TALE OF THE DAY

Dave Mccracken...it Oculd Happen To You
By Ron Stockman, Mlrc
From Page 49
November, 1999 issue of Lost Treasure
Copyright © 1999 Lost Treasure, Inc. All rights reserved.

Once again our rights as treasure hunters, prospectors and yes even United States Citizens are being stepped on by big brother. I sat down to write an article about Dave McCracken, publisher of Gold & Treasure Hunter magazine and head of Modern Gold Miner & Treasure Hunters Association, and his battle with the powers that be. While working on the article I received an email from Ron Stockman of Mother Lode Research Center, an advisory arm for the FMDAC. Ron has so eloquently told the story that I asked and received permission from him to reprint his article.

Contributions to help Dave can be sent to: Dave McCracken Legal Fund, P.O. Box 153, Happy Camp, CA 96039.

Lee E. Harris, Publisher, Lost Treasure Magazine

MLRC has received many requests for information plus our opinion as to whether persons or organizations should contribute to Dave McCrackens legal fund. While we can give out details as to Daves predicament we cannot however, advise people on how they should spend their money, and, while there is a rush in some quarters to supply Dave the funding he needs to continue his fight (which he desperately needs) there seems to be a general silence concerning the other leg of this important battle, that being the willingness of concerned citizens to speak out on Daves behalf, with that protest being directed to the right people.

McCrackens story is long and most of you already know the history. In a nutshell, at present Dave is locked in a battle with The California Department of Toxic Substance Control (DTSC) who claims mercury was discovered in a soil sample taken from an area of his property located on or near Happy Camp, Calif. According to certain briefs filed with the court the sub-samples (1,000 grams, not a total inspection of all of the material found at this site) contained 20.1 parts per million (ppm) with the toxic level being 20 ppm by law. DTSC is charging Dave or those persons under his control allowed the discharge of mercury into the environment and therefore he is liable for some stiff fines and the cost of the cleanup.

Dave was at first brought up before an Administrative Law Judge (ALJ) for a hearing. Many important incidents occurred at this hearing. (a) Some of Daves expert witnesses who could have testified that mercury is commonly found throughout gold mining country both presently and historically in both the soil and waterways. The place where the samples were taken is located in a heavily mined area just below a large hydraulic pit and within gravels placed there by the Klamath River. These people were denied the right to testify although they were on Daves witness list. (b) The ALJ permitted the DTSC to present surprise witnesses of which Dave had no knowledge of since they were not on the witness list. (c) Dave was denied certain crucial papers needed for his defense which were in the hands of the DTSC. (d) He was denied the right to properly cross examine certain witnesses plus many other things such as the use of an improperly sterilized sampling shovel. Further, the ALJ readily admitted there were certain motions Dave raised that he was forbidden to rule on and rightfully belonged before a Superior Court or Federal District Judge. Dave was fined several thousand dollars and has since appealed to a Superior Court.

This writer is well experienced at legal proceedings as well as being a retired gold miner. Ive also sat on the CA Mercury Board along with Chris Stathos from Mother Lode Dive Shop in Sacramento, Calif. Dave McCracken was also a member of that committee which also had scientists and other government experts on board. This committee determined that mercury is widespread and common in California. An ALJ is often an attorney hired from the private sector part time to sit as a Hearing Officer. While they can be useful in such areas as social security or welfare decisions most have little experience in the environmental field and almost none have knowledge about gold mining today or historically. The ALJ openly admitted there were issues in this case which he was forbidden by law to rule on yet these issues were crucial to Daves defense. The above factors alone are enough to have required (in MLRCs opinion), the ALJ to remove himself from the process and remand the case into an official court where all the issues could be heard.

This writer as well as most gold miners along with agency people and scientists who sat on the mercury board are well aware that mercury can be found on all private and public properties located in gold mining areas. The mercury got there either because of its prolific use by historical gold miners or in some cases naturally. Although it is rarely used today up until a few years ago mercury could be purchased over the counter in California. Bear in mind the charge against Dave is that he released or placed the mercury there, not that the mercury was simply there. The burden of proof rests upon the DTSC to prove the mere speck of mercury found on Daves property was placed there by him or at his direction which makes it different from all the properties both public and private surrounding his.

If each property owner including the various agencies who control public property can be held liable for the mercury found on their lands which they did not place there, then we have a situation that is both intolerable and impossible. The DTSC is supposed to be the expert agency within California as concerning toxic substances, therefore, it is well aware of the widespread soil contamination of mercury in gold mining regions as well as appurtenant waterways. Also, taking into consideration the first charge against Dave was for soil lead contamination which was successfully disputed and then replaced by a second charge of mercury contamination plus all of the other agency hanky panky. The picture of agency personnel out to get revenge on Dave becomes very clear. This desire for revenge stems from Daves allegations of wrongdoing by these and other agency people and the need to protect themselves from their own mistakes. Also, in the past Dave, along with many of us, has been vocal in our criticism of how certain public land users have been treated. Dave just happens to be in a business which makes him an easy target.

There is no doubt, in our opinion, that what is happening to Dave is a shabby showing of arrogance by an agency which is supposed to conduct itself in a fair, reasonable fashion. They feel further secured by the fact that Dave has to represent himself (Pro Per) because he simply doesnt have the funds for a team of attorneys. Hes done a great job in putting together his briefs but defending himself places him against another form of arrogance the legal profession. Many of those who practice law including judges look upon the person defending themselves as an intruder, to be tolerated only because the law requires it. Dave has a hard uphill battle even though hes right and clearly so, but he has no choice.

The above combined with the 1,000s of words written by others on the subject accomplish two things; they keep the reader informed, and, they make the reader angry. Theres little doubt Dave is being strong armed by agency minnows who wish to advance in the feeding chain within the government fish pond. Theyve been successful so far because theyve been able to keep Dave in a legal box, isolated. Despite all the information being circulated amongst various public land user groups, very little if any has had any effect on these minnows. MLRC believes we can all change that and in the process be of benefit to Dave.

All agencies operate on the food chain principal. There are the big fish at the top who like a nice quiet fish tank in which to live and enjoy their power. There are the middle size fish whos job it is to insure tranquillity in the tank to keep the big fish happy hoping that by doing so someday they can be big fish too. Then we have the minnows. These come in various shapes and sizes and their job is to enforce agency policy but mainly to do as little as possible to anger the public which would then cause the big and middle fish to have to answer some possibly embarrassing questions asked by the public.

Now of course above all of these are the God-Fish who are such people as the Governor, State Attorney General, some law makers and the like. Now suppose the God-Fish, who have never heard of Dave McCrackens problem started receiving 100s, maybe 1,000s of phone calls, letters and faxes from citizens asking such questions as: We want to know whats going on here. How come a speck of mercury found on a private property owners property is cause to ruin this man and his future when mercury is found on all properties almost anywhere in California and DTSC knows this, or should?

There appears to be some fraudulent misrepresentations here as well as an attempt to keep important documentation away from Dave and shoddy sampling practices, we want an investigation into these allegations. Why was Dave at first charged with contaminating his property with lead and when that charge was proven to be unfounded the element of contamination was then changed to mercury? We feel strongly that Dave is being taken advantage of because he has spoken up with others in the past against sometimes unfair regulations and practices against those who hunt for gold both recreationally and professionally and certain elements within The California Department of Toxic Substance Control and other agencies wish to see him silenced.

This case is both wrong and dangerous. If a citizen owning property or a state agency controlling public property can be held liable for even a speck of a substance contaminant especially if that property is located in an historical gold mining area and more precisely containing a waterway or gravel beds from a waterway whether natural or imported for such uses as road base then indeed we have a dangerous and appalling situation wherein an agency is given God like powers for retribution and retaliation against any citizen or agency in the state. We also have a very dangerous precedent set wherein a disgruntled employee or neighbor could make such charges and the property owner could face losing everything they own. The McCracken case amply displays that minnows in a state agency can run amok without checks and balances, something no citizen anywhere in this country can condone.

Yes, Dave needs funds to keep going but if all of you and your organizations want to really help him win as well as protecting your own rights and property, then youll have to shake up the God-Fish who will in turn shake up the big fish in the agency who then will descend on the middle fish who will go after the minnows who are stirring up the pond. It works, MLRC has proven in the past that it does work and many of you out there know it. Below are the people you need to contact. Its going to take at least 100s to get the ball rolling, 1,000s would be better. Faxing is a good way to go as well as writing letters. Petitions signed by organization members are also good but these individuals should make a personal effort as well. Please, keep your demands and comments professional and intelligent. Insults, name calling and threats may make you feel better but theyll do nothing to help Dave or the cause, besides, threats could land you in jail. People from out of state, your comments are very important. Big fish are impressed by contacts from all over the country because they then realize the concern is more than just local.

We will be recommending to McCrackens people that they contact the Pacific Legal Foundation in Sacramento. Now that Dave is in appeal they may elect to take his case on. They are very good and their services are free but they are highly selective about what they take on.

The following are the people you need to contact:

CA. Governor Gray Davis, State Capitol, Sacramento, CA 95814, Phone (916) 445-2841, Fax (916) 445-4633

State Attorney General Bill Lockyer, 1300 I St., Sacramento, CA 95814, Phone (916) 445-9555, Fax (916) 324-5205

Dept. of Toxic Substance Control, Edwin F. Lowry Director, PO Box 806, Sacramento CA 95812-0806, Phone (916) 322-0504

The Honorable Maurice Johannessen, CA Senator, State Capitol, RM 5061, Sacramento, CA 95814, Phone (916) 445-3353 (Johannessen has worked with us many times in the past. If he receives enough letters he will get involved.)

The Honorable Richard Dickerson, Assemblyman, State Capitol, RM 6011, Sacramento, CA 95814, Phone (916) 319-2002

The ball is now back in your court. Many of you have asked us what you can do. Weve given you a plan that has worked many times in the past. Well do our part to help Dave and others, will you do yours??




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