Suction dredge miners were dealt a blow in their battle to reinstate the practice in California waters when, on March 18, the Supreme Court rejected a petition to overturn an earlier decision from the Ninth Circuit Court of Appeals.
The Appeals Court ruling last June stemmed from a lawsuit filed by the Karuk Tribe in 2004 alleging that the U.S. Forest Service (USFS) had violated the federal Endangered Species Act (ESA) when the agency approved mining operations in ESA listed coho salmon habitat in the Klamath River watershed.
Recreational mining group, The New 49ers, filed the petition with the Supreme Court asking that they overturn the lower court decision, but the petition was denied. The Supreme Court’s denial of the petition lets stand the earlier appeals court decision and could set a precedent in battles between Endangered Species Act (ESA) laws and mining laws.
Beginning in 2003 and 2004, the forest service allowed suction dredging and related practices known as highbanking and power sluicing on more than 35 miles of the Klamath River and its tributaries. According to mining law, miners must file a Notice of Intent (NOI) with the USFS district ranger before mining. If the district ranger determines that the operations will likely “cause significant disturbance of surface resources,” the miner must submit a proposed plan of operations to the district ranger detailing the extent of their impact on the river. In this case, district rangers were approving mining operations by approving NOIs without requiring suction dredge operators to submit a plan of operations and without performing any formal ESA required review or public notice.
The agency argued that the NOIs exempted it from compliance with federal environmental and wildlife protection laws.
The appeals court rejected that claim, concluding, “We therefore hold that the forest service violated the ESA by not consulting with the appropriate wildlife agencies before approving NOIs to conduct mining activities in coho salmon critical habitat within the Klamath National Forest.”
“This decision sets a major precedent across the western states,” said Roger Flynn, lead attorney representing the tribe, and the director and managing attorney of the Western Mining Action Project, a Colorado-based law firm specializing in mining issues in the west.
Dave McCracken, proprietor and founder of The New 49ers, told the Daily News, “It is too early in the wake of the rejection to understand how it will affect the relationship between small-scale miners and the U.S. Forest Service. We are going to do our best to cooperate with the authorities in working it out.”
Karuk Tribal Chairman Buster Attebery said in a press release, “This decision is a great victory for the Karuk Tribe and everyone else who believes that federal agencies must act to protect our natural resources and fisheries.”
Page 2 of 2 - The state of California currently has a moratorium on suction dredge mining and the state water board recently sent a letter to California Department of Fish and Wildlife Director Charlton Bonham stating, “Based on the water quality impacts of recreational suction dredging, we recommend that the existing moratorium be continued indefinitely, or that this activity be permanently prohibited.”
McCracken says, “Nearly all of the concerns being directed at small-scale miners by state agencies and anti-mining activists are based upon speculation. I believe the balance will swing back our way once the citizens of California wake up and realize the answer to economic problems is not to chase the wealth producers off to other states and countries.”
Klamath National Forest Supervisor Patty Grantham said simply, “We will comply with the Ninth Circuit’s decision.”
A copy of the decision from the En Banc panel of the federal Ninth Circuit Court of Appeals can be found on the court’s website at: