Leaf Hillman, Karuk Tribe of California, and the California Department of Fish & Game (DFG) attempt failed to shut down dredge mining while bypassing state law

 New 49ers Dave McCracken, 1/6/07

Hello everyone,
 
On December 20th, Alameda Superior Court Judge Bonnie L. Sabraw signed an Order and Consent Judgment http://www.goldgold.com/legal/finalorder.pdf 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).
 
Through 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 http://www.goldgold.com/legal/amendedproposedjudgment.pdf  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 http://www.goldgold.com/legal/2nd001.pdf]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 http://www.goldgold.com/legal/Manjideclaration.pdf  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 was not harmful to fish!
 
Still refusing to present any showing of proof to support their new Declaration of [I]“harm,”[/I] 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 absent a full CEQA process, or at least a contested hearing within the litigation whereby proof could be presented and properly challenged.  http://www.goldgold.com/legal/New49erCaseStatusStatement.pdf  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 was 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 were 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. (4) The motion for injunctive relief (request for the Court to endorse more restrictive regulations upon us) has been withdrawn. (5) 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 http://www.goldgold.com/legal/karukvsdfg.htm to this litigation on our web site http://www.goldgold.com  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. 
 
We will need to prepare ourselves for the Administrative process which will be starting soon.
 
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.  There is also a Pay Pal link on top of this page.
 
Thanks for whatever you can do! 
 
Dave Mack, New 49ers