New 49'er Action Alert!
"We need your help now more than
Update concerning SB 670
As many of you are already aware, Senate Bill 670 (anti-suction
dredging legislation) was overwhelmingly
passed by the California Senate several days ago. The
bill will now go to the California Assembly. Our
staggering defeat in the Senate has our lobbyists in a
full regroup mode, and I have asked them to perform a
very careful evaluation of our prospects for success
in the Assembly. This, so that we can decide if we still
have a reasonable chance of killing this harmful bill
there, or will only be wasting our time and limited
If SB 670 passes in the Assembly, we will have one
remaining opportunity to kill the harmful legislation by
asking governor Arnold Schwarzenegger to veto the bill.
In the event that SB 670 is passed into law (would
likely happen in September or later since California is
struggling with crippling budgetary problems), no
further suction dredging would be allowed in
California's active waterways until the Department of
Fish & Game (DFG) completes an updated Environmental
Impact Report (EIR) and adopts new or revised suction
dredging regulations if necessary. As this will take
some time to complete, our 2010 (and perhaps 2011)
season(s) hangs in the balance.
Since our financial resources are limited, and
because we are up against what appears to be
overwhelming support for the legislation, we need to
carefully weigh our prospects for success (at killing
the legislation) with perhaps a more effective solution
of challenging the new law (once passed) in federal
court based upon a strong legal theory that the State of
California does not possess the authority to
bypass its own Formal Administrative Process and
eliminate our federal mining rights (especially since no
evidence has been brought forward that suction dredgers
have ever harmed a single fish).
To help you become more informed of ongoing
developments, I have asked our lobbyists to provide an
Update Concerning Ongoing Litigation
All of this recent legislative activity (which will
affect future dredging seasons) is happening under the
darker cloud of ongoing litigation against suction
dredging (which could have an impact upon our present
season) in California. This is taking place in Alameda
Superior Court (San Francisco Bay area).
Our adversaries recently filed a Motion with the
Court for Injunctive Relief. They are asking the Court
to prevent the Department of Fish & Game "from
spending any funds allocated from the State of
California's General Fund on any activities which allow
suction dredging to occur under the Department's current
Here follow the important moving Documents our
adversaries have filed in support of this Motion:
Notice of Motion
Motion for Injunctive Relief
Now; here follow our key responsive documents to the
Motion for Injunctive Relief:
Notice of Motion to Strike
Memorandum in Opposition to Injunctive Relief
Supporting Declaration of Joe Greene
For those of you who have the time to review these
documents, I believe you will understand and agree why I
keep repeating that we have hired the best legal
representation that money can buy! We are sooooo
lucky to have James Buchal on our side!
While nobody can predict what a judge will do, I can
tell you with complete certainty that we as an industry
have done our absolute best at defending the rights of
small-scale gold miners. We could not do it any
better than we have!
There has been an enormous amount of legal
activity during the past month, of which the briefs
listed above are just a few. Basically, our adversaries
are wasting no effort in an attempt to take away our
mining rights without having to show that we have ever
harmed a single fish!
Rather than go into all the details here, I have
asked James Buchal to provide you with a short
Litigation Summary from
his own perspective.
Mr. Buchal's opening statement about "fast and
furious developments" in the litigation is truly an
understatement. Since my job is to manage the ongoing
legal defense and political activity on your behalf, I
make it a personal responsibility to read all of the
legal briefs and provide technical support and
encouragement to the specialists who we are paying to
defend our industry. And let me just tell you that we
are really up against an awesome opposing force within
the litigation. It is all I can do to keep up with the
ongoing exchange of legal briefs and telephonic
In fact, there has been so much activity during
recent weeks, our attorney was forced to devote an
entire sleepless night just to meet filing deadlines
with the Court on one round of opposing briefs. The
Litigation Summary provided above was sent to me at 4 am
on Saturday morning on Memorial Day weekend! We
certainly have the right kind of guys on our side!
While the opposing briefs are ongoing, for our part,
we will just have to see where the chips fall on June
9th. And then we will pick up from there and move
forward as necessary. I'm sure you guys and gals will
all stay tuned in!
Yes, I know there will be a million questions
about what the Proposed Order means. And I can tell you
with certainty that your guess would be as good as mine
or anyone else's at the moment, including the
attorneys who are involved.
On legal matters such as these, I suggest that each
of us must make our own individual choices. For me,
since DFG is presently selling 2009 suction dredge
permits (at least until 9 June), and they have already
Formal Decision that they have no valid
environmental justification to enact Emergency
Regulations to stop suction dredging, I have already
bought my own 2009 permit -- and I fully intend
to dredge this summer. It doesn't sound like anything in
this Motion will attempt to prevent me (or you) from
Our Next Moves
If the Motion for Injunctive Relief is granted by the
Court, this would be one more reason for us to conserve
our resources, cut our losses in the California
legislature, and ask our attorneys to challenge
California's authority (in federal court) to bypass its
own Formal Administrative Process and take away our
federally-protected mining rights.
Therefore, we are in a holding pattern at the moment
until we see what the Alameda Superior Court will decide
in less than two weeks. This will allow our lobbyists
time to survey our supporters in the California Assembly
and provide us with a reality check on our chances of
overcoming SB 670 through further political action.
Your Help is Needed Now to
Support our Legal Fund!
I want to thank all of you who have responded to our
past calls for financial assistance to help pay the
specialists we have hired to defend our industry. Your
help has pretty-much allowed us to stay even (until now)
with the increased costs associated with all this
additional legal and political activity.
However, I am informed that we just received an April
legal billing in the amount of $13,433.50. On top of
that, Mr. Buchal told me a few days ago that we should
plan on his May billing to be more than April. June is
also going to be high, because that's when Mr. Buchal
will need to attend at least one important hearing in
Alameda Superior Court (June 9th).
Before you get your hackles up, I want to let you
know that Mr. Buchal bills us at a reduced rate, and he
does not charge us for all of his time. The existing
situation has been taking up nearly all of his
productive time. The value of his time billed through
nearly any other law firm would cost so much that we
would be forced out of the game!
Adding $3,000 for May lobbying expenses to James'
$13,433.50 for April creates a $17,433.50 outstanding
liability to our legal fund -- which presently has a
balance of $ 4,276.98. This leaves us with a deficit of
$13,156.52 with another legal billing on its way in just
a few days.
This is an emergency!
We are fighting the biggest, hardest battles our
industry has ever faced right now. You guys have always
been there to help in the past. We need you more than
ever right now!
Because our need to raise funds is immediate, once
again, we have our ever-vigilant member, Jim Yerby, to
thank for organizing yet another set of very valuable
prizes for a prize drawing - which is already in
progress. In addition to 53 very nice prizes which have
been donated by others, we also are expressing big
thank you to Jeff Kuykendal at Proline for donating a
brand new 3-inch Proline dredge (worth $2,500.00) as our
main prize, and to Louie Welding for donating a 2 ½-inch
If anyone would like to contribute a prize towards
our legal and political fundraising, please contact Jim
firstname.lastname@example.org. What do you have that might be
a good prize in our fund-raising?
Here is a link to the prizes included in this latest
The contributors of these prizes have authorized the
girls in our office to print a ticket on your behalf for
each $10 contribution that we receive from you ($100
contribution will generate10 tickets, etc.). This prize
drawing will take place on 4 July, 2009. That is only
about a month away! There is no limit to the number of
tickets you can accumulate, or the number of prizes that
you can win in this drawing.
Our girls are automatically issuing drawing tickets
to every legal contribution that we receive from
any of multiple ways of sending money. You can make
legal contributions by calling into the office at 530
493-2012. You can mail a check to The New 49'er legal
fund, 27 Davis Road, Happy Camp, CA 96039. Or you can
also use a credit or debit card by using our new
(secure) on-line form which can be found here:
Make a Donation
We need your help on this more than ever!
Thanks very much for whatever you can do!
Dave McCracken, President
New 49'er Gold Prospecting Association
The New 49'ers27 Davis
Road, Happy Camp, CA 96039 (530) 493-2012