Post Office Box 1574 C ave Jun ction, Oregon IN THIS ISSUE

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1 Post Office Box 1574 C ave Jun ction, Oregon On the web at: FILE # WMDNEWS PRES.: TOM KITCHAR VICE PRES.: DON YOUNG TREASURER: MARK WAGNELL SECRETARY: SARAH BOHMKER BOHMKER vs OREGON SB 838 / SB 3 LITIGATION NOW IN THE U.S. 9 TH CIRCUIT COURT BOHMKER (et al) vs OREGON IS A UNITED EFFORT BY THE WALDO & GALICE MINING DISTRICTS AND OREGON MINERS AGAINST OREGON S PROHIBITION ON MOTORIZED INSTREAM PLACER MINING IN STREAMS DESIGNATED AS SALMON HABITAT (ESH). ORAL ARGUMENTS ARE SCHEDULED FOR: THURSDAY MARCH 8, 2018, AT 9:30 A.M., PIONEER COURTHOUSE PORTLAND, OR. MORE ON PAGE 2 EOMA / WMD vs DEQ LITIGATION NOW IN THE OREGON SUPREME COURT AFTER 12 YEARS OF LITIGATION AGAINST THE ILLEGAL OREGON DEQ 700PM SUCTION DREDGE PERMIT, INCLUDING BEING DECLARED MOOT TWICE BY THE OREGON COURT OF APPEALS, WE HAVE FINALLY MADE IT TO THE OREGON SUPREME COURT! ORAL ARGUMENTS ARE SCHEDULED FOR: THURSDAY MAY 10, 2018, AT 1:30 P.M., OREGON SUPREME COURT COURTROOM 1163 STATE STREET, SALEM, OR. MORE ON PAGE 4 IN THIS ISSUE ENVIRONMENTALIST S EFFORTS.. PAGE 6 LOCAL WALDO HISTORY... PAGE 6 WALDO S 166 TH BIRTHDAY.. PAGE 7 NEWSLETTER, DUES & GENERAL MEETINGS PAGE 7 1/2 LB. OF GOLD WINNER PAGE 7 FUND RAISING EFFORTS... PAGE 7 DEQ 700PM COMMENT PERIOD.. PAGE 7 DSL RAC MEETING ON SB 3.. PAGE 8 HOW TO DONATE... PAGE 8 WMD MEMBERSHIP/DONATION FORM... PAGE 8 PAGE 1 OF 8

2 BOHMKER vs OREGON SB 838/SB 3 LITIGATION In 2013, the Oregon 77 th Legislative Assembly passed Senate Bill 838 (introduced by Sen. Alan Bates (Ashland) in the Senate Committee on Natural Resources), which was signed into law by then Governor Kitzhaber before he resigned in disgrace. Among other things, SB 838 called for a five year moratorium on the use of all in-stream motorized placer mining equipment in streams designated as Essential Salmon Habitat (ESH) by the Oregon Dept. of State Lands; beginning January 2, Another part of SB 838 called for the formation of a Governor s Study Group to meet in 2014 to investigate the effects of motorized instream placer mining, and to make a recommendation to the 2015 Oregon Legislature regarding the need for SB 838 and possible amendments. The Study Group met seven times, and failed to reach a consensus. Several mining related bills were introduced in 2015, but none of them passed. As soon as the 2015 Legislative session was over with no relief from SB 838 for the miners, the Waldo & Galice Mining Districts in Josephine Co. retained attorney James Buchal to file suit in Federal Court against the State of Oregon and SB 838. This case is known as BOHMKER vs OREGON. Round 1: of BOHMKER et al. V. OREGON was lost in the U.S. District Court (Medford) in March of WMD/GMD filed an appeal in the U.S. 9 th Circuit, and as of Nov. 2016, all briefs, responses and replies had been filed... and we were just waiting to hear from the 9 th Circuit to set a date for a hearing. In the meantime, while we waited; in 2017, Oregon passed Senate Bill 3 which was signed into law by Governor Brown. SB 3 revoked SB 838 entirely, and replaced it with a PERMANENT PROHIBITION on the use of all in-stream motorized placer mining equipment in streams designated as Essential Salmon Habitat (ESH) by the Oregon Dept. of State Lands; beginning January 2, 2018 (but removed SB 838 s restrictions on upland mining). SB 3 allows motorized placer mining in stream segments above the highest point of ESH designation, although it restricts suction dredges to hoses no large than 4 ID. SB 3 does allow non-motorized in-stream mining in ESH streams, including the use of gravity or syphon type dredges as crazy as that sounds. When SB 3 passed, there was some worry that BOHMKER vs OREGON would be declared moot, as SB 838 was by then a dead issue. However, we were able to convince the court that if anything, SB 3 was even worse as the prohibition changed from a supposedly temporary moratorium to a permanent ban, so our appeal will be heard. Round 2: In January 18 we received notification from the U.S. 9 th Circuit that Oral Arguments, have been scheduled for Thursday, March 8, 2018, [NOW CHANGED TO 9:30 A.M.], in the Pioneer Courthouse in Portland. Our basic argument is simple: Can Oregon forbid the use of the only practical method to explore for, and recover, placer gold from the beds of active streams, and form the underlying bedrock on lands of the United States that are open to mining under the U.S. Mining Law of 1872, as amended, regardless of the lack of detrimental effects? We think not. The Mining Law is written in language anyone should be able to understand. In 30 USC 22 it clearly states: Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase... Notice that it does NOT say except for lands Oregon doesn t want us mining in. If ALL deposits are free and open, and if the ONLY way to even explore for these underwater deposits is with motorized equipment (i.e.; try shoveling in 4 feet of water or 10 feet), then Oregon s prohibition is in effect a Withdrawal of those minerals something ONLY the U.S. Congress has the authority to do. In the most recent (and controlling) U.S. Supreme Court decision in 1987 (see CALIFORNIA COASTAL COMMISSION v. GRANITE ROCK CO.), the high court ruled 5-4 that states and lessor governments did have the right to regulate mining, including mining under the U.S. Mining Law on lands open to mining, BUT, that any such restrictions had to be necessary and reasonable as with a standards based permit system and as long as the restrictions were not prohibitive, and not through the use of a Land Use Plan. Unfortunately, Granite Rock argued that the states (or Commission) had no authority at all to require a permit on federal land in the first place (i.e.; Granite Rock refused to get a permit) rather than whether or not a particular permit or law was unnecessary, unreasonable, or prohibitive such as SB 838 or SB 3. The court stated that any such restrictions had to be standards based, and not part of Land Use Planning. Standards based would be something like you can get the water just so dirty, and no dirtier. An actual limit. HOW you get the water dirty is not (or should not be) the concern. Instead, Oregon bans all motorized equipment as if it all is the same with the same effects. Whether I am running an 8 dredge in a small creek, or a 2 dredge in the Rogue River. They even ban battery operated concentrators (such as a minisluice or gold wheel) that are typically fed with a spoon and typically have a zero discharge (as process water is usually recycled in a tub). This is LAND USE PLANNING and not standards based --- as there is no standard. And as crazy as it sounds, all nonmotorized mining can still occur. We all know that a sluice box is a sluice box is a sluice box. The all work the same under the same principles. It matters not how the material is fed into the sluice whether by hand with a spoon or shovel, dumped from a bucket, or sucked up through a hose. Why is the discharge from a hand box allowed, when the identical discharge from a motorized dredge is prohibited? It s crazy. This case, BOHMKER vs OREGON is now even more important as the U.S. Supreme Court refused to hear the RINEHART case (from out of California where a miner, Brandon Rinehart was cited for dredging without a permit after California stopped issuing permits. His case went to the California Supreme Court, which found him guilty, so he appealed to the U.S. Supreme Court who at best hears about 3% of the cases sent to them. PAGE 2 OF 8 A WIN in BOHMKER will mean states can t stop legitimate mining on public lands and claims with blanket prohibitions. A loss will mean states can stop any kind of mining, anywhere, for any (or even no) reason.

3 PLEASE SUPPORT OUR EFFORTS TO SAVE SMALL-SCALE INSTREAM PLACER MINING IN OREGON AND BEYOND. Information on How to Make a Donation is found on Page 8, and on our website at: w ww.wal do miningdistr ict.o rg along with copies of all the court briefs & decisions, and more. The below is a portion of the Miner s Opening Brief on Appeal to the U.S. 9 th Circuit filed July 14, 2016, regarding Oregon s SB 838 (and now SB 3): UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No J. BOHMKER; L. COON; W. EVENS; GALICE MINING DISTRICT; J. GILL; J. GROTHE; J.O.G. MINING LLC; M. HUNTER; M. LOVETT; MILLENNIUM DIGGERS; WILLAMETTE VALLEY MINERS; D. ORMAN, Plaintiffs Appellants, v. STATE OF OREGON, ELLEN ROSENBLUM, in her official capacity as the Attorney General of the State of Oregon; and MARY ABRAMS, in her official capacity as the Director of the Oregon Department of State Lands, Defendant Appellees, ROGUE RIVERKEEPER; PACIFIC COAST FEDERATION OF FISHERMAN S ASSOCIATIONS; INSTITUTE FOR FISHERIES RESOURCES; OREGON COAST ALLIANCE; CASCADIA WILDLANDS; NATIVE FISH SOCIETY; CENTER FOR BIOLOGICAL DIVERSITY, Intervenor Appellees. Appeal from the United States District Court for the District of Oregon Honorable Magistrate Judge Mark D. Clarke OPENING BRIEF OF PLAINTIFFS APPELLANTS III. AT THE LEAST, GENUINE ISSUES OF MATERIAL FACT BARRED SUMMARY JUDGMENT UPHOLDING THE STATE S MINING BAN. Whether or not SB 838 is a land use restriction preempted because Congress has occupied the field of land use planning for federal land is a question of law. But whether, in the alternative, it stands as an obstacle to the accomplishment of the full purposes and objectives of Congress, Granite Rock, 480 U.S. at 581, involves issues of fact that cannot be fairly resolved against the Miners on summary judgment. It is remarkable indeed to see a federal court declaring, without trial, that as a matter of fact there could be no interference with federal mining objectives because miners could still mine by hand. While we argue above that the prohibitory character of SB 838 making it an obstacle to the accomplishment of Congressional mining objectives is sufficiently obvious to be determined as a matter of law, in the alternative, the Magistrate Judge erred in finding that on the record before him there was no obstacle as a matter of law because federal lands in Oregon remain free and open to mineral exploration and development by means other than the use of motorized equipment. (ER23: Op. at 17.) Specifically, the Magistrate Judge reasoned that... a ban on motorized instream mining in protected areas is not a ban on all mining in all waterways. As discussed above, SB 838 limits only one form of mining, and only in specific areas. Outside of the prohibited areas, SB 838 allows for permits to be issued for motorized instream mining. Even inside the prohibited areas, motorized mining is allowed 100 yards upland of the high water mark, as long as it does not disturb vegetation to the detriment of water quality. Thus, SB 838 is not a ban on mining. (ER21: Op. at 15.) There are two problems with this position. First, all of the Magistrate Judge s factual conclusions evade the core of the Miners position. The mining claims of the Miners are in PAGE 3 OF 8 Prohibited Zones, and they are prohibited from any ability whatsoever to recover the valuable mineral deposits on their claims. Undisputed testimony before the Magistrate Judge established that use of motorized equipment is required to recover the gold deposited on their mining claims. (ER135: Grothe Decl. 7; see also ER150: Coon Decl. 4 (claim cannot be effectively mined without the use of a suction dredge ); ER143: Evens Decl. 6 ( cannot mine at all without motorized equipment for health reasons ); ER102: Van Orman Decl. 4 ( The only way to reach these underwater deposits is with the use of motorized mining equipment ); ER106: McCracken Decl. 8 (underwater deposits cannot, as a practical matter, be reached with hand tools ). Nor was testimony disputed that all of those who recover significant amounts of gold or other precious metals, use motorized equipment (ER130: Hunter Decl. 8) and that SB 838 is in substance a ban on all meaningful placer mining in the prohibited zones (ER118: Kitchar Decl. 13; see also ER107: McCracken Decl. 11). SB 838 even denies miners working underwater the right to use a motor to pump the air they need to breathe. (ER121: Kitchar Decl. 22.) Against all this evidence, the Intervenors offered no more than two articles concerning placer gold recover methods in general, many of which were motorized. (Dkt. Nos & 51-6.) The State for its part noted that sometimes the Prohibited Zones did not cover the entire claims of the Miners, but there was no dispute that the gold on the claims lay within the Prohibited Zones. Unchallenged expert testimony before the Magistrate Judge also confirmed that limiting the Prohibited Zones to nonmotorized uses interferes with the whole ordinary course of development of the mineral deposits therein. Mineral exploration requires small-scale activities at first, as part of the natural process for leading to larger-scale activities. (See generally ER124: Kitchar Decl ) The Nation s mineral industries are built, by statutory design, on the backs of the small-scale prospectors and

4 miners who discover valuable minerals. (See ER : id. 36.) More specifically, rational mineral development cannot proceed by panning a few flakes of gold and then investing hundreds of thousands of dollars in permitting processes and large scale operations; rather, one starts with motorized small-scale equipment to do bulk testing on the order of many cubic yards of material before making further investments. (ER124: Kitchar Decl. 32.) Outlawing the use of motorized equipment is far more of an obstacle than, for example, merely forbidding core drilling the state law prohibition struck down by the Colorado Supreme Court in the Brubaker case. The potential availability of very large scale mining permits under Oregon law, does not remove the obstacles posed by SB 838 to the full accomplishment of Congressional objectives. See also supra n.2. Very large permits are not sufficient to vindicate the purposes of federal law in a context where Congress has put the public lands open for exploration and development by individual miners, small-scale equipment is required for such exploration and development, and small-scale mineral development is generally a prerequisite to large-scale mineral development. The second problem with the Magistrate s factual conclusion is that it grossly misconstrues what constitutes an obstacle for federal preemption purposes. The Magistrate Judge cited no case, and the Miners are aware of none, where rank interference with Congressional objectives is sanctioned merely because a court can conceive of some conceivable way some tiny portion of the objectives might still be achieved. To the contrary, modern preemption precedent is sensitive to even potential effects on federal objectives. For example, in Arizona v. United States, 132 S. Ct (2012), a provision of Arizona law allowed criminal prosecution of aliens who sought employment when not authorized under federal law to do so; federal law penalized only employers. Id. at The Supreme Court struck down the law as an obstacle to Congressional objectives because of mere conflict in the method of enforcement. Id. at The Supreme Court also struck down another provision of Arizona law permitting its peace officers to arrest a person if the officer has probable cause to believe... [the person] has committed any public offense that makes [him] removable from the United States. Id. (quoting statute). Here the obstacle was potential differences in discretion in implementing significant complexities involved in enforcing federal immigration law. Id. at In neither case was the statute saved because under some (or even most) circumstances, it might not interfere with Congressional objectives. The position of the Magistrate Judge that, in substance, only a state law making any and all mining utterly impossible throughout the federal lands in the State of Oregon would be preempted is inconsistent with the entire body of preemption law. That body of law, unlike the State of Oregon and the Magistrate Judge, zealously defends Congressional objectives against encroachment, particularly in a context where Congress is exercising clear Constitutional authority to legislate. If it is not obvious to this Court that banning motorized mining interferes with the full accomplishment of Congressional objectives as a matter of law, this Court should reverse the Magistrate s grant of summary judgment and remand for further. Cf., e.g., Association of International Automobile Manufacturers, Inc. v. Abrams, 84 F.3d 602 (2d Cir. 1996) (reversing district court grant of summary judgment denying federal preemption given genuine factual issues as to both the claimed burdens and the putative benefits created by the New York bumper statute ). Conclusion For the foregoing reasons, the Magistrate Judge s grant of summary judgment to the State of Oregon should be reversed, and summary judgment granted to the Miners, or in the alternative the case remanded for trial. Dated: July 14, s/ James L. Buchal James L. Buchal, OSB No Counsel for Plaintiffs - Appellants COMPLETE COPIES OF THE ABOVE BRIEF, ALONG WITH ALL OTHER BRIEFS, ARE AVAILABLE ON THE WMD WEBSITE AT: EOMA / WMD vs OREGON DEQ 700PM / NPDES PERMIT LITIGATION NOW GOING TO THE OREGON SUPREME COURT, MAY 10, 2018 This case has been ongoing since 2005, when the Eastern Oregon Mining Association (EOMA), with the support of the Waldo Mining District (WMD), and other Oregon-based mining orgs. which banded together to challenge the legality of the DEQ 700PM permit which was, and still is, issued in part for the U.S. EPA by DEQ under the National Pollutant Discharge Elimination System (NPDES) under 402 of the Clean Water Act (CWA). NPDES permits are required for all discharges (as an addition ) of pollutants into waters of the United States. Exempted from 402 permitting are discharges regulated under 404 of the CWA under the authority of the U.S. Army Corps of Engineers for the discharge of dredged or fill material. Plainly, the discharge from a suction dredge is dredged material that acts as fill (i.e.; changes the bottom elevation). Over the years and many court decisions, discharge has been defined as an addition (of pollutants) from the outside world into waters. We argue that there clearly is no addition, as everything is already in the water! Even the U.S. Supreme Court has stated that: If one lifts a ladle of soup up above of the pot and pours it back, they have added nothing to the pot. The CWA provides two separate and exclusive permitting schemes for discharging into water. 402 NPDES permitting under the U.S. EPA for all discharges of pollutants EXCEPT for the discharge of dredged or fill material which is under 404 and U.S. Army Corps authority. PAGE 4 OF 8

5 Both the CWA itself, and the courts have ruled that a single discharge is to be under one section of the CWA, or the other but never both except for the Oregon Court of Appeals which ruled in 2009 that the single discharge from a suction dredge could be split into two parts: 1) the discharge of dredged or fill material (rock, gravel, sands) that sinks right away to the bottom under 404 and the Corps; AND, 2) the discharge of turbid wastewater which is under 402 NPDES permitting by the U.S. EPA. As far as we know (and we ve looked), no other activity is required to have both CWA permits for the same discharge. The rocks, gravel and sand sucked up and passed through the sluice are all dredged material. So are the finer particles (silt, etc.) and the water itself! EVERYTHING that goes up the hose is dredged material regardless of how fast it sinks to the bottom. And just as important: the 404 exemption from 402 permitting is for discharges (into water) that act as fill (i.e.; will change the bottom elevation). Clearly, the discharge from a suction dredge will change the bottom elevation meaning suction dredges meet BOTH exemptions from 402 permitting. And strangely enough, in June of 2009, the U.S. Supreme Court ruled in SEACC v. COUER ALASKA that Army Corps permitting under 404, and NOT EPA NPDES permitting under 402 was the proper CWA permit for Couer s discharge. Even stranger, the Oregon Court of Appeals cited COUER ALASKA and yet totally ignored the ultimate decision! Couer Alaska was a lode gold mine which used froth floatation to separate gold from the finely crushed ore and then discharged the tailings in the form of a slurry comprised of 30% solids and 70% water, through a pipe which discharged into a nearby lake. Clearly, beyond doubt, this was an addition of pollutants, from a point source (the pipe), into a lake and many people, including the SEACC, believed they needed NPDES permits. However, the court found that the discharge, even if it was an addition of a pollutant through a point source had the capability to change the bottom elevation of the lake and was thereby fill, and solely under Army Corps jurisdiction, and thereby did not need NPDES permitting and the Oregon Court of Appeals in December of 2009 totally ignored this June 2009 decision and ignored it again in NPDES is a regime designed to incrementally eventually eliminate the discharge (100%) into waters. It is normally applied to industrial facilities discharging pollutants from shorebased plants (such as a sewage treatment plant). The NPDES permits do not allow for any exemptions, and once a restriction is placed in a permit, it can never go away. This is called anti-backsliding, wherein no new permit can be less restrictive than the previous permit even if a restriction is found to be unfounded or plainly stupid! The earliest 700PM permit issued by DEQ back in the 1980 s was all of three pages, it covered all dredges up to 8 and 40hp and all it said was to minimize turbidity as much as practical. The latest DEQ 700PM permit is about 14 pages and only covers up to a 6 dredge or 16 hp (soon to be changed to 4 hose), has the 300 foot limit on visible turbidity, and also states that at no time can the turbidity extend bank-to-bank all but eliminating the use of a very small dredge in a large river! Most of us dredge in creeks (as Oregon and the Feds have kicked us out of most rivers); and in the summer when the water is low, most creeks have rocks and boulders sticking up out of the water all over the place, which cause eddies in the flow mixing everything together within mere feet of the dredge, bank-to-bank. The 700PM permit has gotten so restrictive that I doubt any, if not most dredge operations can meet their limits on turbidity. But only because the permit is in part a NPDES permit. Under Oregon laws, any beneficial use of water is or can be allowed exceedences of the Oregon Water Quality Standard this is how they allow dams to be removed or large navigational dredges (like in the Columbia River) to discharge without concern over turbidity as they are under CWA 404 permitting, not 402. Under Oregon law, ORS provides, the use of water of lakes and running streams of Oregon for the purpose of developing the mineral resources is declared to be a public and beneficial use and a public necessity. ; which means that except for NPDES permitting where no exceptions are allowed suction dredge mining would qualify for the exceedence of the turbidity standard. Not only is the use of water for mining a public and beneficial use it is also a public necessity an even higher standard or level of protection. The bottomline here is that we either win and get out from under NPDES permitting (thereby forcing DEQ back to the beginning writing whole new regulations and permit), or lose whereby we can all forget in-stream mining with anything more than a simple gold pan. In the 12 years of litigation, we have been forced to file two different times the first was in 2005 but by the time we got a decision that we could appeal (to a higher court), the 2005 permit had expired and the courts ruled us moot. This forced us to start over against the 2010 permit, and again, by the time we had an appealable decision, the 2010 permit had expired and was replaced in 2015 and we were declared moot a second time by the Oregon Court of Appeals (the State even had the nerve to invite us to try a 3 rd time!). Fortunately, the Oregon Supreme Court recognized that our main issue is common to all the permits, and therefore a live issue likely to evade review as DEQ can revoke a permit anytime they want and replace it meaning it was possible we would NEVER get to the Oregon Supreme Court (which is the only Oregon court that can overturn the Court of Appeals decision). In our April Newsletter we reported that the Oregon Supreme Court had ruled we were not moot, and sent us back to the Court of Appeals to see if that court would change its decision. On May 4, 2017, a Hearing was held in the Oregon Court of Appeals in Salem, and on June 1, 2017, that court upheld their earlier decision (back in 2009) that we needed both CWA permits! We then petitioned the Oregon Supreme Court to hear our appeal, and that court agreed and has scheduled Oral Arguments on May 10, 2018, at 1:30pm in the Oregon Supreme Court, Salem. A WIN in EOMA/WMD v DEQ will mean (or should mean) that DEQ will have to go back to the drawing board and write a whole new permit based solely on Oregon laws, and not NPDES under 402 of the CWA. As the present permit is virtually impossible to meet (and still mine), any new permit can t be any worse than what we have and who knows, might even be better. A loss will mean the death of in-stream mining in Oregon. PLEASE SUPPORT OUR EFFORTS TO SAVE SMALL-SCALE INSTREAM PLACER MINING IN OREGON SEE Page 8 PAGE 5 OF 8

6 ENVIRONMENTALIST S EFFORTS TO STOP SMALL-SCALE MINING Since Day 1 of our challenges against the DEQ 700PM permit back in 2005, so-called environmentalist (and orgs) also filed challenges against the permit & DEQ (arguing that the permit was not restrictive enough and procedural errors by DEQ); adding at least 1/3 rd of the cost of the litigation, and causing extensive delays in the process as all their briefs had to be responded to, and replied to just as they did with our briefs. In the first challenge to the permit, because the permit was issued as a rule, all challenges went directly to the Oregon Court of Appeals. There, the two challenges were consolidated together and heard at the same time. Ultimately, the court issued a Decision in December of 2009 ruling that the DEQ permit was indeed invalid, but not on the grounds we argued! Instead, they ruled the permit invalid as DEQ did not specify what part of the single discharge they (DEQ) were regulating. (This is when the court decided to split the single discharge into two parts: 1) rocks, gravel & sand, and; 2) turbid waste water, and ruled that suction dredges needed both CWA permits (Army Corps permit for the rocks, gravel & sand and the EPA NPDES permit for the turbid waste water)). Because the court ruled the DEQ permit invalid, they didn t bother to rule on the environmentalist s challenge. We promptly filed an appeal with the Oregon Supreme Court, who agreed to hear the appeal, with a hearing set for August of Unfortunately, the 2005 permit (the one we challenged) expired at the end of June 2010, and was replaced with the new and improved (i.e.; specified the NPDES part only covered the discharge of turbid waste water) PM permit and then DEQ filed a motion to declare us moot as the 2005 permit had expired and won. This forced us to start over, but this time, because DEQ issued the 2010 permit as an order (rather than a rule ), all challenges had to start in Circuit Court (one court below the Court of Appeals). EOMA filed in Baker County, and the environmentalists filed in Multnomah County, and the Waldo Mining District filed in the Oregon Court of Appeals just in case the permit was really issued as a rule (and the court ruled that the permit was an order and moved Waldo to Josephine County. DEQ then successfully moved to have all the challenges consolidated and moved to Marion County Circuit Court in Salem (arguing it was too difficult for state employees to travel to Baker Co. or Josephine) (as if the miners could afford to go to Salem). Marion County Judge Geyer ruled that the two challenges were consolidated and that all parties were parties in both cases. We then filed a motion challenging the environmentalist standing (to challenge an order), as in order to challenge an order, one has to be actually harmed. This cost us nearly 2 years as the enviro s refused to respond to our Discovery requests in any meaningful way which eventually forced us to ask the court to force them to respond. The judge gave them a little more time to produce the documents, but just days before the deadline it was announced that the enviro s had met secretly with DEQ and they had reached a (Secret) Settlement whereby the enviro s would drop their challenge to the 2010 permit and DEQ would pay them $750, plus consider a whole list of issues presented by the enviro s (this Dream Wishlist is the beginning of SB 838 and the issued raised were a large part of the agenda for the Governor s SB 838 Study Group). WE STRONGLY OBJECTED to this as we were not part of the Settlement, but it seems the court did not care. Our challenge continued, and eventually Marion County Judge Geyer ruled in favor of DEQ with no explanation. We then appealed to the Oregon Court of Appeals and once again, just a week or so before the scheduled hearing the 2010 permit expired and was replaced with the 2015 permit and the court ruled us moot for the 2 nd time. We appealed the mootness to the Oregon Supreme Court (again), but this time we prevailed showing that court that we could never succeed or get a fair hearing as we needed the Oregon Supreme Court to overrule the Appeals Court ruling and we could never reach that court if all DEQ had to do was replace the permit (which they can do anytime they want such as if they were about to lose). The Oregon Supreme Court ruled that although our challenge to the 2010 permit was moot, the main underlying issue (i.e.; NPDES) was still alive and that we had a right to be heard. However, even though both our brief and DEQ s brief requested that if the Supreme Court found that we were not moot that the case should then be heard in the Supreme Court, the high court moved us back to the Court of Appeals requiring yet another full round of briefs, and an Oral Hearing which was held May 4 th, 2017 followed by a decision June 1, 2017 by the Court of Appeals upholding that court s earlier (bad) ruling in Since then we ve re-appealed to the Oregon Supreme Court who will (finally) hear the case on May 10, Only in the good ol USA can we all find (a chance for) justice it just takes years and a big pile of money. AND as mentioned, we believe that the Secret Settlement mentioned above was a driving force behind SB 838. Also, we ve found out that the attorney for the state in the SB 838 case was new, and had previously been an attorney for one of the environmentalist orgs! Sounds fair???? History reports that the 2 nd place gold was discovered in SW Oregon after Sailor s Diggin s was by the Althouse Brothers in the winter of , for whom the creek was named. Althouse Ck. was fabulously rich with large nuggets (including the 17 Lb. nugget found in 1859 by Matty Collins on the E. Fk.). About 4 miles up Althouse from the valley floor was Browntown, the largest town in SW Oregon during the 1850s- 60s with a population of near 1,000. Browntown had an Opera Hall, and in the 1850 s Child Star Lotta Crabtree (singer, dancer, actress and comedian) played Browntown. It is reported that the miners showered her with nuggets which was the start of her fortune. It is also reported that Lotta returned in the 1860 s during the Civil War and sang patriotic songs and was booed off the stage by Southern supporters. Nothing remains of Browntown but one painting, memories & dreams having been mined away in the 1930 s, and later bulldozed in the 1960s-70 s. PAGE 6 OF 8

7 WALDO S 166 TH BIRTHDAY This coming April 1 st is not only April Fool s Day, it is also the Waldo Mining Districts 166 th Birthday! NEWSLETTERS & DUES This is the first WMD Newsletter since April Look at the mailing label on the envelope this News came in and to the right of your name will be a MO/YR number, which is the date your dues were due. If the label says 01/17 then your dues were due January However, because we have not put out a News since last April, we are giving all our members more time to catch up..no ONE was dropped with this mailing, and you will get one more warning with the next News (which we hope to put out by summer). GENERAL MEETINGS FRIDAY, MARCH 2, 2018 WMD is currently holding Joint Meetings with the Galice Mining District. Although we have skipped most months since last June, we are holding MONTHLY MEETINGS again starting on FRIDAY, MARCH 2, WHEN: 1 ST FRIDAY OF THE MONTH, 6-9PM WHERE: REDWOOD GRANGE HALL 1830 REDWOOD AVE., G. PASS (West of the JoCo Fairgrounds on Redwood Ave.) Meetings start at 6pm with a Pot Luck Dinner. (Please check with Armadillo Mining before the 1 st Fri. of the month to make sure a meeting is scheduled) 1/2 LB OF GOLD DRAWING At the June 2, 2017 meeting we held the Drawing for the GRAND PRIZE OF 1/2 LB. OF GOLD. The Winner was Jeff C. of Aguanga, CA.. 46 other great prizes valued at more than $10K were also given away. For a List of Winners please visit the WMD website at: BITS & PIECES DEQ COMMENT NOTICE, JANUARY 30, 2018: Through March 9, people may comment on proposed modifications to the 700PM NPDES general permit. This permit is for discharges from in-stream placer mining. A public hearing will be held on Wednesday, March 7 in Portland. Comment is due: Friday, March 9, 5 p.m. Contact: Beth Moore at , 700PM@deq.state.or.us More information is available at: State of Oregon: Water Quality Permits - Metal Mining Activities (NOTE: I have not had a chance to look the DEQ draft, but presume it will add rules to reflect changes by SB 3 i.e.; no permits issued in ESH, and limiting all dredges to 4 hose. I ve also heard a rumor that DEQ is not planning on permitting non-motorized dredges even though SB 3 specifically allows them. CHECK IT OUT & COMMENT! tak) FUND RAISING EFFORTS WMD relies on member dues to cover normal expenses, such as P.O. Box rent fees, maintaining the website, Bldg. rent (for meetings), printing the Newsletter(s) & postage, etc.. All other expenses, such as travel expenses in order to testify at various meetings and to participate on committees (commonly requiring trips to Salem), litigation, legal advice, etc. are or have to be covered by Donations. Unfortunately, the continuing and constant anti-mining efforts by the environmental orgs and run-amuck govern-ment agencies require more than just holding meetings, running a website and publishing a Newsletter to the point that we are forced to defend our rights in court which is very expensive. Some have said that going to court is a waste of time, energy, and money; especially in the last 10 years as we have not seen much success. However, we remind the mining community that without our efforts and involvement in court cases none of us would still be mining. We have had some WINS! Some may remember our battles with the Forest Service over MM- 1 of the NW Forest Plan instituted by local enviro groups and a friendly lawsuit with the Siskiyou NF. Had we not intervened (in court), MM-1 would be the law of the land, and all of us would need an approved Plan of Operations just to go gold panning! We also stopped a proposed Mineral Withdrawal of the whole 1.2 million acre SNF and some 600 thousand acres of adjoining BLM lands. WE CAN, AND HAVE, MADE A DIFFERENCE. As bad as it seems now, without our efforts in the last years, it would have been much worse! Most miners don t have the time, knowledge, experience, or desire to really get involved most are too busy with just living, raising a family, and holding down a job. What you can do however is help supply us with the needed ammunition, in the form of dollars, to keep up the fight. In the past WMD has been involved with several/many fund raising drawings. Over the years, we have given away more than 2 Pounds of Gold (along with hundreds of other prizes). However, holding or running a drawing is a TON of work, takes a lot of time, and can be very expensive (such as $800 for a one-time ad in a popular mining publication). As an added problem (with drawings) is that WMD cannot actually run the drawing as WMD is not a Non-Profit org (we are instead some form of quasi-govt. agency authorized by the 1872 Mining Law to regulate mining within the District). This means we have to have a non-profit org to hold or sponsor a drawing; such as the Western Culture Conservancy which ran our last drawing. Presently, both of our lawsuits are coming near the end, win or lose. We are several $1000 in the hole, and expect we will need another $10K to see this through. WE are hoping the mining community will step up and make enough Donations to cover the bills without having to hold another drawing. So, the plan for now is to solicit donations and hope enough comes in to pay the bills. If not, we may be forced to arrange another drawing, and if that happens, ALL that donate now will automatically be entered if we end up holding another drawing. Back in 2004/05, according to DEQ, they issued 1, J permits for suction dredge mining. If each and every one of them donated $10, this would bring in nearly $20k. PLEASE do what you can, send what you can. We will only get justice if we can afford it. If we don t fight, we can t win. PAGE 7 OF 8

8 MORE BITS & PIECES DEPT. OF STATE LANDS RESOURCE ADVISORY COMMITTEE ON SB 3 MEETS On Dec. 12 in Grants Pass, and again on Jan in Springfield, a special Resource Advisory Committee (RAC) met with DSL staff to make recommendations on DSL Fill & Remove rules regarding effects of SB 3. Mike Hunter from Willamette Valley Miners and Tom Kitchar from Waldo managed to get appointed to the RAC representing mining interests. Other RAC members represented fishing, hiking & kayaking, and envoi orgs.. Even though we were out-numbered 5-6 / 2, we managed to keep everything that wasn t SB 3 related out of the draft recommendation we think/hope. We expect within the next few weeks DSL will release the Final Draft for Public Comment. Unfortunately, there should not be much to comment on as the only real change in Fill & Remove will reflect that DSL will no longer issue GA s or permits for motorized in-stream mining in ESH areas. Go to Oregon Department of State Lands website for more information and updates. HOW TO DONATE: ANYONE wishing to make a Donation to our SB 3/ DEQ Legal Fund (or General Fund) can send it directly to the WMD at our P.O. Box or left for us at the Armadillo Mining Shop in Grants Pass. We are also setting up a PayPal account on our WMD website where you can make online Donations, which should be up & running by the time this News is received (or there-abouts). Anyone wishing to make a Tax Deductible Donation to our Legal Fund under IRS Section 170 can send their donation to the Western Culture Conservancy (WCC), which is a newly established 501c3 org. (IRS# ) dedicated to preserving the heritage and culture of the American West - its past, present, and for future generations. The Conservancy is also focused on educating the public on the West's rich, colorful and important history." Upon receipt of your donation WCC will send you a receipt for tax purposes. (Please make payable to Western Culture Conservancy, with Memo: OR Mining Fund ) WESTERN CULTURE CONSERVANCY P.O. BOX 1407 JACKSONVILLE, OR w ww.westerncultureconservanc y. org FOLKS: Small-scale mining in Oregon (and other states) is currently balanced on a very sharp, and narrow knife edge. It s simple we either WIN BOTH LAWSUITS or forget mining as we knew it. A WIN in Oregon may go a long way to overturn California s dredging ban, and help keep miners in WA & ID in the water too. Minimally, any new lawsuit will take at least 4-5 years just to get a decision that probably would be appealed by the losing side so add another 2-3 years and many more $1,000s. Even if we lose in the 9 th Circuit over SB 838/SB 3, if we have the support we can petition the U.S. Supreme Court to hear our plea. Same with if we lose against DEQ in the Oregon Supreme Court, if we have the support, we can petition the U.S. Supreme Court. And, we feel with that court s recent refusal to hear Rinehart just increases the chance they would listen to us as now they would see that the problem has spread beyond just California. IT S NOW... OR NEVER. We may never make it this high in the court system as we are now again! It took many 10 s of $1,000 s to get this far. It will really be a shame and total waste if we had to drop out now due to the lack of ammunition to stay in the War on Mining. And remember, any Donation now will count for Entry s if there is another Drawing later! WALDO MINING DISTRICT M EM B E R S H I P, R E N E W A L & D O N A T I O N F O R M DUES DUE DATE IS PRINTED NEXT TO YOUR NAME ON THE MAILING ENVELOPE, AND SHOWS THE MO/YR YOUR DUES ARE DUE NEXT. The WMD shares Member Contact information with NO ONE. PLEASE CHECK NEW MEMBERSHIP RENEWAL DONATION INDIVIDUAL $15.00 FAMILY $17.50 AMOUNT $ name (print) date phone address city state zip (PLEASE PRINT CLEARLY!) TOTAL AMOUNT ENCLOSED: $ Please check for Newsletter only. PLEASE SEND YOUR DUES AND/OR GENEROUS DONATIONS TO: WALDO MINING DISTRICT P.O. BOX 1574, CAVE JUNCTION, OR FOR ADDITIONAL INFORMATION, WRITE THE WMD AT THE ABOVE ADDRESS, OR US AT: waldominingdistrict@gmail.com OR VISIT US ON THE WEB AT ww w.waldom in ingdis tr ic t.org N e v er d o u b t t hat a s m al l g r o up o f t ho ug ht ful, c o m m i t t e d p e op l e c a n c ha nge t he world. I n d e e d, i t s t he o nl y t h i n g t hat e v e r has! Margaret Mead PAGE 8 OF 8