Public Lands for the People – Keeping the Dream Alive!

Dear Friends, Members, and Fellow Prospectors,

As 2025 draws to a close, we want to start with a heartfelt THANK YOU. None of what we accomplished this year would have been possible without your unwavering support, membership, donations, and the countless hours so many of you put in on the ground. You are the backbone of PLP, and we are deeply grateful.

2025 – A Year of Action and Victories

We were busy representing you at every opportunity:

• Quartzsite Gold Show – Our booth was packed full for 3 days as we signed up new members, sold raffle tickets and spread the word about Reclamation Dredging, gold mining rights, mineral access on public lands etc. The coin hunt was a big hit again! Quartzite 2026 is coming the second weekend of February (Fri.Sat.Sun.) You don’t want to miss this one! This is one of the BEST GOLD SHOWS in the country!
• Gumboot Blast in Angels Camp – a thrilling day of gold mining, hard rock mining demonstrations, and camaraderie!
• Fighting the creation of the Chuckwalla National Monument…Which is still ongoing
• Fallfest at Duisenberg CA- Lots of classes, food, raffle prizes, finding gold, coins and amazing entertainment around the campfire…great fellowship with friends old and new!
• Clark Pearson – Our legal reseacher, took another trip to Washington DC to fight for mining legislation for regulatory relief in Congress! Thank you, Clark, we couldn’t do it without you!

Major Legal Wins on Reclamation Dredging

This year PLP stepped up big when several of our members faced aggressive enforcement actions over reclamation dredging standards. With your support, we provided expert testimony, technical reports, and legal coordination that helped secure clear victories in court. These wins not only protected the individuals involved but set important precedents that benefit every small miner and prospector in the state.

The Best Grand Raffle Yet – And an Even Bigger One Coming!

Our 2025 Grand Raffle was the most successful in PLP history – thank you to everyone who bought tickets and to the generous donors who made it spectacular.

And we’re already gearing up for the 2026 Grand Raffle, which promises to be bigger and better. A huge shout-out to one very special donor who just contributed an absolutely stunning high-grade crystalline specimen gold that will be one of the centerpiece prizes. (Photo below – prepare to drool!)

 

Gold, silver, detectors, mining equipment, a week at Skookum Camp Alaska, Roaring Camp trip and MUCH MORE! Raffle Tickets for the 2026 raffle will go on sale in January.

Looking Ahead:

In January we are issuing NEW, very improved California Reclamation Dredging cards!

Your membership and contributions are the backbone of our cause!  Without generous and committed members, PLP would be unable to continue to have the reach and influence that we do.  Our ability to take legal action and stand up for your rights is directly related to your contributions. With your continued support, PLP will be right there in the trenches – in the field, in the courts, and in the halls of government – defending your rights in 2026 and beyond.

Thank you in advance for including PLP in your year-end giving and your estate planning.

From all of us at Public Lands for the People – thank you again for an incredible year. Wishing you heavy pans, and rich pockets in the New Year!

See you on the waterways and in the tunnels, The PLP Board!

P.S. Renew your membership or join today www.publiclandsforthepeople.org  – every dollar goes straight to the fight!

 

Reclamation Suction Dredging Change in 2026?

Hello Friends!

Public Lands for the People (PLP) wants to give a heads up to its members of the very real possibility that the California State laws surrounding dredging will be changing in 2026.  Right now, as of this writing PLP has heard several rumors that the State may repeal Fish & Game code 5653.8 if some miners continue misusing it for mining purposes.  As you may recall the Clements case was voluntarily dismissed earlier this year in April by the Siskiyou District Attorney and the Superior court Judge after Clements provided his partnership agreement for reclamation purposes and Fish & Game code 5653.8.  Clements was then recharged for the same violation a couple months later.  While PLP believes that he will prevail once again, we have some reservations about his new legal approach with an unnamed mining club.  Clements has finally filed a motion to dismiss using Fish & Game code 5653.8 along with his partnership agreement, but now the moving legal papers sets forth that it was for mining purposes – which is exactly what PLP warns its members not to do.  Doing so will motivate the State to repeal Fish & Game code 5653.8.  We fear that even if Clements wins, the State will then repeal Fish & Game code 5653.8.  So far, the CA Fish & Wildlife has not posted a proposed rulemaking change to 5653.8 on their website.  In order to better protect our PLP members going forward starting January, PLP may discontinue issuing the existing suction dredge guide cards for California or Oregon members.  PLP is working on a new and better legal pathway that will roll out in the summer of 2026 that will not be so subject to the whims of State agencies and should work for CA, OR, WA, and ID if they continue to regulate in a prohibitive manner.

 

PLP has seen a couple articles recently that purport to be able to explain PLP’s reclamation dredging guidelines.  Unfortunately, both articles were written without even reaching out to PLP but instead switched to the CA Fish & Wildlife narrative that all dredging has been banned in the state of CA – which is patently false.

If both reporters had reached out to PLP or simply typed into AI on the subject of PLP dredge guide they would have found a rather good overview of the subject.  Here is what AI says on PLP’s dredge guide:

 

“PLP suction dredge reclamation” refers to the advocacy and guidance provided by the organization Public Lands For The People (PLP) for responsible, legal gold mining using suction dredges, with a focus on incorporating reclamation (land improvement) as a recognized part of the mining process and federal law. PLP promotes a specific guide for using suction dredges in a way that is less harmful to the environment, aiming to demonstrate that such activities can be done legally and without “cut[ting] corners” in reclamation.

What is PLP?

• Public Lands For The People (PLP): is an organization that advocates for miners’ rights and promotes the legal and responsible use of mining equipment.
• PLP believes in integrating reclamation (improving the land after mining) as an essential component of mining, aligning with the U.S. Mineral Policy Act of 1970.
• They have developed and distributed a CA Suction Dredge Guide that provides guidance to members on how to legally and responsibly operate suction dredges in California.

Why “Reclamation”?

• Legality and Policy:

The U.S. Mineral Policy Act of 1970 promotes both mining and reclamation industries, stating that reclamation is an “improvement of labor to the land” and qualifies as assessment work under the 1872 Mining Law.

• Responsible Mining:

PLP stresses that responsible mining includes reclamation and discourages shortcuts that lead to citations and penalties.

Current Legal Status in California

• Prohibition:

Suction dredging is unlawful in California’s rivers, streams, and lakes under state law, enacted in 2016.

• Federal vs. State Jurisdiction:

PLP has been working to establish federal preemption over dredging on federal lands, arguing that state laws, such as California’s, create a de facto ban and conflict with federal mining laws.

• Legal Challenges:

PLP has won federal preemption lawsuits, and its members are attempting to pursue legal avenues to resume suction dredge mining through the framework of reclamation.

The “PLP Suction Dredge Reclamation” Concept

• Demonstrating Legal Use:

PLP aims to demonstrate to the public and government agencies how to use suction dredges responsibly for the specific purpose of reclamation, which could involve using dredged material for erosion control or land restoration.

• Member Support:

The organization supports its members, who are attempting to legally resume suction dredging by emphasizing the importance of following the PLP guide and adhering to reclamation practices to avoid penalties.

• Focus on the Future:

PLP continues to work in Washington, D.C., to pass legislation that would codify the Trump administration’s agenda for streamlining mining regulations and provide a more permanent solution for the mining community.

• Legally dredging in California waterways through reclamation

May 13, 2025 — success of PLP’s guide cards, and it is not a reason to cut corners and just suction dredge mine and not do the reclamation.

Dive deeper in AI Mode

Public Lands for the People (PLP) uses the term “reclamation” to advocate for a form of suction dredging they claim legally removes pollutants like mercury and debris from waterways without requiring a state permit. This reclamation dredging is a contentious legal strategy aimed at allowing suction dredging, which is otherwise prohibited in California.

How PLP defines “reclamation”

• Removal of pollutants: PLP’s definition of reclamation is the removal of materials lost during older, less efficient mining practices, including mercury, lead weights, and other debris. They contend that by cleaning the environment, their dredging efforts do not fall under the typical regulations for mining activities.
• Compliance with federal law: PLP argues their reclamation dredging is in compliance with the Clean Water Act (CWA) and does not constitute a discharge of pollutants that requires a permit from California agencies.

The legal strategy

The PLP’s approach is designed to navigate California’s strict laws that ban motorized suction dredging. The legal basis for their strategy includes:

• Contesting state authority: By framing suction dredging as reclamation, PLP challenges California’s ability to regulate or prohibit the activity on federal lands.
• Focusing on federal regulations: PLP has pursued federal preemption, arguing that federal regulations should supersede state laws that are prohibitive to small-scale mining.
• Achieving legal victories: PLP publicizes legal victories for its members. For instance, in April 2025, a PLP member won a case involving a citation for reclamation suction dredging, which PLP presented as a successful test of its strategy.

The controversy

Despite PLP’s legal wins and claims of environmental cleanup, the practice of suction dredge reclamation remains controversial.

• Opposing viewpoints: Environmental groups, such as the Sierra Fund, have argued that suction dredging can release toxins like mercury that settle on the riverbed, posing a threat to both wildlife and humans.
• State opposition: The California Department of Fish and Wildlife has maintained a statewide prohibition on suction dredging and does not authorize permits for the activity.
• Misuse of guidance: PLP warns its members that those who misuse its reclamation dredging guide could still face citations and have their equipment confiscated, especially if their actions are perceived as mining rather than reclamation.

 

 

 

 

PLP helps member get their dredge back here is his story

During my 2025 river reclamation dredging season, I had my dredge confiscated by the USFS. I did not know at the time that the USFS had absconded with it until the local Dept. of Fish and Game warden called me to tell me it was USFS who took it. The DFG warden did not want to talk about the “case”, but I did manage to tell him that I was in a reclamation partnership (using the PLP guide) and that I was removing garbage from the river and not “mining” for gold or other minerals. When I was speaking with the DFG warden, I maintained a calm and reasonable tone and we had a nice chat. I let him know of the Siskiyou County precedent where a dredger was cited for violating CDF code 5653 and the fact it was dismissed as the dredger was complying with 5653.8.

After speaking to the DFG warden, I called the USFS office in the Northern California county I was working in and tried to get an answer as to why and under what authority did the USFS take my equipment from a 22-year-old mining claim and a 20-year-old Notice of Intent I had filed with USFS? The minerals officer told me that the LEO took it thinking it was abandoned—despite my name on the mining claim sign near where the dredge was located! I said it was not abandoned, and I was cleaning up the river with the dredge. Also, the dredge had a large sign on the pontoon that said RECLAMATION IN PROGRESS. The minerals officer had heard of reclamation dredging but was never contacted by the LEO before the dredge was taken. I had to call and text the minerals officer and various other USFS personnel to try to get this dredge back as the LEO had no legal authority to remove it from my mining claim. This process took a month and even though the USFS District ranger from another area said that there was a meeting and it was agreed that my dredge would be returned to me, the LEO would not return my phone calls. It took me flagging down a USFS truck on the street to get him to call the LEO who took it. I was escorted to the holding yard where this LEO was waiting. We had a 30-minute chat about what I was doing and what happened, and he let me pick up the dredge. During this conversation, I was calm and respectful to the USFS personnel. Our chat was very professional in tone. So, I took the dredge and promptly dropped back on my claim and finished the reclamation season.

Throughout this ordeal, I was in contact with PLP Northern Director Clark Pearson and his advice was very helpful in navigating the quagmire I was in. I notified Clark after every conversation with the USFS and the DFG warden. I tried my best to follow his advice and listen to his direction on how to deal with these government entities. The main takeaway from Clark was that we need to be respectful and calm when talking with the USFS and DFG people.

The other idea Clark imparted to me was that if we do not know our rights, we will lose them. Throughout this situation, I became aware of the USFS regulations and was very comfortable telling the USFS personnel about their own regulations that they failed to follow.

 

If you like the work PLP does, please help PLP help you, and join or renew today to know how to effectively and professionally counter the agencies while making Prospecting, Mining and Reclamation Great Again!

 

 

 

Your PLP Board of Directors

 

The original. No compromise.  Standing 35 years strong for Multiple Use on Public Land “RIGHTS”!

 

 

FOR 31YEARS: PLP exists to “Represent and assist outdoor user groups and individuals interested in keeping public and private lands open to prospecting, mining and outdoor recreation through education, scientific data and legal means.”

August 2021

Many people have requested we offer our opinion of the June 4th Clean Water Act Federal decision in ICL v. Poe

The Idaho Conservation League (ICL) filed a lawsuit against gold miner Shannon Poe three years ago under the citizen suit provision of the Clean Water Act.  On June 4, 2021, Idaho district court magistrate Justice Bush ruled that defendant Shannon Poe had violated 42 counts of the Clean Water Act while suction dredging in Idaho in 2014, 2015 and 2018.  The maximum each pre-2016 count carries is a $31,000 per day fine and post-2016 counts carry a $51,000 per day fine.  The penalty or “bifurcated” part of the decision will be handed down sometime after March 2022. Some quotes from the court documents: ICL further notes that your past and ongoing violations of the Clean Water Act are willful, knowing, and deliberate. Indeed, it could reasonably be said that Mr. Poe was intentionally advertising to the world not just the fact of his prior suction dredging activities, but also the fact of his intended future suction dredging activities. The allegations within ICL’s Complaint adequately allege a sufficient injury in fact and, in turn, the allegations sufficiently trace the injury to Mr. Poe’s challenged conduct.  The alleged injury is redressable by enjoining Mr. Poe from violating the CWA and imposing civil penalties as a deterrent. Finally, in either enjoining Mr. Poe from future discharges into the South Fork Clearwater River without an NPDES permit or imposing civil penalties on Mr. Poe, ICL has demonstrated that a favorable decision would redress its injuries. *Defendant Poe establishes that suction dredge mining in general and, certainly recreational suction dredge mining, is a “discharge of dredge or fill material.”  See:  Defendant Shannon Poe’s Motion for Summary Judgment Page 2, ¶ 3. (Emphasis added by PLP) NOTE:  Additional quoted evidence established or admitted in the case which led the judge to his decision are at the end of this letter. Defendant Poe waived his right to trial and chose the path called motioning for summary judgment.  This path is common when both sides of a lawsuit agree to the facts of a case but dispute how the law is interpreted or enforced, and this shortcut is generally favored as a savings of the cost to litigate a controversy.  Waiving trial in favor of summary judgment was not a wise choice by defendant Poe.  *To his own detriment and our astonishment, defendant Poe established in his own motion for summary judgment that he is (in fact), a discharger of pollutants which concurs with ICL’s position.  What Poe may not have known is that both 40 CFR 232.2 (EPA) and 33 CFR 323.2 (Army Corps) jointly share the same definition of the term “discharge” of material defined as the addition of such materials to the waters of the U.S.  That is why Justice Bush noted in his decision that:  “Neither ICL or Poe disputes that the material passing through Mr. Poe’s suction dredge and into the South Fork Clearwater River falls within the definition of a pollutant under the CWA.”  Mr. Poe tried to make a no addition argument but in the eyes of the law he had already legally canceled it out by accepting and setting forth that he was in fact a discharger under the Army Corps regulatory authority.  Had defendant Poe not waived his right to trial and gone to trial like the PLP assisted line of cases (Godfrey and Osterbrink), and shifted the burden of proving discharge to the ICL or government, the outcome should have been favorable to defendant Poe.  Unfortunately, that did not happen because Mr. Poe did not wish to go to trial and dispute the fact that he was or was not a discharger. Mr. Poe has publicly stated that the American Mining Rights Association (AMRA) is prepared to fight the Judge Bush decision against himself as president of AMRA and fight it hard.  Unfortunately and technically speaking, the fight is over and the case has entered a “bifurcated” penalty phase (through March of 2022) — which is a fancy way of saying the legal process is now looking in to the defendant’s ability to pay the judgment.  The scope of this discovery in the penalty phase will go into potential self-dealings to find “the effects Mr. Poe’s dredging had on the South Fork of the Clearwater River, the economic benefit he gained (i.e gold), his history of violations (like paying off the Forest Service violation fines in 2018), his efforts or lack of efforts to comply with the applicable requirements and the economic impact of a civil penalty on him.”  See:  Joint status report and stipulated litigation and discovery plan filed June 21st, 2021.  The road ahead for Mr. Poe is going to potentially cost in the millions of dollars when one factors in the 42 counts, potential punitive damages, and attorney fees from the ICL.  And yes, the Poe and AMRA funding for this bad precedent will go directly into the ICL coffers to put  more miners out of business. What about an appeal? A do over at the appeals level would not be fruitful; and cannot cure the fact defendant (Poe) admitted and set forth that he was a discharger and polluter under the CWA.  Also, appealing the case would inflict damage outside Idaho and set bad precedent for all the western states regarding suction dredge regulation. On a final note:  The June 4th ICL v. Poe decision has seriously maimed, if not killed the efforts on negotiated rule-making for suction dredging regulatory relief at the Idaho state legislature.  PLP researchers in Idaho are hopeful positive engagements can resume. It has become obvious through the actions that led to, and the course of this lawsuit, that AMRA’s path is not compatible with PLP’s.  There are proper legal and legislative routes for protesting over-regulation that AMRA needs to support — but supporting ICL v. Poe is not one of them.  PLP cannot support self-admitting polluters when their purposeful actions hurt the entire mining community. -Your PLP Board of Directors The original.  No compromise.  Standing 31 years strong for Multiple Use on Public Land “RIGHTS”! Here is additional quoted evidence established or admitted in the case which led the judge’s decision: “14.  From July 14, 2014 to August 15, 2014 (the 2014 dredge season), Mr. Poe operated a suction dredge and discharged sediment and/or other pollutants into the South Fork Clearwater River on more than one day.  See id. at ¶55. Mr. Poe admitted to dredging on Idaho rivers in 2014, including 13 days on the South Fork Clearwater River in online posts.  See id. at ¶57.  On August 16, 2014, Mr. Poe wrote an online post, recognizing the necessity of obtaining an NPDES permit and his defiance to do so.  See id. at ¶59. 19. In August 2015, Mr. Poe admitted dredging on the  South Fork Clearwater River in an online post.  See  Compl., ¶62 (Dkt. 1).  In August and September 2015, Mr. Poe made several online posts discussing standing up to the EPA and the Forest Service while dredging.  See id. at ¶¶63-64. 21.  Mr. Poe received ICL’s letter and responded in a June 14, 2016 letter, stating:  “I have no plans, or intent to dredge the SF Clearwater this year, and do not intend to dredge in future years without the appropriate permits.”  See Compl., PP66 (Dkt. 1); see also Poe Decl., ¶10 (Dkt. 17-2); Ex. C to Oppenheimer Decl. (Dkt. 20-19). 26.  In online posts, Mr. Poe admitted to dredging on the South Fork Clearwater River on multiple days during the 2018 season and admitted to purposefully failing to obtain an NPDES permit.  See Compl., ¶¶73-82 (Dkt. 1).  Mr. Poe also admitted he planned to continue dredging through August 15, 2018, and in future years.”

Latest News

PLP is following up on issues of road closures, NEPA regulatory delays, duplicative regulatory issues that are prohibitive from the State level, EPA 402 Petition for suction dredgers, and numerous other public lands use problems.  We are meeting with senior level advisors to the White House, Interior Department, EPA and the Forest Service, though we have postponed our March trip to Washington D.C. because of the corona virus. Many of our contacts won’t be able to meet with us so to be good stewards of our resources, we are going to reschedule our meetings once things have cleared up. Please keep up to date by reading PLP updates every month in the Mining Journal: www.icmj.com

We recently submitted comments on Trump’s new NEPA rulemaking to ease burdens upon the small miners consistent with our education package on Critical Minerals: National Security Amendments to the NDAA for lawmakers on the Hill—helping all miners. Being that Trump’s staffers and agency heads have identified most of the issues we have outlined and they issued their report, the next step is regulatory implementation by publishing in the Federal Register, notice and comment period, etc., to enact regulatory relief in the quickest way the government can. The regulatory plan must come first before resuming our push with Congress on our Critical Minerals: National Security Amendments to the NDAA.  We are helping to move the process forward as quickly as possible.

PLP’s President has been busy not only with PLP, but actually ‘out there’ staking claims of uranium, rare earth elements and critical minerals! There is a lot more to be found and claimed in this great land, so don’t just concentrate on gold mining. Uranium costs more to mine than it’s worth at the moment; but there are other minerals the U.S. needs to have in the local supply chain. Read the Epoch Times’ front page story here and watch the TV interview here.

PLP’s proposed small miner amendment to the National Defense Authorization Act (NDAA) now called “Critical Minerals: National Security Amendments to the NDAA” is still in subcommittee.  We have good reason to believe it will come out of committee next year after Senator Lisa Murkowski terms out this fall as chair of the Energy & Resources Committee and is replaced by a favored Senator that is more pro-mining and proactive!  Stay tuned…

BACK BY POPULAR DEMAND! We know folks are busy and don’t always remember to keep up things like renewing their supporting membership in PLP. That is why we are bringing back this very popular renewal option…We are sending our clubs who may wish to renew again and get TEN BOOKS of 2020 Grand Raffle tickets in advance, to encourage you to renew AND join in the raffle! If you renew your club membership now, you get to keep the book of tickets as a bonus gift from PLP (don’t forget to mail them in along with your membership dues). And, of course, you may purchase as many extra books of tickets as you wish! They are 12 tickets for $10. You can’t win if you don’t enter! We’ll drop your tickets in the barrel for the July 2020 Grand Raffle Drawing. If you wish to purchase additional tickets directly, you can call our toll-free number (844)-PLP-1990 which is (844) 757-1990 or Mail a Check (to the address below) and specify the number of ticket books you wish to have mailed to you.  Supporting the PLP Grand Raffle helps us continue to fight for your rights.

 

PLP
PO Box 1660             
                                                      Inyokern, CA 93527 

Help us help you and have some fun while doing it! Support the Grand Raffle by buying tickets or donating prizes.

Thank you; we can’t do what we do without your participation in donating, volunteering, or becoming a member.

Your PLP Board of Directors

PLP and its members move to solve the #2 item stopping dredging in the western states. This will solve the CA Water Board, Oregon DEQ and other states implementing the Clean Water Act on dredging. The number one issue is Federal Preemption which was covered in the petition we brought out last month.

 

Certified RRR mail#__________________________   August 12, 2019

Donald G. Smith   Riggins, ID 83549

 

U.S. Environmental Protection Agency

Attn: Chris Hladick, Region 10 Administrator

1200 Sixth Ave., Suite 155

Seattle, WA 98101-3188

 

RE: Administrative Appeal & Petition for Rulemaking under 5 U.S.C. A. § 553

 

Dear Administrator Hladick,

 

I, Donald G. Smith, hereinafter referred to as “Appellant” or “Petitioner,” am in receipt of a July 24, 2019 letter and decision authored by Cindi Godsey (attached) that Appellant’s proposed regulated activities under the authority of the Army Corps. (under section 10 of the Rivers & Harbors Act) may be subject to additional permitting by your agency under section 402 of the Clean Water Act (CWA).

 

Appellant is very aware of the cases cited by the decision of Cindi Godsey’s July 24, 2019 letter.  However, because of the fact the EPA has not addressed the facts and court decisions set forth below, Appellant sets forth and Appeals said decision of the July 24, 2019 letter.

 

Appellant’s activities do not add a pollutant

within the meaning of the CWA

 

It is within the province of the Environmental Protection Agency (EPA), as contemplated by the Clean Water Act (CWA), to impose a duty to apply for a National Pollutant Discharge Elimination System (NPDES) permit, pursuant to the Clean Water Act (CWA), on individuals who are discharging pollutants, given that the primary purpose of the NPDES permitting scheme is to control pollution through regulation of discharges into navigable waters. Clean Water Act, § 402, 33 U.S.C.A. § 1342.

 

In National Pork Producers v. EPA 635 F.3d 738 (5^th Cir. 2011) the court held:

 

…The 2003 Rule’s “duty to apply” required all CAFOs to apply for an NPDES permit or demonstrate that they do not have the potential to discharge. 68 Fed.Reg. at 7266. In Waterkeeper, the Second Circuit held that the 2003 Rule’s “duty to apply” was ultra vires because the EPA exceeded its statutory authority. Waterkeeper, 399 F.3d at 504. The court explained that the CWA is clear that the EPA can only regulate the discharge of pollutants. To support its interpretation, the Second Circuit examined the text of the Act. The court noted: (1) 33 U.S.C. § 1311(a) of the CWA “provides … [that] the discharge of any pollutant by any person shall be unlawful,” (2) section 1311(e) of the CWA provides that “[e]ffluent limitations … shall be applied to all point sources of discharge of pollutants,” and (3) section 1342 of the Act gives “NPDES authorities the power to issue permits authorizing the discharge of any pollutant or combination of pollutants.”  Waterkeeper, 399 F.3d at 504. Accordingly, the Second Circuit concluded that in the absence of an actual addition of any pollutant to navigable waters from any point, there is no point source discharge, no statutory violation, no statutory obligation of point sources to comply with EPA regulations for point source discharges, and no statutory obligation of point sources to seek or obtain an NPDES permit in the first instance. (Emphasis added.)

 

Id. at 505. The Second Circuit’s decision is clear: without a discharge, the EPA has no authority and there can be no duty to apply for a permit. (Note: this holding was multi-circuit, including the 9^th Circuit Court of Appeals.)

 

Specifically, the United States Supreme Court explained:

 

[T]he National Pollutant Discharge Elimination System [requires] a permit for the “discharge of any pollutant” into the navigable waters of the United States, 33 U.S.C. § 1342(a). The triggering statutory term here is not the word “discharge” alone, but “discharge of a pollutant,” a phrase made narrower by its specific definition requiring an “addition” of a pollutant to the water. S.D. Warren Co. v. Maine Bd. of Envtl. Protection, 547 U.S. 370, 380–81, 126 S.Ct. 1843, 164 L.Ed.2d 625 (2006).

 

Appellant acknowledges that much of the reasoning behind the EPA’s request for a section 402 permit is to address turbidity stirred up from the act of suction dredging, not the actual addition prerequisite Congress mandated.  Turbidity from a suction dredge is not a product of an addition, rather, it is the relatively insignificant movement of native substance of local rock, sand and sediment in contrast to that which is carried on at much greater volumes by natural weathering processes every season by acts of God.

 

To illustrate this point the court in Froebel v. Meyer 13 F.Supp.2d 843 (E.D. Wisconsin, 1998) held:

 

…Movement of indigenous sediment through a dam was not a “discharge of a pollutant” that would require National Pollutant Discharge Elimination System (NPDES) permit pursuant to Clean Water Act (CWA). Federal Water Pollution Control Act, §§ 402, 502(12), as amended, 33 U.S.C.A. §§ 1342, 1362(12).

 

The court added:

Redepositing of indigenous sediment caused by state agency’s removal of dam did not result in any “discharge of dredged material” that would require permit from Army Corps of Engineers under Clean Water Act (CWA) and either possible version of implementing regulations, even if manner in which dam was removed created a “scouring action” that disturbed sediment and funneled it downstream. Federal Water Pollution Control Act, § 404(a), as amended, 33 U.S.C.A. § 1344(a); 33 C.F.R. § 323.2(d).” (Emphasis added)

 

Unlike the EPA, Appellant does not rely on Dave Erlanson’s proceeding by EPA’s own administrative law judge, rather, a de nova review proceeding by an Article III Federal District Court judge on appeal from a federal magistrate.  The decision in U.S. v. Godfrey, Eastern District CA 2:14-cr-00323 JAM (2015) illustrates that a suction dredge sluice box is not a point source discharge within the meaning of the CWA.  The District Court found as a matter of law and fact the following:

 

Defendant is alleged to have violated 36 C.F.R. § 261.11, which prohibits “[p]lacing in or near a stream, lake, or other water any substance which does or may pollute a stream, lake, or other water[.]” 36 C.F.R. § 261.11(c). Defendant argues that his conviction on this count must be reversed because “[p]utting materials from the creek back into the creek does not constitute the ‘placing’ of a ‘pollutant’ into the creek.” (Opening Brief at 17.)

 

Defendant cites language from a Supreme Court case concerning the Clean Water Act: “If one takes a ladle of soup from a pot, lifts it above the pot, and pours it back into the pot, one has not ‘added’ soup or anything else to the pot.” Opening Brief at 16-17 (citing S. Florida Water Mgmt.  Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 110 (2004)). Defendant contends that the evidence offered at trial shows that he “did not introduce pollutants such as chemicals, oils, outside dirt, other liquids, or trash into Poorman Creek.”

 

…The legal issue of whether the release of materials found within the high-water mark of Poorman Creek constitutes “placing a pollutant” into the creek remains. As this is an issue of statutory construction, the Court’s review is de novo. United States v. Montes-Ruiz, 745 F.3d 1286, 1289 (9th Cir.2014). (Emphasis added.)

 

As an initial matter, the structure of 36 C.F.R. § 261.11 is informative. The subsection is labeled “Sanitation” and 36 C.F.R. § 261.11(c) is surrounded by prohibitions on (1) depositing in a toilet or plumbing fixture a substance which could interfere with its operation; (2) leaving refuse, debris, or litter in an unsanitary condition; 3) failing to properly dispose of all garbage; and (4) improperly dumping refuse, debris, trash, or litter. 36 C.F.R. § 261.11(a)-(e). Thus, the provisions surrounding 36 C.F.R. § 261.11(c) lend support to Defendant’s argument that “any substance which does or may pollute” must be a foreign substance, not a substance which is already found within the high-water mark of the river. (Emphasis added.)

 

Although “pollute” is not defined within Part 261, the dictionary definition of “pollute” is instructive. See Phillips v. AWH Corp., 415 F.3d 1303, 1319 (Fed. Cir. 2005) (noting that “dictionaries, encyclopedias and treatises are particularly useful resources to assist the court in determining the ordinary and customary meanings of [relevant] terms”). The Merriam-Webster Dictionary offers two definitions of “pollute:” (1) “to make physically impure or unclean;” and (2) “to contaminate (an environment) especially with man-made waste.” As with the structure of the regulation, these definitions suggest that “placing any substance which does or may pollute” necessarily entails the introduction of a foreign substance, possibly even a man-made substance. (Emphasis added.)

 

Returning to the Supreme Court’s “one ladle of soup” example, the Court agrees that the present case is not closely analogous. S. Florida Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 110 (2004)). Defendant did not merely remove water from one location in Poorman Creek and return that same water to another location in Poorman Creek. Rather, he diverted the water through his mining operation, and returned it, along with “sands, silts and clays and bottom deposits” to Poorman Creek, downstream of his operation. However, as noted by the Magistrate Judge and as emphasized now by Defendant, the entire mining operation occurred beneath the high-water mark of Poorman Creek. Importantly, there is no evidence that any foreign substance (such as a chemical) was introduced to Poorman Creek. See RT2 at 2-44 – 2-45 (Note: the Magistrate Judge, noting that “there wasn’t any evidence that I’m aware of that any of those broken up rocks or chemicals ended up in the creek”); see also  RT1 at 182 (Testimony of Huggins, noting that “chemicals getting into the water” was “not the major concern in this case”.)

 

In this sense, a more apt analogy may be that of a bowl of cereal. At its low point, Poorman Creek is much like a bowl of Cheerios with very little milk in it, with a number of Cheerios pieces “stranded” up on the sides of the bowl. Filling the bowl with milk releases those “stranded” Cheerios pieces back into the milk, but nothing foreign has been added to the bowl. Similarly, Defendant’s operation merely released sediment that was already part of the creek-bed back into the creek. (Emphasis added.)

 

…the Government’s evidence was insufficient to sustain Defendant’s conviction under 36 C.F.R. § 261.11 for polluting the creek. Accordingly, Defendant’s conviction on Count 5 is reversed.” (Emphasis added)

 

Appellant believes the analysis of the facts and law by District Judge John Mendez of the Eastern District of California in U.S. v. Godfrey, supra is directly on point controlling the important factors of CWA law and its application in relation to Appellant’s situation.  Appellant is not legally bound to submit a 402 EPA permit when there is no “addition” to report, nor is he bound to report that which does not exist in violation of the basic tenets of the body of law on the maxims of impossibilities—the law does not require the impossible.

 

Appellant is informed and believes that the EPA is outside its authority regulating non-addition producing activities such as suction dredging.  This is misplaced and in contradiction of the Congressional mandate of the CWA, i.e., to only regulate “additions” and foreign introduced substances.

 

Appellant wishes to point out the fact that if all materials coming off a suction dredge are to be deemed a point source pollutant rather than reclamation to remove heavy metal toxins would be made a legal impossibility, creating no incentive for reclamation on water-covered lands of the United States nor improving spawning habitat for spawning salmon.  See: https://www.publiclandsforthepeople.org/reclaiming-our-waterways/

 

Finally, Appellant is informed and believes that the EPA may have already violated the Administrative Procedures Act (APA) under 5 U.S.C.A. 553 by identifying and singling out a suction dredge as a point source without a proper rulemaking in the Federal Register with notice to the public. This places Appellant at a disadvantage to address the science and expertise in finding that a suction dredge is, or is not, a point source or a cause of pollution.  This also places the July 24^th, 2019 decision by Cindi Godsey in a position that a future court may conclude the EPA is acting in an arbitrary and capricious fashion for failure to comply with the APA.

 

Therefore, pursuant to the holding in Sackett v. United States Environmental Protection Agency, 566 U.S. 120 (2012), Appellant requests that the decision made by Mrs. Godsey be rescinded under proceedings protected by the Administrative Procedures Act with a decision informing appellant that he is free to pursue permitting exclusively under the Army Corp and section 10 of the Rivers & Harbors Act respectively without the need for a 402 CWA permit from the EPA.

 

 

 

 

 

Request for Rulemaking under 5 U.S.C.A. § 553

 

Don G. Smith, hereinafter referred to as “Petitioner,” requests that pursuant to 5 U.S.C.A § 553(e) that the EPA and the Army Corp jointly promulgate regulations clarifying that suction dredges do not as a matter of practice constitute a point source discharge of a pollutant namely because they do not add a pollutant within the meaning of the CWA.  The EPA strictly regulates activities that add pollutants to the nation’s navigable waterways but exempts those activities (non-additions) where it has no expressed or implied jurisdiction from Congress.

 

Petitioner wishes to point out the fact that if all materials coming off a suction dredge are to be deemed a point source pollutant rather than reclamation to remove heavy metal toxins would be made a legal impossibility, creating no incentive for reclamation on water-covered lands of the United States nor improving spawning habitat for spawning salmon.  See: https://www.publiclandsforthepeople.org/reclaiming-our-waterways/

 

“A Federal Strategy to Ensure Secure and Reliable Supplies of Critical Minerals” has now been released by an interagency report.  This strategy was set in motion by President Trump’s Executive Order 13817.  Call to action item #5.16 states:

5.16 Evaluate Sections 404 and 408 of the Clean Water Act and Sections 10 and 14 of the Rivers and Harbors Act and develop recommendations to streamline and improve the permitting process. (DOD [USACE]; 2-4 years)

 

This would be an ideal time to make Appellant’s recommendations into a clarified rulemaking.

 

This rulemaking should make consistent that which has been found by numerous courts in the last 20 years (partially cited above) that not all activities such as sluicing and suction dredging constitute a regulatable event subject to CWA permitting.  It would also provide regulatory certainty to the reclamation and suction dredge mining industry of the United States.

 

Respectfully submitted,

 

__________________________________

Donald G. Smith

 

 

 

Enclosure

 

Cc:    Via electronic mail

Duane Mitchell, Army Corps of Engineers, Walla Walla District

Kat Sarensen, U.S. Fish & Wildlife Service

David Arthaud, National Marine Fisheries Service

Aaron Golart, IDWR

Andrew R. Wheeler, EPA Administrator Washington D.C. c/o Cathy Milbourne

Public Lands for the People c/o Clark Pearson

Scott Harn, ICMJs Prospecting and Mining Journal

 

On June 18, 2019, In the wake of the Bohmker case being denied a hearing by the Supreme Court, a coalition spearheaded by the Waldo & Galice Mining Districts, along with nine other mining organizations including PLP, sent a “Petition for Rulemaking to Stop State-Law Based Prohibitions of Mining on Federal Lands” to Secretary of Interior Bernhardt and Secretary of Agriculture Purdue. Read the petition for rulemaking document here.

A more through explanation of how to send a letter in support of this important petition can be found on the Waldo Mining District website.

Submitted by Tom Kitchar of the Waldo Mining District:

In their Petition, the Miners request that the BLM regulations at 43 CFR 3809, and the Forest Service regulations at CFR 228, be amended where the regulations currently allow or authorize states to set unlimited restrictions (above and beyond any federal regulations) on mining on lands of the United States open to mining.

Q:  How can the BLM or FS (lawfully) authorize the states to do something they themselves are barred from doing? 

A:  They can’t… but they did it anyway because guess-who was President.

Amendments to the Mining Law in 1955 gave the United States the right to manage the non-mineral resources on unpatented mining claims providing that:

 “…any use of the surface of any such mining claim by the United States, its permittees or licensees, shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto…”     30 U.S.C. 612(b)  (emphasis added)

Under the U.S. Constitution, Congress has the ultimate authority over all lands owned by the United States.  Congress has delegated the authority to manage the public domain lands to a variety of federal agencies, including the Dept. of Interior (and BLM) and the Dept. of Agriculture (and Forest Service), who manage the Public Lands that are open to mining.

However, 30 U.S.C. 612(b) prohibits the federal agencies from endangering or materially interfering with mining on unpatented claims.  This is because on mineralized land, mining is the “best use” and all other uses are at the most equal or secondary to mining (this is why the BLM or USFS cannot “prohibit” mining).

So, in the early 2000’s, the BLM and USFS amended their mining regulations adding language requiring all miners obtain all required state permits… and then went on to say even if those state regulations are more strict than the federal regulations require… with no set limit.

The Rinehart and Bohmker cases were denied by the U.S. Supreme Court in part because the BLM and USFS regulations gave the states the authority to restrict mining basically anyway they wanted, and apparently without any federal oversight.  If the state required a permit, all the BLM or USFS cared about was that miner obtained the permit, without really caring about what restrictions were in the permit…

…and thus, California shut down all suction dredge mining statewide in 2009, followed by Oregon’s ban on motorized in-stream mining in most streams in 2017 – and got away with it.  Because of those regulations, and the standing U.S. 9^th Circuit decision in Bohmker, until those regulations are amended, the states have carte blanche to regulate or restrict nearly any mining or other use of the federal lands by passing a law (for any reason and without any proof under the guise of “protecting the environment” from an undisclosed harm to ???); even to the point of a prohibition.

Q:  How can the BLM or FS (lawfully) authorize the states to do something they themselves are barred from doing? 

 A:  They can’t… And now we are formally petitioning for change as allowed under 5 U.S.C. § 553(e) to amend the 3809 and 228 regulations adding language that any state restrictions on mining on federal lands that endanger or materially interfere with the mining are automatically preempted by federal law… limiting state authority to reasonable “standards based” restrictions without any prohibitions or moratoriums.

 

Now the lowdown on the State’s FAKE INFO, designed to keep more people off the waterways. Read the bottom half of this news item for the real code language!

There you have it, the existing code. Now if PLP’s proposed legislation gets into the Federal code, the State will not have jurisdiction over dredging on Federally managed land. Help us get over the goal line! Join PLP today!

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