Dave Mack

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

Hello Everyone,

We will be firming up details better as we move forward with this, but here are the facts as we know them:

1) At just about the same time that the Karuks lost their lawsuit in Federal Court (suit to stop in-stream mining within the Klamath National Forest) last spring, they quietly filed another lawsuit against the California Department of Fish and Game (DFG) to stop in-stream mining within the Klamath National Forest.

2) The reason we never heard about the pending litigation in California, is that the Karuk’s chose to file their lawsuit down in the bay area, far distant from the specific areas of mining they are attempting to shut down. According to DFG, it is not their policy to inform the communities which could be negatively impacted by ongoing litigation, even when settlement agreements might affect those communities.

3) More recently, DFG and the Karuks came to a settlement agreement within the litigation. We have not yet been able to obtain a copy of that agreement, because the Karuk’s refuse to give us a copy, and DFG has not responded to our request for a copy.

4) But we do have some idea of how the proposed settlement will affect us, because DFG has already begun to implement modified dredge regulations as they apply to the waterways within the Klamath National Forest.

5) According to the modified regulations which are now being sent out by DFG, the Klamath, Scott and upper Salmon rivers have been reduced to a dredging season between 1 July through 15 September – and all dredging has been eliminated along the lower Salmon River, Indian Creek, Elk Creek, and other waterways. You can read the notice in the beginning of the DFG regulations.

6) All of this without a single notice to the thousands of people that will be negatively impacted by these changes!

The existing DFG dredging regulations are supported by a full Environmental Impact Statement (EIS) that was completed during the mid-1990’s. That entire process played out over the course of several years, with representatives from the mining community, environmentalists, organized rafting groups and many others taking an active roll in the process. The California Administrative Procedures Act (APA) requires State agencies to follow a very structured public process before it may adopt or change any regulations that could have a negative consequence upon communities within the State.

Through the course of this litigation, we are now going to find out if California law allows a State Agency to set aside all of the work that has been accomplished through a public process like this, and just give it all away to radical environmentalists in a (behind closed doors) court settlement – without so much as a single word to the thousands of people who will lose property rights. My best guess is that they do not have the authority to do that!

As this negative situation directly impacts upon the rights of our members, and we are already in litigation with the Karuk Tribe, we have agreed with other leaders within the greater mining community that The New 49’ers will take the lead in fighting these modified dredge regulations that have just been issued by DFG.

We have already retained James Buchal and some of his associates to represent us. James was the lead attorney who helped us defeat the Karuks earlier this year in the federal litigation. He also helped small-scale miners in southern Oregon defeat similar litigation by the very same radical environmentalists just within the past few months.

The good news is that our attorneys have already contacted the Court where this State litigation is pending, and the settlement agreement (which DFG is already implementing) has not yet been signed by the judge! Our attorneys have already alerted the judge in this case that miners will be negatively impacted and wish to be heard before any judgment or settlement is made final. While I have not seen anything in writing, I gather that the judge is going to allow us to make a presentation in a hearing scheduled for 20 December.

While we are still studying this case, and we will need to listen closely to the advice of the experts we have hired to help us, we will be pushing to have the settlement agreement withdrawn, and DFG’s modified dredge regulations withdrawn until conclusive proof is presented that:

1) Dredging activity under the pre-existing regulations is creating some meaningful amount of harm to the COHO Salmon.

2) That modified regulations will protect those specific concerns in such a way as to create the least amount of cost or damage to the user groups and communities which will be affected by the modified regulations.

3) That all persons who will be affected by regulatory changes are given a reasonable opportunity to become involved.

I could be wrong about this, but I believe DFG does not have the authority to impose further restrictions upon suction dredgers without going through the full APA process, unless they can demonstrate that emergency changes to the regulations are justified – by presenting conclusive evidence of harm to a protected species.

All the Karuks ever presented in the federal litigation were generalities. No specifics.

Generalities won’t do!

As long as the judge in the existing litigation will hear us, we will be pushing to set aside any changes to the pre-existing dredge regulations until DFG can demonstrate that an actual emergency does exist and can support the concern with specific information.

If it s too late in the existing litigation to be heard, we will need to file a lawsuit of our own against DFG for violating the Administrative Procedures Act and the California Environmental Quality Act. Both of these important laws require DFG to include us in any process that will affect our business. We have not been included!

If it is not already on the books (and it ought to be), it is time to get some clear case law published that State agencies have no authority to write off the whole public trust by selling out the rights of others to radical extremists in a court settlement! What good does it do to go through the whole public process, if attorneys can later go behind closed doors and decide to give it all away in a court settlement?

I hope you guys agree with me in this plan, because it is going to cost money that we do not have in the bank, yet.

Fortunately, we all stepped up to the plate and we were able to pay off all our earlier legal expenses within a short period of time. I am very thankful for that, because now we have earned some credibility with the specialists who give us support when we need it. It was because of that credit that we have been able to react so quickly in this case. We have our foot in the door because the settlement agreement between DFG and the Karuks has not been signed off by the judge yet.

By the way, we also have found out that the Karuks have no federally-recognized fishing rights. Yet DFG has a policy of allowing them to net salmon out of the river all they want, without any kind of fishing license. The Karuk’s are netting Salmon out of the river and killing them at the very same time the COHO salmon they wish to protect is migrating upstream to lay its eggs. So while DFG has made a settlement behind closed doors to curtail the suction dredging activity (not a single recorded case of a dredger ever harming a COHO salmon), they continue a policy of allowing Karuks to net out as many salmon as the want — even though it is directly against the law!

Does this make you guys as mad as it makes me? I agree with several of the forum posts that it is time for the miners to take an offensive stand against our adversaries. This looks like a good place to start!

For our part, winning this battle is mostly going to be about raising money to pay the specialists on our side. So, once again, I am putting out the call for you guys to please raise at least several thousand dollars as quickly as possible. We need to get ahead of the curve on this one!

I especially want to thank Harry Lipca who always seems to be one of the first in our industry to detect potential problems coming our way.

Also, 49’er Mike who has worked tirelessly on our behalf since this problem has surfaced. Mike is one of the best critical managers that I know. We are really lucky to have him on our team!

More soon, as the news develops.

Dave Mack

 

By Michael Burnside, June 17, 2005

In 1897, Congress passed the Organic Act, which established the National Forest System and the purposes for which it would be managed. In regard to mining, the 1897 Act said that while the Forest Service couldn’t prohibit activities reasonably incidental to mining under the 1872 General Mining Law, the Forest Service was authorized to create reasonable rules to regulate the adverse effects of mining activities on the National Forests, and miners had to comply with those rules. In 1974, the Forest Service finally wrote those regulations. Since 1974 was the first attempt at rule making to oversee the surface effects of mining, the rules had imperfections and there were concerns over the years about their interpretation and application. But the Forest Service was largely consistent in how it interpreted them and in the manual direction it issued to apply its 36 CFR 228A regulations to minimize adverse environmental impacts from mining activities. In short, the Forest Service logically focused on the likely impacts of proposed mining activities, and required miners to submit plans of operations for all activities which would likely cause significant surface disturbance, regardless whether those activities involved mechanized earth moving equipment or the cutting of trees.

Activities which do not necessarily involve mechanized earth moving equipment or the cutting of trees could include construction of ore processing mills and mill sites; residential construction and occupancy; major hand excavation of holes, trenches, and pits in stream areas; road and bridge construction; disposal of mine tailings and other wastes; signing and fencing to restrict public use; diversion of water; and use of sluice boxes; storage of vehicles; and off highway vehicle use. While none of these activities may involve mechanized earth moving equipment or cutting of trees, they obviously could cause significant surface disturbance. Inability of the Forest Service to regulate such activities could result in significant impacts to NFS lands and resources and would violate the stated purpose of the 36 CFR 228A regulations to minimize adverse effects from mining. Numerous court decisions over the years, including 1981 US v. Weiss; 1989 U.S. v. Doremus; 1986 U.S. v. Brunskill; and 1990 U.S. v. Burnett; had upheld the Forest Service’s authority to apply its regulations in this manner and for this purpose.

In 2003, the judge who issued the Lex decision focused on the wording in one section of the Forest Service’s 1974 regulations and interpreted it in a manner that was directly contrary to how the Forest Service had been historically interpreting its regulation. In summary, the Judge said that based on the words the Forest Service had used in its regulations in 1974, it could not regulate operations which do not involve the use of mechanized earth moving equipment, such as bulldozers and backhoes, or cutting of trees.

As indicated previously, if this 2003 judicial interpretation of the 1974 rule had been allowed to stand, it would have overridden other language in 36 CFR Part 228 Subpart A which required miners to file a plan of operations for significant surface disturbing activities. The Lex court’s interpretation of the Forest Service’s rules conceivably could have allowed construction and operation of mills; deposition of tailings and mine waste; construction and occupation of residencies and buildings; and a long list of other examples, all without Forest Service oversight or bonding. The effect of such a broad exemption would have been contrary to Forest Service statutory authority and obligation to regulate mining on National Forests, and almost certainly would have caused a major adverse public reaction to such unregulated mining activities on public lands.

The judge who wrote the Lex decision was sympathetic with the dilemma his decision placed upon the Forest Service. The court referenced the Forest Service’s continuing authority to write regulations, and suggested that the Forest Service modify the 36 CFR 228 A regulations to fix the situation. Rather than appeal the Lex decision, which was indeed an option, the Forest Service believed the better long term solution was to do as the judge suggested and revise its regulation, which resulted in this final rule. The Forest Service used this situation as an opportunity to clarify its rules and address issues raised in the extensive public comment on the rule.

The June 6, 2005, Federal Register notice with the new rule at 36 CFR 228.4(a) and its Preamble contains several things that miners in general and small operators in particular should take note of:

1.) The Rule has been reorganized to make it flow more logically and to parallel the progression of activities from low impact or no impact to those requiring a plan of operations.

2.) The Preamble acknowledges that there is some confusion about how these regulations apply to “recreational miners”, and that some opponents to suction dredging assert that recreational mining is not legal under the mining law. The Forest Service makes it clear in the Preamble that it does not matter how operations are described, whether as recreational or commercial. As long as the operations are all reasonably incidental to mining, the same rules apply to all miners.

3.) Some members of the public have argued that a plan of operations should be required for any suction dredging operations and some miners have argued that suction dredging should be exempt from a Notice of Intent or a Plan of Operations. The Preamble explains that a “one size fits all” determination cannot be applied to suction dredging, and it must be made on a site-specific basis because of the great variability in circumstances and resource sensitivities on National Forests. Therefore it is possible that in some settings, a suction dredge operation may be exempt (perhaps under 228.4(1)(vi)) from needing a notice of intent or plan of operations and other circumstances where a Plan would be necessary if the operation would likely cause a significant surface disturbance.

4.) The new rule does not change bonding or other enforcement provisions available to the Forest Service against miners. Those remain the same as they have always been.

5.) The Preamble explains these regulations do not preclude or conflict with California State suction dredging permits, and that the state and federal permitting can and should be read together.

6.) The Forest Service has committed in the Preamble to train Forest Service mineral administrators to insure consistent interpretation and application of this new rule. In addition, the Chief of the Forest Service issued separate guidance in November 2004 that all mineral administrators must become trained and certified in the application of these regulations.

7.) The Preamble clarifies that the term “significant” as used in 36 CFR 228A is NOT used in the same way as under the National Environmental Policy Act (NEPA). The Preamble also explains the standard for determining significance under 36 CFR 228A. Any District Ranger’s decision that a proposal “…will likely cause significant disturbance of surface resources…” must be (1.) demonstrably based on past experience, direct evidence, or sound scientific projection; that would (2.) lead the District Ranger to reasonably expect the proposed operation to result in impacts to National Forest System lands that would need to be avoided or mitigated by reclamation, bonding, timing restrictions, or other measures to minimize adverse effects.

8.) The Preamble explains that stream beds in National Forests which have been adjudicated and determined to be navigable when the particular State entered the Union are exempt from Forest Service regulations. All others are subject to Forest Service regulation. Forest Service Regional Offices or the appropriate states should be able to provide a list of those streams.

9.) The Preamble explains that in spite of the original wording in the 1974 rule stating a Notice of Intent must be filed for any disturbance, careful research of the record for the 1974 rule revealed there was never any intent to require Notices of Intent for all activities which might cause a disturbance. The original intent was to require a Notice of Intent for only those operations which might (but are not likely to) cause SIGNIFICANT disturbance to surface resources and thus might require the filing of a Plan of Operations. Therefore, this final rule was changed to include the word “significant” in the context of requiring a Notice of Intent. Only operations; which might cause significant disturbance now require the filing of a Notice of Intent.

The Preamble also emphasizes that a Notice of Intent is not a regulatory instrument, permit, or “mini-plan”. A Notice of Intent is simply a notice the operator provides to the Forest Service to alert them and to help the process along, since it is in both their interests to do so.

10.) The Preamble clarifies that the trigger for a Notice of Intent is an operator’s reasonable uncertainty as to the significance of the disturbance the proposed operations will cause on National Forest System resources. If an operator reasonably concludes operations will not cause significant disturbance of NFS resources, the operator is not required to submit an NOI or POO.

The District Ranger may disagree with this and require a Plan of Operations. However, the Ranger’s decision must be based on past experience, direct evidence, or sound scientific projects that would lead the Ranger to reasonably expect the proposed operation to result in impacts to National Forest System lands that would need to be avoided or mitigated by reclamation, bonding, timing restrictions, or other measures to minimize adverse effects. Under Forest Service appeal regulations, an operator would have the right to challenge this decision.

11.) The new rule clarified and added to the list of activities exempt from filing Notices of Intent or Plans of Operation, including the following:

a.) Under the new rule, vehicle use on existing roads, removal of small mineral samples, marking and monumenting claims, and underground operations which will not cause significant surface resource disturbance, will continue to not require an NOI or POO.

b.) The new rule added specifics to the exemption from filing a Notice of Intent or Plan of Operations at 228.4 (a)(1)(ii). Gold panning, non-motorized hand sluicing, battery operated dry washers, metal detecting, and collecting of mineral specimens using hand tools have been added.

c.) The Preamble clarifies the wording in this exemption about removal of a “reasonable amount of mineral deposit for analysis and study” to mean removal of amounts consistent with commonly accepted standards for taking stream sediment samples such as those listed in the U.S. Bureau of Mines publication, “Standard Procedures for Sampling” (sample size of 200 gms.), and Peter’s “Exploration and Mining Geology” (50 to 100 gms. every 50 to 100 meters). Peters recommendation for hard rock samples is 500 gm. to 2 kg. in size.

d.) The final rule also includes a new exemption to insure that miners are not treated to a different standard than other Forest users. It provides that miners are exempt from filing a Notice of Intent or Plan of Operations when their proposed activities have effects which are not substantially different from other non-mining activities for which no prior permission or authorization is required. If the Forest Service allows activities by other Forest users without requiring a permit, and those activities have the same effects as those conducted by miners, the miners’ activities should be exempted from an NOI or POO as well.

In summary, the discussion in the Preamble is well worth reading since it explains the background and proper interpretation and intent of this new rule.

 
Dave Mack

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

Hello Everyone,

Here is a short update on the progress of the Karuk lawsuit against the California Department of Fish & Game (DFG):

We have now created a special page for this ongoing situation on our web site. The Karuk complaint against DFG is now up there. I’m sorry that the quality of our copy is not very good.

Under the New 49′er banner, our attorneys filed 2 briefs in the case this past Friday, 16 December. The primary brief is our Motion to Intervene in the litigation.

As I explained last week, we understood that DFG and the Karuks had already worked out a settlement to resolve this litigation — even though they refused to give us a copy.

There was a hearing scheduled this Tuesday (20 December) whereby I believe the plan was to try and get Judge Sabraw to formally endorse the settlement and thereby end the litigation. Our attorneys were present at the hearing pressing for our right to become involved, since it is actually our mining rights on the table. They also pressed the judge to not endorse the settlement between DFG and the Karuks.

Because of our pending Motion to Intervene, Judge Sabraw chose to not adopt the proposed settlement. Instead, she scheduled January 26, 2006 to hear our Intervention Motion and also to hold a hearing on the proposed settlement/joint stipulation for entry of judgment. We have until January 10, 2006 to file an Opposition to the Settlement. Our attorneys are already working on it.

We got in by the skin of out teeth on this one, you guys; just made it! Incredible how fast we organized to get competent attorneys representing our interests in this situation! We should acknowledge ourselves for doing good so far in this. But it is not over yet!

Please keep thinking up ideas on legal fund-raising, because we are running up a pretty big tab!! We don’t have any other choice!

I hope to post a copy of the Settlement Agreement between DFG and the Karuks real soon. I’m still waiting to receive a copy.

Thanks a lot for being there you guys!!

Keep your chins up,

Dave Mack

 

Nov 232011
 
 
 
Dave Mack

Here is some information concerning the Final Rule adopted by the U.S. Forest Service concerning who, how and when it becomes necessary to submit a Notice of Intent or file an Operating Plan.”

 

By Dave McCracken, General Manager

6 December 2009

The State of California recently passed a law which has placed a statewide moratorium on suction dredging in California until the Department of Fish & Game (DFG) completes an updated Environmental Impact Report (EIR). This EIR process has already begun. Click here for more information.

The Environmental Impact Report (EIR) on suction dredging in California is being completed through a CEQA Process (California Environmental Quality Act); which, based upon best available science, requires the authorities to identify any important concerns (measured against some “baseline”). Then, those concerns must be addressed through implementation of regulations which are least-restrictive upon people and economic activity. This is not new to us, since we actively participated in the earlier EIR which was completed during 1994.

DFG began the public process on 26 October by circulating a 107-page Notice of Preparation (NOP). The NOP is mostly made up of an “Initial Study Suction Dredging Program,” which is also being referred to as the “Initial Scoping Document.” This formal review has basically identified every known potential negative impact which could be associated with suction dredging.

The Scoping Document has been sent around to all or most government agencies, environmental groups, mining interests and other known “stakeholders” who may have some interest in the progress and outcome of the EIR. Interested parties were provided an opportunity to comment on the Initial Scoping Document. The deadline for written comments passed on 3 December. This was the initial opportunity for us to make comments voicing our concerns about how the process is moving forward or any initial conclusions DFG has made that we believe are incorrect within the Scoping Document.

The New 49’ers submitted written comments expressing several areas of concern. We have created a special page on our web site so you can view our comments, and so you can follow along and participate in this important process as it moves forward.

One of our most important initial concerns is that within the Scoping Document, DFG says that they intend to use the existing moratorium (on suction dredging) to create a baseline of “no dredging activity” in order to gauge the importance of any potential impacts.

Everything leading up to this process (years of legal wrangling) resulted in several court decisions and Settlement Agreements whereby DFG pledged to perform the EIR specifically for the purpose of determining if existing suction dredging regulations have been providing adequate protection for fish. The moratorium has stopped existing dredging activity only until existing regulations are re-evaluated. More than 2,500 suction dredge permits were issued by California during our 2009 season. But DFG has decided to create a baseline in the EIR to evaluate all of the potential impacts against zero activity, choosing to completely ignore the existence of our $60million annual business! We have had a viable suction dredge industry in California for the past 30 years. Now DFG is going to try and evaluate future impacts against a baseline of zero?

Do you guys get the idea that the State of California is deliberately trying to kill off its own private business, or is it just me?

We felt this issue was so important, and because there are serious legal implications, we paid our attorneys to author comments on our behalf concerning this particular issue.

Another major problem in the Scoping Document was in the way DFG has projected volumes of streambed which are processed by suction dredgers. Basically, they took the volume capacities advertised by the dredge manufacturers and multiplied those by an average number of hours per day, multiplied by so many days per week, multiplied by the number of permits they sold in 2008. You guys get the idea? DFG thinks we just go down and suck up sediments which mostly just pass through a suction nozzle! They have no idea that we are taking apart compacted streambeds in which 85% of the material must be moved out of the excavation by hand (or by power winch in the case of large rocks) because it is too large to pass through the nozzle.

This is proof-positive that the people who are spending $1.5 million performing this Environmental Impact Report on suction dredging have no direct experience of their own with the activity! No wonder California is bankrupt!

Since projected volume capacities are what DFG will use to place a negative value upon the potential impacts from suction dredges, and their estimates are many magnitudes greater than what really happens in dredging, I personally devoted some substantial work into comments on this subject.

We also made comments on other very important issues. For example, the Scoping Document seems to indicate that DFG is going to completely ignore all of the biological discussions and conclusions which evolved from the EIR which we worked so hard to complete in 1994. So, contrary to their promises in Court, rather than take a hard look at the well-established, earlier biological conclusions to see if they are providing adequate protection for fish, it appears that DFG now intends to scrap all the earlier work and begin the entire biological discussion over again from scratch. Here are our initial comments about that.

On top of that, despite repeated formal Declarations to the courts and California legislature that they have new data which suggests harm to fish, we cannot find anything new in the Scoping Document. It looks to us like they just want to rework all the same old arguments, once again.

DFG concerns over mercury are the exception to my statement in the paragraph above. This all stems from a study which the State performed several years ago where they proved that a standard suction dredge recovered 98% of the mercury which they sucked up out of an established mercury hot spot (there were visible pools of mercury on the bedrock). Of course, little or no credit is given to the 98% clean-up rate. All of the attention is on the 2% loss of mercury in the tailings. This is not mercury the dredgers put into the stream, have you; the mercury was already in the stream. The State’s argument is that because the dredge sucked it up in the first place, it is a water quality violation to discard any mercury back into the waterway. Leave it to the State to decide that it is better to not remove 98% of the mercury which dredgers rarely encounter!

Environmentalists argue that because a suction dredge only recovered 98% of the mercury out of an established waste site, all suction dredging should be stopped across the entire state! We submitted comments on this from myself and also from some other specialists in this field.

We also felt it important to comment on the continuous misuse of the term “recreational” in relation to mineral exploration and mining activity. It is common for State officials to confuse small-scale gold exploration activities as just another recreation, no different than any other. Federal law provides every American the right to search for minerals on any level which you choose to – and to claim valuable deposits which you find on the public lands. Whether or not you are enjoying the activity has nothing to do with it. Even a total anti-mining activist has the right to claim a valuable deposit if he stumbles upon one. But he or she would argue that you don’t have the right simply because you are enjoying the activity? Give me a break!

I encourage you to take the time to read our comments if you can find the time.

We have done our best to set the record right. Now we will wait and see how seriously DFG will entertain our comments. The more seriously they treat them now, the less of a battle we will have later if they decide to just skip over them as unimportant.

The purpose of the CEQA process is to get at the truth. But we have seen time and time again (nearly every time) where truth and justice has not been part of the State process, so we will have to remain vigilant.

A draft EIR is the next step in the process. We can expect to see that during this next summer or fall (2010). That will be followed by another opportunity for public input. A final EIR is not expected until spring 2011 at the earliest.

Completing the Administrative process is the one thing that surely is going to get dredgers back in the California waterways. We are right on top of this.

 

 

By Dave McCracken

On June 6th, the U.S. Forest Service (USFS) published its Final Rule on Section 228.4 in the Federal Register. Section 228.4 is concerned with when it is necessary for a miner or prospector to submit a Notice of Intent (NOI) or Plan of Operation (PoO) with the USFS.

For around the past 30 years, Section 228.4 has said that miners or prospectors only have to provide notice to the USFS of our activities when impacts upon the surface resources might become significant.

As a result of the judge’s interpretation of this language in the recent landmark case of Lex & Waggener, last summer, the USFS implemented an Interim Rule with new guidelines for Section 228.4. Many of us within the industry objected to the Interim Rule, because it basically said that a NOI was required whenever a miner or prospector would potentially create any surface disturbance on National Forest land.

The USFS allowed a public comment period after publishing its Interim Rule, and they had at least one public scoping meeting, which took place in southern Oregon. That meeting was sponsored by the Waldo Miners in Cave Junction, Oregon.

The full version of the notice in the Federal Register condenses the thousands of individual comments which the USFS received concerning the Interim Rule into common categories, and addresses each type of comment with a response. These formal responses will become important later, in the event there are questions about what was intended by the Final Rule.

Michael J. Burnside, who was the U. S. Forest Service Assistant Director of Minerals and Geology Management in Washington DC from 2003 to 2005, has presented us with a substantial explanation about the history behind and development of the Final Rule.

For those of you who are taking an interest in the reasoning behind how the Final Rule was created, or what it means, I strongly suggest that you read through the entirety of the notice with an open mind. The rational behind the Final Rule is substantial, so I will not repeat it here. Rather, I will go into of the main points which I feel are important to small-scale miners:

1) Small-scale miners objected strenuously to the “any surface impact” concept of the Interim Rule, basically arguing that the USFS should not waste its limited resources processing NOI’s from miners that were not creating a significant disturbance on Forest Service land. We also argued that miners or prospectors should not be burdened with a requirement to notify the USFS of activities which do not create a significant impact on surface resources. As a result, the Final Rule returned to the “significant disturbance” concept.

Here follows a statement in the comment-section of the text on this subject:

Page 32729, left column: “If the operator reasonably concludes that proposed operations will not cause significant disturbance of NFS resources, the operator is not required to submit a notice of intent to operate.”

2) We also objected to the idea that miners or prospectors should be required to provide a NOI for any activity that may cause an impact upon Forest Service land that was similar to other users of the Forest that were not required to obtain any special-use authorization. Examples were given of the use of ATV’s, boats or rafts, camping and otherwise occupying the Forest while actively pursuing mineral exploration activities. As a result, the Final Rule specifically excludes from the NOI-requirement any prospecting activity which creates surface disturbances on par with other users of the forest who are not required to obtain special use authorization.

3) Within the comment-section of the notice, the USFS explains that they do not distinguish between commercial or, so-called, “recreational mining activity” or different types of mining clubs or groups. This position is consistent with our arguments that the mining law allows everyone equal rights to prospect on the public lands and lay claim to valuable minerals when they are discovered.

4) We complained that prospectors were having difficulty in some areas where the USFS was considering any prospecting activity a “significant impact;” even panning, metal detecting and non-motorized sluicing or dry-washing! As a result, the Final Rule specifically excludes these types of small-scale prospecting activities from the NOI requirement.

Here follows a statement in the comment-section of the text on this subject:

Page 32729, right column: “However, it is possible to identify some category of which will never require the prior submission of a notice of intent to operate, and the Department agrees the final rule should identify those categories with more specificity as suggested by the respondents.”

These are activities that are specifically excluded from the need to ever file a NOI. It means that under no circumstances do panners, non-motorized sluicers or electronic prospectors need to file an NOI; they do not have to make any contact with the USFS for these types of activities.

This is very good for the lower Salmon River area, by the way. Most of the activity going on down there two seasons ago involved the panning very rich pay-dirt located within the exposed bedrock cracks and irregularities along the edges of the river. Now, there is no question that small-scale prospecting and short-term camping along our mining claims do not require any NOI to the USFS in advance of the activity.

5) Any other mineral-related activity which is not likely to cause significant impact is excluded from the need to file a NOI. This is good for the industry. Naturally, whether this includes motorized sluicing (high-banking) or dredging will depend upon the situation surrounding the location where the activity tales place.

While such activity in most cases (according to my own judgment) would not create a “significant impact,” the USFS reasoned within the comment-section of the notice that there is the possibility of significant impact in some circumstances (such as when there is critical habitat present which supports a listed species), so they could not categorically exclude motorized mining from the NOI requirement. But they also did not specifically make a NOI a requirement of these activities. The Final Rule says that the miner or prospector should provide a NOI if he or she reasonably concludes that there may be a “significant impact.”

I should point out that within the Karuk litigation, the USFS has taken the position that they have no authority over mineral-related activity on Forest Service land that is not creating a significant surface disturbance.

Some people are already misinterpreting the Final Rule, assuming that motorized sluicing and dredging requires a NOI, because they are not specifically on the list of exclusions. However, a careful reading of the Rule says that any type of mining activities only require a NOI where there is likelihood of “significant disturbance.”

6) No penal provision has been added to Section 228.4. If I have this right, this means that the USFS cannot write a criminal citation to a miner or prospector who fails to provide the USFS with a NOI or Operating Plan. For more information on this subject, I suggest you read what the judge had to say in the recent McClure decision.

Some would argue that the USFS should not have the discretion to decide what is, and what is not, a “significant surface disturbance” concerning mineral-related activities on Forest Service land. There are also several sub-sets of arguments along these lines, such as whether or not the USFS even has authority to regulate mining activity within the high-water marks of western rivers in the first place, and what constitutes a “navigable river.”

These arguments have also been raised (but I doubt they will be resolved) within the Karuk litigation.

Until those issues are resolved to everyone’s satisfaction within a court of law, it is clear that the USFS believes it has the authority to regulate mineral activity which results in a significant impact upon surface resources, and they are moving forward with the presumption that they do. Therefore, they are taking responsibility to manage small-scale mining activity in accordance with this Final Rule.

Some would argue that miners and prospectors should be allowed to do whatever we want. As nice as that might be, I don’t think that argument is supported by controlling case law. The general mining law supports us a great deal. But not so much that we can turn our backs upon the rest of the world. According to its own interpretation, the USFS is charged with the responsibility of balancing use of the public lands at issue here.

The potential for problems do exist (as will always be the case) where there may be a difference in opinion between the USFS and a miner or prospector over what constitutes a “significant surface disturbance.” My own interpretation is that if such disagreements cannot be resolved between the USFS and the miner (especially in the wake of the recent McClure decision), if the USFS feels so strongly about it that they want to stop the miner from pursuing his or her mining activity, the USFS will be required to prove its position to a civil court (this is acknowledged within the comment-section of the notice).

So in essence, it appears the USFS has the authority to decide, but they must be prepared to prove their position in court before they can finally prevent the prospecting activity. This seems like a pretty reasonable balance to me!

The Karuks are suing to prevent the USFS from allowing any mining under a NOI. That case will be decided around the end of June, 2005. The Interim Rule required a NOI for almost any prospecting or mining activity. The Final Rule requires a NOI only for activity that will create a significant surface disturbance. As the USFS has determined that most of our small-scale mining activity does not create a “significant impact,” I would say that this Final Rule has been published at a good time for us.

While we can debate amongst ourselves how much better the Final Rule might have been if we wrote the final language ourselves, we should not ignore how much worse it would have been if the USFS decided to hold onto the language contained within the Interim Rule! Or they might have even come up with something worse than the Interim Rule!

I suggest we might want to acknowledge that the USFS did pretty well here to balance competing interests while continuing to encourage mineral development – which is their mandate from congress. We should be happy that there are officials within the USFS that take this mandate seriously!

I would suggest we move forward, continue to organize ourselves as we have been doing, pool our resources, and prepare to assist small-scale miners in those instances where we believe a local determination of “significant disturbance” is not reasonable. These are things to resolve in court. No amount of language in a Rule will prevent some disagreements from happening.

 

Dave's Gold

New 49′er Legal Fund-raiser!

There will be 25 prizes in all:

Grand Prize: 1-ounce of Gold!
Four ¼-ounce Prizes
Twenty 1-pennyweight prizes

Dave MackThis is gold which Dave Mack dredged from the Rogue River during the 2010 Season. Dave has authorized our office to automatically generate a ticket in your name for every $10 legal contribution we receive ($100 would generate 10 tickets, etc).

There is no limit to the size or frequency of your contributions, or to the number of prizes you can win. The drawing will take place at our weekly potluck in Happy Camp on 2 July, 2011.

Legal contributions can be arranged by calling (530) 493-2012, by mailing to The New 49’ers, P.O. Box 47, Happy Camp, CA 96039, or by clicking Here.

 

The New 49′ers Prospecting Association,
27 Davis Road, Happy Camp, California 96039 (530) 493-2012 www.goldgold.com

 

 

August 27, 2008

The Honorable Arnold Schwarzenegger
Governor, State of California
State Capitol Building
Sacramento, CA 95814

RE: Opposition to proposed language within AB 1789 to further-restrict suction dredge mining:

Dear Governor Schwarzenegger,

Last year, you vetoed AB 1032(Wolk); a bill that would have required the California Department of Fish and Game (DFG) to close rivers and waterways to suction dredge gold mining without having to follow the administrative process required by the California Environmental Quality Act (CEQA).

It has come to our attention that the proponents of AB1032 are now pushing anti-suction dredging language within Assembly Bill 1798. The language would further restrict or prohibit suction dredge mining on a wide number of waterways within California. The proponents of this trailer bill language are trying to make an end run to reverse your veto of AB 1032 by using the legislative and administrative process to eliminate this activity.

The Assembly and Senate propose to further-restrict or eliminate suction dredge mining until the Department of Fish & Game completes a new Environmental Impact Report (EIR). Because these permits are issued annually, and DFG’s last EIR process took several years to complete, this language would cause great harm to the Gold Suction Dredge Mining program in California, upon which 2,500 miners and their families and mining-related businesses depend, for at least several years; probably longer. In addition to the miners themselves, several rural counties, particularly Siskiyou County, would face significant hardship as a cornerstone of their recreation and resource-based economies is removed further harming the state’s economy at a time when gold prices are at an all time high of between $800.00 and $1000.00 an ounce.

We would like to point out that throughout all of the litigation and other attempts to kill suction dredge mining by anti-mining activists during the last few years, they have yet to show any proof that a single fish has ever been harmed by suction dredgers. This, while the very same people are promoting that the State must continue to issue fish-kill licenses to millions of fishermen! This is clearly a case where special interests are attempting to subvert the political process to eliminate an important part of California’s ongoing, rich heritage; gold mining.

We are asking you to please veto this trailer bill language and allow the continued issuing of Suction Dredge Permits while the required environmental review process is being conducted.

Thank you,

(Be sure to include your full name and address.)

Cc: Senator Dave Cogdill, Senate Republican Leader
Senator Don Perata, Senate President Pro Tem
Assemblymember Michael Villines, Assembly Republican Leader
Assemblymember Karen Bass, Speaker of the Assembly