History of the Oregon Litigation

At every turn the State has tried to deny justice

Caught in a Quagmire

Dredge at work

In the Beginning...

In December, 2005, the Eastern Oregon Miner's Association (EOMA) and the Waldo Mining District (WMD), and others, filed a Petition for Review in the Oregon Court of Appeals challening the legality of the Oregon Department of Environmental Quality (DEQ) 700PM (dredging) dredging permit. In part, under the authority of the Federal Clean Water Act (CWA) establishing the 700PM permit as a Section 402 Point Source Discharge permit under the National Pollutant Discharge Elimination System (NPDES). Point source discharge permits are required for discharges of pollutants from outside the existing water, which means the "addition" of a pollutant. As we know suction dredges don't add anything to the water.

Due to continued delays by environmental groups it took over four years to obtain a decision. In December 2009 the Court of Appeals ruled the 700PM permit as invalid, however, the ruling stated a suction dredge was subject to both a point source discharge (402) and a dredge and fill permit (404). The court theorized the suction dredge effluent, the water which runs out the back of the sluice, was a point source discharge, while the gravel which leaves the sluice is a dredge and fill discharge.

Three Water Quality Permits Required to Run a Dredge?

This ruling not only ran contrary to the U.S. Supreme Court Case (Pot of Soup Argument) which held anything pre-existing in the water was not an addition of a pollutant under the meaning of the Clean Water Act, but the decision also ran contrary to the CWA itself which requires only one permit, either a Section 402 or 404 permit, but not both.

The Miners appealed the decision to the Oregon Supreme Court which accepted the case. Due to continued imposed State delays, by the time the case actually reached the court the permit had expired and was replaced with a newer, more restrictive permit. The Oregon DEQ moved to have the suit dismissed as being moot.

The Miners argued the case was not moot, as the new 2010 permit had the same fatal flaw as the previous permit but now, partially based on the bad decision of the Appeals Court, the permit was even more in violation of the CWA.

Without providing any explanation, the Oregon High Court declared the suit moot and dismissed the case, sending us back to the starting point.

Fighting for our Day in Court

On September 24, 2010, EOMA filed a Petition for Judicial Review in the Circuit Court for the State of Oregon in Baker County against the 2010 700PM permit. EOMA argued it was the wrong permit; the wrong jurisdiction an contained unwarranted prohibitive restrictions. On the same day WMD filed a similar suit in the Oregon Court of Appeals arguing the same. EOMA filed in Baker County arguing the permit was issued as an order and not a rule. WMD filed in the Appeal Court and argued the permit was a rule, and not an order. We did this to ensure one of the two cases would be heard in case the order was really a rule.

Secret Settlement

On September 28, 2010, environmental groups (NEDC and KSWild) filed a Petition for Review in the Circuit Court for the State of Oregon in Multnomah County, arguing the permit was not restrictive enough. The Miner's then issued a challenge forcing the environmentalists to prove they had standing. In legal disputes you must have standing to file a suit, meaning you have been harmed in some way. We asked the environmentalists to prove they had been harmed.

During the next few months the Appeals Court ruled the 2010 permit had been issued as an order and moved WMD v. DEQ to the Circuit Court in Josephine County; then the State moved to consolidate the two cases to be heard in Marion County (Salem).

The Miners submitted a list of Discovery Requests to the environmental groups requesting documentation of their supposed harm. The environmental groups fought tooth and nail to not respond. Finally, after several years, the Court ordered them to provide evidence of harm to prove standing.

Just days before the environmental groups were required to produce evidence of harm the Miners learned the environmental groups an DEQ had reached a settlement agreement whereby the DEQ paid the environmentalists $7,500 an agreed to consider the environmentalists demands in the next version of the suction dredge permits.

Subsequently, without ever showing they had standing to sue in the first place, the groups dropped their lawsuit. The delay caused by the environmentalists resulted in months of lost time and thousands of dollars cost to the Miners.

The Miners filed a complaint with the Marion County Court arguing the secret dealings with DEQ were illegal.

After another three and a half years and thousands of dollars spent the Marion Court issued its final judgment on January 28th ruling against the miners on every issue while providing no explanation for the ruling.

The Miners then filed an Appeal to the Oregon Court of Appeals, the very same court which ruled against us earlier in 2009, and requested the Court certify the Appeal for the Oregon Supreme Court, or expedite the Appeal. The Court did neither.

The Oregon Supreme Court

In December 2015 the Oregon Supreme Court agreed to hear the Miner's arguments on the challene to the Appeals Court ruling on mootness.Last month we filed our first briefing for the High Court, the Briefing on the Merits.

The Oregon miners are awaiting the DEQ response to our opening brief which is due by May 12th. Then we will await the Supreme Court ruling. This ruling is only about whether we get to actually challenge the permit. To get to the point of asking whether we can challenge the permit has now taken ten years and hundres of thousands of dollars.

We believe much of what has happened in Oregon over the past three years is directly related to the 2009 secret settlement agreement. Many of the restrictions and bans in SB 838 were on the environmental group wish list. Most of the discussion topics in the Governor's working group were also on that list.

We have pushed forward with these lawsuits despite overwhelming odds and a deck which is clearly stacked against us. As we have pushed for the right to challenge this permit the environmentalists have succeeded in emplacing bans, listing more species as endangered and establishing more critical habitat. Delay works towards their advantage, but us quiting works more to their advantage. We need to maintain this fight in both Oregon and California.