PLP Update: Another Suction Dredge Case Heading to the US Supreme Court
December 2019 by Scott Harn
As mentioned last issue, Public Lands for the People (PLP) has been assisting a member after the California Department of Fish & Wildlife attempted to expand its authority and cited a prospector for not having a stream alteration permit while drywashing. This case was postponed by the prosecution for another month after PLP offered to assist by providing expert testimony.
Two PLP board members will be attending the American Exploration and Mining Association tradeshow in Sparks, Nevada in December to garner support for providing regulatory relief for small-scale miners.
And, as we reported previously, PLP assisted suction gold dredger Don Smith of Idaho with a petition to the EPA requesting clarification of their dredge permit policy. The Clean Water Act clearly states there must be the “addition” of a pollutant to trigger a permit requirement, but the agency and those states handling permitting on the state level through a memorandum of understanding with the EPA have ignored this requirement. There were 26 groups who signed on to a letter of support for this clarification.
On a related note, miners in Oregon were facing similar issues in regards to suction gold dredge permitting, and they appealed their case, Eastern Oregon Mining Association v. Oregon Department of Environmental Quality, to the Oregon Supreme Court. Unlike past suction dredging court cases, the “no addition” argument was thoroughly litigated. Unfortunately, the court ruled 6-1 against the miners, deferring to the agency interpretation.
I’ve had a few discussions with Tom Kitchar, president of the Waldo Mining District about this case. I’m happy to report that the Eastern Oregon Mining Association, the Waldo Mining District, and four individuals have signed an agreement with the Pacific Legal Foundation to appeal the “no addition” argument to the US Supreme Court! Pacific Legal Foundation has a stellar track record and does not take on cases unless it has a strong belief it can win. It is a huge boost to have attorneys with their knowledge and expertise take on this case.
We expect opening briefs to be filed in December. If the US Supreme Court accepts the case, we likely won’t see a ruling until late in 2020.
In the meantime, we will continue our multi-pronged approach to seek regulatory relief at the federal level while supporting those court cases that are built on a strong legal foundation. I expect my next trip to Washington, DC with PLP will take place in early 2020, where we will focus on getting the EPA clarification on suction dredge permitting, among other items.
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The ESA has become an unwieldy beast that was hijacked by government agencies run amok, and by extreme environmental groups who saw it as a way to lock up public lands and to generate income through exaggerated claims and continuous lawsuits.
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Casperson said he is not worried about businesses subverting the language in the bill because the DEQ would still have the authority to halt the new construction if it is deemed environmentally unsound.
We're done watching as an unelected and unchecked bureaucracy, with rule-making authority, enforcement powers, and seemingly bottomless budgets abuses citizens at will.
Tomten concedes the scenario of federal environmental agents swooping in on river dredges near historic mining towns like Idaho City, Rocky Bar or Placerville remains unlikely.
On Tuesday morning, August 26, 2010, my clients Michael and Linda Backlund were forced to plead guilty to a charge of violating 36 CFR §261.10(b), which criminalizes maintaining a residence on Forest Service land without authorization “when such authorization is required.” This is a new regulation pursuant to which virtually anything, even a tent, is an unlawful “residence” unless authorized in advance.
…I’ll be heading back to Washington, DC, on June 4 with Clark Pearson of PLP for nearly a week of meetings with the Mine Safety and Health Administration, US Forest Service, Environmental Protection Agency, and numerous members of Congress in both the House and Senate.
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