PLP Update: The Path for Legally Re-Starting Suction Gold Dredge Mining in 2021
June 2020 by Public Lands for the People
Public Lands for the People (PLP) is conservatively projecting a path for legally reopening gold suction dredging mining starting in 2021 provided that two obstacles are resolved, which are:
1) Prohibitive state regulatory programs that have become dysfunctional and prohibitive to the suction dredge industry.
2) Inconsistent applications of the Clean Water Act (CWA) federal & state administered section 402 National Pollution Discharge Elimination System (NPDES) program.
To overcome these two obstacles, two things will need to be completed that PLP is helping to guide:
1) Federal Preemption regulations set out to deconflict duplicative & prohibitive state regulatory programs on federally administered lands under the surface jurisdiction of the U.S. Forest Service and Bureau of Land Management. Status: Petition accepted, and Rulemaking process started May 2020.
2) Clarifying regulations that are jointly issued by the federal EPA and Army Corps that state that suction dredging does not as a matter of practice produce an addition within the meaning of the CWA 402 NPDES program and is not a point source discharge while reaffirming longstanding deminimus unregulated movements under the CWA 404 program. Status: 2019 Don Smith Petition under pending consideration
Up until now, PLP had been reluctant to release this strategy until the proper legal, scientific, and political foundations have been laid and solidified. PLP believes it is now time to release this information and clarification given based upon our alliances within the industry, key working relationships within the Trump administration that were established over the course of the last three years, and to so apprise and reassure our membership and alliances within the industry.
Prohibitive State Suction Dredge Regulations & Programs
Several years ago, PLP had to make the tough decision to face the reality that fighting in state courts on certain premises was not productive when one has no control over the narrative. The narrative had been set by extreme environmentalists that suction dredging is bad and never mind the science that proves otherwise. PLP and all the other mining groups were totally outgunned at the political level in these Western states—namely California, Oregon and Washington. Funding to PLP dropped when miners could not work their claims to help to support the cause let alone the other groups who were still fighting in the courts to help preserve our way of life.
The sad fact of today is that the present state regulatory systems regulating suction dredging has killed our industry—by design. That is why PLP started thinking outside the sluice box and into the national security supply chain over three years ago. Present conflicts and realizations having to do with dependence on China have illuminated the fact that suction dredge miners have a vital role to play and are an ignored and untapped domestic resource—until now. See: Federal, State Agencies, Courts Undermine Efforts to Free US From China’s Stranglehold on Rare Earths (Bonner Cohen, The Epoch Times, published March 30, 2020)
Initially, when PLP started going to Washington, D.C., we had difficulty establishing and communicating the reality that our industry was being decimated by so-called reasonable state programs when lobbyists from big mining were saying that they want state regulations rather than federal. We warned the BLM and Forest Service over three years ago that the prohibitive state suction dredge regulations that started in California would expand to Oregon then Washington and beyond if the federal government did not take affirmative preemptive measures through the rule making process. It took some time, but we were successful in changing that perception at least for the subject of suction dredging regulations. We will continue to push for non-duplicative regulations as it has become clear that “duplicative mining regulations produce intolerable conflicts in decision making.” (Quoting U.S. Supreme Court Justice Powell in CA Coastal Comm. v Granite Rock, 1986)
Regulatory Relief is in the Pipeline!
PLP is happy to report that the petitions sent in by Waldo Mining District and supported by PLP and numerous other mining organizations are being processed for proposed preemption rulemaking by the BLM (then it should be duplicated by the Forest Service soon thereafter). As of the date of this writing May 18, 2020, the BLM has assured us that the proposed rulemaking on preemption will be released for comment within a month.
PLP is happy to report that the Forest Service has been pushed namely by the American Exploration & Mining Association (AEMA) to replace the 36 CFR 228A mineral regulations to make them as close as possible to the more certain and more workable BLM 43 CFR 3809 mineral regulations. PLP would rather the Forest Service minerals program be scrapped and folded under the BLM’s regulatory jurisdiction because if not for the 9th Circuit Court, the Forest Service really lacks the legal jurisdiction to manage the minerals upon federally managed land of the United States. That is because of the 1905 Transfer Act (16 USC section 472) that states in part: “…the Secretary of the Department of Agriculture shall, from and after the passage of this Act, execute or cause to be executed all laws affecting public lands…excepting such laws as affect the surveying, prospecting, certifying, or patenting of any such lands.”
The other reason PLP would rather the Forest Service minerals program be scrapped and folded under the BLM’s regulatory jurisdiction is because of the huge and horrible track record of abuses the Forest Service has against the miners and their pattern of unjustified delays.
The new Forest Service draft regulations and EIS should be available for comment by the end of the year 2020. PLP will be making more comments on this when the draft EIS is available and the comment period reopens on the draft regulations.
Clarifying the 402 CWA NPDES Program at the Federal Level
As many miners are aware, the Clean Water Act (CWA) is an enactment by Congress for the regulation of our nation’s waters. The 404 section of the CWA pertaining to dredge and fill operations to disposal sites is regulated exclusively by the U.S. Army Corps. Some miners are mistaken, and it is important to note that the Army Corps 404 permitting authority cannot waive the application of the 402 permitting authorities—whether it is being administered by the federal EPA or its delegated state administrators such as the CA State Water Quality Control Board or the Oregon Dept. of Environmental Quality (DEQ). This is further discussed below under the topic of “Some miners are sending a mixed message about suction dredging.”
Let’s be clear, these are two separate and distinct programs—one program cannot cancel out the application of the other program or its enforcement.
Over 8 months ago PLP assisted Idaho member Don Smith in his Appeal and Petition to the EPA and Army Corps that his suction dredge operations should not trigger the application of the 402 NPDES CWA program, in addition to his Idaho Joint Application general permit between the IDWR and Army Corps. That Petition has gained overwhelming support from over 28 leaders in the industry and many individuals and counties. An investigative report (see references at the end of this article) has revealed that deep within the regulatory swamp certain individuals employed in the EPA and Army Corps are purposely denying top-level Trump appointees of those two federal offices from seeing the miners’ petitions.
Thanks to our great contacts in DC, we are in the process of bringing in the big guns within the Trump White House in order to help drain the swamp within, namely the EPA for starters. A big thank you will be in order soon for the Washington, DC-based National Center for Public Policy Research, who has helped this issue along, and to have accountability within the EPA opposing President Trumps deregulatory agenda. Please stay tuned on this ongoing effort every month in ICMJs Prospecting & Mining Journal.
At the same time, Waldo Mining District leader Tom Kitchar is leading the charge, taking the 402 suction dredge controversy from Oregon to the U.S. Supreme Court with the expertise of the Pacific Legal Foundation (PLF). The Pacific Legal Foundation has a stellar record of winning before the U.S. Supreme Court (SCOTUS). Unfortunately, due to delays from the Oregon DEQ, the soonest we will know if SCOTUS will even take up the case or decide the case now will most likely occur in the fall of 2020.
A small group of suction dredge miners are sending a mixed message about suction dredge mining and are actually playing into the premise that suction dredges add a pollutant (playing into the environmentalist’s trap). Most all suction dredgers are now saying, “Hey, my suction dredging does not add a pollutant,” but their actual actions do not follow their words. Let us explain.
The California State Water Quality Control Board (by delegation from the federal EPA) administers the 402 CWA program. This 402 program is called the National Pollution Discharge Elimination System (NPDES). If a miner asked for a permit from this agency, he is consenting to a falsehood that suction dredges produce an addition of a pollutant in need of elimination. Simply said: Those miners are saying, “I don’t pollute, but please give me my pollution permit.” Those that advocate this kind of message will never give miners reasonable dredge regulations. This is also a very dangerous path that places the miner in a position of liability to the agency and subjects the miner to lawsuit by environmentalists who can take advantage of the miner’s error in judgement. Don’t make that mistake! Don’t feed the environmentalist’s cash cow because that’s how their sue and settle system functions.
It may come as a big surprise to some miners to know that the citizen suit provision of the CWA has always given the environmentalists the legal authority to enforce penalties even when the agency fails to act. Suction dredge miners can be cited or sued at a rate of over $51,000 per day, as has already happened to a California miner dredging in Idaho who defied the present 402 NPDES program administered in Idaho, yet had consented to (and advocated for) its application to a suction dredge in California and thus faces over $3 million dollars in fines and attorney fees because of this admission (posted on his own social media website by the defendant and is now entered into the court’s record by plaintiffs).
If the miner does not think he needs the 402 permit for his suction dredge, but instead wishes to get a waiver of the 402’s application, he must Petition the agency for a rulemaking change to say that it should not apply. Good luck on that in California, right? Who is supposed to be the oversight of the 402 federal CWA program to see that it is rightfully carried out by the state? Answer, the federal EPA who delegated the 402 program subject to federal law and oversight. Case in point, the Donald Smith Petition in Idaho illustrates the proper legal path to challenge a programs misapplication absent litigation.
PLP has heard that some miners believe that if they could only get the Army Corps to give them a 404 dredge and fill permit or waiver their problems will be solved. This is not true. The Army Corps does not have the legal authority under the 404 program to waiver the separate legal duties of the CA State Water Quality Control Board’s job of administering section 402. One program cannot replace the other, and both are separately carried out as the law is currently written and intended by Congress. This is the same type of unfortunate thinking that got the California dredge miner mentioned earlier in trouble in Idaho and now facing devastating penalties. Needless to say, do not challenge the CWA authorities unless you are legally and financially prepared.
CA Water Board Releases Draft Suction Dredge (Pollution) Rules
Recently released draft rules by the CA State Water Board over the section 402 permit for suction dredging are as PLP expected, very ugly and prohibitive. Permit applications will cost $2,572. Permits will not be available for streams, rivers and lands that have historically produced gold because of the potential to encounter mercury. Permits will not be available for ESA potential habitat. So basically, the board will only issue a permit to non-gold producing areas. Anyone that is crazy enough to obtain a permit can and will be sued by environmentalists under the ESA and CWA for a multitude of reasons at a rate of over $51,000 per day in fines if they fail to report monitoring requirements of the permit, as well as suction dredging without the requisite permit.
PLP views working with the CA State Water Board as a waste of time because of the political bias that was built into the process by well-funded eco-frauds.
On a more positive note, PLP estimates that if the Trump administration can stay in for a second term and complete the deregulation agenda, that in all likelihood suction dredging could legally resume in year 2021 at the earliest—assuming that a federal preemptive and clarification process is complete. This means that suction dredging would be controlled exclusively under federally-administered BLM and Forest Service lands under new federal preemption rules to replace state rules that we all know were driven by biased and crazy politics rather than science and national security needs.
• Cohen, Dr. Bonner, “Courts Undermine Efforts to Free US From China’s Stranglehold on Rare Earths,” The Epoch Times, March 30, 2020.
• Smith, Don, “Appeal and Petition to the EPA and Army Corps,” August 12, 2019.
• Letter of Support for Don Smith Petition for Rulemaking, September 16, 2019.
• Clean Water Act, Section 402: National Pollutant Discharge Elimination System.
• CA State Water Resources Control Board Draft Statewide NPDES Permit.
• Petition for Rulemaking to Stop State Law-Based Prohibitions of Mining on Federal Lands, Waldo and Galice Mining Districts, June 18, 2019.
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