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.

 
 
Dave Mack

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

 

By Dave McCracken, General Manager

6 December 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

By Dave McCracken

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Dave's Gold

New 49’er Legal Fund-raiser!

There will be 25 prizes in all:

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

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

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

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

 

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

 

 

August 27, 2008

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

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

Dear Governor Schwarzenegger,

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

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

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

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

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

Thank you,

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

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