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Another Nail In The Suction Dredging Coffin!


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I got the latest PLP monthly New Letter a day or so ago....going to copy and paste it here.

"

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."
 

"

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I don't know all the facts in this case but it appears Poe was railroaded.
Using a suction dredge to pull sediment from the bottom of a body of water and returning it to that same body of water while using riffles to remove the heavy material does not IMHO amount to the "addition" of material. 
Using this case as a precedent is an injustice. 
Rather, I think the writers of the clean water act intended to do exactly what they wrote -- to prevent people from "adding" material (and particularly hazardous material) to waterways. 

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4 hours ago, Nugget Shooter said:

It will never stop....

You are 100% correct Bill. Activists, activist lawyers and activist judges can't resist pushing the envelope to curtail the freedoms the founding fathers intended for us. Some of this legal action is necessary but all too often the people get blindsided and the unaffected and uninterested masses don't have a clue. 
Somewhere along the line a loophole was opened and activist attorneys obtained a new revenue stream which they are milking it for all it's worth.  

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I expect Poe and perhaps the AMRA will get a pretty hefty fine from this.

Over the last few years, the EPA has went after businesses that have sold tunes to vehicles that interfere with pollution control, which is basically any performance tunes.  They did not fine all parties equally, but on their ability to pay.  A small shop may have gotten several thousand dollars of fines ($15k?) but a large online distributor was in excess of a million dollars.  That judgement read that properties bought with the profits from the tunes were liquidated in order to pay the fine.

I really doubt much gold was taken from these dredges, so I don't expect a fine of millions of dollars, but I would not be surprised to see a fine of $15k.

Regardless of the fine, I believe more important is the PLPs point.  I paraphrase this as: The dredging Poe did was a worthless protest that will not result in anything good coming for those who would hope to see any realistic future for dredging in the state of Idaho.

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