Judge Rules Against Dredger in Idaho Civil Case
July 2021 by Scott Harn
Shannon Poe, president of the American Mining Rights Association (AMRA), was accused by the Idaho Conservation League (ICL) of dredging on his mining claims on the South Fork Clearwater River in Idaho for a total of 42 days in 2014, 2015, and 2018 without all of the required permits. Poe was sued in civil court under the citizen suit provision of the Clean Water Act, which allows a “citizen” (ICL in this case) who can show harm, to sue another citizen.
On June 4, Boise federal court Chief Magistrate Judge Ronald Bush ruled in favor of the Idaho Conservation League. From Judge Bush’s 23-page decision:
“Neither ICL nor Mr. Poe disputes that the material passing through Mr. Poe’s suction dredge and into the South Fork Clearwater River falls within the definition of a ‘pollutant’ under the CWA; instead, the parties dispute which agency—the EPA via Section 402 of the CWA or the Corps via Section 404 of the CWA—has authority under the CWA to permit the discharge, if any, of such pollutants into the South Fork Clearwater River.” (Our emphasis added.)
The path to winning this case should not have been about disputing jurisdiction. The path to winning this case should have been to make the plaintiffs prove that a foreign substance was introduced and then discharged, which is the “trigger” for regulations under the Clean Water Act. You cannot prove the impossible. A conviction on a pollutant charge would be ripe for appeal.
We covered the topic of jurisdiction in a previous “PLP Update” (January 2020, ICMJ), which stated:
“PLP has heard that some miners believe that if they could only get the Army Corps to give them a 404 dredge and fill permit or waiver their problems will be solved. This is not true. The Army Corps does not have the legal authority under the 404 program to waiver the separate legal duties of [the state] job of administering section 402. One program cannot replace the other, and both are separately carried out as the law is currently written and intended by Congress.”
On the other hand, Public Lands for the People has shown that the “no addition” argument can be won in court. They helped two members win this argument, one at the state level and the other at the federal level.
In the federal case, PLP assisted John Godfrey with an appeal in the US District Court (Eastern District, California.) Godfrey had been convicted of polluting a creek when he processed material from the creek through a sluice box, and that material was returned to the same creek.
His conviction on this charge was overturned. Judge John Mendez wrote, “...the provisions surrounding 36 C.F.R. § 261.11(c) lend support to Defendant’s argument that ‘any substance which does or may pollute’ must be a foreign substance, not a substance which is already found within the high water mark of the river.”
Judge Mendez continued, “Importantly, there is no evidence that any foreign substance (such as a chemical) was introduced to Poorman Creek.
“...a more apt analogy may be that of a bowl of cereal. At its low point, Poorman Creek is much like a bowl of Cheerios with very little milk in it, with a number of Cheerios pieces ‘stranded’ up on the sides of the bowl. Filling the bowl with milk releases those ‘stranded’ Cheerios pieces back into the milk, but nothing foreign has been added to the bowl. Similarly, Defendant’s operation merely released sediment that was already part of the creek-bed back into the creek.”
On the state level, PLP assisted Michael Osterbrink after a Sierra County (California) district attorney claimed Osterbrink “polluted State waters with materials that are deleterious to fish” in violation of section 5650 of the CA Fish & Game code.
PLP’s Clark Pearson was called as an expert witness by Osterbrink. Pearson testified that “…no addition occurred in this case to trigger a violation of section 5650 because no foreign substances were added to the waterway.” Pearson cited the Godfrey case as precedent to aid Judge Yvette Durant in her deliberations.
Osterbrink was subsequently found “not guilty” of polluting state waters by Judge Durant who stated, “…Here, there doesn’t seem to be any dispute that this defendant did not add anything new, so I am going to find Mr. Osterbrink not guilty on count 2.”
It cannot be overstated enough that suction dredging does not add a pollutant to the waters, but agreeing to a 402 permit says that it does. From “PLP Update: The Path for Legally Re-Starting Suction Gold Dredge Mining in 2021” (June 2020, ICMJ):
“The California State Water Quality Control Board (by delegation from the federal EPA) administers the 402 CWA program. This 402 program is called the National Pollution Discharge Elimination System (NPDES). If a miner asked for a permit from this agency, he is consenting to a falsehood that suction dredges produce an addition of a pollutant in need of elimination. Simply said: Those miners are saying, ‘I don’t pollute, but please give me my pollution permit.’
“Those that advocate this kind of message will never give miners reasonable dredge regulations. This is also a very dangerous path that places the miner in a position of liability to the agency and subjects the miner to lawsuits by environmentalists who can take advantage of the miner’s error in judgement. Don’t make that mistake! Don’t feed the environmentalist’s cash cow because that’s how their sue and settle system functions.”
Unfortunately the ICL v. Poe case will likely serve to embolden groups like ICL. Fines had not yet been determined at press time, but a defendant in a similar case on the same South Fork Clearwater River received a penalty of $6,600 for a single day of dredging without a permit. If the court applies the same standard, the penalty in Poe’s case could be $277,200 or more, which does not include the plaintiff’s attorney fees.
In addition, Poe was cited by local law enforcement on August 10, 2018, for suction dredging on the South Fork Clearwater without an approved plan of operation. Court records indicate he paid a fine without contesting the citation.
Poe was not immediately available for comment, though AMRA released a statement, “We sincerely believe there are many things the judge was wrong on in his ruling and are exploring options on where to go from here.”
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A two-pronged approach is necessary to restore suction dredging; federal preemption needs to be established as addressed above via petition; and clarification from the EPA is needed to establish that no Section 402 permit is necessary when there is no “addition” of a pollutant.
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