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

 

 


“Thank you for your on-going support in defense of your mining rights. To get started please choose a donation option below…”

 

Purchase Tickets for the next legal Fund-raiser Drawing


 $10.00 each – Enter the number of tickets you wish to purchase into the quantity field then click “Update” before checking out.

Our office will 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. Your contribution to The New 49’er Legal Fund is tax-deductible. The New 49’ers Legal Fund is a 501(c)(3) nonprofit tax-exempt organization based in Happy Camp, California.

Make a “one time” or “recurring” donation to The New 49er Legal Fund





You may donate any amount you choose. Your contribution to The New 49’er Legal Fund is tax-deductible. The New 49’ers Legal Fund is a 501(c)(3) nonprofit tax-exempt organization based in Happy Camp, California.


the-new-49er-legal-fund
27 Davis Road / P.O. Box 47
Happy Camp, CA 96039
(530) 493-2012

email: new49ers@goldgold.com

 

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.

 
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

 

 
 
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.”