Nov. 21—The 9th U.S. Circuit Court of Appeals declined to overturn a lower court ruling that found a dredge miner who operated on the South Fork of the Clearwater River without EPA permits to be in violation of the Clean Water Act.
Shannon Poe, of California, was fined $150,000 after being sued by the Idaho Conservation League in 2018. The group said Poe operated his floating suction dredge mine on the South Fork in 2014, 2015 and 2018 without obtaining a National Pollution Discharge Elimination System Permit. The district court agreed and levied the fine.
In his appeal, Poe argued his operation of a suction dredge mine did not add pollution to the river and, because of that, he did not need a National Pollution Discharge Elimination System Permit. To further his argument, he cited two Supreme Court cases in which the justices said the simple transfer of polluted water within the same water body does not constitute adding a new pollutant and thus does not violate the Clean Water Act. In one case, the Supreme Court likened it to dipping a ladle into the water, lifting it up and then pouring the water back in.
But Ninth Circuit justices rejected Poe's argument and said the cases he cited covered activity much different than suction dredge mining.
"Poe excavated rocks, gravel, sand, sediment, and silt from the riverbed," the three-judge panel wrote in a ruling issued Monday. "Poe punched holes in the riverbed by excavating through layers of riverbed down to the bedrock. Poe then processed the materials by running them through the sluice on his dredge, and then discarded the waste material into the water. This added a plume of turbid wastewater to the South Fork. These materials were not already suspended in the water; they were previously deposited in the riverbed. Poe's dredging was therefore not a simple water transfer."
Even if the court determined his dredge was adding pollution to the river, Poe said it should be covered by a permit from the Army Corps of Engineers and not from the Environmental Protection Agency. He cited rules giving the corps jurisdiction over "dredged material." But the Ninth Circuit panel deferred to the EPA and the Corps, which have long agreed that running dredged material through the sluice box changes its nature and that processing makes it a pollution covered by the EPA.
Suction dredge miners, many of them hobbyists, once needed nothing more than an over-the-counter permit from the Idaho Department of Water Resources to operate in the South Fork and many other river stretches in the state. But that changed following a 2012 ruling from the Ninth Circuit that said the U.S. Forest Service is required to consult with the federal fisheries agencies before allowing miners to operate the devices in streams where threatened or endangered fish are present. The ruling shut down the activity for a time on the South Fork of the Clearwater River that is home to threatened fish like wild steelhead and bull trout.
But the miners were later able to get back on the water by obtaining a general National Pollution Discharge Elimination Permit from the Environmental Protection Agency. Poe and other miners refused to get the permits on principle.
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