Legislative and Regulatory Update

December 2019 by Scott Harn

• New Deputy Secretary of Interior
We are happy to report that Katharine (Kate) MacGregor was nominated as the next Deputy Secretary of the Interior.

MacGregor has served as the Deputy Chief of Staff at Interior, Principal Deputy Assistant Secretary for Land and Minerals Management, Special Assistant to the Secretary of Interior, and was part of the Senior Professional Staff at the House Committee on Natural Resources.

Clark Pearson (Public Lands for the People) and I met with MacGregor earlier this year regarding regulatory issues related to small-scale mining. She has an excellent grasp of the issues, is very sharp, and is well aware of the many regulatory hurdles miners face.

MacGregor’s nomination was approved by the US Senate Committee on Energy and Natural Resources and moves to the full Senate for confirmation.

• Case against dredger allowed to proceed
On September 30, 2019, Judge Ronald E. Bush of the US District Court for the District of Idaho rejected defendant Shannon Poe’s motion to dismiss a lawsuit filed by the Idaho Conservation League (ICL) that seeks monetary damages from Poe for operating a suction gold dredge on the South Fork Clearwater River without a federal permit.

Poe, president of the American Mining Rights Association (AMRA), obtained suction dredge permits from the Idaho Department of Water Resources (IDWR) back in 2014 and 2015, but declined to apply for a federal National Pollutant Discharge Elimination System (NPDES) permit under the EPA’s Clean Water Act provisions.

While the EPA did not attempt to pursue enforcement action, the ICL sent Poe a “Notice of Intent to Sue” under the citizen’s suit provision if he continued to operate a dredge in Idaho without an NPDES permit.

Poe operated his dredge again in the South Fork Clearwater River in 2018 after obtaining a permit from IDWR but again declined to apply for an NPDES permit. ICL initiated the lawsuit against Poe on August 10, 2018, and utilized many of his Facebook posts as evidence of non-compliance.

Poe’s motion to dismiss the case stated he was not properly served notice by the ICL and the ICL lacked standing. We would have rather seen a motion to dismiss based on the facts of the case—the ICL failed to demonstrate there was the addition of a pollutant, which is required to trigger the need for a permit under the CWA.

The judge ruled Poe received proper notice and ICL can demonstrate that Poe’s activities resulted in harm to the group or their members.

I’ve read through Judge Bush’s decision and what seems to be missing is debate on whether or not an NPDES permit can be required when there is no “addition” of a pollutant.

We all know that a suction gold dredge does not involve any “addition” and there were several opportunities to argue that this requirement was not met. The first opportunity was during the South Fork Clearwater planning process initiated by the US Forest Service. There are no recorded comments on the official record from Shannon Poe nor from AMRA. The second opportunity was during the motion to dismiss.

The ICL is seeking “up to $37,500 per violation per day that occurred prior to August 1, 2016, and up to $51,570 per violation per day that occurred on August 1, 2016 and after.” The group is also seeking “reasonable litigation costs and expenses, including attorney and expert fees, incurred in bringing this action.”

There still may be a chance for Poe to come out on top with the help of Idaho miner Don Smith. Smith, with assistance from Public Lands for the People, petitioned the EPA on August 12, 2019, to formerly address the “addition” requirement in a rulemaking. The CWA needs to be clarified so it specifically states that the Act is not triggered when there is no “addition” of a pollutant.

The Waldo Mining District, the Eastern Oregon Mining Association, and 26 other groups signed on to this petition as supporters, but there has not yet been any formal action taken by the EPA. (See “PLP Update” for more on this subject.)

The other option for Poe is to appeal any conviction, but that appeal would go through the 9th Circuit, which has been notorious for deferring to federal agencies when there is a question of interpretation. The question of no “addition” of a pollutant would have to be debated within the original case for it to be considered by the US Supreme Court on a subsequent appeal.

by Scott Harn

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