Fighting on an Uneven Playing Field

California Laws as Weapons Against Dredgers

Why the Fight Against CEQA Matters

Does this look like a significant effect on the environment?

Like most of the environmental protection acts passed in the 1970's, the California Environmental Quality Act (CEQA) was passed with the best of intentions. The 1970's was a rough time for the environment with big cities dumping raw sewage into rivers and the ocean, and industrial factories spewing toxic emissions which choked the sky.

CEQA's primary purpose was to ensure effects on the environment from projects was evaluated, and where possible, were mitigated. It wasn't so much an enironmental protection law as it was an environmental "full disclosure" law. It only required the effects on the environment were known, and lessened to any degree possible.

As with most of these types of laws, it has evolved over time into something it wasn't originally. Originally CEQA applied only to government projects, but within a few years envioronmentalist lawsuits set precedence that CEQA also applied to private property projects as well.

From Good Idea to Bad

In the early years of CEQA, the 1970's, environmental groups used CEQA to challenge big projects with major impacts. A good example in the early years of the law was a case known as County of Inyo. In this long-running case Inyo County challenged the rights of Los Angeles to take all the water from Inyo County for use by Los Angeles agriculature and urban areas. The court repeatedly found the effects of de-watering Inyo Couny hadn't been studied and rejected the environmental impact report multiple times. In the end Los Angeles won, Inyo lost.

Beginning in the 1980's enviornmental groups began to realize the power of CEQA as a weapon to stop development projects and turned their attention to filing lawsuits where they were handsomely reward through lawyer fees, settlement fees and outright extortion. Except it wasn't called extortion, it became known as "mitigation." If a developer wanted a project to go through then part of the budget became money to ensure environmental groups didn't halt the project using challenges to CEQA.

The way California law is written virtually ensures an environmental group will be reimbursed their legal fees when filing one of these CEQA suits. There are few cases where the groups didn't get their attorney fees. Even in the suction dredge mining cases, where the environmental groups didn't win a single cause of action, they still walked away with nearly $700,000 in legal fees for just filing the lawsuit and sitting around court rooms.

CEQA is written in the vain hope that only significant effects will be evaluated. However, the California legislature has a knack for ensuring even the smallest of effects rises to the level of significant.

Under CEQA a significant effect is defined as a significant, adverse change in the environment. What becomes a significant adverse change then becomes the core issue and the courts have held only a government agency can determine whether something is significant or not. However, in interpreting what is significant the courts have held that all previous human induced changes are part of that environment.

By the law, all previous effects from mining were part of the environment when the 2012 EIR was prepared, including any effects which may have occured related to dredging. In other words, the government is only supposed to look at what changes may occur in the future, they're not supposed to reach into the past. But this is what they did in the suction dredging EIR to classify some of the trivial changes as significant.

Run by the state, this dozer in the American River wasn't considered significant

The 2012 Suction Dredge EIR didn't take into account all previous human induced changes, so the question becomes why not? In a CEQA review, known as an Environmental Impact Report (EIR) there is a project proponent. The project proponent is the person, or company, who is proposing a project which may have a significant effect on the environment. The project proponent is usually responsible for identify what those significant effects may be and proposing mitigation to lessen those effects. The cost of conducting the environmental review is paid by the project proponent, who must budget extra money, usually a lot, for the preparation of the review, and the inevitable lawsuits which will arise.

In the case of suction dredging the California Department of Fish and Wildlife presented themself as the project proponent, a known opponent of suction dredging claimed to be the proponent, while the actual proponents, the dredgers themselves, had no say over the review.

If this wasn't muddy enough already CDFW then defined the project to be the promulgation of regulations, not the actual act of suction dredging. For some very specific legal and technical reasons CDFW avoided defining the project as actually suction dredging. Now, if you read the EIR you would sure think the project was suction dredging, but it's not, it's merely the preparation of new regulations.

If this was true then the only environmental effect which would need to be evaluated is the incremental cost of electricity and paper to prepare the new regulations, but the Department covered what appears to be an illegal act with a seemingly mundane project. While this may seem to be confusing it is a very important point. The Department had no authority to conduct a new EIR when an EIR had been conducted in 1994.

This matters. All resultant bans and court cases have sprung from this seed. As the laywers would say everything which has happened to us since 2009 is the 'fruit of a poisoned tree.'

So in the 2012 Suction Dredging EIR we have a couple of departures from normal CEQA events. First, the project proponent was a known opponent of suction dredging, and the coordinating agencies were on the record as opposing suction dredging - even before the environmental review began. Secondly, we have the Department defining the project as one thing, the updating of regulations, when really they evaluated and proposed a completely different thing and finally, and most importantly CEQA requires all previous human changes to be considered as part of the existing baseline. Changes in the environment are only measured going forward, not backwards.

Let's look at this from a different perspective. Let's say a logging company was logging a tract of private property and the environmental groups opposed to the logging decided an environmental impact report was necessary and they were the project proponents. How do you think the EIR would come out? Do you see where this went off track?

CDFW prepared the report and wildly exaggerated the effects. Any report based on an environment which existed only in pre-human times would reach the same conclusions as the 2012 Suction Dredge EIR did. This is the environment suction dredging was measured against -pre-human, or at least pre-European. No account was made for the billions of cubic yards of debris flushed into these rivers from the hydraulic mines, according to the EIR these were pristine, untouched rivers and a suction dredge would cause serious harm to the environment if they were allowed to operate.

Except, they had already been operating for sixty years.

A Gift to the Environmentalists

Yelling fire in a move theater, and using the word significant effect in an environmental report are about the same thing. Once those words are used there's no taking them back. The environmental groups hungry for litigation dollars scan the horizon for the scent of "significant effects" and using their contingency-fee lawyers swoop in like vultures on a three day old road-kill.

It's clear, in hindsight, the report was heavily influenced by the environmental groups, and the Water Board. The dredgers were asking an agency who was opposed to dredging to give them a fair shake. That didn't happen.

The stakes are very high in this CEQA lawsuit. Should we not win the CEQA lawsuit there will never again be another EIR on suction dredging, we'll always be stuck with the 2012 EIR which says suction dredges emit mercury and cause significant damage to the environment. These words will always be used against us. They were used as the basis for every single dredging ban, including Oregon's. They were also used by the California Supreme Court in the Rinehart decision. Once those words are on paper they're as good as gold. The courts are required by law to defer to the "expert" opinion of the agency, which in this case happens to be an agency which is opposed to dredging. So who do you appeal to?

Once Rolling, The Ball Doesn't Stop

Once the term "significant effect" raises its head it just multiplies. Recently, a suction dredger attempted to navigate the myriad of new requirements to obtain a suction dredge permit. Something which used to take about five minutes. For several months he sought a permit from the US Forest Service to run his suction dredge on the Yuba River. The US Forest Service considers the use of suction dredges as "deminimis activities" which means they don't rise to a level of concern which would need a permit.

Following California's lead the Forest Service imposed unreasonable requirements on him, to include the impossible task of obtaining a California dredge permit, which doesn't exist. The dredger appealed the decision to the District Supervisor who agreed the Forest Service couldn't impose a condition which was impossible to meet.

The next step in legal dredging was for the US Forest Service to conduct its own environmental assessment and to conduct coordination with agencies such as the US Fish and Wildlife Service to ensure any requirements to safeguard endangered species would be considered. After a year had passed with no action from the Forest Service the dredge inquired as to the cause of the delay, the Forest Service responded,

" must obtain a 401 Certification from he Central Valley Regional Water Quality Control Board."

One small problem, you must first have a Section 404, or 402 permit in hand to obtain a 401 certification which no agency had submitted even though the US Army Corps of Engineers had issued a 404 permit which was later certified by California. This was in the days where suction dredging wasn't a political football.

Again, the US Forest Service had imposed impossible conditions on the dredger. There was no existing permit to submit for certification, and no one was making any moves to obtain this permit. In fact, it was just the opposite, the Water Board wrote,

"The No Program alternative, a continuation of the current suction dredging ban, would provide the best water quality protection at no cost to the State. If DFG's proposed program is implemented, the Water Board would likely need to embark on a costly program to develop a permit to address mercury discharges from suction dredges...

Except...the EIR didn't say dredges discharge mercury. It said dredges may re-disturb mercury which is already present in the watershed. The Forest Service then read into the Water Board's statements and determined it would be impossible to obtain a permit from the Water Board to dredge and replied to the dredger...

"Under these circumstances, it is questionable whether the RWQCB would issue a 401 certification for suction dredging..For these reasons I am suspending any work on your proposed plan of operations.

This is why the fight against CEQA matters. The arguments over preemption are still being fought at the federal level, but with the California Supreme Court decision the issue is dead in California Courts. The only remedy now is for the U.S. Supreme Court to re-look their landmark decision in Granite Rock and determine where the limits to state regulation are. Are they limitless? In other words is the State's power over you without limit? Can they use this idea of "expert ageny opinion" to deny you your rights?

The answer to the above is clearly yes. That is unless someone stands in the way. We're still standing in the way.