Legislative and Regulatory Update

November 2019 by Scott Harn

• Oregon miners to petition for US Supreme Court review
The Eastern Oregon Mining Association and Waldo Mining District have been in court for fourteen years in Eastern Oregon Mining Association v. Oregon Department of Environmental Quality. The miners argued that a Section 402 EPA permit, which is currently administered by the Oregon DEQ, should not apply for two reasons.

First, the most recent federal regulations (2008) state the Army Corps of Engineers shall handle activities related to the discharge of dredge materials under Section 404. And second, the Clean Water Act clearly states that the addition of a pollutant is the trigger for the requirement of a Section 402 EPA permit. There is no addition of a pollutant when utilizing a suction gold dredge; in fact, the dredge removes lead, mercury and other heavy materials, creating a net withdrawal and this type of equipment should be labeled as a reclamation device.

In July 2019, the Oregon Supreme Court ruled against the miners in a 6-1 decision, with the majority deferring to the agency interpretation.
The miners are now preparing to appeal the Oregon Supreme Court’s decision to the US Supreme Court, with the opening brief due in late December. With the current makeup of the US Supreme Court and the support of the Trump Administration, this case stands a decent chance of being heard at the highest court in the land.

We will continue to follow the case and keep our readers up-to-date.

• Two executive orders to reign in federal agencies
Agency guidance documents, letters, handbooks and publications have convoluted the regulatory picture for decades. The US Forest Service, EPA, Army Corps of Engineers, Bureau of Land Management and other federal agencies have utilized these informal methods to create or alter rules and regulations without congressional oversight.

A glaring example was the Army Corps of Engineers 2016 decision that redefined permafrost—which encompasses one-third of Alaska—as “navigable waters” following a new definition of Waters of the United States (WOTUS) issued by the Obama administration. This halted the expansion of family-owned pipe fabrication business in Fairbanks. The 9th Circuit Court of Appeals deferred to the agency for their interpretation of the rules and the US Supreme Court declined to hear the case.

A Wyoming rancher was facing $16 million in fines from the EPA for building a pond his property without a permit. (This case was settled out of court with no fine after public outcry.)

The Trump administration had to rescind the Obama-era Waters of the United States (WOTUS) definition in order to restore a sense of order and prevent agency overreach. The final rule rescinding the 2015 definition was published in the Federal Register on October 22, 2019.

On October 9, 2019, President Trump took another step toward regulatory certainty by signing two executive orders.

The “Transparency and Fairness” order requires agencies to proactively educate the public about any proposed changes before any fines can be imposed. Agencies are also required to place regulations on their websites in a searchable and concise format and, “Anything that is not put up there is rescinded,” according to Russ Vought, acting director of the White House Office of Management and Budget.

The “Bringing Guidance Out of the Darkness” order forces federal agencies to conduct a cost-benefit analysis and requires public comment when any agency intends to adopt a regulation.

• Petition for Joshua tree as a threatened species
Wild Earth Guardians tried to get the US Fish & Wildlife Service to list the Joshua tree as a threatened species. The effort failed when the agency announced in August that there was “no major contraction in populations” over the past 40 years and the two species of Joshua trees are still occupying their historic, 12-million-acre range in California, Nevada, Utah and Arizona.

Now Wild Earth Guardians and the Center for Biological Diversity are petitioning the California Fish and Game Commission to list the Joshua tree as a threatened species under the California Endangered Species Act. Based on past experience, we expect California will act to support the listing regardless of the science, and this will place additional restrictions for miners, ranchers and private property owners on state lands. The California Department of Fish and Wildlife has three months to make a recommendation to California Fish and Game, with a vote on the issue expected early in 2020.

by Scott Harn

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