July 2020 by Scott Harn
States continue to block miners from mining their federal mining claims across the West by requiring a Section 402 Clean Water Act permit. The Clean Water Act clearly states the “addition” of a pollutant is the trigger, but these states continue to ignore the law and they’ve been backed by liberal courts like the Oregon Supreme Court and the 9th Circuit Court of Appeals.
We were looking forward to the US Supreme Court finally weighing in on this Section 402 permit issue in Eastern Oregon Mining Association v. Oregon Department of Environmental Quality after the miners appealed a decision from the Oregon Supreme Court. But the US Supreme Court accepts less than 3% of the cases it receives for review and, unfortunately, this wasn’t one of them. So now what? Where do we go from here?
We here at the Mining Journal, along with Public Lands for the People, have been working with a few folks in Washington, DC, on this issue for the past year. Last year, Donald Smith, a miner in Idaho, was dealing with the same permit issue, and we gave him a hand with writing a petition for rulemaking addressed to the EPA. (Section 402 permitting is handled by many of the Western States under a memorandum of understanding with each state.)
We’ve built up some contacts in DC during our trips there over the past four years, and we believe we finally have the correct contacts who can get this petition reviewed by the proper people. We’ve been in touch with them over the past two weeks and we were hoping to have further news to report on this process, but we didn’t get any confirmation by press time. We are asking for the EPA to provide clarification to federal and state agencies that a Section 402 permit is not required for suction gold dredging because there is no addition of a pollutant. We will certainly keep your posted.
On another note, we are also talking with Trump administration officials about providing relief in many other areas, and what is the best and quickest route to provide that relief.
As all of you know, the House is currently controlled by Democrats while Republicans control the Senate. Many members of Congress are too busy fighting with each other and worrying about re-election to get anything significant accomplished so we are in active discussions about a more efficient alternative with some of our DC contacts.
I can’t give any specific details on this effort at this time, but will certainly let our readers know when that opportunity arises.
During discussions with other property rights advocates and members of the current administration, Karen Budd-Falen’s name was mentioned many times as a possible director for the Bureau of Land Management (BLM).
Many miners have failed to exercise their rights by using the power of their Mining Districts and laws that are already on the books, such as 43 CFR 9712.1, which states…
We spent our evening at some informal get-togethers at two private residences in the DC area, which provided the opportunity to talk with staff members from Congress, other agencies, and a few consultants working on public land issues. We found common ground with many of them, and found a strong ally in a former Congressman turned consultant who agreed that Mining Districts provide the smartest legal route...
How would you like it if you could make the actual rules and regulations governing your own business? A dream, right? Well, the existing Federal Mining Law gives a claimholder this ability in the context of organized Mining Districts.
Within these districts, some of the roads and trails have been reopened for access, critical habitat designations have been scaled back, and a few Mining Districts were completely removed from proposed withdrawals.
I want to stress that this is just the first step to fixing many of the regulatory issues we identified in discussions with the current administration. There will be plenty more to come.
We will be bringing the first of several bills that were requested by Congress during a previous MMAC trip and presenting maps depicting all the MMAC-assisted Mining Districts.
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