Legislative and Regulatory Update
February 2013 by Scott Harn• “Not a pollutant”
A recent US Supreme Court ruling regarding the transfer of “pollutants” from one portion of a river to another is a win for miners.
The Natural Resources Defense Council sued the Los Angeles County Flood Control District, alleging the county was polluting a stream when it took polluted water from one portion of a river and transferred it to another portion of the same river through a concrete channel.
The Ninth Circuit had ruled that the water transfer violated the Clean Water Act. In a unanimous decision, the US Supreme Court reversed the decision of the Ninth Circuit.
The Court stated, “...the transfer of polluted water between two parts of the same water body does not constitute a discharge of pollutants under the CWA. 541 U. S., at 109–112. We derived that determination from the CWA’s text, which defines the term ‘discharge of a pollutant’ to mean ‘any addition of any pollutant to navigable waters from any point source.’ 33 U.S.C. §1362(12). Under a common understanding of the meaning of the word ‘add,’ no pollutants are ‘added’ to a water body when water is merely transferred between different portions of that water body.”
The full Supreme Court decision is available online:www.supremecourt.gov/opinions/12pdf/11-460_3ea4.pdf
One of the major regulatory tools agencies have used against in-stream placer miners—and suction dredgers in particular—has been struck down by this decision!
Other courts have also blocked overzealous water regulators. In Virginia, District Judge Liam O’Grady ruled that the EPA exceeded its authority by attempting to regulate stormwater runoff as a pollutant.
And in Siskiyou County, California, Superior Court Judge Karen Dixon found that the California Department of Fish & Game overstepped its authority by requiring permits for farmers and ranchers to take water from the Shasta and Scott Rivers.
• Thank you Senator Sessions
Our hats are off to Senator Jeff Sessions (R-Alabama) for stopping a wildlife bill comprised of nineteen separate measures that would have placed thousands of additional public lands off-limits to miners and other public land users.
Sessions called for a procedural vote on the budget impacts of the bill, and sixty votes were needed to keep it alive. Fifty senators voted for it, and the bill died.
Before we let our guard down, realize that there will surely be an omnibus lands bill proposed in 2013. These bills always include numerous items in an effort to appease a large number of legislators to get the bill passed.
You should also expect to see the BLM attempt to enact mining law reform with the help of like-minded legislators. The previous BLM Director, Bob Abbey, recommended that gold, silver, lead, zinc, copper, uranium and molybdenum be subject to leasing with a 5% royalty during his March 2012 presentation to the House Appropriations Committee.
• California suction dredging
The court challenge of the current suction gold dredging moratorium in California continues along—albeit way too slowly for our liking. The next hearing has been rescheduled for 8:30am on February 13. Miners are encouraged to attend to show their support. The address is:
Rancho Cucamonga Superior Court
8303 Haven Ave
Rancho Cucamonga, CA 91730
Judge Gilbert G. Ochoa
In last month’s column, we mentioned that Brandon Renehart, a suction dredger in Plumas County, California, is challenging his criminal citation for suction dredging without a permit with the assistance of James Buchal. However, we neglected to give credit to Public Lands for the People for funding this effort!
• EPA uses secret email accounts
EPA Administrator Lisa Jackson announced her resignation in December, citing “new challenges, time with my family and new opportunities to make a difference” for the move.
But there is more to the story.
In response to a lawsuit filed by the Competitive Enterprise Institute (CEI), the EPA acknowledged that Jackson was utilizing an email alias.
It’s an obvious attempt to avoid public disclosure when requests were made under the Freedom of Information Act, said CEI attorney Chris Horner. The EPA has since admitted that Jackson corresponded regularly with other officials using the alias “Richard Windsor.”
Horner stated the agency has been using secret email accounts since the Clinton administration when Carol Browner was the administrator. An EPA spokesman confirmed this practice was the norm, stating the agency has been issuing multiple email addresses to administrators for the past decade.
The EPA has turned over the first 2,100 email messages to CEI that used Jackson’s alias, and another 9,000 are to be released shortly.
• Not so happy birthday
• Even more support for the PLP
• State attorneys claim the Court of Appeals wrongly relied on South Dakota Mining Association v. Lawrence County regarding federal preemption...
Federal and state regulatory agencies often cite mercury and methyl mercury in our waterways as a major factor for further restrictions on placer mining, and on suction gold dredge mining, in particular. However, these regulatory agencies are minimizing selenium and its neutralizing effects.
If we lose, the radical environmentalists have a roadmap to replicate their success everywhere.
- House appropriations bills introduced
- Two Minnesota hardrock mining leases reinstated
- Equal Access to Justice Act
Many of you are aware that we have been engaged in litigation with anti-mining activists that have been attacking us through the Karuk Tribe of California since 2003. It all started with their lawsuit against the US Forest Service (USFS), challenging that District Rangers do not have the authority to allow small-scale mining activities under a Notice of Intent (NOI) when the Ranger concludes that the mining activity is not likely to create a substantial surface disturbance.
The Bureau of Land Management announced an increase in location filing fees and annual maintenance fees for unpatented mining claims, mill sites and tunnel sites.
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