Our Klamath Basin Water Crisis
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own property, and caretake our wildlife and natural resources.
A HISTORY OF RECENT AND CURRENT
January, ’06 By Tom Kitchar – President, Waldo Mining District
2006 begins with twenty-plus year record high prices on gold (over $500/oz), making many non-profitable and marginal suction dredge mining operations profitable for the first time since the record high gold prices of 1979-80. Along with this highly positive economic outlook for Oregon’s suction dredge miners comes the most severe and dangerous attack on suction dredge mining in Oregon to date… an attack that has the capability to prohibit (or at least severely restrict) all suction dredging in Oregon during the summer of ’06, and possibly for the foreseeable future! And even more dangerous, if these attacks on suction dredge mining succeed in Oregon, many believe the threat could and would spread throughout the Pacific Northwest!
BACKGROUND:Attacks on suction dredge mining in Oregon and the Pacific NW are coming to a boil. Most recently, and most seriously, a coalition of environmentalist organizations have filed a challenge to the new Oregon suction dredge mining permit (700-PM), issued by the Oregon DEQ in July of ‘05. The environmentalists are claiming possible violations by DEQ of the administrative procedures while drafting the permit (and rightly so), and they are claiming the permit is not restrictive enough (and which the miners feel is too restrictive already).
The environmentalist's goal is the total prohibition of all suction dredge mining... and then all other mining. Yes, this sounds a little far fetched... but believe it or not, they have come close to doing just that several times in the recent past, and this new threat could easily stop all suction dredge mining in Oregon before this coming summer!
(NOTE: These "attacks" have already spread to Northern CA in the form of the Karuk tribe's lawsuit against the Klamath NF for allowing suction dredge mining to occur without an approved POO (in this case, the Karuks lost and are appealing to the 9th Circuit); and most recently, in the form of a second (and secret) lawsuit by the Karuk tribe against the Calif. Dept. of Fish & Game, claiming CDF&G were violating the ESA and other laws by allowing or permitting suction dredge mining in areas of some waterways in Northern CA (mostly in and around the Klamath River).
I say these attacks have "spread" to CA because the source of most of these attacks is one particular environmental organization based right in the heart of the Waldo Mining District in SW Oregon! This is the "Siskiyou Regional Education Project" (SREP). For the last 20+ years, destroying the mining industry in SW Oregon has been at the top of their list of things to do. (They used to have a bumper sticker that said: "Logging through by '92, Mine free by '93!").
SREP did manage to just about stop all logging in this area (SW Oregon)... but they have not quite managed to stop the miners (thanks to the power of the 1872 Mining Law, as amended). Their latest series of attacks on suction dredge mining started in the late '90s, when they filed a suit against the Siskiyou NF for allowing suction dredge mining to occur without an approved POO. SREP’s claim was based on a provision buried deep in the 1994 (Spotted Owl) "Northwest Forest Plan" (NWFP)... called "Minerals Management 1" (MM-1), which says: "...all mining activities within riparian reserves must have an approved Plan of Operations, Reclamation Plan, and bond." SREP won that first suit (SREP vs Rose) in 1999, mainly because area miners were not even aware there was a suit to stop suction dredge mining going on (and later learned this was a "friendly" set-up suit, with certain high officials within the Siskiyou NF and the Pacific NW Regional office of the FS working in collusion with the environmentalists to shut-down the miners by deliberately not defending the rights of miners and by deliberately loosing the suit).
Miners first heard of this 1999 suit (SREP vs Rose) in the spring of 2000. Then, at the May, 2000, meeting of the WMD, Siskiyou NF (SNF) personnel informed over 75 miners attending that from now on, the SNF would be requiring a POO for all mining activities in a riparian reserve (in or near water). When questioned, "all mining activity" would now be construed as meaning panning, sluicing, or even just picking up a nugget with your fingers or tweezers!
What followed was a circus of the highest order. The WMD responded to this ridiculous (and illegal) demand for POOs by causing to be submitted over 2,200 Plans of Operation for Prospecting (POOPs). These were generic POOs, all filled out (except for names and addresses), covering small-scale mining activities (up to a 4" dredge) within riparian reserves on any open, unclaimed lands within any one of the five Ranger Districts of the SNF. (NOTE: There was nothing trivial about these POOPs... every question or bit of information was given as if such a POO was really required).
By the end of summer ’00, the SNF was so swamped with POOPs (that they now had to process - they normally received 2-4 POOs per year), that they talked the out-going Clinton Administration into recommending a Mineral Withdrawal on the whole 1.2 million acre SNF, and on another 180,000 acres of adjoining BLM lands... just so they would not have to process all those POOPs! (Through use of FOIA, WMD obtained copies of the FS’s interdepartmental email messages discussing such an action.)
The purpose of the withdrawals was to close all unclaimed lands to the mining law… and, as the POOPs covered activities on unclaimed ground, this would give the SNF an excuse to not process any of the 2,200+ POOPs. The SNF even sent out a letter to all that had submitted POOPs informing them of the withdrawal, and that because there was no longer any open unclaimed ground to work, their Plans would not be processed.
The WMD fought back. First they buried the FS & BLM with comments against the withdrawals... not only from the public but also from the Cave Junction City Council, the Illinois Valley Chamber of Commerce, the Josephine County Commissioners, and from over 1/2 dozen State legislators. Anti-withdrawal comments out-numbered the pro-withdrawal comments by over 11-to-1!
Waldo then put pressure on the Dept. of Interior, as in every step of the way, the FS violated the Codes of Federal Regulations in their application for the withdrawal, and BLM violated their regulations regarding the published Notice of Segregation in the Federal Register. Waldo managed to apply enough pressure to actually get the two-year period of segregation (a temporary period of withdrawal before the final 20-year withdrawal) canceled (stopping the withdrawal process, and opening the land to mining)!
While this was going on, Waldo found out that not quite all of the SNF was actually segregated... and because of that, the SNF Supervisor actually violated Oregon Statutes when he denied access to open mining ground! This eventually led to his removal... and the removal of the Pacific NW Regional Forester.
... and while all this was going on, Oregon miners all kept dredging.
In 2003, SREP filed another suit against the SNF, again claiming the SNF was required to demand POOs from suction dredge miners pursuant to MM-1 of the NWFP. This time, the WMD learned of the suit, and hired an attorney (James Buchal) to represent their interests. Waldo filed to intervene in the SREP vs SNF suit, and then filed their own cross-claim suit against the SNF, claiming just the opposite as SREP, i.e.; the NWFP and MM-1 has no authority to regulate mining, and thus, a POO is not required unless required under 36 CFR 228.4.
Waldo then filed a motion for "Consolidation" (combines both cases so they would be heard together), which was granted, and for a "Stay" until the 9th Circuit ruled on the delisting of two species of illegally listed (as endangered) species of salmon. Waldo got the stay. This now managed to delay SREPs case for almost 2 years. While they waited, SREP went over the border into Northern CA and talked the Karuk Indian tribe into filing a similar suit against the Klamath NF. The Karuk's went for it... and even hired the same anti-mining environmental legal firm that represented SREP out of Colorado.
Before the SREP vs SNF/WMD vs SNF Consolidated Case was heard, there was a decision in the KARUK case... the Karuks lost. (NOTE: Dave McCracken and the New 49ers intervened on this case using Waldo's attorney, James Buchal). The Karuks have appeal this decision, but it is highly unlikely they will prevail.
And just last December, the magistrate judge ruling on the SREP/WMD vs SNF cases recommended SREP’s suit be dismissed. SREP has appealed this decision to the District Court, so it isn't quite over yet. And, any decision by the District Court could be appealed to the 9th Circuit.
At the same time all this was going on, SREP joined up with the Northwest Environmental Defense Center (NEDC), a non-profit environmental legal firm operating out of Lewis & Clark University, and the Hells Canyon Preservation Council (HCPC), in an attempt to stop suction dredging at the state level. They started this attack in late 2003, when they sent DEQ a notice of intent to sue for failing to issue a valid suction dredge permit. (NOTE: The previous permit (700-J) expired in 2002. Those with the old permit were given a chance to extend their permit until a new permit was issued, 680 people did this). However, DEQ did not issue a new permit. Instead, anyone wanting a new permit was sent a Mutual Agreement and Order (MAO), which was basically a letter allowing the holder to dredge without recourse by the DEQ providing they followed the restrictions of the old permit. DEQ had no intent to write a new permit until 2007-8, at the earliest. The environmentalists threatened to sue because even though the MAOs were "like" a permit, they were, technically, not a permit (over 1,300 individuals had MAOs).
And then, to turn up the heat, in the spring of 2004, the environmentalists sent notices of intent to sue to (6) individual miners in Oregon (who all had the MAOs), claiming they had illegally operated suction dredges without a permit, and must stop... or they would be sued under the third party lawsuit provisions in the CWA
DEQ then met with NEDC, and they reached a compromise, with DEQ agreeing to write a new permit providing the environmentalists dropped their threats to sue. By summer of 2004, DEQ began to write the new Oregon suction dredge mining permit.
The new permit (700-PM) was issued July 5, 2005. For various reasons, no miners or mining orgs challenged the permit (with the exception of the Eastern Oregon Mining Association - EOMA, who did file for a judicial review but were mislead on how to do it). Instead of challenging the new permit, most miners refuse to get the new permit. To date, DEQ has issued approximately 480 new 700-PM permits... when they expected to issue well over 1,500 of them by now! (The hope was that eventually DEQ would have to come back to the table and work this out... they couldn't have everyone arrested). However, all this was taken out of our hands when, on August 30, '05, the very same environmental organizations (NEDC, SREP, & HCPC) filed a last minute challenge to the permit. No miners knew of this until sometime in October, by then possibly too late for miners to file a new challenge of their own.
The WMD then arranged for a meeting between some of the miners who had done the most legal research on the permit and CWA, and with Waldo's attorney, James Buchal. At the meeting, it was agreed that if no one stepped in to fight for the miners, then the environmentalists would win, and would more than likely get an injunction to revoke the new permit (making all suction dredging in Oregon illegal next summer), and a court decision ordering DEQ to write a much more restrictive new permit (which would take months). In other words, it was agreed... if the miners did nothing, they would loose!
It was decided to hire Mr. Buchal to intervene in the NEDC et. al suit, and to file a Petition for Judicial Review against DEQ, challenging other aspects of the permit.
Eastern Oregon Mining Association (EOMA) is taking the lead position in this litigation, with the help and support of the Waldo Mining District, Willamette Valley Miners, and the Resources Coalition. (NOTE: The RC, a organization based in WA is concerned that if Oregon miners get stuck with this illegal permit, the same could or will happen to them in Washington... and feels it's best to stop this now before it spreads.)
The environmentalists are well organized, well funded, have a track-record of getting what they want, and they pose a very real and serious (extreme) threat that can not be ignored. They are not quitting, and they are not going away. They must be beat in court!
On December 9, 2005, on behalf of EOMA, papers were filed in the Appeals Court of the State of Oregon requesting intervener status in the NEDC et.al challenge, and a Petition for Judicial Review was also filed. The environmentalists have opposed EOMA's involvement (expected). That's where it stands at present.
The outcome of this litigation will affect (possibly to the point of prohibition) all future suction dredge mining in Oregon. It could easily and eventually affect all suction dredge mining in the Pacific NW, and eventually everywhere. Again, as in the recent attacks made against suction dredge mining at the federal level, Oregon is the "test case"... and if miners loose here, they could loose everywhere.
This litigation will cost thousands of dollars. The legal fees are already adding up, and the first (of many) bills is expected soon. The Oregon miners need the help, in the form of donations, of miners everywhere to help fund their efforts.
Please dig deep in your pocketbook and send your generous donations to:
EOMA 700PM Legal Fund
PO Box 932
Baker City, OR 97814
For more information contact Ed Hardt - President, or Chuck Chase – Executive Director, EOMA, P.O. Box 932, Baker City, OR. 97814. Copies of court filed documents can be viewed on the Waldo Mining District website at:www.waldominingdistrict.org
EOMA is a 501c6 non-profit organization. 100% of all donations will be used for legal fees in connection with this litigation. Excess funds will be used for possible future litigation.
Tom Kitchar – President, Waldo Mining District, P.O. Box 1574, Cave Junction, OR firstname.lastname@example.org
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