IN-DEPTH: FOR's Suction Dredge Mining Case
By Steve Evans
FOR seeks to protect all of California's rivers not just from dams and diversions, but from the impacts of human recreation as well. Below is a timeline and case outline of our suit to protect rivers from the impacts of in-river mining for gold.
May 2005 - CEQA (2005) Action
In May of 2005, the Karuk Tribe filed a CEQA case in Alameda County against the Department of Fish and Game. The case was limited geographically to the Klamath, Scott and Salmon River watersheds. During litigation, the Department filed declarations with the Court from its Chief Biologist, Neil Manji, and senior policy administrator, Banky Curtis. The declarations stated that the suction dredge mining program violated CEQA and Fish and Game Code §5653 and that suction dredge mining under the 1994 regulations caused deleterious impacts to fish, particularly the endangered Coho salmon. Two mining organizations (Public Lands for the People and New 49’ers) intervened in the case. All parties stipulated to and Court entered an Order and Consent Judgment on December 20, 2006, which required the Department to complete the CEQA review and rulemaking in 18 months (June 20, 2008). The Court retained jurisdiction to monitor the Department’s progress.
June 20, 2008 came and went and the Department had not begun either the CEQA review or rulemaking. The Department refused to commence either action until it received a $1 million appropriation from the Legislature.
February 2009 – Hillman (Taxpayer) Action
The Karuk Tribe joined with conservationists, river protectionist and fishermen across California. The Coalition filed a statewide action in Alameda to stop the Department from continuing to issue suction dredging permits until the Department completed the CEQA review and rulemaking and the new regulations were in effect. The case was brought under the taxpayer standing provision and claimed that because the Department’s program violated the Fish and Game Code, CEQA and the 2006 Order and Consent Judgment, the Department was spending taxpayer funds on an illegal program. The same mining organizations intervened in this action.
The Coalition received a preliminary injunction in July of 2009 which stopped any further issuance of permits. However, after the Court issued the Order, the Department contended that as long as no taxpayer funds were used to pay employee salaries, then they were within the law. So, they jiggered their books and continued issuing permits. The Coalition dragged the Department back into court. The Judge told the Department that he would not issue an Order that day, but if the Department did not stop issuing permits immediately they’d be pulled back into court on contempt charges. The Department stopped issuing permits the following day. Weeks later, Public Lands for the People filed their appeal of the Preliminary Injunction Order. However, the Order remained in effect.
Shortly thereafter, August of 2009, the Legislature adopted AB120, codified at Fish and Game §5653.1, which created a statewide moratorium on all suction dredge mining (including dredging by current-season permit holders).
The Hillman action, the Preliminary Injunction, and the adoption of F&G §5653.1 were all in response to the Department’s contention that although it acknowledged that it’s program violated Fish and Game Code §5653 and CEQA and that issuing permits harmed endangered fish, these same laws required the Department to continue issuing permits to miners. The Department’s interpretation of its responsibilities is neither supported by the law nor protective of fish. It does, however, favor the interests of the miners.
September 2010 – Public Lands for the People’s Action
In response to AB120, the Miners filed a case in San Bernardino County against the Department. The complaint was originally filed in Federal Court (Sacramento), but was dismissed by the Court for lack of standing. The Court ruled that because of the effect of the Alameda County’s Preliminary Injunction, the federal Court could not grant the miners any relief (even if they found F&G §5653.1 to be unconstitutional, suction dredge mining was still prohibited by the Preliminary Injunction). So, PLP re-filed the action in state Court.
The complaint raises various claims, including preemption under the 1872 Mining laws, a Takings Claim under the Constitution, and a litany of statutory and regulatory violations.
In January of 2011, the Department filed a demurrer, which challenges the complaint as failing to make a proper claim. In October of 2011, the miners filed a preliminary injunction, seeking to have F&G §5653.1 to be found unconstitutional and have the moratorium lifted. Neither motion has been heard by the Court or ruled on.
February 2011 – Department Issues Draft SEIR and Draft Regulations
In its Draft SEIR, the Department identified certain significant environmental impacts that it contends are unavoidable for legal reasons. In other words, the Department contends that it does not have the legal authority to mitigate the impacts. These include: Mercury resuspension and discharge (direct and cumulative impacts); Trace Metal resuspension and discharge (direct impacts); Endangered Birds (direct and cumulative impacts); Cultural Resources; Temporary Noise; Cumulative impacts on water quality (turbidity and sediment discharges into impaired waters).
The Department’s position is dependent on two legal theories – neither of which are supported by law. First, the Department claims that Fish and Game Code §5653 restricts the Department to mitigate only deleterious impacts to fish. Any environmental harm outside this very narrow category is, by the Department’s opinion, outside of its scope under §5653. Second, the Department contends that no other Fish and Game statute provides substantive authority to mitigate impacts. This theory is directly contradicted by well-established case law under CEQA, which expressly requires an agency to draw from inferred authority to mitigate impacts.
The Department can mitigate the list of identified impacts through statutes such as Fish and Game §1802 (which mandates the Department to protect fish, wildlife and their habitats); §711.7 (which identifies the Department as trustee of fish and wildlife); §5650 (which prohibits the discharge of material into waters that will cause deleterious impacts on fish, wildlife or their habitat); or §5800 (which prohibits mining on any water within the Trinity or Klamath River Fish and Game District during certain periods of the year).
In response to the Department’s refusal to mitigate the identified impacts above, the Legislature acted to amend Fish and Game §5653.1, which continued the moratorium on suction dredge mining until the Department completed the CEQA review, adopted new regulations and mitigated all identified impacts. It also required the Department to implement a fee structure which would make the program self-funded. A sunset provision was placed on the moratorium, to end in 2016.
December 2011 – Appellate Court Rules on Preliminary Injunction
In December of 2011, the Appellate Court heard PLP’s challenge to the Alameda County Preliminary Injunction. The Court dissolved the Preliminary Injunction on grounds that the legislative moratorium provided the same relief as the injunction. In order to uphold a preliminary injunction, the Appellate Court would need to find, among other things, that the preliminary injunction was necessary to prevent an immediate and irreparable harm. Because of the effect of the moratorium, the risk of harm no longer existed. The Court expressly stated that its ruling was not commentary on the merits of the case, but merely acknowledging a shift in legal landscape. However, as the Appellate Court noted, it made no difference to the practice of suction dredge mining – as it was still prohibited by F&G §5653.1.
March 2012 – Department Releases Final SEIR and Final Regulations
Of note – the Department took the position that, despite the Legislature’s clear directive to mitigate all identified impacts, the Department instead would mitigate none, but simply wait until 2016 when the moratorium would lift.
In response to the Department’s recalcitrance, the Legislature once again amended Fish and Game §5653.1, this time removing the 2016 sunset provision. At this time, before the moratorium on suction dredge mining will be lifted, the Department must: complete the CEQA review, adopt new regulations, the regulations must be in effect, the Department must adopt a fee structure to make the program self-funded and it must mitigate all identified impacts.
April 2012 – Coalition, PLP and New 49’ers Each File CEQA Actions
The Coalition was the first to file an action that challenges the legality of the regulations (the regulations fail to comply with the authorizing statute because they don’t mitigate impacts, as required by Fish and Game §5653.1) and that challenges the SEIR. The initial challenges to the SEIR will be the Department’s failure to mitigate the identified impacts – in violation of Fish and Game §§5653 and 5653.1 and CEQA. (See discussion under “February 2011 – Department Issues Draft SEIR”.)
Soon thereafter, Public Lands for the People filed a CEQA action in San Bernardino. The action also raised preemption of the 1872 Mining Laws, Takings Claims, and various statutory and regulatory violations.
The New 49’ers filed a CEQA challenge in Siskiyou County, raising preemption, Takings, and bringing a class action on behalf of all federal mining claim holders.
October 2012 – Coordination of All 6 Actions
All 6 actions have now been coordinated by the Judicial Council and will be tried in San Bernardino County. Initially, Judge Alvarez (who presided over PLP’s 2010 action) was assigned to be the trial judge for the coordinated actions. The Coalition filed a peremptory challenge against Judge Alvarez and he will be removed from the cases.
- All the ligation that is currently going on started because the Department refused to update its outdated 1994 regulations, even though several fish species had subsequently added to the endangered species list – including Coho salmon, Chinook salmon and Steelhead.
- The second case filed by the Coalition (Hillman, 2009) was filed because:
- The Department acknowledged that its program violated the law,
- The Department acknowledged that issuing permits caused deleterious impacts to endangered fish,
- The Department agreed to - and was ordered by a Court to - fix its program by June of 2008, by conducting a CEQA review and adopt new regulations,
- The Department refused to comply with the Court order and continued to issue permits to recreational miners - at the expense of endangered fish,
- The Department’s justification was a tortured interpretation of Fish and Game §5653, in which the Department claims that once it adopts regulations, the law requires the Department to continue to issue permits to miners, even when the Department knows that those permits will hurt endangered species.
- Even now, the Department maintains this interpretation, although a Court ruled it to be false in 2009 (Order Granting Preliminary Injunction, 2009).
- The Department stated in the 2012 Final SEIR that the ‘significant and unavoidable impacts’ are “unacceptable”, but that the Department can do nothing about them because of legal constraints. The former claim is true, the latter is unfounded.
- The Department currently takes the position that Fish and Game §5653 and §5653.1 are inconsistent – meaning, the moratorium will likely never be lifted because the Department cannot, under any set of circumstances, comply with the requirement that it must mitigate all identified impacts. This is because the Department takes the position that F&G §5653 only allows it to mitigate impacts that pertain to deleterious impacts to fish (and nothing outside of that narrow category) and because, the Department contends, there is no other substantive authority that allows the Department to mitigate impacts.
- The former claim is contradicted by a plain reading of the statute – the “deleterious to fish” clause modifies the Department’s issuance of individual permits, it does not modify the Department’s authority to adopt regulations to implement its program, as the Department claims.
- The latter claim is expressly contradicted by CEQA case law, which requires an agency to draw from all statutory authority available to mitigate impacts. The Department can draw from Fish and Game §§1802, 711.7, 5650 and 5800 to mitigate the impacts identified in the SEIR.
- The Legislature has acted three times in three years – an unprecedented directive to the Department to stop operating its suction dredge mining program in a manner that harms the environment. The Department is fighting this directive – for reasons that defy both law and logic.