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Ongoing Karuk/DFG Litigation: DFG Says Dredgers are Harming Fish!
 By Dave McCracken General Manager, October 2006

In a Case Management Conference Statement filed on 2 October, the California Department of Fish & Game (DFG) has formally reversed its earlier position, and has Declared that the agency now believes Coho Salmon are being harmed by suction dredgers under the existing regulations. Both the DFG and Karuk Tribe have now requested that Alameda County Superior Court Judge Bonnie Sabraw Order DFG to update its environmental analysis concerning the affects of suction dredging within 18 months and modify our regulations in accordance with the findings. As earlier attempts to obtain an injunction to curtail suction dredging have been overruled by this judge, neither the Karuks nor DFG are presently requesting any further interim restrictions upon suction dredging until an updated environmental analysis is completed.

For those of you who are new to The New 49'ers or this newsletter, we have a special page on our website that is dedicated to the ongoing Karuk/DFG litigation. The page includes earlier important documents, along with explanations.

Our involvement with this litigation began about a year ago when we discovered that DFG had imposed substantial restrictions upon our California suction dredging regulations within Siskiyou County without following any of the mandated administrative process which allows the affected public to participate. They didn't even give us any notice!

According to DFG, they believed that they could bypass the entire administrative process by simply agreeing to change our regulations within a secret court settlement with the Karuk Tribe in an effort to resolve their ongoing litigation. As soon as we found out that our regulations had been modified, the mining industry mounted a substantial opposition within the litigation through The New 49'ers and Public Lands for the People (PLP). Consequently, the judge ruled in early July that DFG could not legally change our regulations through a court settlement. While that put an end to the Settlement Agreement between DFG and the Karuks, and eliminated the unlawful changes to our regulations, the original litigation remains ongoing, with both DFG and the Karuks no-longer having any issue between themselves for the court to resolve; because they now both formally agree that existing regulations are not affording adequate protection for the Coho Salmon along the Klamath, Scott and Salmon Rivers.

The problem with all of this is that existing regulations do provide more than adequate protection for the Coho Salmon!

Therefore, the litigation has taken a sudden change from our supporting the DFG position against the Karuk Tribe, to our need to defend existing regulations from both DFG and the Karuks!

It is very important to our industry that no formal finding of harm to Coho or other fish be made in advance of an environmental process which requires a balanced approach to determine harm, if any, and work out solutions (regulatory changes), if any, that are the least restrictive to those of us who must live with them. It is a very substantial process which should not be further burdened with a preliminary finding of harm that is not based upon factual material.

We have just filed an argument to the court in opposition to the joint position which DFG and the Karuks have assumed in the litigation. Our position is that present regulations are already adequate to protect fish. While The New 49'ers would not oppose an honest formal review of our dredging regulations in California, we strongly oppose the preliminary finding of harm that is being put in front of this judge by DFG and the Karuks absent any showing of proof that a single fish has ever been harmed by a suction dredger - anywhere! Once again, DFG is attempting to completely bypass its mandated administrative process by trying to have this judge confirm a formal Delaration that dredging is harmful to fish, without showing any evidence to support the position! There are some serious shenanigans going on with this State agency!

If you have time, I encourage you to read the Case Management Conference Statements just filed by DFG, the Karuks, and by the Miners. They can be found on the special page that we have devoted to this ongoing litigation.

In short, our attorneys have pointed out that there really is no longer any litigation for the judge to resolve between DFG and the Karuks, because they are now in full agreement concerning all the issues. The problem is that they have come together in deciding how they are going to make Declarations against third parties (Miners) without allowing us any reasonable opportunity to defend against the Declarations, and without ever being required to substantiate their Declarations with evidence; something that is substantially required by the administrative process!

A hearing is scheduled for 17 October where the judge will take this all up and decide what to do. I'll post updates on our message forum as things move along. Please keep your fingers crossed! Our message forum can be found on the Internet HERE.

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