The New 49'ers

Tom Kitchar, Guy Michael, Donald R. Young, Charles Chase, Eastern Oregon Mining Association, and Waldo Mining District have petitioned the U.S. Supreme Court to finally settle the matter of whether or not States can legally use federal authority under The Clean Water Act to define suction dredge tailings as a pollutant. This case originated in Oregon in 2005 and has finally reached the front steps of the high court.

The miners are being represented by James Buchal and Pacific Legal Foundation. This is (another) Petition for review. The Supreme Court has not decided to review this case, yet.

The issue is where the authority should originate between the EPA or the Army Corps. There is quite a lot of language between various courts, and the U.S. Supreme Court, that "the introduction of a pollutant" is regulated by the EPA and the management of dredge fill material (streambed material which was already in place) is to be regulated by the Army Corps of Engineers (Corps).

The Corps has already ruled that the impacts from suction dredging, under reasonable regulations, has a De minimis impact. Under most circumstances, the Corps is relatively easy to deal with. This is why suction dredging for gold is still legal in Alaska; the State adopted the Corps position that dredged material is not a pollutant.

EPA federal authority under The Clean Water Act can be passed over to States that desire to regulate certain activities. The reason we are not dredging in California and Oregon is that these States have decided that suction dredging introduces a pollutant by discharging streambed material (streambed already at the bottom of a waterway) which may already be contaminated by pollutants such as mercury or other heavy metals. There is some case law on the books which determined this issue in our favor. If the streambed material is already in the waterway, we are just moving it around; we are not adding anything.

The Petition, which is very good reading, can be found here:

http://www.goldgold.com/wp-content/uplo ... -FINAL.pdf

Merry Christmas Dave... and to all of you!

If the Supreme Court will grant and review this petition it can have significant consequences of benefit to our situation here in California also. If miners are successful in overturning the present state ban on motorized mining, the next threat to come down the road will be EPA NPDES permitting. It is critical that we prepare for this now by educating miners on definitions of words used, as well as past court cases that help us avoid NPDES permitting.

The question of "is dredged material a pollutant?" is at the heart and core of EPA NPDES permitting. Federal EPA maintains that it is, while The Army Corps of Engineers maintains that it is not. I was involved in this very situation in Alaska in 1998 when the EPA insisted that they had authority to permit under NPDES. During the public comment period the state of Alaska also became involved and argued that dredged tailings were Incidental fallback, as The Corps has already defined, not a pollutant simply because EPA defines a pollutant as having to be introduced from the outside word.

The result of all of this is that even today Alaska miners need only a simple, low cost state permit to suction dredge.

FURTHER INFO: Our Petition was filed Dec. 20, 2019 with SCOTUS. If i understand the process, next is a window of opportunity for any interested parties to file amicus briefs (friend of the court) in support of our case, probably by Feb.. Then the State/DEQ gets to respond, and possible amicus briefs by those that support the DEQ position, probably due sometime in March or so. We might get an opportunity to reply.... and then we wait to see if SCOTUS will accept the case. We might know by late spring -- or next fall.

If they accept the case then there will be a round of argument briefs and possibly an oral hearing. If they deny to hear our case, well, we're screwed and our only real hope will be to get help from the President or Congress to force a change in the law (and it will mean the "rule of law" means less than nothing and there is no justice - which is worse than no dredging!).

THE ISSUE: The Clean Water Act (CWA) requires a permit for "any discharge, of pollutants, from a point source, into waters of the United States." Over the years, the term "discharge" has been added to (by SCOTUS) to mean "the addition" (of pollutants), from the outside world.

This means that if there is an "addition" (i.e.; adding something foreign to the water), then the CWA applies and a permit is needed. This also means that if there is no addition, then the CWA does not apply. Our argument is that there is plainly NO ADDITION OF ANYTHING from a suction dredge used in-stream for gold recovery and therefore the CWA does not apply at all. We don't need a EPA issued NPDES permit, or an Army Corps permit.

This does NOT mean that no permit at all is required... we will still have the States to deal with who have their own water quality statutes... but we will not be under the burden of a Federal permit system designed to eventually ELIMINATE the discharge of pollutants (sewage treatment plants that discharge need NPDES).

The Oregon courts have ruled that DEQ can split the discharge from a sluice on a dredge into two separate parts, requiring two separate CWA permits:
1) rocks, gravel, sand that settle fast permitted as "dredged material" by the Army Corps under Sec. 404; and
2) "turbid wastewater" that stays in suspension longer permitted under NPDES by the EPA (or DEQ with agreement with EPA).

However, even the microscopic silt particles that exit the sluice and stay in suspension were already in the water (or bed)... they are not "added". The dredge does not manufacture them. Merely "stirring them up" is not the same as "adding". (For that matter, "turbidity" is not a "pollutant" but is instead a form of "pollution").

It should also be noted that the CWA itself clearly states that for a single discharge, you need one or the other permit (EPA or Army Corps), NEVER BOTH (which the Oregon Courts totally ignored).

If you read the Petition, you will see that the underlying problem goes far further than just suction dredge mining making our case of National importance - which we hope & pray will increase our chances to be heard.

The 15 year history of this case along with court documents and the latest news as this develops, along with how you can support our efforts AND get a chance to WIN 1/2 LB. OF GOLD (plus many more prizes) please go to:
www.waldominingdistrict.org

Thanks for this update Tom. Updates are important to keep people in the loop and so they do not lose interest due to just not knowing what is happening.

An amicus (friend of the court) brief in support of this case is being written right now and is expected to be filed by the end of this week (Fri., 01/31/20). Named in the brief are mining orgs from four states (ID, WA, OR & CA) (including The New 49ers), plus an Oregon county and a California county.

More news as this develops!

Thanks Tom, looking forward to positive results.

Jim: Not as much as I am (looking for a win)!