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

 

Nov 232011
 
 
Dave Mack

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

Hello everyone,

This past week was a busy one concerning the Karuk litigation against the Department of Fish & Game (DFG).

On very short notice, we got the word out last weekend that the Siskiyou County Supervisors would vote Tuesday morning (3 January) on a Resolution speaking out against the way DFG and the Karuks have settled the litigation behind closed doors (deciding upon further restrictions to prospectors). Timing required the Resolution to be taken up without delay; so that if it were passed, the Resolution could be included within the court filings that we will submit this next week. We feel it strengthens our position to have a County government providing the Court with a formal condemnation of this solution that the Karuks and DFG have come up with.

I was impressed and relieved that so many prospectors turned up for the Supervisor’s meeting in Yreka on Tuesday, and I’m sure the Supervisors were also impressed. Some came from hundreds of miles away. Quite a few prospectors from Oregon came down to give us support. As a result, the Supervisor’s hearing room was packed, with prospectors trailing out into the hallway.

Ultimately, the Supervisors unanimously passed a Resolution demanding that DFG follow the correct due-process in making any changes to the suction dredge regulations. They authorized Marcia Armstrong, who is the Chair-person for the Supervisors, to encourage the Superior Court Judge (in the litigation) to not endorse the Settlement Agreement between the Karuk’s and DFG and Order DFG to follow the public process as it is supposed to do. The Resolution also authorized Ms. Armstrong to contact our State Lawmakers and the Governor to request their assistance in getting DFG to follow due process.

From the Supervisor’s meeting, 49’er Mike and I spent two long days traveling to and from Sacramento to meet with one of the attorneys that is representing DFG in the ongoing litigation. Through earlier discussion with our own attorneys, DFG had agreed to allow us access to the documents concerning suction dredging, other than what they consider as privileged and exempt from discovery.

When we arrived at the Resources Department in Sacramento, they had already arranged a room where Mike and I could review the documents, and we were met by around 10 full file boxes of material. Big job!! Mike started at one end, I started at the other, and we met somewhere in the middle. We ended up taking copies of just under 500 pages. This was all copied again for our own files, and then we forwarded everything we received over to our attorneys.

While doing discovery in Sacramento, we were shocked in two ways:

1) The attorney representing DFG told us that the new restrictions to suction dredging are not being adopted pursuant to any of the emergency provisions contained within the California Environmental Quality Act (CEQA) (which would require some formal biological justification). He told us that the regulatory changes are simply being adopted pursuant to a Stipulated Agreement with the Karuk Tribe of California in the ongoing litigation. Just that; nothing more! In other words, DFG believes it has the authority to completely shortcut the full CEQA process by changing our regulations behind closed doors in a quiet settlement with the Karuks. Wow!!

We should all start asking ourselves why anyone should bother going through the whole public process in the first place, if a State agency can simply trade it all off behind closed doors with an extremist group that files a lawsuit?

2) Then the attorney representing DFG told Mike and I that because of the ongoing litigation, most recent documents concerning suction dredging in the DFG files would be withheld from our view under some kind of expanded attorney-client privilege. Therefore, they are refusing to make any of the biological information available to us that supports the reasons why they have restricted dredging seasons or eliminated the activity altogether on some waterways!

Can you believe that?

The California Environmental Quality Act (CEQA) and the California Administrative Procedures Act (APA) require State agencies to adopt or modify regulations through a fair and open process, whereby everyone who is interested in the outcome may participate in the process, and whereby the agency is required by law to carefully consider all relevant material brought forward by the public and finally adopt regulations which resolve perceived problems in such a manner that creates the least amount of difficulty upon those persons who will be affected by the regulations. The process is especially designed to prevent extremist groups from hijacking the system. The documents in the DFG files clearly show the CEQA process was followed when our suction dredge regulations were adopted in 1994. The extremist groups were present. But their concerns were weighed against ours, and final decisions were based upon science which was available for everyone to see.

For lack of being able to come up with a more accurate characterization, I am referring to this present situation as a reverse-CEQA. Here, we have DFG and the Karuk Tribe secretly going behind closed doors and working out how they are going to modify our suction dredge regulations. And now, they are refusing to give us any of the biological information (if it even exists) that they have used to justify the modifications! This is exactly what CEQA was meant to prevent; a case where an extremist group has completely hijacked the system!

Our attorneys are working on it. Our briefing papers to the Court are due in on this upcoming Tuesday (10 January). Then I suspect both DFG and the Karuks will respond with their own briefs. Then we will probably reply.

It is going to be interesting to see how both the Karuks and DFG will try to convince the Court that the miners have no right to intervene in the litigation. Stay tuned, because we will be posting the briefs as soon as we have them!

Meanwhile, once again, I am putting out a request for legal donations. To date, we have brought in around $3,000 since this thing started. I want to express my sincere thanks to everyone who has contributed!

The bills for December legal work will be arriving at any time. My guess is that we will need to raise more money just to pay those. Our attorneys did a lot of work for us last month! This month’s work by our attorneys is really going to run the costs up, because of the exchange of briefs just starting this week, and because of the Court hearing on the 26th.

You guys know that gulping feeling you get when you are spending more money than you have? That’s the way I am starting to feel!

The law is on our side in this matter. Winning is mainly going to be about raising money to pay the specialists on our side to make good presentations to the persons who will ultimately decide the outcome.

You know, if we could just get a $10 donation from every person signed up on this forum, we would be in great shape at the moment!

Thanks for whatever you can do.

Dave Mack

 

 

The New 49’ers Prospecting Organization

27 Davis Road, Happy Camp, CA 96039
(530) 493-2012
www.goldgold.com

U.S. Forest Service
Attn: Director, MGM Staff
Mailstop 1126
Washington D.C. 20250

6 July 2007

Comments on proposed clarification, 36 CFR Part 261:

Dear Sirs,

Our organization presently represents 1,300 active, concerned small-scale prospectors who utilize USFS lands for exploration and development of valuable minerals. While some of our members may submit their own comments, most of them look to our organization to provide comments on their behalf. We are aware that other prospecting organizations have already commented concerning the legalities of what you propose to do. So we will confine our comments to some practical concerns having to do with operations in the field. Thank you for allowing our organization to express the following comments:

1) While we do understand that district rangers desire to possess an enforcement mechanism to more-easily deal with some small percentage of mineral operators (or persons masquerading as mineral operators), we are worried that some districts will abuse the enforcement mechanism to make it even more difficult for legitimate mineral operators to prospect and develop valuable deposits on USFS lands.

Several years ago, when the Final Rule concerning Section 228 was adopted, we were promised by USFS Minerals Staff in Washington D.C. that there would be a very strong effort to ensure that only fully-trained minerals officers would be allowed to manage minerals operations, and such officers would be trained that existing laws instruct USFS to encourage mineral development on the public lands. We were assured that the abusive policies (against mineral developers) adopted by some district and regional USFS staff would be eliminated as a result of an internal push from Washington D.C., mainly through a well-organized educational program.

Years later, we still find ourselves at the hands of some USFS staff that are continuing a hostile management policy towards mineral developers. This is especially true in Northern California with management from the Orleans Ranger District, where the minerals officer (Leslie Burrows) has gone so far as to inform members of our organization that even the activity of gold panning would require a formal NOI which would take as long as 6 months to process before the activity would be “approved.” This, even though gold panning is specifically excluded from any NOI requirement! Miss Burrows and the Orleans District Ranger well-know that hand mining with a gold pan does not require any NOI or approval process from USFS, but they have clearly chosen a policy of discouragement (towards mineral developers), especially to new persons within our industry who are fearful of being in trouble with the authorities. Leslie Burrows is a bully towards mineral operators, and District Ranger, Bill Rice, has made it very clear to members of our organization that he personally has a policy of discouraging mineral operators, because his personal priority is to “protect” the needs of the Karuk Tribe. As part of this discouragement, the Orleans District has implemented a program of placing substantial barriers of dirt and gravel across the road access points to mining claims within the Orleans District where claim owners are able to camp on their own claims. I can send pictures if you would like to see them. Unquestionably, this district has adopted a deliberate and aggressive policy of preventing prospectors from camping upon their own mining claims!

I use this example of the Orleans District to show to what extent, in some places, that USFS district rangers and minerals staff will go to deliberately discourage mineral exploration on the public lands. While the Orleans District provides some of the best mining prospects within the Klamath National Forest, our organization has completely withdrawn all mineral exploration activity from the Orleans Ranger District because the existing district ranger there (William Rice) and his staff, as a matter of very firm policy, deliberately discourage mineral activity.

It would be naïve to believe that Orleans is the only district within the USFS system that has adopted a policy of discouragement towards small-scale prospectors. Providing these districts with a penal provision will allow them yet another tool to push legitimate prospectors out of their districts. This would not be beneficial to the public interest. While I am only guessing at this, I suspect the USFS staff that is pushing Washington Minerals the hardest for a penal provision, are the very staff that are opposed to mineral development within their districts!

With these comments, we are encouraging Minerals staff in Washington to carefully weigh and balance the costs and benefits of creating a penal provision as proposed. How many serious problems really do exist with mineral operators right now that cannot be managed with the civil remedies? Are there any at all? What are the cost of these problems to the surface and environmental values which the USFS is charged to protect? Would there be much additional cost in just continuing with the existing civil remedy, rather than with a penal remedy (where a violation of Section 228 must be proven beyond a reasonable doubt)? Do those costs outweigh the losses to future productive activity on USFS lands which are sure to result from abusive policies in districts which are hostile to mineral development?

Washington Minerals staff is well-aware of the problems small-scale miners have in districts which are hostile to mineral developers.

I would point out that it was the abusive discouragement policy of the Orleans District which brought about the Decision in McClure which undermined the penal provision in the first place. This is important to consider. Because, giving district rangers a penal provision within Section 261 to enforce the provisions of Section 228 will still not resolve the basic problem which some district rangers are trying to solve (which is to push miners out of their districts).

The penal provision was defeated in McClure in the preliminary hearing. Had that been overcome, the Orleans District still would have had to overcome the burden of proving that Mr. McClure was required to obtain an approved Operating Plan. They would have had to prove he was creating a substantial surface disturbance. We don’t believe Orleans would have won that case.

Sometimes, it seems like the Ranger believes that just writing the criminal citation is the solution that will solve everything. I am pointing out that had the McClure case gone to a hearing on the merits; there is a reasonable chance that the end result would have been worse for the Forest Service than the loss of your penal provision. If not from Washington Minerals, then some language will have to come from the Courts that mineral operators cannot be turned out of the forest just because district staff object to the activity!

Those of us that are aware of the intent of congress and the language of Section 228 believe that giving district rangers a penal solution to try and discourage mineral developers will only make the problem worse. The only thing that will solve this problem is better management and education of district rangers and minerals staff from Washington D.C. Perhaps this will only happen after more litigation and direction from the Courts.

Our suggestion: If you are going to provide districts with another tool which could be used to further-discourage mineral development, please also create some very clear language to help prevent abuse. Promises of more and better training and direction from Washington have not produced results! Rather, we would like to see some clear language added into the proposed clarification which makes it more clear that the penal provision cannot be used to prevent any legitimate mineral-related activity which does not rise to the level of a substantial surface disturbance (as clarified within Section 228) which the district ranger or minerals staff must be prepared to prove when prosecuting a criminal citation.

An answer that Section 228 already clarifies this is not good enough. Definitions and exclusions differ between Sections 261 and 228, which will most certainly cause confusion and conflict. We suggest, if Section 261 is going to include a penal provision as a remedy for unauthorized mineral activity or associated occupation, there also needs to be some additional language in Section 261 which clarifies that mineral and associated activity is managed under Section 228; that Section 228 defines when authorization is required; and that those definitions revolve around what constitutes a “substantial surface disturbance.”

This would help district rangers with a tool to more-easily deal with people who are not legitimate mineral operators, or those who need to be brought into a formal Operating Plan when their activities rise to the level of a demonstrable substantial surface disturbance. At the same time, such language will require district staff to possess some level of proof (of a substantial surface disturbance) before issuing a criminal citation.

2) It is necessary for some mineral operators to occupy the national forest, sometimes for extended periods of time. Placing an arbitrary time limit upon how long a mineral prospector may occupy the forest would be counterproductive to the intent of existing mining law. Imposition of a 14-day camping limit upon a prospector who is actively searching for or developing mineral resources in the forest would be an arbitrary and capricious management in context with controlling case law that directs USFS to encourage mineral development.

What happens after the 14 days are up? If the prospector relocates his camp, do district staff then take it to the next step and tell the prospector he can only remain in the forest for a total of 30 days during a year? This would be very unreasonable in the context of “encouragement.”

With today’s cost of fuel and private lodging facilities, forcing a prospector to travel and reside in private facilities while prospecting for valuable mineral deposits some distance away will create economic hardship that would discourage a substantial amount of mineral prospecting. Preventing mineral developers from occupying mining claims while actively working them can create security issues (theft and vandalism of equipment) which will discourage a substantial amount of mineral development. This is especially true, being that any other person would be free to occupy an active mining claim for 14 days without special authorization. Telling a miner that he must abandon his equipment, while others would be allowed to occupy the same location, would be a very unreasonable policy in view of the substantial investment required to develop mineral deposits these days!

If the USFS has a policy of allowing any person to reside within the forest for up to 14 days without special use authorization, what is the problem with allowing mineral prospectors to reside there for longer periods, as long as they are not creating a substantial surface disturbance through the combination of the camping and mineral activity? Once again, we are back to the definitions and clarifications provided in Section 228. A prospector must have the right to look after his or her investment!

While we understand that district staff need a mechanism to deal with problems which can become substantial (sanitation, trash, accumulation of junk, equipment or other belongings) when some prospectors stay around longer, we believe the “substantial” language in Section 228 already addresses this. Let’s please not impose arbitrary time limits upon prospectors whose personal imprints upon the forest are not adding up in this way.

Once again, we believe the “substantial” concept in Section 228, coupled with the penal provision, would allow district staff the necessary mechanism to manage problems which get out of hand, while allowing prospectors who are doing things neatly the freedom to keep prospecting or developing valuable mineral deposits with minimal cost and risk.

While Washington Minerals Staff might not have any intention of imposing a 14 day camping limit upon prospectors, I can tell you with clear certainty that some district rangers and staff certainly do! The Orleans District routinely informs prospectors that they must either leave after 14 days or obtain an approved Operating Plan (which the Ranger says will require at least a year to process). Prospectors in Orleans are routinely threatened with penal consequences (if they camp longer than 14 days), even though no penal provision presently exists!

So it is greatly important for Minerals Staff to make USFS policy concerning camping limits clear in language. Otherwise, it will surely have to be worked out in litigation. To not clarify the issue at this phase would imply that USFS is deliberately being ambiguous concerning how long a legitimate mineral operator may occupy the public lands. This would be an invitation for conflict.

3) About your proposed language in Section 261.10 (p) “Use or occupancy…without an approved operating plan when such authorization is required:”

Once again, we suggest there is need for further clarification in (p) that some types of mineral-related activity do not require either a special use permit or an approved operating plan; and that the distinction revolves around when the mineral-related activity rises to the level of a substantial impact upon surface resources as covered in Section 228.

Just as importantly, or perhaps even more so, we strongly encourage you to include some language which clarifies that special authorization is only necessary for the specific part of the activity which requires it.

As an example, if the USFS decides to assume a position that any camping beyond 14 days by mineral operators will require an operating plan or special use permit, you should not require the remaining part of the mineral program to be subjected to the operating plan requirement if no operating plan would be required if there was no extended camping. Case in point: A person who is using a metal detector to locate mineral specimens, under normal circumstances, would not even be required to provide Notice. Therefore, the person’s electronic prospecting activity should not be raised to the level of an approval process just because he or she desires to camp on the mining claim for an extended period of time. If USFS insists that extended camping will require an approved operating plan or special use permit, the approval process should only concern itself with the camping.

The reason this is important is that gaining approval of an operating plan within an area where special concern species or other special designations exist usually requires consultation with other agencies. The process can take many years to complete (if ever). In fact, the consultation process takes so long to complete, that the requirement of an operating plan in many areas basically amounts to a prohibition of the mineral activity! I’m sure Washington Minerals staff is well-aware of this.

We are suggesting that it would be a bad idea to lump a mineral activity which is being allowed under a NOI into a full operating plan/consultation program simply because the operator wants to spend longer than 14 days camping on his or her mining claim (safeguarding expensive equipment) while developing an underwater gold deposit.

This same concern extends to the subject of special use permits for camping or other activities that are related to a mineral program. As an example, our organization has worked hard and long to adjust our cumulative mineral activities into a program which the Happy Camp Ranger allows under a NOI. But the Ranger has told us that if we want to charge money to teach prospecting in his district, we will need to obtain special use authorization which will trigger a full consultation process – even though none of the activity would rise beyond the level of what is already being allowed under our NOI. So the additional activity of teaching would undermine our entire program in the forest, even though it would not increase the environmental impact. Here is an example of where overlapping regulations can completely undermine an otherwise allowable and productive activity!

If encouragement of mineral activity is the aim, it would be a bad idea to impose a “special authorization” requirement upon mineral operators that will automatically trigger costly and lengthy consultation processes, simply because the mineral operator wants to camp on his or her mining claim for longer than 14 days or do something else with requires special authorization, but does not increase the level of environmental impact.

Once again, since USFS is managing the surface resources, when it comes to mineral operators, we encourage you to manage our impact upon the surface resources, rather than try and push prospectors out of the forest after some arbitrary time limit.

To avoid abuse and conflicts, we encourage you to clarify these important concerns with additional language inside of Section 261.

Sincerely,

Dave McCracken
President, The New 49’ers

 
Dave Mack

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

(Forum Post by Dave on 12 January)

Hello you guys,

Believe me when I say that I appreciate the frustration about our adversaries possibly being able to recover their attorneys fees when they sue the government.

Sometimes the reason we are silent on some subjects is because it is not in the interest of our industry to talk openly about legal strategies on an open forum. I know this is also frustrating to some of you out there who contribute financially to our defense. Because we only speak generally about our strategies, perhaps you worry that we are missing something important. I would feel the very same way.

And I suppose there is a chance that we could miss something important. That is a really slim chance. We are fortunate to have really good attorneys working for our side; very experienced; and very committed to the principals that we stand for. So we are not missing very much.

I am not an expert on the area of Indian law, but my best understanding is that there are laws in affect that allow Indians to recover their attorneys fees when they sue the government and win. I read an article a few days go that the big environmental legal foundations are hustling around these days to file their lawsuits under the umbrella of federally-recognized tribes. I gather that this is somewhat of a cash cow for them.

The Karuk attorneys (environmental law foundations) motioned the federal court in last year’s litigation to recover just under $200,000 in their legal fees because they succeeded in forcing the USFS into a settlement on the issue of Operating Plans, even though all of their main claims in the litigation were over-ruled by the court. The USFS motioned the court to put the question of fee-recovery on hold until the appeal is settled, and my understanding is that’s what has been done. So I don’t think they have recovered any attorney fees in the federal litigation, yet.

As we are intervenors in the federal litigation on the side of the USFS, it doesn’t look like we can recover attorney fees there. I gather that there is some law in place that prevents us from recovering our legal fees from the Karuk Tribe. Our attorneys are of the opinion that we would spend more money than we have trying to recover, with little chance of success. Besides, even if we decide to try, we could not get anywhere until the litigation is finished. It won’t be finished until all of the appeals are exhausted. So it is still pretty early to debate over cost-recovery measures against the Karuks.

One of the posts on our forum makes a good point in this State litigation, in that we are intervening because a State Agency has made drastic changes in the way it is regulating our industry without following (any) due process. But it is still very early to be asking for cost recovery. First we have to win!! If the judge formally decides that DFG has acted against the law, it seems likely that we would have a reasonable argument to recover costs from the State. Please be confident that we would not miss this opportunity if it exists. But we still have a ways to go before we get to that point.

If you have contributed to the defense of our industry to the point where your financial reserves are almost gone, please back off. Since we have many thousands of people associated with our industry, my hope is that we can get smaller contributions from more people, rather than large contributions from fewer people who cannot really afford it. So let’s figure out how to get more people on the team. A single $10 donation from all or most of the people who will be directly affected by this litigation would easily put us over the top. Unfortunately, not everyone helps. And fortunately, some people help a lot. I assume this is what you are talking about.

I expect it has probably been about the same during the entire history of the fight for freedom; a smaller number of movers and shakers who have the confidence and support of just enough believers to keep the dream alive. As hard as we work, and as good as our lawyers are, we could not do it without you guys. Our industry would have been gone a long time ago if you guys were not ready to step up in our time of need.

Defensive measures will forever be necessary to protect the interests of small-scale mining. Just get used to it. The impulse to get rid of us (and all other productive enterprise in America) is not going to go away. Defense of our industry is an ongoing process.

If you are tired, take a rest, and hope that there are enough others who will support the industry until you can stand up again. Everyone understands this.

Here are two things to hope for:

1) Hope that those of us who are managing defensive measures for the industry at the moment (there are only a handful of us) do not get tired any time soon.

2) Hope that a new generation of movers and shakers will evolve within our industry to take things over as we do start getting tired

On the subject of movers and shakers, it takes a lot more than just making noise. I’m sure you guys know that. It requires a reasonable assessment of the problem, measured against available resources, to come up with workable solutions, and implement them to completion. It is a lot of work!

My personal assessment is that with your continued support, we do have the resources to overcome the legal challenges our adversaries will throw at us in the forseeable future. Just let’s not allow Congress to change the mining law!

I personally read every word of every brief that gets filed within the litigation we are managing. I cannot tell you the amount of time and work involved with developing the briefs and the Declarations that are filed on our behalf.

The bottom line is that we must defeat these regulatory changes which DFG is already imposing upon our industry. If a State agency is allowed to impose further restrictions upon our industry by secret agreement with an extremist-group, then the whole industry is at risk. There is nothing to prevent DFG (or other agencies) from making further secretive agreements to further-restrict mining elsewhere in California. In fact, that is certain to happen! There will be no end to it until they finish us off.

By the way, my suggestion is to not send in any application for a DFG dredge permit until we see how this litigation is going to settle out. There is still plenty of time before the beginning of the season.

I understand the feelings of frustration. I experience them, too. When you put heavy stress on any kind of structure, those supports that are doing the most to hold it all together feel the stress the most, sometimes grown the loudest, and can also be the first to break. It’s no different here. This is stressful.

But the good news is that I truly believe we are going to win this one. And when we do, the State is going to know that it cannot make any more court settlements to try and regulate our Industry. That will be another big win for us. And it will be another thing that our next generation of industry leaders will not have to defend against. While we may or may not recover attorney fees, the legal structure supporting our industry will be stronger. That is worth the cost!

We don’t really have any other choice but to fight on this one!

The other thing is that there are only so many ways our adversaries can come at us through the legal system. With last year’s big win, they have pretty-much exhausted their federal remedies. Now we are at the State level. I don’t want to tip anyone off, but I only see about two opportunities at the State level. Naturally, they are starting with the one they feel allows them their best chance of winning. Because of the nature of the way they have proceeded (in secret, behind closed doors to agree upon a settlement), this case is on a fast track to resolution of the key issues concerning how our industry will be regulated by the State. With just a little luck, these issues could be resolved by the court in just two weeks. That’s fast!

While I can be wrong about legal matters, I believe we will come out on top on this one.

But we still have to pay the specialists on our side. This is very important! Because we want them to be there for us the next time. Even if there isn’t one (wishful thinking), we must always plan for a next time! Since I am managing this one, I am naturally worried about paying our bills.

I agree that there may be an uneven playing field in that it is probably easier for the environmental law foundations to recover attorney fees through the Karuk Tribe, than it is for us to recover our costs while defending our industry. Especially since they are suing government agencies and we are only entering the litigation as intervenors. However, I don’t think they have been paid for anything yet concerning the litigation we have been involved in. Be assured, when those issues come before the judges, we will be arguing that they have nothing coming to them.

DFG did agree to reimburse the Karuk attorneys for their legal fees. But if we succeed in killing the Stipulated Agreement, the reimbursement provision will also be dead!

And listen, even if those attorneys eventually do get paid for their time, ultimately we should be glad that the government is responsible to pay for their good work on our behalf. While their motivations are not with us, their actions are succeeding in strengthening the legal structure that supports our industry! We are a lot better off than we were a year ago because of the federal litigation! We now have an opportunity to do the very same thing at the State level.

Through discussions with our attorneys, it does not appear that we have a reasonable chance of recovering our own attorney fees from the Karuk Tribe when they sue a government agency. There does not appear to be much of a solution there for making it cost them when we prevail over their attacks upon our industry.

The more reasonable approach is for us to be asking State and federal authorities why the Karuks are being allowed to kill the very same fish they are trying to protect from us? There apparently is no recognized fishing right under law. So it would seem that our complaint against the Karuks in court, using the very same arguments they make against us, could possibly go somewhere. We are in the early stages of exploring that.

Hang in there you guys. I’m asking that you extend a little faith that we are not missing much. I guarantee you that we are working hard to do the very best job that we can with what we have to work with. And, like last time, I believe it will be enough. Watch for our latest brief (Opposition to the Stipulated Agreement) in the next few days, and you will see what I mean.

Thanks,

Dave Mack

 

 

Northwest Mining Association Comments

on USFS proposed Section 261 Rule changes

July 3, 2007

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

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

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

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

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

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

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

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

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

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

Sec. 228.7 Inspection, noncompliance.

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

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

2817.3 – Inspection and Noncompliance

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sincerely,

Laura Skaer Executive Director

LS/kw

 
Dave Mack

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

(Forum post dated 29 January)

Hello Everyone,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you for whatever you can do!

Sincerely,

Dave Mack