On May 11th, 2016 the US Fish and Wildlife Service handed yet another victory to the Center for Biological Diversity (CBD) and another blow to dredgers in Oregon.
The final designation of critical habitat for this frog includes 20 miles of river and more than 65,000 acres of land.
Like California's Mountain Yellow Legged Frog, the Oregon Spotted Frog was an ideal candidate species for the CBD. With scant historical records and enough genetic variation from other frogs the push to protect the frog was a slam dunk.
The CBD filed a lawsuit in 2008 demanding the USFWS designate the frog as endangered and establish massive amounts of critical habitat. A separate lawsuit filed in 2015 by the CBD further requires dams be removed to restore the habitat. A similar lawsuit was filed by the environmental group Water Watch attempting to remove dams and establish even more critical habitat.
In September, 2013, we published an article covering the action to designate the critical habitat and urged people to oppose this action. Despite some resistance the designation easily sailed through virtually unchanged from the draft critical habitat designation.
One thing is clear. The designation of critical habit leads to more restrictions and closures in those areas available for mining. In California, all streams where the Mountain Yellow Frog may be present have been closed to the use of suction dredges. In Oregon all streams and tributaries where the bull trout (Dolly Varden) may be found have been closed to suction dredging. In Idaho, the US Forest Service has issued a rule whereby the use of any sized dredge in critical habitat will require US Government coordination amongst the various agencies prior to issuing a permit. This requires even a dredger running a 2" dredge to submit a Plan of Operations.
States eagerly support additional designations of critical habitat because they are the financial beneficiaries of federal funding to manage critical habitat within their state. Once established its almost unheard of for a designation to be removed, or requested for removal by a state receiving federal funding.
Environmentalists continue to push for even more listings and critical habitat. Currently, nearly every river on the west coast is designated as critical habitat for some type of species. The Pacific Legal Foundation recently filed a federal suit seeking to overturn the listing of the Green Sturgeon critical habitat. The PLF has also filed additional lawsuits seeking to delist species which should have been delisted long ago including a species which restricts suction dredging - the Yellow Billed Cuckoo.
There is no evidence suction dredging has any impact on these species and there is no record of a single one of these species being harmed by a dredge. There is no credible evidence a suction dredge has any lasting impact on the environment, but this doesn't stop the bans.
The environmentalists have found a work-around to the 1872 Mining Law which encourages mineral development on federal land, it's the Endangered Species Act (ESA). Like the Sawyer Decsion which ended hydraulic mining, the environmentalists are using the ESA to end small scale mining.
The first shot in this fight was fired by the Karuk tribe in 2005. Demanding the restriction of dredging on the Klamath, Scott and Salmon Rivers due to the listing of the Coho Salmon as a threatened species. Initially the Department of Fish and Wildlife rebuffed their requests but then did an about face and sought a court order to shut down dredging on these same rivers despite their own biologists finding their was no evidence of harm, or potential harm and they even went so far as to write suction dredging provided the only cool water habitat for salmon in the Salmon River during high summer temperatures.
The 2005 Karuk lawsuit has led to where miners are in 2016 with suction dredging bans in Oregon, California and Idaho based on environmental effects.
The 1872 Mining Law has provided little defense against these environmental attacks. The State of California recently lifted their dredging ban, which was found by the San Bernardino Superior Court to be in conflict with the 1872 Mining Law, but replaced the ban with a de-facto ban whereby the prospect of a permit is dangled in front of miners, but the process of obtaining the permit is so byzantine not a single miner has negotiated the permitting system in 7 months.
The Oregon Spotted Frog and the California Mountain Yellow Legged Frog were ideal candidates for the CBD. Neither of these frogs was considered a separate species prior to genetic testing. The environmentalists conducted genetic testing and determined these were distinct population groups meaning they were specifically adapted to a particular section of river, therefore they met the requirements for protection under the ESA. A leading website dedicated to information on amphibians, www.amphibiaweb.org, states there was virtually no historical record of these frogs:
"The recently described species [Oregon Spotted Frog] has an impoverished historical record (about 70 locatities verifiable..) that complicates interpretation of its historic distribution."
The site goes on to describe a very limited range for this frog:
"Resurveys of historically occupied sites suggest that the Oregon Spotted Frogs are extirpated [gone] from 70-90% of their range; range reduction estimates differ based on whether using a site count (70%) or area based estimates (90%). The species is thought to be extirpated over its California range, the lowland Williamette Valley of Oregon, and the lower Columbia River of Oregon and Washington. No Oregon Spotted Frog populations are known to persist across their historical lowland range in western Oregon, and 7 extant lowland sites exist in western Washington and British Columbia."
The reasons for the decline of the frog have nothing to do with dredging. A primary cause of the loss of the frog is the same as in California where the California Department of Fish and Wildlife, through their non-native fish stocking program, have wiped out the frogs by introducing predatory fish in areas where they were historically absent.
Rather than pinning the blame where it belongs, suction dredgers will pay the price as environmentalists push for yet more restrictions. Don't be surprised when the environmentalists find more of these endanged frogs in California where they have long been extinct.
As the Sawyer Decision was to hydraulic mining, the designation of critical habitat is to suction dredging. Environmental groups have a powerful weapon in the ESA, one which has been thwarting the mining laws through restrictions emplaced to prevent the use of specific types of equipment, while claiming its not a ban on mining. The courts have accepted these arguments and this summer will find the California Supreme Court, and the Federal Appeals Court making rulings on this very topic.
While it may appear the fight against critical habitat has little to do with mining, miners are discovering it has a huge impact on their ability to utilize their federal mining claims as the list of agencies and regulations only increases from year to year. The survivial of the frogs appears to be the death knoll for the small scale miners.