A huge thank you to all who participated this year, both the folks who purchased tickets and the companies/individuals who donated prizes! And a big shout out to the Mining Journal for donating ALL the ad space in your fantastic magazine this year! You all have helped PLP continue strong in the fight for our Public Lands Rights!
10 oz. Silver Bar: Peter Browne
20 acre Mining Claim: Ron Pace
Minelab Equinox 800: Robert McGrew
Laminar flow Drywasher: Ers Gattshall
Crevice pick sets: Joe waters and Headwaters GPAA
Guided Motherload Trip: Rich Velasquez
Crevice Kit : Patrick Reidt
1106 Sluicebox: Foot Hills Prospectors
Keene 151 Drywasher: Rich Velasquez
5 oz Silver Bar: Randy Waters
Fast Furnace: Kurt Owen
18″ Gold Wheel: Jim Henesh
Makro Gold Racer Detector: Eras Gattshall
Silver Reale Coin: Eras Gattshall
Gold Cube: WY Prospectors Association
Here are the winners for the 1oz Silver Rounds:
Delta Gold Diggers
WY Prospectors Association (twice!)
Public Lands for the People (PLP) is conservatively projecting a path for legally reopening gold suction dredging
mining starting in 2021 provided that two obstacles are resolved, which are:
1) Prohibitive state regulatory programs that have become dysfunctional and prohibitive to the suction
2) Inconsistent applications of the Clean Water Act (CWA) federal & state administered section 402
National Pollution Discharge Elimination System (NPDES) program.
To overcome these two obstacles, two things will need to be completed that PLP is helping to guide:
1) Federal Preemption regulations set out to deconflict duplicative & prohibitive state regulatory programs
on federally administered lands under the surface jurisdiction of the U.S. Forest Service and Bureau of
Land Management. Status: Petition accepted, and Rulemaking process started May 2020
2) Clarifying regulations that are jointly issued by the federal EPA and Army Corps that state that suction
dredging does not as a matter of practice produce an addition within the meaning of the CWA 402 NPDES
program and is not a point source discharge while reaffirming longstanding deminimus unregulated
movements under the CWA 404 program. Status: 2019 Don Smith Petition under pending
Up until now, PLP had been reluctant to release this strategy until the proper legal, scientific, and political
foundations have been laid and solidified. PLP believes it is now time to release this information and clarification
given based upon our alliances within the industry, key working relationships within the Trump administration
that were established over the course of the last three years, and to so apprise and reassure our membership and
alliances within the industry.
Prohibitive State Suction Dredge Regulations and Programs
Several years ago, PLP had to make the tough decision to face the reality that fighting in state courts on certain
premises was not productive when one has no control over the narrative. The narrative had been set by extreme
environmentalists that suction dredging is bad and never mind the science that proves otherwise. PLP and all the
other mining groups were totally outgunned at the political level in these Western states – namely, California,
Oregon and in Washington. Funding to PLP dropped when miners could not work their claims to help to support
the cause let alone the other groups who were still fighting in the courts to help preserve our way of life. The sad
fact of today is that the present state regulatory systems regulating suction dredging has killed our industry – by
design. That is why PLP started thinking outside the sluice box and into the national security supply chain over
three years ago. Present conflicts and realizations having to do with dependence on China have illuminated the
fact suction dredge miners have a vital role to play and are an ignored and untapped domestic resource – until
See: State Agencies, Courts Undermine Efforts to Free US From China’s Stranglehold on Rare Earths (Bonner Cohen, The Epoch Times, published March 30, 2020) https://www.theepochtimes.com/federal-state-agencies-and-courts-undermine-efforts-to-free-u-s-from-chinas-stranglehold-on-rare-earths_3291254.html
Initially, when PLP started going to Washington, D.C., we had difficulty establishing and communicating the
reality that our industry was being decimated by so-called reasonable state programs when lobbyists from big
mining were saying that they want state regulations rather than federal. We warned the BLM and Forest Service
over three years ago that the prohibitive state suction dredge regulations that started in California would expand to
Oregon then Washington and beyond if the federal government did not take affirmative preemptive measures
through the rule making process. It took some time, but we were successful in changing that perception at least
for the subject of suction dredging regulations. We will continue to push for non-duplicative regulations as it has
become clear that “duplicative mining regulations produce intolerable conflicts in decision making”. (Quoting
U.S. Supreme Court Justice Powell in CA Coastal Comm. v Granite Rock, 1986)
Regulatory Relief is in the Pipeline!
PLP is happy to report that the petitions sent in by Waldo Mining District and supported by PLP and numerous
other mining organizations are being processed for proposed preemption rule making by the BLM (then it should
be duplicated by the Forest Service soon thereafter). As of the date of this writing May 18th, 2020, the BLM
has assured us that the proposed rulemaking on preemption will be released for comment within a month.
PLP is happy to report that the Forest Service has been pushed namely by the American Exploration & Mining
Association (AEMA) to replace the 36 CFR 228A mineral regulations to make them as close as possible to the
more certain and more workable BLM 43 CFR 3809 mineral regulations. PLP would rather the Forest Service
minerals program be scrapped and folded under the BLM’s regulatory jurisdiction because if not for the 9th
Circuit Court, the Forest Service really lacks the legal jurisdiction to manage the minerals upon federally
managed land of the United States. That is because of the 1905 Transfer Act (16 USC section 472) that states in
part: “…the Secretary of the Department of Agriculture shall, from and after the passage of this Act, execute or
cause to be executed all laws affecting public lands…excepting such laws as affect the surveying, prospecting,
certifying, or patenting of any such lands.”
The other reason PLP would rather the Forest Service minerals program be scrapped and folded under the BLM’s
regulatory jurisdiction is because of the huge and horrible track record of abuses the Forest Service has against
the miners and their pattern of unjustified delays.
The new Forest Service draft regulations and EIS should be available for comment by the end of the year
2020. PLP will be making more comments on this when the draft EIS is available and the comment period
reopens on the draft regulations.
Clarifying the 402 CWA NPDES Program at the Federal Level
As many miners are aware, the Clean Water Act (CWA) is an enactment by Congress for the regulation of our
nation’s waters. The 404 section of the CWA pertaining to dredge and fill operations to disposal sites is regulated
exclusively by the U.S. Army Corps. Some miners are mistaken, and it is important to note that the Army
Corps 404 permitting authority cannot waive the application of the 402 permitting authorities—whether it
is being administered by the federal EPA or its delegated state administrators such as the CA State Water
Quality Control Board or the Oregon Dept of Environmental Quality (DEQ). This is further discussed
below under the topic of “Some miners are sending a mixed message about suction dredging.”
Let’s be clear, these are two separate and distinct programs—one program cannot cancel out the application of the
other program or its enforcement.
Over 8 months ago PLP assisted Idaho member Don Smith in his Appeal and Petition to the EPA and Army
Corps that his suction dredge operations should not trigger the application of the 402 NPDES CWA program, in
addition to his Idaho Joint Application general permit between the IDWR and Army Corps. That Petition has
gained overwhelming support from over 28 leaders in the industry and many individuals and counties. An
investigative report (see link earlier in this paper) has revealed that deep within the regulatory swamp certain
individuals employed in the EPA and Army Corps are purposely denying the miners (Donald Smith 402) petitions
to be seen by top level Trump appointees of those two federal offices.
Thanks to our great contacts in DC, we are in the process of bringing in the big guns within the Trump White
House in order to help drain the swamp within namely the EPA for starters. A big thank you will be in order soon
for the Washington DC-based National Center for Public Policy Research who has helped this issue along, and to
have accountability within the EPA opposing President Trumps deregulatory agenda. Please stay tuned on this
ongoing effort every month in ICMJs Prospecting & Mining Journal.
At the same time, Waldo Mining District leader Tom Kitchar is leading the charge, taking the 402 suction dredge
controversy from Oregon to the U.S. Supreme Court with the expertise of the Pacific Legal Foundation (PLF).
The Pacific Legal Foundation has a stellar record of winning before the U.S. Supreme Court (SCOTUS).
Unfortunately, due to delays from the Oregon DEQ, the soonest we will know if SCOTUS will even take up the
case or decide the case now will most likely occur in the fall of 2020.
Some miners are sending mixed messages about suction dredging:
“I don’t pollute, but please give me my pollution permit”
A small group of suction dredge miners are sending a mixed message about suction dredge mining and are
actually playing into the premise that suction dredges add a pollutant (playing into the environmentalist’s trap).
Most all suction dredgers are now saying, “Hey, my suction dredging does not add a pollutant,” but their actual
actions do not follow their words. Let us explain.
The California State Water Quality Control Board (by delegation from the federal EPA) administers the 402
CWA program. This 402 program is called the National Pollution Discharge Elimination System (NPDES). If a
miner asked for a permit from this agency, he is consenting to a falsehood that suction dredges produce an
addition of a pollutant in need of elimination. Simply said: Those miners are saying, “I don’t pollute, but please
give me my pollution permit.” Those that advocate this kind of message will never give miners reasonable
dredge regulations. This is also a very dangerous path that places the miner in a position of liability to the agency
and subjects the miner to lawsuit by environmentalists who can take advantage of the miner’s error in judgement.
Don’t make that mistake! Don’t feed the environmentalist’s cash cow because that’s how their sue and settle
It may come as a big surprise to some miners to know that the citizen suit provision of the CWA has always given
the environmentalists the legal authority to enforce penalties even when the agency fails to act. Suction dredge
miners can be cited or sued at a rate of over $51,000 per day, as has already happened to a California miner
dredging in Idaho who defied the present 402 NPDES program administered in Idaho, yet had consented to (and
advocated for) its application to a suction dredge in California and thus faces over $3 million dollars in fines and
attorney fees because of this admission (posted on his own social media website by the defendant and is now
entered into the court’s record by plaintiffs).
If the miner does not think he needs the 402 permit for his suction dredge, but instead wishes to get a waiver of
the 402’s application, he must Petition the agency for a rulemaking change to say that it should not apply. Good
luck on that in California, right? Who is supposed to be the oversight of the 402 federal CWA program to see that
it is rightfully carried out by the state? Answer, the federal EPA who delegated the 402 program subject to
federal law and oversight. Case in point, the Donald Smith Petition in Idaho illustrates the proper legal path to
challenge a programs misapplication absent litigation.
PLP has heard that some miners believe that if they could only get the Army Corps to give them a 404 dredge and
fill permit or waiver their problems will be solved. This is not true. The Army Corps does not have the legal
authority under the 404 program to waiver the separate legal duties of the CA State Water Quality Control
Board’s job of administering section 402. One program cannot replace the other, and both are separately carried
out as the law is currently written and intended by Congress. This is the same type of unfortunate thinking that got
the California dredge miner mentioned earlier in trouble in Idaho and now facing devastating penalties. Needless
to say, do not challenge the CWA authorities unless you are legally and financially prepared.
The CA Water Board releases the draft Suction Dredge (Pollution) Rules and they are as expected – UGLY!
Recently released draft rules by the CA State Water Board over the section 402 permit for suction dredging are as
PLP expected, very ugly and prohibitive. Permit applications will cost $2,572. Permits will not be available for
streams, rivers and lands that have historically produced gold because of the potential to encounter mercury.
Permits will not be available for ESA potential habitat. So basically, the board will only issue a permit to nongold producing areas. Anyone that is crazy enough to obtain a permit can and will be sued by environmentalists
under the ESA and CWA for a multitude of reasons at a rate of over $51,000 per day in fines if they fail to report
monitoring requirements of the permit, as well as suction dredging without the requisite permit.
PLP views working with the CA State Water Board as a waste of time because of the political bias that was built
into the process by well-funded eco-frauds.
On a more positive note, PLP estimates that if the Trump administration can stay in for a second term and
complete the deregulation agenda, that in all likelihood suction dredging could legally resume in year 2021 at the
earliest—assuming that a federal preemptive and clarification process is complete. This means that suction
dredging would be controlled exclusively under federally-administered BLM and Forest Service lands under new
federally preemption rules to replace state rules that we all know were driven by biased and crazy politics rather
than science and national security needs.
If you like the work PLP does please help PLP help you on the path towards legally resuming suction dredge
mining and reclamation!
Supporting the PLP Grand Raffle helps us continue to fight for your rights.
A book of 12 tickets is only $10. We have a lot of great high value prizes. You can’t win if you don’t enter!
Tickets are available through July 26th to purchase by phone for the July 28th, 2020 Grand Raffle Drawing.
You can call our toll-free number (844)-PLP-1990 which is (844) 757-1990 or Mail a Check by July 20th (to
the address below) and specify the number of ticket books you wish to have mailed to you.
Thank you for your steadfast support through troubling times.
Your Board of Directors
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.
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 (5th 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 9th 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 24th, 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.
Donald G. Smith
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
1. 10 Ounces of Silver donated by John Godfrey
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. 9th 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.
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.”
The much-anticipated “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, “A Federal Strategy to Ensure Secure and Reliable Supplies of Critical Minerals,” on December 20, 2017. The Executive Order directs the Secretary of Commerce, in coordination with heads of selected executive branch agencies and offices, to submit a report to the President that includes key points to help the ailing U.S. mining industry and the U.S. minerals supply chain.
This report focuses on 6 call to action items, 24 goals, and 61 recommendations that describe specific steps that the federal government will take to achieve the objectives outlined in Executive Order 13817. Call to action number 5 is of the most importance to PLP and our members because this section will benefit the average miner and public lands user who embraces multiple-use access principles upon our public lands. PLP’s Clark Pearson and the ICMJs Prospecting & Mining Journal’s Scott Harn delivered many educational materials (and complaints) in multiple meetings with federal agency department heads over the course of two years covering many of the points now called for in this new Federal Strategy report.
We wish to thank our membership and our financial sponsors that allowed us to make these important trips to DC so that the decision makers could better understand our specific needs in the over-arching quest for regulatory relief.
The following subparts of call to action number 5 we wish to highlight and are as follows:
5.2 Revise land-use planning processes to require that Surface Management Agencies (SMAs) designate and classify lands based on whether they are prospectively valuable for mineral development.
5.3 Revise policies to ensure Federal lands identified as prospectively valuable for exploration or development of mineral resources are properly considered before they can be recommended for withdrawal or encumbered with a land-use designation that would restrict the development of these resources. (DOI [BLM] and USDA [USFS]; 1 year)
5.4 Review existing withdrawals, land-use designations, and planning allocations and recommend appropriate measures to reduce unnecessary impacts that they may have on mineral exploration, development, and other activities. Any analysis performed should quantify and qualify the economic and national security implications of: reducing the size of an existing withdrawal, reducing the area affected by a land-use designation, changing planning allocations, or revoking an existing withdrawal. When deciding the order in which to review existing withdrawals, restrictions, or allocations, land management agencies should prioritize consideration of areas with the greatest potential for discovery of critical minerals. (DOI [BLM] and USDA [USFS]; 2 years)
Mining claim holders may be guaranteed reasonable access across Federal lands to their mining claims by law. However, the term “access” is not clearly defined under existing policies and this leads to problems with the implementation of travel management plans. Travel management plans identify which roads or trails are open to motorized vehicles, off highway vehicles, and identifies areas that may be closed altogether and blocked from motorized use. However, these plans do not adequately account for the importance of access to lands for mineral development. Accordingly, SMA’s travel management plans should be created or amended to prioritize access for mineral exploration. Further, existing infrastructure should be maintained or improved to allow access to mineral resources. Maintaining infrastructure may be the responsibility of the SMA or the private sector and depends on the purpose of the infrastructure.
5.5 SMAs should create or amend travel management plans to facilitate access for exploration and development of minerals to the extent practicable. When deciding the order in which to amend or create new travel management plans, land management agencies should prioritize consideration of areas that contain the greatest critical mineral potential. (DOI [BLM] and USDA [USFS]; 1-2 years)
Note: Currently, there is no agreement between federal and state regulatory agencies, industry, non-governmental organizations, and the Government Accountability Office on a uniform definition for time spent reviewing, processing, and issuing permits for prospecting, exploring, and developing a mine or mine site. Accordingly, land-use management and permitting agencies do not have suitable tools to analyze the performance of permitting processes. It is PLP’s opinion that this will most likely usher into play federal pre-emption of conflicting state prohibitions that is currently on display in California and Oregon and resolve them in the miner’s favor absent real science.
5.6 Develop a publicly accessible online system to track milestones for mining projects, including the time it takes State and Federal agencies to review, process and issue permits. (DOI [BLM] and USDA [USFS]; 1-2 years)
5.7 Update agency NEPA processes to streamline NEPA analysis with an emphasis on providing timely processing of mining Plans of Operations. (DOD [U.S. Army Corps of Engineers (USACE)], DOI [BLM], and USDA [USFS]; 2-4 years)
5.10 Revise BLM and USFS procedures to allow for the incorporation and validation of existing environmental review and analysis for mining projects completed by States and other entities. (DOI [BLM] and USDA [USFS]; 1-2 years) (I think we know what State reviews are Not Valid)
5.11 Provide recommendations for revisions to 43 CFR 3809, Surface Management, and to 36 CFR 228 Subpart A, Locatable Minerals, to streamline and reduce redundant reviews. (DOI [BLM], USDA [USFS]; 1-2 years)
5.12 Harmonize regulations that affect surface mining. (DOD [USACE], DOI [BLM], and USDA [USFS]; 1-2 years)
5.14 Execute MOUs for the review of Plans of Operation for mines with mixed ownership status that includes timelines and procedures for participation and dispute resolution. (DOI [BLM] and USDA [USFS], in coordination with State agencies; 1-2 years)
There you have the top ten highlights from the guidance report, but there are many more. Overall, PLP is very pleased with the direction of this report and the upcoming results through de-regulation that will follow. America will be stronger and more secure without sacrifice to the environment. The full report can be viewed online.
Q: What does all this mean? A: New, revised travel plans must consider unpatented claimholders and the mining industry must be accommodated in revised mineral regulations that work for us and are truly reasonable, not guided by arbitrary bureaucratic terms that can be written by the Sierra Club and weaponized against the miner.
And finally, it potentially means—for those miners in California and Oregon—that the Trump administration may move to displace prohibitive state regulations that cannot be harmonized or validated with respect for, or in accordance with, a federal preemption mining claim located upon federal managed land. Now wouldn’t that be great!
PLP expects a draft of the new mineral regulations to come out next year. PLP will be engaged in this upcoming rule cleaning process in DC and ICMJ Prospecting & Mining Journal will report on it in greater detail in the coming months.
PLP’s proposed amendment to the National Defense Authorization Act (NDAA) called “Critical Minerals: National Security Amendments to the NDAA”, for the time being, has taken a back seat to Congressman Amodei’s reintroduced proposal on Critical Minerals. In the meantime, we are encouraged by support from the leadership at the Western Caucus that two of our amendments (sections 104-105) will be integrated into a compatible bipartisan bill in the near future. These two sections are to clarify EPA “incidental fallback” and to preclude MSHA mine owner/operators with no employees from being treated like large corporate entities. They appear to be the least controversial, yet will help most small miners in the process.
Also, PLP has renewed our push at the federal EPA to get a resolution on “incidental fallback” so the California State Water Resources Control Board, Oregon’s DEQ, and the federal regional offices of the EPA do not require 402 permitting for suction dredge miners because the activity fits squarely within this exemption. This will squash the state-rigged game and torture cycle of requiring a permit and then not issuing one.
If you have not already signed on to the support petition we have on our website, please do so. The Critical Minerals amendments are a must read and should go down as the most important piece of legislation to help the mining industry in a very long time.
You can help us TAKE ACTION! PLP’s petition drive is at: https://www.publiclandsforthepeople.org/take-action/ where you can read the proposed legislation and support material and sign our petition to US Senators and Representatives. Thousands of signatures will prove to the legislators the groundswell grassroots support is there and convince them that the time to act is now. ICMJs Prospecting and Mining Journal also has it available for viewing and comment at: www.icmj.com, and has faithfully documented our progress in Washington, D.C. The ICMJ has taken the lead to receive individual miner and mining association endorsements in support of the “Critical Minerals: National Security Amendments to the NDAA” on their Facebook page or sending to their mailing address: ICMJ, P.O. Box 2260, Aptos, CA 95001. You can read the latest update on our trips to DC online.
Please do your part to help us Take It Back and Keep It! Renew your personal, business or club membership and PLEASE HAVE ALL YOUR CLUB Members join PLP as well. Encourage everyone to be an active part of the solution and be among those who are making history.
Don’t forget, there is still time to purchase your 2019 Grand Raffle tickets! A book of 12 tickets only costs $10. Don’t wait until the last-minute rush! You can’t win if you don’t enter! We can mail them to you or drop your tickets in the barrel for the July 9th drawing—your choice. To purchase tickets, 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 purchase. Let us know if you want us to assign your ticket numbers and drop them in the barrel or mail them to you to fill out and mail back. Supporting the PLP Grand Raffle helps us continue to fight for your rights.
We look forward to hearing from you,
JOIN, VOLUNTEER or DONATE
Your PLP Board of Directors
Public Lands for the People, 23501 Burbank Blvd., Woodland Hills CA 91367