PLP intervention Karuk II

[maksutaSTAR]

LAW OFFICES OF DAVID YOUNG
David Young, SBN 55341
11150 Olympic Boulevard, Suite 1050
Los Angeles, CA 90064
Telephone: (310) 575-0308
Facsimile No.: (310) 575-0311
Email: dyounglaw@verizon.net

Attorney for Proposed Interveners
PUBLIC LANDS FOR THE PEOPLE, INC.,
a California 501 [C](3) nonprofit
corporation, and GERALD E. HOBBS,
an individual


SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF ALAMEDA




LEEON HILLMAN; CRAIG TUCKER; DAVID BITTS; AND DOES 1-100,

Plaintiff,
v.
CALIFORNIA DEPARTMENT OF FISH AND GAME; DONALD KOCH; and, DOES 1-100, inclusive,

Defendants. )
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) CASE NO. RG09 434444

NOTICE OF MOTION AND MOTION FOR LEAVE TO INTERVENE OF PUBLIC LANDS FOR THE PEOPLE, INC, AND GERALD E. HOBBS


Hearing:
Res No: 921334
Date: April 22, 2009
Time: 9:30 A.M.
Judge: Hon. Kenneth M. Burr
Dept: 30

Trial Date: None Set
Action Filed: February 5, 2009



TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on April 22, 2009, at 9:30 A.M., or as soon thereafter as the matter may be heard, in Department 30 in the above-entitled court, located at United States Post Office Building, 201 13th Street, Oakland, California 94612, Proposed Interveners, Public Lands for the People, Inc. (“PLP”), a California 501 [C](3) nonprofit corporation, and Gerald E. Hobbs, an individual, will and hereby do move the Court for an order granting PLP and Gerald E. Hobbs leave to intervene in this action by filing their Complaint in Intervention under California Code of Civil Procedure § 387. The grounds for issuance of this order are that PLP and Gerald E. Hobbs have an interest in this action because they hold and/or represent miners who hold federally-established mining claims and mineral estates, as well as federally-established possessory property and contract rights. Mr. Hobbs and PLP members annually obtain permits for suction dredge mining, the issuance of which Plaintiffs propose to enjoin. Mr. Hobbs and PLP members engage in suction dredge mining.
This motion is based on this Notice of Motion and Motion for Leave to Intervene, the accompanying Memorandum of Points and Authorities, the Declaration of Gerald E. Hobbs, a Proposed Complaint in Intervention, a Proposed Answer to Plaintiffs’ Complaint, a Proposed Order, the pleadings and papers on file
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in this action, and any written or oral evidence or argument that the Court may receive at the hearing.

Dated: March ___, 2009




______________________________
David Young
Attorney for Proposed Interveners
PUBLIC LANDS FOR THE PEOPLE, INC.,
a California 501 [C](3) nonprofit corporation, and GERALD E. HOBBS, an individual

[maksutaSTAR]

LAW OFFICES OF DAVID YOUNG
David Young, SBN 55341
11150 Olympic Boulevard, Suite 1050
Los Angeles, CA 90064
Telephone: (310) 575-0308
Facsimile No.: (310) 575-0311
Email: dyounglaw@verizon.net

Attorney for Proposed Interveners
PUBLIC LANDS FOR THE PEOPLE, INC.,
a California 501 [C](3) nonprofit
corporation, and GERALD E. HOBBS,
an individual



SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF ALAMEDA



LEEON HILLMAN; CRAIG TUCKER; DAVID BITTS; AND DOES 1-100,

Plaintiff,
v.

CALIFORNIA DEPARTMENT OF FISH AND GAME; DONALD KOCH; and, DOES 1-100, inclusive,

Defendants. )
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) CASE NO. RG09 434444

[PROPOSED] SEPARATE ANSWER TO COMPLAINT OF INTERVENERS PUBLIC LANDS FOR THE PEOPLE, INC. AND GERALD E. HOBBS



Hearing:
Res No: 921334
Date: April 22, 2009
Time: 9:30 A.M.
Judge: Hon. Kenneth M. Burr
Dept: 30

Trial Date: None Set
Action Filed: February 5, 2009






COME NOW Interveners, Public Lands for the People, Inc. (“PLP”) and Gerald E. Hobbs (“Hobbs”) and answers Plaintiffs’ Complaint for themselves alone, and no other, as follows:
GENERAL DENIAL
1. Under the provisions of Section 431.30 (d) of the California Code of Civil Procedure, Interveners PLP and Hobbs deny each, every, and all of the allegations of Plaintiffs’ Complaint, and the whole thereof, and each and every cause of action, and deny that Plaintiffs have sustained any harm or injury of any nature whatsoever, or at all, or damages in any sum or sums alleged, or in any other sum or amount whatsoever, or at all.
2. Further, Interveners PLP and Hobbs deny that Plaintiffs have sustained any injury, damage, or loss by reason of any act or omission alleged in Plaintiffs’ Complaint, or any act or omission of Interveners PLP and Hobbs, or any party to this litigation.
3. Interveners PLP and Hobbs further specifically deny that Plaintiffs are entitled to special damages or attorney’s fees in any sum or amount whatsoever from any party to this litigation, including without limitation, Interveners PLP and Hobbs.
FIRST AFFIRMATIVE DEFENSE
4. As a first and separate affirmative defense to each and every cause of action set forth in Plaintiffs’ Complaint, Interveners PLP and Hobbs allege that the Plaintiffs in this litigation are nothing more than alter egos and substitutes for the Plaintiffs Karuk Tribe of California and Leaf Hillman set forth in the litigation presently pending in the Superior Court of California, County of Alameda, entitled: KARUK TRIBE OF CALIFORNIA and LEAF HILLMAN, PLAINTIFFS v. CALIFORNIA DEPARTMENT OF FISH AND GAME, DEFENDANTS, THE NEW 49ERS, INC., a California corporation, and RAYMOND W. KOONS, an individual, and GERALD HOBBS, an individual, INTERVENERS, Case No. RG05 211597, hereinafter referred to as “KARUK I”. In addition, the parties in KARUK I and in this litigation are in privity with each other, and the claims and remedies sought in both cases are the same.
SECOND AFFIRMATIVE DEFENSE
5. As a second and separate affirmative defense to each and every cause of action set forth in Plaintiffs’ Complaint, Interveners PLP and Hobbs allege that the Plaintiffs in this litigation have admitted in statements made to the public, referring to this litigation that, “Earlier this year the Tribe sued Fish and Game again in an effort to force immediate protections for fish.”
THIRD AFFIRMATIVE DEFENSE
6. As a third and separate affirmative defense to each and every cause of action set forth in Plaintiffs’ Complaint, Interveners PLP and Hobbs allege that the Plaintiffs in this litigation are alter egos and substitutes for the Karuk Tribe of California and Leaf Hillman, and by and through subterfuge and deceit are attempting to re-litigate matters already decided, or that could have been decided in KARUK I, and therefore are harassing and vexatious litigants at common law and the laws of the State of California, and cannot proceed with this litigation without posting a bond as security for costs and fees, including, without limitation, attorney’s fees occurred by parties to this litigation; and further as harassing and vexatious litigants, cannot proceed with this litigation without consent and leave of the Court.
FOURTH AFFIRMATIVE DEFENSE
7. As a fourth and separate affirmative defense to each and every cause of action set forth in Plaintiffs’ Complaint, Interveners PLP and Hobbs allege that Plaintiffs are in privity or otherwise associated in fact, with the Karuk Tribe and Leaf Hillman and this litigation represents the impermissible splitting of a cause of action previously pursued in KARUK I. Interveners are informed and believe, and thereon allege that:
(a) Plaintiff Leeon Hillman is the brother of Leaf Hillman and treasurer of the Karuk Tribe.
(b) Plaintiff Craig Tucker is a spokesman for and a consultant funded by the Karuk Tribe.
(c) Plaintiff David Bitts is the President of the Pacific Coast Federation of Fishermen’s Associations, an environmentalist group purporting to represent the interests of fishermen and a close ally of the Karuk Tribe in numerous ventures attacking Klamath Basin property holders in a long-standing and highly-successful venture to deflect attention from unregulated fishing efforts inimical to Klamath Basin fish stocks.
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FIFTH AFFIRMATIVE DEFENSE
8. As a fifth and separate affirmative defense to each and every cause of action set forth in Plaintiffs’ Complaint, Interveners PLP and Hobbs allege that all Plaintiffs, individually and in concert, are involved in the wholesale slaughter of federally-listed Coho salmon in the Klamath Basin and other stocks of fish, through the promotion of, and involvement in, unregulated and inadequately regulated tribal and other fish harvests. They have unclean hands with respect to the subject matter of their suit, as their groundless attacks against other activities that have never killed so much as a single fish represent a bad-faith attempt to deflect attention from their own significant and adverse impacts on Klamath Basin fish stocks.
SIXTH AFFIRMATIVE DEFENSE
9. As a sixth and separate affirmative defense to each and every cause of action set forth in Plaintiffs’ Complaint, Interveners PLP and Hobbs allege that the remedial authority provided under California Code of Civil Procedure Sec. 526 (a) does not apply to the State of California, or any officer, agent, official, or department thereof.
SEVENTH AFFIRMATIVE DEFENSE
10. As a seventh and separate affirmative defense to each and every cause of action set forth in Plaintiffs’ Complaint, Interveners PLP and Hobbs allege that the actions complained of by Plaintiffs are discretionary acts, and that therefore no tax payer’s suit can be maintained against the State of California or any officer, agent, official, or department thereof.
EIGHTH AFFIRMATIVE DEFENSE
11. As an eighth and separate affirmative defense to each and every cause of action set forth in Plaintiffs’ Complaint, Interveners PLP and Hobbs allege that Plaintiffs lack standing to maintain this lawsuit, including without limitation, that they have no direct particularized interest in the expenditure of any funds by the State of California.
NINTH AFFIRMATIVE DEFENSE
12. As a ninth and separate affirmative defense to each and every cause of action set forth in Plaintiffs’ Complaint, Interveners PLP and Hobbs allege that this litigation is brought for an improper purpose, and not the ostensible purpose set forth in Plaintiffs’ Complaint. The relief sought by Plaintiffs in this litigation could be and/or could have been sought by Plaintiffs in KARUK I. Plaintiffs have recovered in KARUK I $230,000.00 to date in attorney’s fees. Interveners PLP and Hobbs are informed and believe and thereon allege that Plaintiffs have agreed not to seek any further attorney’s fees in KARUK I. To avoid the limitations on attorney’s fees in KARUK I, Plaintiffs as a subterfuge and deceit, and unlawful collusion have brought this litigation, hereinafter referred to as KARUK II.
TENTH AFFIRMATIVE DEFENSE
13. As a tenth and separate affirmative defense to each and every cause of action set forth in Plaintiffs’ Complaint, Interveners PLP and Hobbs allege that Plaintiffs’ Complaint fails to state facts sufficient to constitute any cause of action.
ELEVENTH AFFIRMATIVE DEFENSE
14. As an eleventh and separate affirmative defense to each and every cause of action set forth in Plaintiffs’ Complaint, Interveners PLP and Hobbs allege that Plaintiffs’ Complaint, and each cause of action therein, fails to state a claim against any Defendant on which relief can be granted.
TWELFTH AFFIRMATIVE DEFENSE
15. As a twelfth and separate affirmative defense to each and every cause of action set forth in Plaintiffs’ Complaint, Interveners PLP and Hobbs allege that Plaintiffs are barred from recovery under their Complaint, and any cause of action contained therein, by operation of the doctrine of estoppel.
THIRTEENTH AFFIRMATIVE DEFENSE
16. As a thirteenth separate affirmative defense to each and every cause of action set forth in Plaintiffs’ Complaint, Interveners PLP and Hobbs allege that Plaintiffs are barred from any recovery under their Complaint, and any cause of action contained therein, by the operation of the doctrine of waiver.
FOURTEENTH AFFIRMATIVE DEFENSE
17. As a fourteenth and separate affirmative defense to each and every cause of action set forth in Plaintiffs’ Complaint, Interveners PLP and Hobbs allege that Plaintiffs are barred from any recovery under their Complaint, and any cause of action contained therein, by the operation of the doctrine of unclean hands.
FIFTEENTH AFFIRMATIVE DEFENSE
18. As a fifteenth and separate affirmative defense to each and every cause of action set forth in Plaintiffs’ Complaint, Interveners PLP and Hobbs allege that Plaintiffs’ causes of action, if any, are barred by the provisions of all the applicable statues of limitations, including but not limited to, Secs. 337, 338, 339, 340, and 343 of the California Code of Civil Procedure.
SIXTEENTH AFFIRMATIVE DEFENSE
19. As a sixteenth and separate affirmative defense to each and every cause of action set forth in Plaintiffs’ Complaint, Interveners PLP and Hobbs allege that Plaintiffs are barred from any recovery under their Complaint, or any cause of action contained therein, by operation of the doctrine of laches.
SEVENTEENTH AFFIRMATIVE DEFENSE
20. As a seventeenth and separate affirmative defense to each and every cause of action set forth in Plaintiffs’ Complaint, Interveners PLP and Hobbs allege that by the acts and conduct of the Plaintiffs, Plaintiffs have failed to mitigate any and all alleged losses and damages claimed to be suffered by the Plaintiffs in this action.
EIGHTEENTH AFFIRMATIVE DEFENSE
21. As a eighteenth and separate affirmative defense to each and every cause of action set forth in Plaintiffs’ Complaint, Interveners PLP and Hobbs allege that Plaintiffs’ own conduct prevents it from recovering on the allegations of the Complaint.
NINETEENTH AFFIRMATIVE DEFENSE
22. As a nineteenth and separate affirmative defense to each and every cause of action set forth in Plaintiffs’ Complaint, Interveners PLP and Hobbs allege that Plaintiffs lack standing to bring their Complaint, and any causes of action contained therein, against these Interveners.
TWENTIETH AFFIRMATIVE DEFENSE
23. As a twentieth and separate affirmative defense to each and every cause of action set forth in Plaintiffs’ Complaint, Interveners PLP and Hobbs allege that Plaintiff failed to take reasonable steps to minimize damages, if any, and therefore are precluded from recovering from any damages to the extent they could have been avoided if Plaintiffs had taken such reasonable steps.
TWENTY-FIRST AFFIRMATIVE DEFENSE
24. As a twenty-first and separate affirmative defense to each and every cause of action set forth in Plaintiffs’ Complaint, Interveners PLP and Hobbs allege that Plaintiffs are barred from recovery of any and all alleged sums due pursuant to a set off in favor of Interveners, the exact amount to be proven at trial.
TWENTY-SECOND AFFIRMATIVE DEFENSE
25. As a twenty-second and separate affirmative defense to each and every cause of action set forth in Plaintiffs’ Complaint, Interveners PLP and Hobbs allege that Plaintiffs Complaint is barred under the doctrine of collateral estoppel.
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TWENTY-THIRD AFFIRMATIVE DEFENSE
26. As a twenty-third and separate affirmative defense to each and every cause of action set forth in Plaintiffs’ Complaint, Interveners PLP and Hobbs allege that Plaintiffs’ Complaint is barred under the doctrine of illegality.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
27. As a twenty-fourth and separate affirmative defense to each and every cause of action set forth in Plaintiffs’ Complaint, Interveners PLP and Hobbs allege that Plaintiffs’ Complaint is barred under the doctrine of res judicata.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
28. As a twenty-fifth and separate affirmative defense to each and every cause of action set forth in Plaintiffs’ Complaint, Interveners PLP and Hobbs allege that Plaintiffs are barred from recovery for engaging in wrongful acts and actions amounting to unconscionability.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
29. As a twenty-sixth and separate affirmative defense to each and every cause of action set forth in Plaintiffs’ Complaint, Interveners PLP and Hobbs allege that Plaintiffs are barred from any recovery on their Complaint and each cause of action therein, due to their and their agents’ wrongful and unlawful conspiracy.
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WHEREFORE, Interveners PLP and Hobbs demand judgment as follows:
1. That Plaintiffs take nothing by their Complaint herein;
2. That Plaintiffs’ Complaint be dismissed;
3. That Interveners be awarded their costs of suit;
4. That Interveners be awarded attorney’s fees; and
5. Such other and further relief as the Court considers just and appropriate.


Date: March___, 2009

_____________________
David Young
Attorney for Proposed Interveners PUBLIC LANDS FOR THE PEOPLE, INC., a California 501 [C](3) nonprofit corporation, and GERALD E. HOBBS, an individual

[maksutaSTAR]

LAW OFFICES OF DAVID YOUNG
David Young, SBN 55341
11150 Olympic Boulevard, Suite 1050
Los Angeles, CA 90064
Telephone: (310) 575-0308
Facsimile No.: (310) 575-0311
Email: dyounglaw@verizon.net

Attorney for Proposed Interveners
PUBLIC LANDS FOR THE PEOPLE, INC.,
a California 501 [C](3) nonprofit
corporation, and GERALD E. HOBBS,
an individual


SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF ALAMEDA




LEEON HILLMAN; CRAIG TUCKER; DAVID BITTS; AND DOES 1-100,

Plaintiff,
v.
CALIFORNIA DEPARTMENT OF FISH AND GAME; DONALD KOCH; and, DOES 1-100, inclusive,

Defendants. )
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) CASE NO. RG09 434444

NOTICE OF MOTION AND MOTION FOR LEAVE TO INTERVENE OF PUBLIC LANDS FOR THE PEOPLE, INC, AND GERALD E. HOBBS


Hearing:
Res No: 921334
Date: April 22, 2009
Time: 9:30 A.M.
Judge: Hon. Kenneth M. Burr
Dept: 30

Trial Date: None Set
Action Filed: February 5, 2009



TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on April 22, 2009, at 9:30 A.M., or as soon thereafter as the matter may be heard, in Department 30 in the above-entitled court, located at United States Post Office Building, 201 13th Street, Oakland, California 94612, Proposed Interveners, Public Lands for the People, Inc. (“PLP”), a California 501 [C](3) nonprofit corporation, and Gerald E. Hobbs, an individual, will and hereby do move the Court for an order granting PLP and Gerald E. Hobbs leave to intervene in this action by filing their Complaint in Intervention under California Code of Civil Procedure § 387. The grounds for issuance of this order are that PLP and Gerald E. Hobbs have an interest in this action because they hold and/or represent miners who hold federally-established mining claims and mineral estates, as well as federally-established possessory property and contract rights. Mr. Hobbs and PLP members annually obtain permits for suction dredge mining, the issuance of which Plaintiffs propose to enjoin. Mr. Hobbs and PLP members engage in suction dredge mining.
This motion is based on this Notice of Motion and Motion for Leave to Intervene, the accompanying Memorandum of Points and Authorities, the Declaration of Gerald E. Hobbs, a Proposed Complaint in Intervention, a Proposed Answer to Plaintiffs’ Complaint, a Proposed Order, the pleadings and papers on file
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in this action, and any written or oral evidence or argument that the Court may receive at the hearing.

Dated: March ___, 2009




______________________________
David Young
Attorney for Proposed Interveners
PUBLIC LANDS FOR THE PEOPLE, INC.,
a California 501 [C](3) nonprofit corporation, and GERALD E. HOBBS, an individual

[maksutaSTAR]

LAW OFFICES OF DAVID YOUNG
David Young, SBN 55341
11150 Olympic Boulevard, Suite 1050
Los Angeles, CA 90064
Telephone: (310) 575-0308
Facsimile No.: (310) 575-0311
Email: dyounglaw@verizon.net

Attorney for Proposed Interveners
PUBLIC LANDS FOR THE PEOPLE, INC.,
a California 501 [C](3) nonprofit
corporation, and GERALD E. HOBBS,
an individual



SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF ALAMEDA



LEEON HILLMAN; CRAIG TUCKER; DAVID BITTS; AND DOES 1-100,

Plaintiff,

v.
CALIFORNIA DEPARTMENT OF FISH AND GAME; DONALD KOCH; and, DOES 1-100, inclusive,

Defendants. )
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))) CASE NO. RG09 434444


MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO INTERVENE OF PUBLIC LANDS FOR THE PEOPLE, INC, AND GERALD E. HOBBS


Hearing:
Res No: 921334
Date: April 22, 2009
Time: 9:30 A.M.
Judge: Hon. Kenneth M. Burr
Dept: 30


Trial Date: None Set
Action Filed: February 5, 2009




INTRODUCTION
A Motion for Leave to Intervene has been filed in this matter by James L. Buchal, Esq. on behalf of The New 49’ers and Raymond W. Koons (“Koons”). Public Lands for the People, Inc. (“PLP”) and Gerald E. Hobbs (“Hobbs”) support their Motion, and adopt the factual statements and legal authority stated in their Memorandum In Support of their Motion.
This litigation is but the latest salvo, and no doubt not the last one, in a longstanding attempt by the Karuk Tribe of California to stop suction dredge mining in California. Along with The New 49’ers and Koons, proposed intervener Hobbs is already involved in substantial litigation with the Karuk Tribe in Karuk Tribe of California and Leaf Hillman v. California Department of Fish and Game (“DF&G”), RG05 211 597. That case is presently pending in the Superior Court of California, County of Alameda, before the Hon. Frank Roesch. That case also seeks to enjoin suction dredge mining in California. Hereafter, the litigation before Judge Roesch will be referred to as KARUK I.
Proposed intervener Hobbs is the President and Founder of proposed intervener PLP, a nationwide organization of small and medium size miners and prospectors. With its constituent members, PLP constitutes approximately 40,000 people. Hobbs has been the President of PLP for 7-1/2 years and Vice President for 11-1/2 years. Large numbers of the membership of PLP hold mining claims in California and receive yearly permits from DF&G to engage in suction dredge mining, exactly the type of mining that the plaintiffs seek to enjoin in KARUK I, and in this litigation, which will hereafter be referred to as KARUK II. See Declaration of Gerald E. Hobbs,¶¶ 1-6.
KARUK I was commenced by the Karuk Tribe against DF&G without any notice to the mining community. Hobbs first learned of KARUK I when a member of PLP attempted to get a permit for suction dredge mining from DF&G. He was informed by the DF&G that because of the KARUK I litigation DF&G had ceased issuing permits for suction dredge mining in California. He contacted Hobbs, informed him of the situation, and Hobbs immediately took steps to intervene in the KARUK I litigation. Hobbs was eventually granted leave to intervene by Judge Bonnie Sabraw, and did so. Hobbs Declaration, ¶ 7. When Hobbs first learned of the KARUK I litigation the Karuk Tribe and DF&G had presented to Judge Sabraw a stipulation which would have stopped permitting of suction dredge mining by DF&G. No mining individuals or groups had previously been aware of the KARUK I litigation, or the stealth stipulation. Because of Hobbs’ intervention, and the intervention of other miners, Judge Sabraw refused to approve the stipulation. Hobbs Declaration, ¶ 7.
Hobbs and PLP took an active part in opposing the Karuk Tribe’s attempt to circumvent through legislative action (“AB 1032”) the Court’s Order and Consent Judgment (“Order”) which Judge Sabraw issued in KARUK I. Judge Sabraw’s Order permitted suction dredge mining subject to the completion of a CEQA review, possible new regulations, and ordered DF&G to conduct the CEQA review. All parties to KARUK I consented to Judge Sabraw’s Order. AB 1032 would have nullified Judge Sabraw’s Order. Hobbs, as President of PLP, testified before the State Senate in opposition to AB 1032, and petitioned the Governor to veto AB 1032. The Governor vetoed AB 1032. Hobbs Declaration, ¶¶ 7-8.
Hobbs, as President of PLP, also successfully opposed the Karuk Tribe’s recent Petition to the DF&G to stop suction dredge mining throughout the State of California. The Petition mirrored AB 1032. DF&G denied the Karuk Tribe’s Petition. Hobbs Declaration, ¶ 9.
On February 27, 2009, another attempt was made in the legislature to circumvent Judge Sabraw’s Order. SB 670, was introduced in the California Senate. This bill would stand Judge Sabraw’s Order on its head and close all suction dredge mining in California until a CEQA review had been completed and new regulations were operative. It is another attempt to pass the vetoed AB 1032. SB 670 specifically references KARUK I as its inspiration. Needless to say, the Karuk Tribe fully supports SB 670, since SB 670 was introduced by a supporter of the Karuk Tribe’s rejected Petition to DF&G to close suction dredge mining in California.
In their Complaint before this Court in KARUK II the plaintiffs justify their new action because in KARUK I DF&G supposedly admitted that suction dredge mining violated both CEQA and Fish and Game Code §§ 5653 and 5653.9. Needless to say, the miners strongly dispute any such alleged admissions of DF&G. The mining community in California views DF&G with the utmost suspicion, if not hostility. Hobbs Declaration, ¶ 10.
DF&G has openly admitted that it does not want to be the agency administering suction dredge mining in California. Its actions in opposing, and then conceding, to the Karuk Tribe’s unwarranted and unsubstantiated assertions in KARUK I, arouse in the mining community in California immense distrust of DF&G. No miner in California would ever rely on DF&G to protect his or her interest. The mining community in California has no confidence in DF&G to protect their interest in anything relating to mining. Hobbs, as well as large numbers of PLP members have mining claims in California, and engage in suction dredge mining in the State. Hobbs Declaration, ¶¶ 3, 9-10.
The plaintiffs in KARUK II have filed a Notice of Related Case. While setting forth their unique version of events, the plaintiffs in KARUK II state that it is related to KARUK I because: (a) the issues in KARUK I and KARUK II are the same; and (b) the defendants are the same. What they fail to mention is that the plaintiffs are also the same. KARUK II has three listed plaintiffs: Leeon Hillman (“Hillman”); Craig Tucker (“Tucker”); and David Bitts (“Bitts”).
Proposed interveners Hobbs and PLP are informed and believe and thereon allege that: (1) Hillman is a member of the Karuk Tribe, Tribal Treasurer, and brother of plaintiff Leaf Hillman in KARUK I; (2) Tucker is a Tribal Consultant and official spokesman for the Karuk Tribe; (3) Bitts is an environmental activist, acting in concert with the Karuk Tribe on numerous Klamath Basin issues. In fact and in law, the plaintiffs in KARUK II are not outraged taxpayers, but rather the alter ego of the Karuk Tribe. It is not necessary to speculate on this issue because Tucker, the official spokesman for the Karuk Tribe, admits this to be the case.
In a Press Release issued on March 3, 2009, on behalf of the Karuk Tribe, “Craig Tucker, Spokesman, Karuk Tribe, cell (916) 207-8294” [emphasis in original], after discussing KARUK I, refers to KARUK II and states: “Earlier this year the Tribe sued Fish and Game again in an effort to force immediate protections for fish.” [Emphasis added.] See Exhibit A attached hereto. This burst of truth and candor by alleged outraged taxpayer plaintiff, and official Spokesman for the Karuk Tribe, Tucker, shows that KARUK I and KARUK II have the same plaintiffs, the same defendants, and the same issues. Where in fact and reality plaintiffs are the alter egos of each other, they are not allowed to play a shell game with the Court. A corporation has been declared to be a vexatious litigant when the court determined it was the alter ego of an attorney who had previously been found to be a vexatious litigant. Say & Say, Inc. v. Ebershoff, 20 Cal.App.4th 1759, 1770, 25 Cal.Rptr.2d 703 (1993).
Since the same relief could be sought in KARUK I, why bring KARUK II? The plaintiffs in KARUK II nowhere tell the full story of KARUK I. What is missing from KARUK I’s narrative is the far from unimportant fact that on June 28, 2007 Judge Sabraw ordered DF&G to “pay to Plaintiffs’ counsel $230,000 in attorneys fees and costs.” Interveners PLP and Hobbs are informed and believe and thereon allege that as part of the agreement with DF&G to receive $230,000 in attorneys fees and costs, the plaintiffs agreed to seek no further attorneys fees and costs in KARUK I. Plaintiffs apparently believe no such limitation would apply to KARUK II, if KARUK II is allowed to go forward. It appears that although the parties, issues, and potential obtainable relief are the same in KARUK I and KARUK II, the possibility of obtaining attorneys fees in KARUK II is the primary motivation for its filing.
ARGUMENT
I. KARUK II SHOULD NOT BE ALLOWED TO GO FORWARD.
The foregoing scenario clearly places in issue whether KARUK II presently before this Court should be allowed to go forward. Although KARUK II involves procedural matters of res judicata and collateral estoppel, KARUK II also involves serious questions of subterfuge, collusion, harassing and vexatious litigation, and litigation for an improper purpose. This Court has the inherent power to deal with these and other fundamental issues at any stage of the litigation. In Rutherford v. Owens-Illinois, Inc., 16 Cal.4th 953, 967; 67 Cal.Rptr.2d 16 (1997) the California Supreme Court stated:
“It is well established that courts have the fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them. [Citations omitted.] In addition to their inherent equitable power derived from the historic power of equity courts, all courts have inherent supervisory or administrative powers which enable them to carry out their duties, and which exist apart from any statutory authority. [Citations omitted.] It is beyond dispute that courts have inherent power … to adopt any suitable method of practice, both in ordinary actions and special proceedings, if the procedure is not specified by statute or by rules adopted by the Judicial Council. [Citations omitted.] That inherent power entitles trial courts to exercise reasonable control over all proceedings connected with pending litigation … in order to insure the orderly administration of justice. ‘Courts are not powerless to formulate rules of procedure where justice demands it.’ [Citations omitted.] The Legislature has also recognized the Code authority of courts to manage their proceedings and to adopt suitable methods of practice. (See Civ. Proc. §§ 128, 187.)” [Citations omitted.] 16 Cal.4th at 967.
This Court has the inherent and statutory power to protect parties from bad faith actions or tactics which are frivolous, constitute subterfuge, are deceptive, and amount to harassing or vexatious litigation. See also Code of Civil Procedure § 128.5. KARUK II should not be allowed to go forward.
Since attorneys fees appear to be the motivating factor for plaintiffs filing KARUK II, if the Court allows KARUK II to proceed, it would be elemental fairness and justice to make plaintiffs, before proceeding further with this litigation, post a bond in a sufficient amount to reimburse all interveners’ attorneys, as well as the State’s attorneys where appropriate, for their fees and costs should interveners and the State prevail against the plaintiffs.
II. IF KARUK II PROCEEDS, PLP AND HOBBS SHOULD BE ALLOWED TO INTERVENE
PLP and Hobbs respectfully request this Court to grant leave to intervene as of right pursuant to C.C.P. § 387(b) which states:
“…if the person seeking intervention claims an interest relating to the property or transaction which is the subject of the action and that person is so situated that the dispositon of the action may as a practical matter impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by existing parties, the court shall, upon timely application, permit that person to intervene.”
There is no question that both PLP and Hobbs have vital and continuing interests in the preservation of suction drudge mining in California. See Hobbs Declaration in its entirety. Section 387 “should be liberally construed in favor of intervention.” City of Malibu v. California Coastal Comm’n, 128 Cal.App.4th 897, 902 (2005) (quoting Lincoln Nat’l Life Ins. Co. v. State Bd. Of Equalization, 30 Cal.App.4th 1411, 1423 (1994)). KARUK II seeks to close down suction drudge mining in California. Both Hobbs and large numbers of PLP members have mining claims and mineral estates in California, and engage in suction dredge mining. Hobbs Declaration, ¶¶ 5 and 10. Their fundamental property rights and economic well being would be seriously impacted if the plaintiffs are successful in KARUK II. Mining claims are “property in the fullest sense of the word.” Bradford v. Morrison, 212 U.S. 389, 394 (1909) (quoting Forbes v. Gracey, 94 U.S. 762, 767 (1877)); see also United States v. Shumway, 199 F.3d 1093, 1100 (9th Cir. 1999) (discussing scope of legal interests represented in mining claims); United States v. Rizzinelli, 182 F. 675, 681 (D. Idaho 1910) (Miners hold a “distinct but qualified property right” with “possessory title”).
Neither PLP, Hobbs, or the mining community in California have any confidence whatsoever that DF&G can represent their interests in the KARUK II litigation. In KARUK I, DF&G without ever informing the mining community that it was doing so, entered into a stipulation with the Karuk Tribe to shut down suction dredge mining in California. Without the intervention of Hobbs and other miners, that stipulation may well have been approved by Judge Sabraw. DF&G has stated publicly that it no longer wishes to administer the suction dredge mining program. Hobbs Declaration, ¶¶ 7 and 10.
PLP and Hobbs have filed their Motion for Leave to Intervene in a timely manner. To the best of their knowledge, as of March 4, 2009, the State had not even been served by plaintiffs with the Complaint in KARUK II. Without question the State has not even answered the Complaint. No trial date has been set, nor is any other proceeding imminent in this case, other than these motions to intervene.
In the alternative, permission to intervene should be granted pursuant to C.C.P. § 387(a). PLP and Hobbs have followed proper procedure; have a direct and immediate interest in the litigation; their intervention will not enlarge the fundamental issues in the case, and their reasons for intervention “outweigh any opposition by existing parties.” Truck Ins. v. Superior Court, 60 Cal.App.4th 342, 346 (1997); see also Reliance Ins. Co. v. Superior Court, 84 Cal.App.4th 383, 386 (2000).
CONCLUSION
For the foregoing reasons, PLP and Hobbs respectfully request this Court to grant leave for them to intervene in this case.
LAW OFFICES OF DAVID YOUNG




______________________________
Dated: March ___, 2009 David Young
Attorney for Proposed Interveners
PUBLIC LANDS FOR THE PEOPLE, INC.,
a California 501 [C](3) nonprofit corporation, and GERALD E. HOBBS, an individual



TABLE OF CONTENTS

INTRODUCTION 2
ARGUMENT 8
I. KARUK II SHOULD NOT BE ALLOWED TO GO FORWARD 8
II. IF KARUK II PROCEEDS, PLP AND HOBBS SHOULD BE
ALLOWED TO INTERVENE 10
CONCLUSION 12

[maksutaSTAR]

LAW OFFICES OF DAVID YOUNG
David Young, SBN 55341
11150 Olympic Boulevard, Suite 1050
Los Angeles, CA 90064
Telephone: (310) 575-0308
Facsimile No.: (310) 575-0311
Email: dyounglaw@verizon.net

Attorney for Proposed Interveners
PUBLIC LANDS FOR THE PEOPLE, INC.,
a California 501 [C](3) nonprofit
corporation, and GERALD E. HOBBS,
an individual


SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF ALAMEDA




LEEON HILLMAN; CRAIG TUCKER; DAVID BITTS; AND DOES 1-100,

Plaintiff,

v.
CALIFORNIA DEPARTMENT OF FISH AND GAME; DONALD KOCH; and, DOES 1-100, inclusive,

Defendants. )
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) CASE NO. RG09 434444

[PROPOSED] COMPLAINT IN INTERVENTION AND ANSWER OF PUBLIC LANDS FOR THE PEOPLE, INC, AND GERALD E. HOBBS TO PLAINTIFFS’ COMPLAINT



Hearing:
Res No: 921334
Date: April 22, 2009
Time: 9:30 A.M.
Judge: Hon. Kenneth M. Burr
Dept: 30

Trial Date: None Set
Action Filed: February 5, 2009










Intervener Public Lands for the People, Inc. (“PLP”), a California 501 [C] (3) nonprofit corporation, and GERALD E. HOBBS (“Hobbs”), an individual allege:
1. By this Complaint in intervention, filed by leave of Court, Interveners PLP and Hobbs joins with the Defendants California Department of Fish and Game (“DF&G”), Donald Koch, and Does 1-100, inclusive, assuming the Defendants will resist the claims of Plaintiffs Leeon Hillman, Craig Tucker, David Bitts, and Does 1-100, in resisting Plaintiffs’ claims and the demands for relief made by the Plaintiffs, all of which is adverse to both the Defendants and the Interveners.
2. On February 5, 2009, Plaintiffs commenced this action against Defendants, seeking to prohibit all suction dredge mining in the State of California.
3. Pursuant to Code of Civil Procedure Sec. 387 (a) and/or (b) Interveners claim an interest relating to the subject action of this litigation in that they hold mining claims in the State of California, or represent members who are miners holding mining claims in the State of California, and engage in suction dredge mining in California. Interveners interests are so situated that the disposition of this action may as a practical matter impair or impede Interveners’ ability to protect those interests unless they are permitted to intervene in this action, and those interests are not adequately represented by any existing Defendant.
4. Intervener Hobbs is a miner and prospector and has been a miner and prospector for 30 years. He has mined extensively throughout the Western United States. He holds mining claims in California. He engages in suction dredge mining in California, and has received permits from the Defendant DF&G to engage in suction dredge mining in California. He expects to apply this year for a permit from the DF&G to again engage in suction dredge mining in California. This is exactly the type of mining that the Plaintiffs seek to enjoin. Hobbs is the President and founder of PLP, a nationwide organization of small and medium size miners and prospectors.
5. With its constituent members, PLP constitutes approximately 40,000 people. Large numbers of the membership of PLP have mining claims in California, and receive yearly permits from DF&G to engage in suction dredge mining in California, exactly the type of mining that the Plaintiffs seek to enjoin. Many PLP members have urged both Hobbs and PLP to intervene in this litigation in order to protect their interests. Many members of PLP and the mining community in general, are highly suspicious of the Defendants and have no confidence that they will adequately represent the interests of small and medium size miners to engage in suction dredge mining in California.
6. Interveners have prepared a [Proposed] Separate Answer to the Complaint filed by the Plaintiffs; a copy of the proposed answer is attached hereto as “Exhibit A” and incorporated herein by reference.
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WHEREFORE, Interveners PLP and Hobbs demand judgment against Plaintiffs as follows:
1. That Plaintiffs take nothing by their Complaint herein;
2. That Plaintiffs’ Complaint be dismissed;
3. That Interveners be awarded their costs of suit;
4. That Interveners be awarded attorney’s fees; and
5. Such other relief as the Court considers just and appropriate.

Dated: March____, 2009

______________________________
David Young
Attorney for Interveners
PUBLIC LANDS FOR THE PEOPLE, INC.,
a California 501 [C](3) nonprofit corporation, and GERALD E. HOBBS, an individual

[maksutaSTAR]

LAW OFFICES OF DAVID YOUNG
David Young, SBN 55341
11150 Olympic Boulevard, Suite 1050
Los Angeles, CA 90064
Telephone: (310) 575-0308
Facsimile No.: (310) 575-0311
Email: dyounglaw@verizon.net

Attorney for Proposed Interveners
PUBLIC LANDS FOR THE PEOPLE, INC.,
a California 501 [C](3) nonprofit
corporation, and GERALD E. HOBBS,
an individual



SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF ALAMEDA



LEEON HILLMAN; CRAIG TUCKER; DAVID BITTS; and DOES 1-100,

Plaintiff,
v.
CALIFORNIA DEPARTMENT OF FISH AND GAME; DONALD KOCH; and, DOES 1-100, inclusive,

Defendants. )
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) CASE NO. RG09 434444

[PROPOSED] ORDER GRANTING MOTION FOR LEAVE TO INTERVENE OF PUBLIC LANDS FOR THE PEOPLE, INC, AND GERALD E. HOBBS



Hearing:
Res No: 921334
Date: April 22, 2009
Time: 9:30 A.M.
Judge: Hon. Kenneth M. Burr
Dept: 30

Trial Date: None Set
Action Filed: February 5, 2009






The motion of Public Lands for the People, Inc. (“PLP”) and Gerald E. Hobbs (“Hobbs”), an individual, for an order granting PLP and Hobbs leave to file a Complaint In Intervention in this action came on regularly for hearing on April 22, 2009 at 9:30 a.m. in Department 30 of the above entitled court.
Having considered the papers submitted in connection with this motion, the argument of counsel and good cause appearing,
IT IS ORDERED that PLP and Hobbs’ Motion for Leave to Intervene is GRANTED.

Dated: April____,2009 __________________________________
KENNETH M. BURR
JUDGE OF THE SUPERIOR COURT