Our Klamath Basin Water Crisis
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From: Tom Kitchar - President
Waldo Mining District, 11/11/05
Fellow Miners & Friends;
IT'S A BANNER DAY FOR MINERS IN THE PACIFIC NORTHWEST!
It is with great cheer and relief that Waldo can send you the attached "Findings and Recommendations 11-8-05" just released by Magistrate Judge John Cooney in connection with the SREP v. SNF and WMD/Bartons v. SNF Consolidated cases.
WMD as been active in this case since spring of 2003 by first filing for Intervention, and then later filing our own cross-claim against the Siskiyou NF. However, the "battle" has been going on at least as early as May, 2000, when the SNF came to the May '00 WMD meeting and informed miners that they now would be required to get an approved POO for any and all mining activities within Riparian Reserves (as per "MM-1" of the 1994 NWFP).
WMD responded to the first demands for POOs by causing to be submitted over 2,200 POOs for Prospecting (POOPs) to the SNF during the summer of 2000. The SNF and outgoing Clinton administration responded to the overwhelming number of POOPs by proposing a Mineral Withdrawal on the whole 1.2 million acre SNF (and an addtional 200,000+ acres of adjoining BLM lands). In January of '01, Notices of Proposed Withdrawals were published in the Federal Register, placing the whole SNF under a "Segregation" (temp. withdrawal) for up to two (2) years. The purpose of the proposed withdrawal was to allow the SNF to NOT respond to, or process the 2,200+ POOPs as the POOPs only covered activities on "any open or unclaimed lands within the SNF". By withdrawing the land, there would not be any "open or unclaimed land" to prospect on... (making the 2,200+ POOPs moot).
For the next year and a half, WMD continued to fight the FS, at the local level, regional level, and even the national level. Our efforts bared fruit, in that we managed to get the Withdrawal Proposals CANCELED. Durng this time, WMD was also instrumental in forcing the removal of SNF Supervisor Jack Williams and possibly even Regional Forester Harv Forsgren.
It should be noted that all during this time, we continued to dredge...
In February of '03, SREP (environmentalists) filed suit against the SNF in another attempt to force the SNF to require POOs for all mining activities in riparian reserves. WMD and the Bartons hired attorney James Buchal, and filed to intervene in the SREP case. On appeal, Bartons won limited intervention rights. As this did not appear to give us (WMD) enough say in the proceedings, WMD/Bartons filed a cross-claim suit of their own against the SNF, claiming that MM-1 of the NWFP does not supersede the existing laws and regulations, and therefore the SNF could not require POOs for activities not likely to cause a significant surface disturbance.
WMD/Bartons also filed for "Consolidation" of the two cases (granted), and for a "Stay" until the 9th Circuit decided on environmentalist appeals of a District Court ruling that delisted two species of coho salmon (part of SREPs original suit had two claims of ESA violations... over these same two species of salmon). This stay was granted.
While we all waited for the 9th C. decision, WMD members continued to dredge. Also during this time, (we believe) SREP talked the Karuk indian tribe in northern CA into filing a similar suit against the Klamath NF (for failing to require POOs). The Karuk case was put on the Fast Track, skipping the magistrate court level and straight to the District Court.
About this same time, the 9th C. ruled that the environmentalists did not have standing to appeal the District Court decision to delist the salmon... and because of that ruling, SREP was forced to file an amended complaint containing just the MM-1 issue. By the time all multi-layers of complaints, objections, arguments, etc. were finally over, the KARUK decision had already come out. (NOTE: In KARUK, the court ruled MM-1 did not supersede 228 regs). In fact, on the last day of arguments in SREP on 9/9/05, later that afternoon the Karuks filed an appeal of the KARUK decision to the 9th Circuit.
And, on November 8, 2005, Magistrate Judge John Cooney found in favor of the federal defendants, i.e.; the SNF. All of SREPs claims were dismissed. All of WMD/Bartons claims were also dismissed... but only because the court found that the SNF is no longer demanding POOs for all mining activity in RRs, and that because of this, the WMD/Bartons claims are moot.
As in KARUK, the ruling means that the FS can only regulate mining using the Code of Federal Regulations (i.e.; 36 CFR 228)... and cannot regulate mining under a Forest Plan.
So who "won"?
If you read the attached document, the SNF "won", in that SREP did not win. In fact, SREP lost all their claims/arguments... and the "present" interpretation of the regulations by the FS has been upheld (the SNF quit demanding POOs in '02-'03). When you read the decision, it would appear that the miners had little say or contributed little to the proceedings. Nothing could be further to the truth!
By intervening and by later filing a suit of it's own, the WMD forced the FS to really look at it's own regulations, the mining law, and the forest plans... and luckily, the FS attorneys eventually saw the light (the law) as the miners did. By the time the proceedings got to the oral arguments of 9/9/05, the FS and the Miners pretty much agreed on just about all isuues... and thus, the Miners case was declared moot. (Another, and probably more important aspect of the declaration of mootness is that the Miners are not eligible for any relief (such as payment of legal fees)).
However, for all practical purposes, the Miners are the winners here (as we are the ones that can continue to dredge without submitting POOs)!
The court has allowed ten (10) days for appealing this decision to the District Judge. It is not likely the FS would appeal their "win". After being declared "moot", it is uncertain the Miners could appeal... even if they wanted to (except to argue the issue of "moot").
What SREP will do is unknown... although we feel it is highly likely they will appeal... (at least we only have to wait 10 days to find out).
If any such appeal is filed, it is the continued intent of the WMD to stay involved to defend our rights to mine. How the KARUK appeal will effect the outcome of this case is totally uncertain... one wonders how long SREP (& Karuks) will keep beating a dead horse.
WMD realizes that the earlier and higher court ruling in KARUK seems to take some of the wind out of our sails when claiming a big win in SREP. However, considering we have been in this fight for 5+ years, fought off a demand for POOs, got a proposed withdrawal canceled, a Forest Supervisor removed, and now most recently have been vindicated in the courts (subject to appeal), the WMD feels this is, in fact, if not a "win" for the WMD, then at least it is a BIG LOSS for SREP... and anything that is a loss to them is in fact a WIN for us!
When it somes to battling the enviro's, as long as we can continue to mine, THEY LOOSE!
The WMD thanks all those miners and organizations that helped and supported the WMD and our efforts. Without your generous financial support, none of this would've been possible. As can be imagined, getting to this point was expensive, both in time (all volunteer) and money (attorney fees). WMD has just about deleted it's legal fund, and again asks all those who can to please donate some of your hard-earned cash to our legal fund. These donations will ensure that we will be able to stay in these proceedngs if an appeal is filed, even to the 9th Circuit. 100% of all legal fund donations are spent paying attorney fees... period. Any extra funds will be used to pay legal fees in the future.
(NOTE: In case you are saying to yourself: "Why should I give them my money when it looks like their case is over", I say this: Waldo was only able to get involved in the SREP case because it was able to provide a financial guarantee to enable us to hire an attorney. We were able to stay in the fight because of the generous support of our members and the mining community. This generous support allowed us to focus on the legal issues, instead of being involved with time-consuming continuous fund raising. However, getting to this point has just about totally drained our war-chest. In future litigation (and rest assurd, there will be "future litigation"), we may not be able to supply a financial guarantee in time to take action. By being prepared ahead of time, can we take action when needed in a timely manner, to help fight for miners rights not only locally, but state-wide and nationally.
Please send donations to: Waldo Mining District, P.O. Box 1371, Cave Junction, OR 97523
Speaking for the Waldo Mining District, I thank you.
Tom Kitchar - President
Waldo Mining District
Page Updated: Thursday May 07, 2009 09:15 AM Pacific
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