07/07/2024
https://www.facebook.com/share/p/M6SbRTLaGsNhTeTK/?mibextid=WC7FNe
Earlier this week the Supreme Court of the United States (SCOTUS) decided not to hear the suction dredge case ICL v Poe.
After nearly 6 years of this civil suit under the Clean Water Act (CWA) being filed and hundreds of thousands in legal fees, we see justice is not blind, justice is not for all. Just last week in a separate case, SCOTUS overturned Chevron deference (Loper Bright). This is where the court ruled back in the 80’s regulatory agencies can rely on their own experts to determine what the rules are, the interpretation of their regulations and if the agency they work for is right or wrong without allowing any input from an expert of your choosing to dispute their defending the agency which pays them handsomely. The fox guarding the henhouse is an apt analogy. The fact SCOTUS overruled Chevron was something many of us have screamed about in favor of overturning this precedence since its passing back in 1984. Government agencies should not be able to be lawmakers. Making laws is the responsibility of Congress whom we elect to and with Chevron intact prior to this new ruling, that is precisely what the agencies were doing. Chevron gave that power to the agencies and when the ruling came out last week, we thought SCOTUS would take our case or at least remand it back to the 9th Circuit since they just gutted Chevron which ICL relied on the EPA to determine that Poe polluted. They denied our case, once again leaving the small-scale mining community without any kind of relief from big government overreach.
What was the case about?
Simply put, a highly controversial environmental group based out of Idaho (Idaho Conservation League ICL) claimed the South Fork of the Clearwater was “their river” and that the activity of suction dredging polluted and destroyed fish habitat which we all know is scientifically untrue. They claimed because Poe did not apply for….. asking permission to dredge from the EPA, even though he had a valid Idaho state suction dredge permit that he polluted the SF Clearwater river in Idaho. Idaho, in their permitting process stated the state permit was the only permit required to dredge his claim, which he obtained and had it displayed on the dredge. In the more than 130 pollutants listed by the EPA of pollutants which require one to obtain an NPDES (National Pollution Discharge Elimination System) permit for polluting, the activity or dredging does not add a single one listed and therefore should be exempt. Not according to the EPA, they said stirring up sediment is a pollutant even if that sediment is already in the water. Think of a moose walking through the river, will they be forced to obtain and NPDES permit? How about the thousands of roads which don’t have bridges and vehicles drive through the water? Will those drivers now need a permit as they surely stir up sediment already in the waterway? Now we’ve even heard ICL is claiming we’ve polluted the river with arsenic. We can only shake our head in disbelief at silly claims like this. Suction dredging “removes” pollutants, not add them. Heavy elements like mercury are removed, so are lead fishing weights lost by fishermen. All of these pollutants are trapped in the sluice box and the activity effectively cleans the waterway. Dredging should be encouraged, not banned. Back in the early 2000’s in California when dredging was still legal, they asked all the miners to turn in their mercury after the season. It overwhelmed the government and the program was shut down because it was “too successful”. Stunning actually. Those who speak out against tyrannical agencies are attacked, both by environmental groups, powerful regulatory agencies like the EPA and they both believe they can crush them financially with frivolous lawsuits and fines.
The case was originally heard by an Obama appointed judge ironically named Bush in Idaho and rather than even allow rebuttal or our experts such as a 35 year fisheries biologist who claimed we “create perfect fish habitat and I wish you guys could dredge bank to bank”, he relied on the EPA to say we pollute but could not say we added any of the pollutants listed in the Clean Water Act (CWA). Instead, the judge rapidly ruled in favor of ICL and then retired immediately after that ruling. He also imposed a $150,000 fine for Poe to pay the EPA for polluting which charges unbelievable interest spread out over 10 years. It is over $26,000 to be paid every December for 10 years, you can do the math on that one yourself to see the interest rate.
We appealed that unjust ruling to the controversial 9th Circuit Court of Appeals with the help and representation of an outstanding legal group, Pacific Legal Foundation. The case had two liberal justices and one conservative justice assigned. The decision was 2-1 in favor of ICL with both liberal justices claiming incorrectly that dredging pollutes. Again, the court ruled on the expert opinions of the EPA (Chevron).
After the ruling, we learned of another case involving a shrimp fisherman who was railroaded just like our case for stirring up sediment while dragging a net along the bottom of a bay fishing for shrimp. This case also relied on “Chevron” and the so-called experts within the EPA. It was heard by the 4th Circuit on appeal and that court ruled in favor of the fishermen, that since nothing was added, no pollution was created. Sound familiar? It should as it is precisely the same type of activity a suction dredge engages in. This put the 9th Circuit and the 4th Circuit at odds against one another. SCOTUS should have taken this dredge case to determine which Circuit court is right, which is wrong and provide a definitive decision.
After the 9th Circuit, this left us with only one option, to petition the United States Supreme Court which as stated above, they declined to hear the case. We even had 21 Attorney Generals of various states sign on to a Amicus asking the court to take the case, they ignored these 21 other states….nearly half the states within the United States signed on saying this case was so important, they should hear it. They also ignored 25+ years of the small-scale mining community begging to have a dredge case heard to finally prove the EPA so-called experts are wrong and that we do not pollute. They ignored their own ruling of overturning Chevron by allowing the case to stand…even though just the week prior they said allowing precisely what happened in ICL v Poe is wrong and must be gutted. One can only guess as to why. Is it because of all the hyperventilating by the radical environmental groups when Chevron was overturned? Is it because of something else like threats to the court? We know when they ruled in favor of Presidential immunity threats were common. We don’t know, but it clearly goes against their own ruling in Chevron. We’ve heard they may not want to clog the courts with appeals of thousands of people adversely affected by regulatory agencies and court cases relying on their own experts…..which now has been deemed illegal. Common sense would dictate these people should have relief, deserve relief……..like this case. SCOTUS punted though.
So what happens now?
There are no additional options with this case, SCOTUS is the highest court in the land and is final. However, it is very likely now with the Chevron decision that radical environmental groups will think twice before bringing these absurd civil cases against miners and others since they can’t rely on their friends at the EPA or other regulatory agencies to be the experts anymore effectively railroading cases through favorable courts who rubber stamp their experts. That power is given back to the courts and to Congress to create laws to fix this injustice.
As I was citing the Pledge of Allegiance last week, I came to the end where I said aloud “one nation under God, Indivisible, with Liberty and Justice for All”. SCOTUS seems able to choose if some can have justice, and others do not.
AMRA has fought for over a decade to help the small-scale mining community, has represented, advised and helped thousands and thousands of people who have the boot of these agencies on their necks. We will continue to do so as we believe America is the best country on planet earth, even if it is unfair at times, like this time.
We hope you continue to support AMRA and its President Shannon Poe, it’s been a long road and there is much more to do….especially if Trump is reelected on November 5th.
