Dear Assembly Member:


Dear Governor Schwarzenegger:

Please vote no on SB 670 (Wiggins)

  • The EIR-update, ordered by the courts, and subsequently funded by the State, is now underway.

  • The Department of Fish & Game just issued a Decision stating that existing biological information does not justify imposition of Emergency Regulations upon suction dredgers.

  • Suction Dredge Mining has not caused the decline of the salmon population along the California Coast. None of the reports on the decline of the Salmon population issued blame upon suction dredge mining.

  • The 1994 EIR found that suction dredging under existing regulations provide positive impacts; among other things, creating additional salmon spawning habitat by loosening concretized river gravels. Salmon runs are on the upswing in the Klamath River.

  • There is no scientific evidence to support shutting down a legal and legitimate industry across the State of California before an update of the existing the EIR is completed, particularly when prior studies fail to demonstrate any link between local salmon populations and suction dredge mining.

  • Suction dredge mining is already limited in California to a short season that keeps the miners out of the rivers and streams when salmon redds are present (where the eggs are deposited). There is no suction dredging allowed when salmon are spawning. There is no suction dredging allowed on the Sacramento River, where salmon populations are presently in decline.

  • A moratorium on suction dredge gold mining in California will violate the private property rights of thousands of Californians who have federal mining claims along the rivers and streams, and will likely result in very significant “takings” liability against the State.

  • The average small scale dredge-miner spends thousands of dollars per month when mining. Much of this money is spent in local, rural economies like Siskiyou County where mining is popular. Tax revenues generated from expenditures such as fuel, groceries, camping, and mining supplies, means that rural counties and the State of California benefit as well.

Dave Mack

“This is probably our last chance to kill a suction dredge moratorium in California!”



Dear Fellow Gold Prospector,

Assembly Bill 1789 (includes anti-suction dredge provisions) will be attached to the full California budget bill which will be voted upon by the California legislature sometime within the next few weeks.

target=”_blank”>Here is a short summary from Pete Conaty. Here is a letter to the California governor which our attorney has already written on our behalf. Here is a more complete explanation of our strategy on how to defeat this harmful attack upon our industry, and how you can help.

We need your immediate help in sending a letter, fax or email to Governor Arnold Schwarzenegger, asking him to please veto the harmful anti-dredging language included within AB 1789.

We must either kill this rider right now, or there is a good chance that suction dredging permits will be adversely affected in California next season!

Here is a ready-made message (email, fax or letter) in opposition to AB 1789. It is better if you just use this sample to write your own message. But if you do not have time to do that, please at least copy the text from our sample message over to create your own fax, letter or email to the Governor.

If you don’t know how to copy and paste material off the Internet, please click here.

To make certain your message actually makes it to the Governor’s desk and the other lawmakers, our lobbyists are asking that you direct them to one of the following addresses:

Pete Conaty & Associates
1107 9th Street, Suite 530
Sacramento, CA 95814

Or Fax your message to: (916) 492-8957

Or email your message to:

Our lobbyists will make certain that your message is hand delivered to the Governor’s office and other key locations!

Important: Even though you send your message to our lobbyists, the heading of the message should be addressed to Governor Arnold Schwarzenegger as shown in our sample message.

This is probably our last chance; please help us kill this harmful legislation now!

Very important: You must include your own return postal address on whatever letter, fax or email that you send to the Governor. That is the only way that he can recognize and weigh the importance of your communication!

Thank you very much for your help in this very important matter!

Dave McCracken


The New 49’ers27 Davis Road, Happy Camp, CA 96039 (530) 493-2012

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.