Feb 5 2009
He will be back in communication within a few days and I will keep trying to get this information to him.
I will have to let Dave release the details of this newest attack, but can tell you as much as the attorneys told me which is:
"The attached complaint has been filed today by a Karuk Tribal leader, Klamath Dam opponent (and Tribal consultant?), and PCFFA activist. The complaint is styled in this fashion because the lead claim is a taxpayer relief action in light of the current budget climate (i.e., actual taxpayers needed as plaintiffs).
The enviros plan to have the Karuk Tribe and several environmental groups intervene in the case."
I would suggest to all concerned that we act in Dave's absense and try to get a legal fund campaign going.
Although the club is not named in the suit, it will affect both the club and any suction dredge miners in the state of California. We will begin accumulating bills for legal service immediately. As you can see, our attorney's are already all over this issue.
We must be ready to respond in this court action and our part is monetary support so we can get the job done again. We have been successful every time they have come against us by whatever means and will prevail this time also.
You and I cannot take part in the actual court proceedings, but we can enable expert witnesses and expert legal staff to do their thing.
For my part, I would love to see the mining community take the initiative and get a legal fund campaign going before Dave gets back and has to start begging for money again.
If there is anything you can do to help replenish the legal fund for this new battle. Just use the "DONATE" button at the top of the forum. Or, if you need to send by snail mail, send your donation to:
New 49er's. Legal Defense Fund
Happy Camp, Ca.96039
Thanks again folks. You are the only ones that can stand in the way of these constant attacks. Your support has been the determining factor in every case.
Feb 5 2009
Feb 6 2009
Feb 6 2009
My donation is on the way.
Feb 6 2009
Feb 7 2009
The answer to that is a bit complex. For one thing they have made no bones about their agenda to take over the administration of all natural resources in Siskiyou County.
Even though miners are a small group compared to other resource users, they are the ONLY natural resource user that has a statutory right to practice their activity. The MINERAL ESTATE GRANT OF 1866 gives us the right to prospect and mine and our claims are private property in the purest sense of the term. The land we claim is removed from ownership of the United States and granted to us under this Grant.
No one can take this grant from you. Understood in it's fullest sense, it cannot even be regulated against, it no longer belongs to the government, but is granted to you as a miner.
If the opposition can get rid of miners, then no other natural resource user is immune, They can get rid of rafters, fishermen, agricultural interests, cattle ranching and any water user. All other users persue their activity by permit. Permit=permission.
Miners already have permission from the Congress of the United States. No agency authority is higher and their rules cannot take precedence over the Congressional Grant.
There are powerful enviromental groups behind the agenda to eradicate miners, I don't believe that the tribes even know they are being used by the environmental interests. But one day the dog will turn and they will also be on the recieving end of this agenda. Right now the greenies are promising them "pie in the sky" and paying the legal bills.
Google the Mineral Esate Grant of 1866 and read it for yourself. It is one of the most powerful documents pertaining to private property that exists.
Feb 7 2009
Hal Anthony has researched the Mineral Estate Grant in depth and is now trying to get the message about what it is out to the world.
This show will open your eyes and you will see how powerful the grant is. It is a long show, but worth every minute of it. I have worked with, and had Hal work with me on many issues, he is briliant and works hard to get the message out so miners will have the tools to fight back with.
He provides a lot of the information to me that I use in fighting agencies.
Here is the information:
Mark your calendar: Hal Anthony (host of Behind the Woodshed on RTRRadio) is scheduled to be a two hour guest host on Lighting The Fires Of Liberty with host Michael Badnarik next week, Monday the 9th.
http://www.gcnlive.com/Programs/LightingFiresOfLiberty/Program.html this coming Monday the 9th.
The show will be focusing on the 1866 Mineral Estate Trust Act/Grant...Understanding its Immense Power, Importance and Availability to all Americans.
9:00-11:00 PM Central Time
Pick a Live Stream on Network 1
Feb 7 2009
Feb 7 2009
LETS ALL BOYCOTT THE TRIBE.
THAT'S WHAT HAPPENS WHEN YOU GIVE THEM AN INCH.
Feb 7 2009
Feb 7 2009
Feb 9 2009
I realize that you can't tell everything about this new complaint, but what you have posted really doesn't make a lot of sense. Taxpayer relief? I don't think much has changed since my business law and tax classes, but as I recall:
Federal income taxes are not levied on income from trust lands held for them by the United States;
State income taxes are not paid on income earned on a Indian reservation;
State sales taxes are not paid by Indians on transactions made on an Indian reservation; and
Local property taxes are not paid on reservation or trust land.
So I'm really confused about this Taxpayer Relief action.
Hopefully we will get more information when your in contact with Dave.
Feb 9 2009
We are trying to get the actual court complaint online now. I will post it as soon as we do.
Suffice to say that basically, to file a law suit, you must show "harm" They are saying that as taxpayers they (the plaintifs) are being harmed by CDFG continuing to fund their suction dredge program because they claim the program is illegal because no EIR has been done.
Feb 9 2009
Feb 9 2009
James R. Wheaton (State Bar No. 115230)
Lynne R. Saxton (State Bar No. 226210)
ENVIRONMENTAL LAW FOUNDATION
1736 Franklin Street, 9th Floor
Oakland, CA 94612
Tel: (510) 208-4555
Fax: (510) 208-4562
Attorneys for Plaintiffs Leeon Hillman, Craig Tucker and David Bitts
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF ALAMEDA
LEEON HILLMAN; CRAIG TUCKER;
DAVID BITTS, and DOES 1-100,
CALIFORNIA DEPARTMENT OF FISH
AND GAME; DONALD KOCH and DOES 1- 100, inclusive,
Case No 09434444
COMPLAINT FOR EQUITABLE AND
INJUNCTIVE RELIEF BASED UPON:
Violations of California Code of Civil
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF Page 1
Plaintiffs, by their attorneys, bring this action on their own behalf and behalf of the general public on information and belief, except those allegations which pertain to the named plaintiffs or to their attorneys (which are alleged on personal knowledge), and hereby allege as follows:
1. Under California's Code of Civil Procedure Section 526a, a state agency cannot spend public funds to support activities or programs that violate the law. This action is brought by individual taxpayers against the California Department of Fish and Game and Donald Koch, in his capacity as Director Fish and Game. Plaintiffs seek to enjoin the Department from continuing to use general fund money to operate its suction dredge mining program under the Department's current regulations. Suction dredge mining is a type of instream gold mining conducted as a hobby by recreational gold miners. The Department issues about 3,000 permits per year:
2. Under Fish and Game Code §5653, suction dredge mining is expressly prohibited in all the rivers and streams of this state. It can be conducted only by a person with a valid permit, and that permit can only be issued if the Department of Fish and Game (a) has valid regulations in place defining when and where the mining can take place and (b) it affirmatively finds that the mining will not harm any fish. The Department does not have valid regulations and has testified that the mining does harm fish.
3. The Department admitted in sworn, expert declarations, submitted to a court in 2006, that suction dredge mining conducted under its current regulations in fact causes deleterious impacts on fish, including endangered species such as the Coho salmon. The Department further admitted that suction dredge mining under its current regulations expressly violates both the California Environmental Quality Act (Public Resources Code §21000, et. seq.) (“CEQA”) as well as Fish and Game Code § §5653 and 5653.9, the very statutes that authorize the Department to operate a suction dredge mining program.
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF Page 2
4. In December 2006, the Department was ordered by the court to conduct a CEQA review of its regulations and to mitigate harms (as necessary) through a formal rulemaking. This project was required to be completed by June 20, 2008. Two years after entry of the Order, the Department has not yet begun the process. At this late date, the Department will not adopt new regulations before 2011 or 2012, if at all.
5. The Department's explanation for violating the court order is that it lacks the funds to undertake the rulemaking and review that would bring it into compliance with the Court's Order, and with CEQA and Fish and Game Code. However, the. Department has for the last two years continued to spend general fund money to continue to operate the program and issue unlawful permits to suction dredge miners. In short, the Department claims it has not the funds to bring the program into compliance, but continues to spend money to operate it out of compliance.
6. At a time when the State of California is in dire financial straits and important programs are losing funding, the Department continues to subsidize hobbyist miners for activities that the Department has determined harms endangered fish species. Plaintiffs seek an injunction to prevent continued spending of general funds to operate the suction dredge mining program until the Court's Order is satisfied, the required environmental reviews are completed, the harms are mitigated through a formal rulemaking, and the new regulations are in effect.
7. Plaintiff LEEON HILLMAN is a citizen and resident of California and has paid and is liable for the payment of taxes to the State of California. This action is brought on Mr. Hillman's behalf in his capacity as a taxpayer pursuant to Cal. Code Civ. Proc. §526a.
8. Plaintiff CRAIG TUCKER is a citizen of California and has paid and is liable for the payment of taxes to the State of California. This action is brought on his behalf and in his capacity as a taxpayer pursuant to Cal. Code Civ. Proc. §526a.
9. Plaintiff DAVID BITTS is a citizen of California and has paid and is liable for the payment of taxes to the State of California. This action is brought on Mr. Bitts' behalf and in his
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF Page 3
capacity as a taxpayer pursuant to Cal. Code of Civ. Proc. §526a.
10. The true names and capacities of DOE plaintiffs 1 through 100, inclusive, are presently unknown to plaintiffs, who therefore refer to these plaintiffs by such fictitious names. Plaintiffs will seek to amend this Complaint and include these DOE plaintiffs' true names and capacities when they are ascertained. Each fictitiously named plaintiff is a citizen of California and has paid and is liable for the payment of taxes to the State of California. Each fictitiously named plaintiff sues on his behalf and in his capacity as a taxpayer pursuant to Cal. Code of Civ. Proc. §526a.
11. Plaintiffs Leeon Hillman, Craig Tucker, David Bitts, and DOE plaintiffs are collectively referred to herein as "Plaintiffs".
12. Defendant California Department of Fish and Game ("Fish and Game") is an agency of the State of California charged by the Legislature with the regulation of suction dredge mining under California Fish and Game Code §§ 5653 and 5653.9. Among other things, Fish and Game is required to promulgate regulations under CEQA and the Administrative Procedures Act (Government Code §11340, et. seq.) ("APA") to operate its suction dredge mining program, designate waters or areas closed to suction dredging as necessary to protect fish species and their habitat, and issue permits for such dredging if it determines that "the operation will not be deleterious to fish." Fish and Game expends general funds to issue permits and operate its suction dredge mining program.
13. Defendant DONALD KOCH is the Director of the Department of Fish and Game. KOCH was appointed to the position by the Governor of California and is tasked with providing leadership over Fish and Game as they continue their role as stewards of California's fish and wildlife resources. The Director is made a party to this action in his official capacity only.
14. The true names and capacities of DOE defendants 1 through 100, inclusive, are presently unknown to Plaintiffs, who therefore sue these defendants by such fictitious names. Plaintiffs will seek to amend this Complaint and include these DOE defendants' true names and
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF Page 4
capacities once they are ascertained. Each of the fictitiously named defendants is responsible for the conduct alleged herein and for the injuries suffered by Plaintiffs.
15. California Department of Fish and Game; Donald Koch, and DOE defendants are herein referred to as "Department" or "Defendant".
JURISDICTION AND VENUE
16. This Court has jurisdiction over all causes of action asserted herein pursuant to the California Constitution, Article VI, Section 10, because this case is a cause not given by statute to other trial courts.
17. This Court has jurisdiction over Defendant because it is a California agency which issues permits and operates a program that authorizes suction dredge mining in rivers throughout California. Defendant's headquarters in Sacramento, California.
18. Venue is proper in the Superior Court for the County of Alameda under Code of Civil Procedure § 401(1), because Fish and Game is a state agency, Director Koch is an officer of Fish and Game, and the California Attorney General has an office in Oakland, California.
FACTUAL AND LEGAL BACKGROUND
19. A suction dredge is powered by a diesel engine and uses a hose and nozzle to suction up the bottom of a riverbed. The river material is run over a sluice, which separates any present gold fragments from the river material. The remaining material ("tailings") — consisting of rocks, gravel, silt, plants, invertebrates and fish — is then discharged back into the river in large piles of debris. Permits for suction dredge mining are primarily requested by recreational or hobbyist gold miners. For a nominal fee, the Department issues an annual permit that allows the miner to suction dredge in any California river, as allowed under the Department's regulations,
20. The Department originally promulgated regulations for its suction dredging program in 1994. The 1994 Environmental Impact Report concluded that rivers inhabited by threatened or endangered species and Species of Special Concern (hereinafter "Endangered Species') must be closed to suction dredge mining to prevent significant impacts to these species. The report
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF Page 5
stated that the Department's regulations would need to be reviewed periodically to account for future listings of Endangered Species.
21. The Department has never reviewed its suction dredge mining regulations to determine the impacts to fish or other animal species listed as threatened or endangered since the 1994 regulations were promulgated.
22. In May of 2005, the Karuk Tribe of California and Leaf Hillman sued the Department under CEQA to challenge the Department's failure to review and update its regulations. (Karuk Ripe of California v. California Department of Fish and Game, Alameda County Superior Court, Case No. RG 05211597.)
23. During the course of litigation, the Department submitted sworn declarations to the Court admitting that their suction dredging program violates CEQA and Fish and Game Code §§5653 and 5653.9. The Department's admission is based on its determination that suction dredge mining under its current regulations causes deleterious effects on Coho salmon in the Klamath, Scott and Salmon Rivers.
24. On December 20, 2006, the court entered an Order and Consent Judgment requiring the Department to conduct a CEQA review of its regulations as to the impacts of suction dredging on Endangered Species in the Klamath, Scott and Salmon watersheds. The Department was further ordered to promulgate any necessary regulations to mitigate harmful impacts. The CEQA review and the regulations were to be completed in 18 months, which expired on June 20, 2008.
25. More than two years have passed since entry of the Order and the Department has not even started the review. Due to California's current budgetary issues, it is not currently known when the review will actually begin, but it will not likely be completed before the 2011 or 2012 suction dredge mining seasons.
26. The Department's rationale for failure to comply with the court Order is that it has insufficient funds to conduct a statewide environmental review of its suction dredge mining
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF Page 6
program. However, the Department still issues permits to miners (approximately 3,000 permits per year) and pays for much of the program through its General Fund.
27. In other words, the Department uses taxpayer funds to operate a program that it determined causes harm to fish – even endangered fish like the Coho salmon, and refuses to the program because, it claims it does not have enough money. While the recreational gold mining community continues to be subsidized, the harm to California's rivers and fish species continues - with no end date known.
CALIFORNIA CODE OF CIVIL PROCEDURE 6526a
28. Under Cal. Code Civ. Proc. §52614 a taxpayer can bring an action to enjoin a government actor from the illegal expenditure of funds. -To prevail, a taxpayer plaintiff must show an "expenditure" that is "unlawful", such as funding a program that violates a statute or other proscription of law.
29. The Department's suction dredge mining program violates the prior Order and Consent Judgment, as the Department failed to complete the required CEQA review and (if determined necessary) a rulemaking within 18 months of entry of the Order. The compliance deadline was June 20, 2008.
30. The Department's suction dredge mining program also violates CEQA (Public Resources Code §21166; 14 CCR §§15162-15164) because there is sufficient information, not previously known by the Department, which demonstrates that suction dredge mining will have new significant effects or substantially more severe effects than was shown in the 1994 EIR and the Department failed to conduct a supplemental or subsequent EIR. In fact, the Department has admitted that its regulations violate CEQA and a court made the finding that sufficient information exists and ordered further environmental review under CEQA.
31. Lastly, the Department's suction dredge mining program violates Fish and Game Code §§5653 and 5653.9. These statutes require the Department to adopt regulations that are in compliance with CEQA and the APA. They also require the Department to issue permits if it
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF Page 7
determines that the operation will not have deleterious impacts on fish. The Department violates these statutes twofold. First, it has not passed regulations that are in compliance with CEQA. Second, it is continuing to issue permits even though it has expressly made the determination that the operation will have deleterious impacts on fish, specifically the Coho salmon.
32. As the Department is in violation of the above statutes and court order, the Department's use of money from its General Fund to issue suction dredge mining permits and operate its program violates Code of Civil Procedure §526a.
FIRST CAUSE OF ACTION
(California Code of Civil Procedure §526a)
(By All Plaintiffs Against All Defendants)
33. Plaintiffs incorporate by reference all of the above paragraphs as if fully set forth herein.
34. Cal. Code Civ. Proc. § 526a states that California residents who are liable for and have paid taxes have standing to bring an action enjoining a government actor from illegally expending funds.
35. Defendants California Department of Fish and Game and Donald Koch, in his capacity as Director of Fish and Game, are government actors.
36. The Department spends money from its General Fund to issue permits and operate its suction dredge mining program.
37. The suction dredge mining program violates the following, as described above:
a. A prior court's entry of an Order and Consent Judgment (Karuk Tribe of California, et. d v. California Department of Fish and Game, et. al.; Alameda County Superior Court, Case No. RG 05211597; order entered December 20, 2006);
b. CEQA (Public Resources Code §21166; 14 CCR §§15162-15164); and
c. Fish and Game Code §§ 5653 and 5653.9.
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF Page 8
38. The Department's expenditure of general funds to issue permits and operate its suction dredge mining program constitutes an "illegal expenditure" under Cal. Code Civ. Proc. § 526a. Defendants have engaged and continue to engage in conduct that violates Cal. Code Civ. Proc. § 526&
THE NEED FOR INJUNCTIVE RELIEF
39. By committing the acts alleged herein, Defendants have caused irreparable harm for which there is no plain, speedy, or adequate remedy at law. In the absence of equitable relief, taxpayer funds will continue to be illegally expended to operate a suction dredge mining program in violation of the law. The court should enjoin Defendants from spending general funds on activities that allow suction dredge mining to occur under the Department's current regulations.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for the following relief.
A. A temporary restraining order, preliminary and permanent injunction enjoining Defendants, their agents, employees, assigns, and all persons acting in concert or participating with them from expending any general fund money to issue permits or operate the suction dredging program in such a manner that allows suction dredge mining to occur under the Department's current regulations (14 CCR § §228 and 228.5);
B. The said temporary restraining order, preliminary and permanent injunction will remain in effect until such time as:
1. The Department conducts a supplemental or subsequent environmental review of its suction dredge mining regulations pursuant to CEQA (Public Resources Code §21000, et. seq);
2. The Department mitigates negative environmental impacts, as necessary and as required under law, through a formal rulemaking pursuant to the Administrative Procedures Act (Government Code § 11340, et. seq.); and
3. Any challenges to such regulations are resolved and any new regulations
COMPLAINT FOR EQUITABLE AND INJUNCTIVE RELIEF Page 9
adopted through the rulemaking are in effect;
B. Reasonable attorneys' fees and costs; and
C. Such other and further relief as this court may deem necessary and proper.
DATED: February 5 2009 ENVIRONMENTAL LAW FOUNDATION
L - R. SAXTON
Attorneys for Plaintiffs
Leeon Hillman, Craig Tucker, and David Bitts
Feb 9 2009
If I understand correctly:
1. An Environmental group brought suit against the CDFG for issuing permits for suction dredging.
2. The 'Science,' opinion and conclusions used by the Environmental group does not agree with the current information contained in the 'CEQA' upon which the CDFG relies.
3. The court ordered a new 'CEQA' be conducted to determine if the Environmental groups information was valid.
4. The economy is in the toilet.
5. The Environmental group is now bringing suit against the CDFG for not only continuing to use taxpayer money to administer the dredge permit process, but also using it to fund completion of the court ordered CEQA.
Seems obvious that they didn't get what they wanted from the courts the first time, so rather then wait for the new court ordered CEQA to be completed, they have decided it would be better to waste additional taxpayer money by complaining to the courts that the CDFG is wasting taxpayer money by doing their job, administering, enforcing and issuing dredge permits in accordance with the current laws.
There are an awful lot of programs and bail-outs that I don't agree with and don't recall anyone asking me, a taxpayer, if it was okay. Maybe I should start taking some of these people to court too.
Feb 9 2009
Feb 9 2009
After reading this complaint twice I don't see anything new or different except the headings and dates. It amazes me that someone could cut and paste old information from other material whether scientifically proven or not.
Well it just goes to show you that "You can educate a fool, but you cannot make him think”*
*The Talmud quotes
Feb 10 2009
I am looking at several emails from our attorneys. It will be necessary for us to intervene in this new litigation. This is one that our attorneys will need to fight for us.
I hate to sound like a broken record, but our task is to raise money to pay our warriors (attorneys) to do battle for us. We can do it!
Also, I strongly suggest if you intend to dredge in California this year, you don't delay in sending in your application for a dredge permit! Applications are available from our office. Just call the girls at 530 493-2012. They will also send you a sample of how you might like to fill out the application.
More soon on this. Thanks for all your support and effort during my absence (I spent the past week doing some underwater sampling on a river in deep Cambodia).
Now back to fighting with the menacing creatures in California!!
I'll be at the GPAA show in Phoenix this next weekend and hope to see some of you guys (and gals)!!
Feb 10 2009
Feb 11 2009
Feb 12 2009