FIRST QUARTER, JANUARY, 2007 VOLUME 21, NUMBER 1
By Dave McCracken General Manager
On December 20th, Alameda Superior Court Judge Bonnie L. Sabraw signed an Order and Consent Judgment which has effectively put an end to the Karuk/DFG litigation which was challenging California’s existing suction dredge regulations.
Consistent with all of the arguments which the mining community has been making, this Final Order makes it clear to everyone that the only way our regulations can be changed is through the California Environmental Quality Act (CEQA).
During this litigation, which has been ongoing for about 18 months, both the Karuk Tribe of California and the California Department of Fish & Game (DFG) have attempted to bypass all of the State’s legal obligations under the Administrative Procedures Act by asking Judge Sabraw to endorse a Stipulated Agreement which they made between themselves in secret, to enforce stricter regulations upon suction dredgers. This, without ever having to justify the changes to anyone, including the judge.
Their argument was basically that the State was not required to follow its own mandated administrative obligations to the public, because the changes were being made to our regulations as a result of ongoing litigation. Consistent with our arguments, several months ago, Judge Sabraw ruled that DFG broke the law by attempting to modify our regulations as the result of an Agreement between themselves and the Karuk Tribe. That was a big win for us.
Then, as a result of Judge Sabraw’s Ruling, DFG changed its tactics and filed a Declaration to the Court stating that they now believe suction dredging under existing regulations is harmful to coho salmon (which is listed as threatened in California). Prior to this, DFG’s position in the litigation was that dredging is not harmful to fish!
Still refusing to present any showing of proof to support their new Declaration of “harm,” DFG and the Karuks asked the Judge Sabraw to accept their internal (informal) finding of harm (to coho salmon) and impose further restrictions upon suction dredgers through an injunction. Our attorneys argued strongly that no determination of “harm” to coho could be made formal without a full CEQA process, or at least a contested hearing within the litigation whereby proof could be presented and properly challenged. The judge ultimately agreed, saying that she would not endorse a determination of harm unless there was a proper hearing where the evidence could be carefully examined and properly weighed. That effectively put an end to the litigation, because it was clear that DFG is not prepared to present evidence within a formal proceeding to prove suction dredging is harmful to coho salmon.
The result of all this is the judge’s Order and Consent Judgment which has been signed by all parties who have been involved with the litigation. This Order basically says:
(1) New information available to DFG suggests that suction dredging under existing regulations could be harmful to coho Salmon.
(2) The mining community disagrees that there is any harm.
(3) Therefore, DFG is Ordered to conduct further environmental analysis pursuant to the California Environmental Quality Act (CEQA) and modify the regulations, only if necessary, through California’s lawful administrative process.
(4) DFG is allowed 18 months to complete any necessary CEQA process.
(5) The motion for injunctive relief (request for the Court to endorse more restrictive regulations upon us) has been withdrawn.
(6) Judge Sabraw will retain jurisdiction over the matter.
Basically, the Order puts an end to this litigation, confirming arguments from the mining community that our regulations can only be changed through California’s formal administrative procedures – which require a substantial showing of proof, with mitigation measures (changed regulations, if any) which would be the least-restrictive upon suction dredge miners.
Therefore, unless the State intends to implement emergency regulations under CEQA, (which requires a substantial showing of proof), we should not see any changes to the 2007 California dredging regulations.
Here is one more litigation-challenge that we can put behind us. Whew!!
We should all pat ourselves on the back for another job very well done!
For those who are interested, we have devoted a special page to this litigation on our web site which includes all of the key documents along with explanations.
While we should allow ourselves a pat on the back, we should also immediately begin preparing ourselves for the upcoming administrative process. We went through the whole process during the mid-1990′s, when DFG began (as they are doing here) with a preconceived decision that suction dredgers were harming fish. Ultimately, we were able to bring them around; because the formal Administrative process requires the State to address all evidence using good science, place potential harm in perspective to the real world, and adopt solutions (if any are even necessary) which are least-restrictive to the people who will be affected. Bad decisions and/or arbitrary and capricious determinations can be (will be) challenged in Court.
Knowing that both the miners and the Karuks will be standing by with our attorneys ready to challenge any miss-step in the process, I predict that DFG will eventually work out findings and determinations that are based upon the best (defendable) science available. That’s what happened in the mid-90′s.
I personally am feeling hopeful, that as long as we maintain united within our industry and generate enough financial support for the ongoing process (attorneys and expert witnesses for our side), we will come out of this in pretty good shape, with unshakable suction dredge regulations in California that should last us another 10 years or so.
Good for our side!
At present, we are $2,000 in arrears to our attorneys. They have won another case for us. In turn, we need to bring our accounts up to date and move forward. With this in mind, I am requesting a $10 donation from each of you that is able to contribute. Can you please help? Contributions can be made to The New 49′ers Legal Fund, P.O. Box 47, Happy Camp, CA 96039.
What should we do with our Lower Salmon River Claims?
Because of the politics associated with our mining claims along the lower Salmon and Klamath Rivers, I am starting to wonder if we might be better off to let these claims go, and pick up more properties in other areas which are more user-friendly to our organization.
The claims I am referring to are as follows:
Lower Salmon River: SA-1, SA-2, SA-2A, SA-3, & SA-4
Lower Klamath River: LK-1
These properties all exist within the Ukonom US Forest Service (USFS) Ranger District in Orleans, California, about 60 miles downstream on the Klamath River from Happy Camp.
While we have tried our best to accommodate all of the concerns expressed by the Karuk Tribe and others, there remain too many issues along each of these claims for us to put a group-organized program in place for motorized mining activity. That is, without having to make so many concessions that members would end up with less mining opportunity than existing laws and regulations already provide to independent miners within the same areas.
Since this is unacceptable, for the past few years, we have been allowing members the freedom to negotiate your own arrangements with the Forest Service for ongoing prospecting activity along these particular claims.
While the Orleans Ranger District has acknowledged that a limited amount of individual suction dredging, sluicing and high-banking activities on these claims do not create enough surface disturbance to require a formal Operating Plan, they decided two years ago that they would not allow a sizable organization such as ours to formally operate there without a full environmental analysis that would take years and years to complete, if ever. My best guess is that this policy will never change. So these claims on the lower Salmon and Klamath Rivers seem better-suited to individual miners (that nobody seems to mind), rather than a large organization of miners such as ours.
All of our other mining properties (60+ miles) are located within other ranger districts where the USFS allows us to operate under a group-organized program. We manage the activity internally so that our accumulated activity never exceeds agreed-upon limits – such as no more than 10 dredges per mile along the mid and upper Klamath River. Under these group-organized programs, individual members are allowed to do your normal small-scale prospecting activity ( dredging, sluicing & high-banking, panning, electronic prospecting, camping, etc) without being required to make personal contact with the authorities. That is a very good situation for you, which exists on nearly all of our mining properties. It is only the Ukonom Ranger District (Lower Klamath and Salmon Rivers) that does not agree with this management approach.
While a few of our members have worked things out on their own with the Ukonom Ranger District and mined along these claims during the past 2 years, the vast majority of our members have chosen to avoid the hassles of dealing directly with the authorities, and have chosen to prospect and mine on our 60+ miles of other properties.
We only have a few members doing anything with the lower Salmon and Klamath properties. This seems pretty wasteful of our resources.
I’ll tell you right off that these are very valuable mining claims. They cost us a lot of money in the first place, and they are also expensive to maintain each year. Because of this, I am starting to wonder if we might be better-off getting our money back out of them and reinvest ourselves into rich mining properties that are located in other areas which are more user-friendly to our group-managed program.
As an example, we have acquired multiple very rich mining properties along the upper Klamath River during the past 2 years, where members can just show up and go mining without having to worry about negotiating with the government (we do that on your behalf). I see some opportunity for more expansion into this new area and others. In fact, we will already be opening up a new property along the upper Klamath this season.
As I do not see the management-situation on the lower Salmon and Klamath Rivers changing for the foreseeable future, I would like to hear from the membership how you feel about the idea of our selling-off those lower claims to individuals (who will not have much of a problem working-out a mining program with the USFS), and directing our property expansion into other areas which are more friendly towards a group program such as ours?
I don’t want to move forward with a sales program of this magnitude without first getting an idea of how many active members would object. Please email your comments directly to me or send them in the mail to Dave Mack, P.O. Box 47, Happy Camp, CA 96039. I ask you to please direct your comments to me on this one, because the girls in our office or others on the various communication forums are not directly involved with this important policy decision. I am the one that needs to hear from you. I will make a decision based upon the communication that I receive.
We are planning to operate a booth at the following (weekend) gold Shows this upcoming winter and spring:
All members are invited and encouraged to participate in our booth at these shows. We have a lot of fun. Doing these shows allows us to share some quality time together outside of Happy Camp. Please contact Montine in our office (530 493-2062) if you will have some time to spend with us in the booth. She will keep track of who will be there so we can plan accordingly.
If you are not able to help us in the booth, please at least stop by and say hello!