Forest Service Redefines Significant Surface Disturbance
The Idaho Bureau of Land Management and the Nez Perce National Forest District recently released a draft Environmental Assessment of suction dredging which will have impacts far beyond Idaho.
This abbreviated environmental review, conducted under the National Environmental Protection Act (NEPA) evaluated the effect of suction dredging on certain Idaho rivers.
The background, and the results, of this EA are complex, you can read the full report by clicking the link above. The assessment was prepared primarily to study the effects of suction dredging on endangered salmon and the Bull Trout. The Bull Trout was formerly known as the Dolly Varden, a common fish throughout much of the west, but in 1980 environmental groups petitioned the US Fish and Wildlife Service to reclassify the fish as a new species, the Bull Trout, based on supposed genetic variations found between common Dolly Varden, and the Bull Trout.
Once the fish was reclassified as the Bull Trout the environmental groups began an effort to shut down all mining in areas where the Bull Trout is found including Oregon, Washington and Idaho.
Last we published an article on the Sawyer Decision, which stopped hydraulic mining, and compared the sawyer Decision to our current litigation. We drew parallels between the miner's defense in 1884 and our defense in 2016.
We pointed out the plaintiffs in the Sawyer Decision failed to overcome the miner's preemption defense so they changed tactics and sued using a "nuisance" lawsuit. Under this nuisance lawsuit they argued the upstream miners were damaging downstream property and one party had no right to damage another person's property. The judge agreed and issued a permanent injunction and this was the death of the hydraulic mining industry.
The injunction didn't ban or prohibit the use of hydraulic monitors. It prohibited the dumping of debris into the rivers where it would eventually find its way to the valley and damage private and public property.
Today the opponents of dredging attack using the Endangered Species Act and environmental law. This is the basis of the Idaho EA, but with a twist.
KARUKS V. US FOREST SERVICE
In 2012, the Karuk Tribe sued the U.S. Forest Service to block the approval of several Notices of Intent filed by the mining club, the New 49ers.
The Karuks challenged that endangered and threatened species lived in these streams and under the Endangered Species Act coordination with the U.S. Fish and Wildlife Agency was required prior to approval of either NOIs, or Plans of Operations (POO).
Suction dredging has historically been considered as a de minimis activity, meaning it was of such small disturbance it iddn't require a plan of operations. However, in 2012 the U.S. Court of Appeals for the 9th Circuit Court ruled in favor of the Karuks, if a Notice of Intent was filed, then coordination was required.
Fundamentally, this meant simply another step was required in the plan approval process, but the Idaho decision now turns this upside down.
It is naive, under the current regulatory environment, to believe the preemption defense will withstand the attacks of the states. As we've seen with the Oregon decision the federal courts now believe the use of a gold pan is considered mining.
This new attack is based on endangered species and the explosion of endangered species due to genetic testing of different variants. For a more detailed explanation of how environmental groups are doing this you can read our article The Endangered Species Industry is Booming.
The continued designation of endangered species throughout the west is acting as the backdoor to circumventing the 1872 Mining Law, and this spread of endangered species is only accelerating. Virtually every river, stream and gulch across the west is now critical habitat for something, and if its not now, then it will soon be.
The impact of endangered species on small scale mining matters a great deal. The designations are at the forefront of the dredging bans. Rather than take on the 1872 Mining Law directly the environmental groups are doing it indirectly.
THE NEW IDAHO INTERPRETATION
The Idaho BLM, and Nez Perce National Forest are taking the 2012 Karuk Decision and now flipping it upside down. The Karuk decision said if a Notice of Intent was filed, then coordination was required.
Suction dredging typically doesn't qualify as a significant surface disturbance, but the new Idaho Plan now classifies any operation in endangered or threatened species habitat, or any habitat of "special concern" to be in and of itself a signficant surface disturbance which requires a plan.
The Karuk decision said if you were creating a significant surface disturbance, which then triggered a NOI, then coordination was required. Idaho has now re-interpreted this decision stating all suction dredging is a significant surface disturbance if its operating within special status habitat, which happens to be about every river in the west.
The lowly 2" suction dredge now requires a Plan of Operations to work a river.
Idaho has redefined what is a significant surface disturbance. The U.S. Forest Service has always excluded small scale activities, which they define as casual use, such as prospecting, small scale mineral collection, hiking, camping and other activities.
"Due to this [endangered species designations and the Karuk case] and several other factors coming to light, the Forest Service determined that suction dredging along streams that contain ESA listed species within the Nex Perce- Clearwater National Forests is a significant disturbance as defined by 36 CFR 228.4(a)(3) and therefore a POO is required with copies of an approved Idaho Department of Water Resources (IDWR) letter permit and an approved Environmental Protection Agency National Pollutant Discharge System (NPDES) general permit.
FINDINGS OF THE IDAHO ENVIRONMENTAL ASSESSMENT
Effects to Increases to Sediment Loading
Slight increase for 78 days of active dredging. (Note: this is a hypothetical finding at best as all studies show suspended sediment levels drop to normal within 100 meters of the suction dredge.)
Effects to Aquatic Habitats
Slight changes to no changes.
Effects on Threatened and Endangered Species
Effects on Riparian Wildlife and Plans
REGULATING YOU TO DEATH
So how hard is it to get a permit in Idaho now?
In order to legally dredge you must obtain the following permits:
- Submit Plan of Operations to U.S. Forest Service
- Obtain Clean Water Act Section 402 Permit
- Obtain State Clean Water Act Section 401 Certification
- Obtain Idaho Department of Water Resources Permit
- Obtain Streambed Alteration Permit
- Submit all Permits and request approval of Plan of Operations
However, as we've seen repeatedly with state and federal agencies the effects don't justify the regulations. They misinterpret their own rules, and their own data on their quest to meet the demands of environmentalists.
For example, the Idaho Environmental Assessment quotes 36 CFR 228.4 (a)(3) as justifying their designation of suction dredging as a significant surface disturbance which requires a Plan of Operations. But the quoted regulation only speaks to the preparation of the Plan of Operation, it doesn't speak to when it's requiquired. This is covered in the preceding paragraphs 36 CFR 228.4(a)(1) and (a)(2).
Again, the Idaho EA quotes 43 CFR 3809.11(c)(6) as their justification to require the POO, this section deals with conditions where a POO is required while conventienly passing over the previous section which exempts casual use such as small scale mineral sampling and prospecting.
So, how do you go from an environmental assessment report which finds no effects to such severe regulations and permitting requirements? Endangered species is the short answer, environmental groups are the long answer.
While we've been fighting a defense of the 1872 Mining Law the environmentalists have been busy taking every one of our streams and rivers using the Endangered Species Act. We here time and again this designation of critical habitat won't effect us, it only effects operations which require a federal permit. Guess what? They just changed the playing field again, now small scale suction dredging requires a permit and now you are subjected to the full weight of the entire federal code of regulations. The simple truth being borne out is you can't fight environmental law with mining law. We've got enough decisions in the record book to show us this, the Sawyer Decision showed us this.
Our last remaining fight, and hope, is back in San Bernardino. It's the challenge to the Environmental Impact Report. It's long overdue but if we win that then we can void the fraudulent EIR and the resultant regulations which it spawned.
As we've repeatedly seen the only way to stop the orgy of regulatory zeal is to challenge it in court. The regulatory system has gone insane when you need this many approvals to operate a 2" dredge on a creek.