presenting our argument that since modified regulations will reduce or eliminate access to our mining properties, and the Administrative Procedures Act (APA) of California forbids DFG to modify our regulations without allowing us an opportunity to be heard, and the yearly permits directly affect how me may access our property, that we certainly do have a place in this litigation.

2) We have also submitted a motion for the judge to reject the Stipulation which has been submitted to the Court by DFG and the Karuks to end the litigation. You guys will recall that this Stipulation creates an injunction preventing DFG from issuing dredge permits for the Main Stem of the Salmon River, Elk Creek, Indian Creek and other waterways. The injunction also reduces the dredging season on the Klamath and Scott Rivers to 1 July through 15 September. These are very substantial changes in our suction dredge regulations. DFG began implementing them in November of 2005 without so much as a single notice to the mining community or the many other people that will be adversely affected.

In opposition to our motion, the Karuks have submitted a very substantial volume of material to the Court, including Declarations from three fish biologists. Most of the material presented basically rehashes the same old arguments about dredging up the fish eggs and swallowing up juvenile salmonids. There is no acknowledgement by the Karuks that existing regulations have already addressed these very same issues. They have not provided any factual information to show how existing regulations do not provide adequate protection for the Coho salmon, or any factual information to demonstrate that a single fish has ever been harmed by a suction dredger. The Karuk’s position is that suction dredging should be presumed to be harmful unless proven otherwise (How is it even possible to prove “no harm” from any human activity?).

DFG’s opposition to our motion is based upon an argument that since their Stipulated Agreement was created during ongoing litigation, they really have not made any changes to our regulations at all. Therefore, they argue that they are not bound by the provisions of APA and the California Environmental Protection Act (CEQA) which require public participation when regulations are changed, even under emergency conditions. Interestingly, DFG’s position also is that they have done everything right in the way they have managed the suction dredge regulations during the past, including affording adequate protection to the Coho salmon. They make no claims that existing regulations do not protect the Coho. Their position is that the Stipulated Agreement simply offers additional protection because of the unproven arguments brought forward by the Karuks in the litigation. DFG argues that it is well within the authority of the Court to Order an injunction that reduces our dredging seasons. Never mind that there has yet to be any contested hearing or public debate to determine if any additional protection is even necessary!

In turn, our attorneys have argued that no matter what kind of spin they want to put on it, the fact is that the written regulations presently being issued by DFG have been changed to reduce our dredging seasons. The changes are very substantial. The fact that DFG is arguing that the earlier regulations were already in compliance with CEQA and were providing adequate protection to fish does not go well with a decision to shorten our mining seasons. We have rebutted the Declarations written by Karuk biologists with Declarations from other biologists who actually have field experience along the waterways that are being fought over in this litigation. We have also presented a Declaration which outlines just how substantial these regulatory changes are and how much damage will be caused to Miners and others.

Our main argument is that the Administrative Process in California was enacted to mandate State Agencies (DFG) to allow all interested parties to participate, and to mandate that State agencies weigh and balance all of the relevant factors to create reasonable regulations that resolve perceived problems in such a manner as to impose the least amount of restrictions upon productive activity. We argue that it is wrong for the Court to allow DFG to skirt around its important obligations to the public by sneaking behind closed doors with anti-industry groups to impose more restrictive regulations by Court Order — even without so much as a contested hearing.

As the court hearing is postponed until 9 February, I gather that DFG and the Karuks will be allowed one more opportunity to rebut our arguments in writing to the Court. I assume there will also be some oral arguments during the hearing.

We should keep our hopes up that this goes our way. If it doesn’t, we are already in early planning for the appeal. What good is the full public administrative process if a State agency can later go behind closed doors with an anti-industry group and modify industry regulations without having to justify the changes to the industry or the affected public?

We are also in the beginning stages of organizing a class action lawsuit to force the State of California to compensate all affected mining claim and private property owners for the reduced value of our/their holdings. The State cannot have it both ways. If the Court agrees that it is so important to stop or reduce the mining activity on these properties for the public good, then the State should be prepared to financially compensate property owners for our losses.

We are also exploring the possibility of filing a counter claim against the State of California for allowing the Karuks to dip net and kill the very same fish that they are trying to protect from us. Our research to date appears to show that the Karuk’s fishing practices should not be allowed under the very same laws they are using to try and eliminate the miners. This is not about retaliation. There just comes a point where we have to be looking at all of the potential negative impacts upon these fish. If conditions are so critical that serious consideration is being given to eliminating or reducing our mining seasons, then why are the Karuks being allowed to kill as many of the fish as they want out of the river? Where is the CEQA document that supports that decision by the State? I gather that other industry groups in Siskiyou County, who are also being pressured to make substantial and costly concessions, are asking the very same question.

If you possibly can, please be present at the hearing in Alameda County on February 9th. It is important that Miners are present. I know it is a long way away from our territory. Still, we need to be there in force if we can.

Once more, I am asking for another $10 donation, from anyone who can afford it, to help support our legal fund. It is vital that we finish paying attorney fees for December before we receive the January billing. Although we are close, we have not accomplished that, yet.

You guys should know that I am experiencing more stress about paying our lawyers, than I am about the litigation. The lawyers are doing a great job. We are fighting this battle as well as it can be done. The rest is up to fate. It is a good feeling to know you have done everything that you can to solve a problem!

My concern is over our future capability to do the same thing. We must keep up with our attorney bills so that we do not get overwhelmed by the process. All I can do is yell the charge. You guys are the force which will allow our side to win this battle. Now is the time to charge forward!

Thank you for whatever you can do!

Sincerely,

Dave Mack

 

 
Dave Mack

“Here is some further explaination of the Karuk Tribe Lawsuit against the California DFG to change dredging regulations…”

(Forum Post, February, 11, 2006)

Hi Guys,

The judge’s Order granting Intervention status to miners in the litigation concerning our California dredging regulations was made final on 9 February. This allows us to participate in the ongoing litigation.

We have created a special page on our web site that includes explanations and the most important documents concerning this case.

The judge’s Order also ruled that since the miners are new Parties within the litigation, it would be improper for her to rule on an earlier motion to endorse the Stipulated Agreement between the Karuks and DFG to resolve the litigation. While she said that she would entertain a new motion about this, she made it clear that the Karuks and DFG would be required to prove that the Stipulated Agreement is just, is not contrary to public policy, and does not incorporate an erroneous rule of law.

We feel very strongly that the proposed Stipulated Agreement does not meet any of these requirements.

As we anticipate that the Karuks and DFG will motion the Court to accept their Agreement, our attorneys are already preparing for our response. We have begun by serving both the Karuks and DFG with formal Discovery demands. As you may recall, up until now, both DFG and the Karuks have refused to provide us with the biological data which supports their Agreement. Now that we are Parties to the litigation, it seems reasonable that they should be required to allow us access to the information which supports their positions.

DFG’s position in the litigation, by the way, is that pre-existing regulations have afforded adequate protection for the Coho salmon. So it is going to be interesting to establish how they are justifying a decision to reduce our dredging seasons. There was some dialog in the hearing last week that perhaps both the Karuks and DFG will try and block our Discovery demands. So we may have to go around with them in court just to get at the specific information they are using to justify their positions in this litigation.

As hard as it is to believe, DFG has taken the position that they ought to be able to reduce our seasons in a secret agreement with the Karuks without ever having to justify the reasons to anyone. What’s wrong with that picture?

There have been several questions and comments posted on the various forums about DFG telling dredgers on the phone that they intend to enforce the new regulations upon miners even if the judge in this case does not endorse the Stipulated Agreement. I suggest that people should not become too alarmed by these statements. The State does not hove the power to enforce regulations which have not been adopted pursuant to the California Administrative Procedures Act (APA) and California Environmental Quality Act (CEQA).

These regulatory changes certainly were not adopted pursuant to APA and CEQA. That is a big part of our objections in front of the Court.

In the present litigation, DFG’s position is that they can skirt around the provisions of CEQA by making a court settlement, even though they are arguing in court that they have already been affording adequate protections to fish without making a settlement agreement with the Karuks.

CEQA was implemented to prevent arbitrary and capricious actions from State officials, while providing reasonable protections for the environment.

We don’t really see how DFG can expect to have it both ways: (1) Argue that they have been protecting the fish just fine under the pre-existing regulations; and, (2) Argue that they have the right to reduce our dredging seasons to afford additional protection to settle the unproven allegations made by the Karuks.

No matter what story DFG is telling the public right now about what they plan to do, my best guess is that if the judge will not endorse the Stipulated Agreement, DFG will be forced to withdraw its regulatory changes as we see them today. Likely, they will have to begin a new CEQA process to address any perceived needs (if any) for changes to our regulations. Anything short of that would probably not hold up to our challenges in court.

Let’s just take things one step at a time. The first step was to gain Party status in the litigation. We have done that. The next step is to challenge any attempt to reduce our dredging seasons that does not follow the lawful process in California. We are working on that now. Then we will challenge any attempt by DFG to enforce regulations which have not been adopted pursuant to the laws. But I doubt the 3rd step will be necessary.

Meanwhile, since the dredging season is still a long way off, I suggest you guys hold off on buying a 2006 dredging permit in California until we see how all this is going to settle out. There is still plenty of time.

Hang tough, you guys. I believe the law is on our side on this one.

All the best,

Dave Mack

 

 
Dave Mack

“Here is some further explaination of the Karuk Tribe Lawsuit against the California DFG to change dredging regulations…”

(Forum post dated 16 March, 2006)

Hello everyone,

For those of you who are not aware, this is about some ongoing litigation in which the Karuk Tribe has been suing the California Department of Fish & Game (DFG) for issuing suction dredge permits which allow dredging in Coho salmon habitat in northern California. There is a special page dedicated to this ongoing litigation on our web site.

To resolve the litigation, the Karuks and DFG have agreed to a Stipulated Settlement which eliminates suction dredging on some waterways and reduces our dredging seasons on others. The regulatory changes are very substantial; especially to people owning mining claims or private property along the waterways which would be closed to dredging by the Settlement.

As the lawsuit was quietly filed in Alameda County last May, which is hundreds of miles away from the affected areas, and no notification was ever given to anyone within the mining community from either DFG or the Karuks, we did not even become aware of the ongoing litigation until after DFG began implementing modified dredge regulations pursuant to their settlement with the Karuk Tribe.

As soon as we became aware of the ongoing litigation, our organization (New 49’ers) took the lead in representing the mining interests of our members, and we motioned the Alameda Superior Court to Intervene in the litigation. Luckily, the Court had not yet endorsed the Stipulated Settlement, even though DFG had already changed our suction dredge regulations to conform to the Agreement.

Over very strong objections voiced by DFG and the Karuk Tribe (arguing that miners had no rights in the matter), the Court granted us Intervention status on February 9th of this year.

Subsequently, both the Karuks and DFG have made two important motions in the case:

1) They have motioned the Court to formally endorse their Settlement Agreement which changes our dredge regulations without any public input, no formal hearing or any biological justification.

2) They have motioned to Court for Protective Orders against our discovery demands for the biological justifications supporting their decision to further restrict or eliminate dredge seasons.

In turn, we filed our final brief a few days ago opposing the Stipulated Agreement and reaffirming our need to acquire biological data which supports both the Karuk and DFG positions within the litigation. To date, the Karuks have only made general allegations concerning potential harm from suction dredging, and DFG has taken the position that the pre-existing suction dredging regulations provided adequate protection to fish. There is no evidence in the record showing any harm to any fish from suction dredging under the pre-existing regulations. Therefore, we believe it is very unreasonable for DFG to enter into a private agreement with the Karuks to impose further restrictions upon suction dredge miners! Under these circumstances, our demands for the biological information which DFG and the Karuks are relying upon seem more than justified.

Both the Karuks and DFG have argued in this case that they should be allowed to reduce or eliminate our dredging seasons in a private agreement amongst themselves, without ever having to provide any biological justification to anyone, not even the court. They have presented the Court with case law to support their position which basically states that Parties in civil litigation have the right to make any private agreement amongst themselves, as long as the parties agree.

In turn, we are making the argument that the California Environmental Quality Act (CEQA) mandates that agencies of the State are required to follow a very structured public process before it may adopt regulatory changes for an industry, and that this is not something the State has authority to trade off in a Settlement Agreement with an anti-industry group. We also argue that the case law which the Karuks and DFG rely upon does not allow two parties in litigation to settle their dispute by trading off rights or property which belong to others.

I believe these are the last filings in this case before the judge will decide what to do about these two issues. The hearing is scheduled for 9:00 AM on 23 March at Alameda County Superior Court, Department 512, Hayward Hall of Justice, 24405 Amador Street, Hayward, California.

Once again, we have done our absolute best to represent the interests of small-scale miners. Now we must see how the judge will decide. I encourage as many miners and prospectors as possible to be present during the hearing next week. Please be there if you can!

As I have said before, winning these days is mainly about raising money to pay the best attorneys we can afford.

The law is on our side. But we are up against very practiced and respected environmental law firms. Winning means having practiced and experienced attorneys on our own side who know how to make arguments which the judge will give careful consideration to. Anything short of that lessens the chance of preserving our rights. This is the way important matters are resolved in America today. To play the game, we need to be right in there alongside the best of them making our position heard. I hope you guys are in agreement with this strategy.

I want to express my sincere thanks to those of you who have responded to my requests for financial donations to help pay the attorneys that have been helping us with this case. Thank you! The need is a continuing one, so I encourage you to please keep the flow coming our way. In turn, we will do our absolute best to hold the line for our side.

Let’s keep our collective fingers crossed for a favorable decision on the 23rd!

All the best,

Dave Mack

 

 
Dave Mack

“Here is some further explaination of the Karuk Tribe Lawsuit against the California DFG to change dredging regulations…”

Forum post, 30 March 2006

Hello everyone,

I’m sorry my report on this has taken so long, but I have been reluctant to comment beyond what was reported last week until I could obtain an actual copy of the Amended Stipulation which was submitted to the Court by the Karuks and Department of Fish & Game (DFG).

The hearing that was scheduled last week (23 March) only allowed an hour for all interested persons to present verbal arguments. The Karuks and DFG showed up at the hearing with a “new deal” in the form of an “Amended Stipulation,” which commits DFG to begin a new rule-making process under CEQA within 120 days (4 months). The injunction would expire in one year plus 120 days (unless extended by the Court) with the expectation of having new rules in place by that time. This is referring to the very same or more restrictive regulations which DFG has issued pursuant to the earlier Stipulated Agreement.

My own interpretation of this is that they are basically asking the judge to impose an injunction until DFG undergoes a formal process under CEQA that imposes an equal or greater amount of restriction upon suction dredging as what presently exists within the modified regulations. This solution is a total violation of the CEQA process, because it imposes a mandate upon DFG to arrive at a final outcome, regardless of the science or other factors which DFG is required to consider during a proper CEQA action. What is the use of going through a public process in the first place to examine the science and develop the most reasonable solutions, if DFG and the Karuks have already agreed to what the outcome is going to be? That is backwards!

DFG argued in the hearing that they have met discovery requirements to the miners, because they have allowed us access to all existing information in their files, other than anything having to do with the ongoing litigation. Our attorneys reminded the judge that it is discovery concerning the ongoing litigation which DFG is refusing to provide. They are insisting upon keeping a secret of how they are justifying further restrictive changes upon our industry!

DFG also argued that the miners are really not hurt by the new dredging restrictions, because there are many other places where we can go to prospect for gold. In turn, we argued that land owners and miners who own mineral rights within the affected area will be adversely affected by the changed regulations.

As the time allowed for this hearing was quite short, there was not enough time to fully debate the issues in front of the judge. However, the written briefs which have been submitted to the Court have exhaustively covered all sides of the issues. The key documents in the litigation can be found on the special page we have created for this on our web site.

Our lawyers argued in the hearing that the “new deal” should not be accepted by the Court for the very same reasons the earlier Stipulated Agreement should have been rejected: A State agency does [U]not[/U] have the authority to change industry regulations through a private agreement with an anti-industry group in the first place. Especially without providing [U]any[/U] factual support of its reasons to anyone!

The Court has taken everything under advisement and we assume she will issue a ruling reasonably soon. Stay tuned in, because we will put up a copy of the ruling as soon as one is issued.

I want to thank those of you who have heard my requests for financial contributions to help pay the attorneys that are working so hard for our side. I encourage you to please keep the support coming our way so that we can keep up with continuing costs of this litigation. This is going to be very important in the event we find ourselves needing to file an appeal!

Let’s all keep our fingers crossed for a positive outcome!!

All the best,

Dave Mack

 

 
Dave Mack

“Here is some further explaination of the Karuk Tribe Lawsuit against the California DFG to change dredging regulations…”

(Forum post dated 08 May, 2006)

Hello everyone,

Here follows an update even since I wrote the
May newsletter a few days ago:

The judge’s Order granting Intervention status to miners in the litigation concerning our California dredging regulations was made final on 9 February. This has allowed us to participate in the ongoing litigation. We have created a special page on our web site that includes explanations and the most important documents concerning this case.

We have also submitted a motion for the judge to reject the Stipulation which has been submitted to the Court by DFG and the Karuks to end the litigation. This target=”_blank”>Stipulation agrees to an injunction preventing DFG from issuing suction dredge permits for the Main Stem of the Salmon River, Elk Creek, Indian Creek and other waterways. The injunction also reduces the dredging season along the Klamath and Scott Rivers to 1 July through 15 September. These are substantial changes to our suction dredge regulations. DFG began implementing them in November of 2005 without so much as a single notice to the mining community or the many other people that will be adversely affected.

The judge’s most recent target=”_blank”>Order has requested supplemental briefing from all the Parties concerning how a very recent appellate decision (Trancas Property Owners Association v. City of Malibu) affects our case. In the Trancas Decision, the appellate court made several important findings that were relevant to our case. For example, the court said, “. . . whatever else it may permit, the exemption cannot be construed to empower a city council to take or agree to take, as part of a non-publicly ratified litigation settlement, action that by substantive law may not be taken without a public hearing and an opportunity for the public to be heard. As a matter of legislative intention and policy, a statute that is part of a law intended to assure public decision-making, except in narrow circumstances, may not be read to authorize circumvention and indeed violation of other laws requiring that decisions be preceded by public hearings, simply because the means and object of the violation are settlement of a lawsuit.Trancas, 41 Cal. Rptr.3d at 210. While this had to do with a city council bypassing the required public participation under the Brown Act, the very same legal theory concerning the public process requirement also applies to State agencies that are in the process of changing industry regulations.

In the present litigation, DFG’s position is that they can skirt around the provisions of the California Environmental Policy Act (CEQA) by making a court settlement, even though they are arguing in court that they have already been affording adequate protections to fish without making a settlement agreement with the Karuks.

CEQA was implemented to prevent arbitrary and capricious actions from State officials, while providing reasonable protections for the environment.

All parties have already submitted supplemental briefing to the Court. You can find target=”_blank”>ours on the special web page that I mentioned above. You can also find the target=”_blank”>Karuk and target=”_blank”>DFG supplemental briefs there. We have since target=”_blank”>replied to their supplemental briefs.

Both DFG and the Karuks are still trying to argue that a State agency has the authority to bypass its obligation to include the public by making a private settlement agreement with an anti-industry group that is suing them. Interestingly, the Karuk’s were initially suing DFG for not following the CEQA process. That has evolved into an Agreement between themselves to definitely not follow the CEQA process! We do not see how the judge could go along with this, but we will all have to wait and see what she decides.

The judge could now issue a decision any day. Stay tuned. We will let you know the result as soon as we have it!

All the best,
Dave Mack

 

 
 
Dave Mack

“Here is some further explaination of the Karuk Tribe Lawsuit against the California DFG to change dredging regulations…”

(Forum post dated 22 May, 2006)

Hello everyone.

There is a new development in the Karuk/DFG litigation. Walter Eason, A person with gold mining interests, filed a Motion on his own behalf to intervene in the ongoing litigation on May 12th, just last week.

We were expecting a decision from the judge at any moment concerning whether or not she would strike down the Stipulated Agreement which was negotiated by the Department of Fish & Game (DFG) and the Karuk Tribe to end the litigation. That Agreement imposes more restrictions upon our industry. A lot of miners have been waiting in the wings for the judge’s decision, because it makes the difference whether or not the dredging season opens up on the upper Klamath River on May 27th, or on July 1st.

Mr. Eason has been very supportive of our position in this litigation during the past. More recently, he has discovered a legal decision (Boisclair v. Superior Court (1990) 51 Cal 3d 1140) concerning a Superior Court’s lack of subject matter jurisdiction to decide any matter concerning Indian rights. Through correspondence with me, the attorneys who are representing miners in the litigation, and others within our industry, it is clear that Mr. Eason believes it is imperative that we immediately file a Motion to Dismiss the whole case.

We respectfully disagreed with Mr. Eason’s position for several reasons: (1) We don’t believe this case has very much to do with adjudicating Indian rights. The Karuks are suing DFG because they do not believe DFG has followed all of the provisions required by the California Environmental Quality Act (CEQA). (2) We believe the Stipulated Agreement between DFG and the Karuks is totally illegal. We believe there is a reasonable chance the judge will agree with us about that. Since all of the arguments have been placed in front of her on this matter, and the dredging season is nearly upon us, we did not want to confuse everything by interjecting a whole new jurisdictional challenge into the process. Surely, this would delay the judge’s decision that everyone is waiting for.

Mr. Eason’s motion filed with the Court last week also requested that the Court not make any decision concerning the Stipulated Agreement until after his Intervention Motion and jurisdictional challenge is decided. Consequently, the judge decided on Friday to set a hearing date of 8 June to decide what to do about Mr. Eason’s Intervention motion. Unless I am mistaken, now we should not expect to receive any decision from the judge concerning our season until sometime after 8 June.

Before we start getting ourselves all charged up over this, I’d like to make two important points:

1) There is a lot at stake in this litigation. While our organization is doing its best to represent the interests of all small-scale miners in the litigation, it is unlikely that we can support every interest. I’m sure there must be a fair number of interests even outside of our industry that are not been adequately represented in the litigation.

It is especially important that if there is a class of miners out there who believe that we are not already adequately representing them, certainly we should allow them an opportunity to be heard. None of us should make the mistake of believing we have the only answer, or even the best answer. Who knows; perhaps Mr. Eason’s approach will be the winning argument before this is all over. And even if it isn’t, we should applaud his efforts to fight for the industry using arguments that he believes are very important. Clearly, the judge has taken Mr. Eason’s material seriously enough to allow him a hearing.

2) The Klamath River is still running at storm flows. The dams are full and letting enough water out to cause the river to run about 8 feet higher than normal summer levels. The Scott River is discharging muddy water into the Klamath, dropping underwater visibility to zero. It is like we are in the middle of a very large winter storm! Even most of the high-banking areas are underwater!

So even if the judge struck down the DFG/Karuk Agreement last week as we had hoped, most of the river is still too high and swift to dredge at the moment. I‘m not kidding; it is really running fast and turbulent! This probably is not going to change very much for at least another few weeks.

Therefore, we really have not lost anything because of this further delay in the judge’s decision.

I keep getting emails from people asking how legal the amended DFG regulations are, since they have not yet been endorsed by the court. I cannot give legal advice because I am not a licensed attorney. All I can do is express my own opinion – which is that I don’t believe the amended regulations are legal, and I don’t believe they can be enforced. Although this does not mean that the game warden will not go down and write you a ticket for dredging out of season under the amended regulations. He probably will! I’m mainly talking about what happens when you get to court. I don’t believe the court will allow DFG to prosecute a case against you for having violated a regulation that was not adopted pursuant to the legal process in the first place. Having said all that, I can tell you from long experience that it is very uncomfortable to be in trouble with the law, even when you are 100% right. Lawyers are expensive. Our organization is already plenty challenged trying to keep from falling even further behind on paying the costs of the ongoing litigation!

We all have to make our own decisions about these things. Because the river is running so high at the moment anyway, my own best advice would be to wait it out for a while longer.

Dave Mack

 

 


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MICHAEL J. BURNSIDE retired on June 3, 2005 after 27 years with the U.S. Forest Service. He was the Assistant Director of Minerals and Geology Management in Washington DC from 2003 to 2005, and led the Forest Service’s hard rock mining, abandoned mine lands, national minerals training, and the geology and ground water programs. Before moving to DC, he was Regional Mining Engineer for the Forest Service’s Northern Region in Missoula, Montana, where for many years he provided technical and legal leadership and assistance to the Northern Region’s National Forests in Montana, Idaho, and North Dakota on mining plans of operation, claim validity, and patent reports.

Prior to the U.S. Forest Service, Mike worked a number of years in base and precious metal exploration for Noranda Exploration, Inc. and Bear Creek Mining Co.; in petroleum exploration for Texaco Oil Co.; and in trona resource evaluation for the U.S. Geological Survey. Mike earned a B.A. in geology in 1970 and an M.S. degree in economic geology in 1974 from the University of Montana.

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