Oregon’s Legislature approved Senate Bill 838 in July 2013, in a largely party-line vote, and Gov. John Kitzhaber signed it into law that August. It imposed a moratorium on suction dredge mining that could affect water quality or habitat of spawning grounds for salmon or bull trout in any “waters of this state,” until Jan. 2, 2021.
Suction dredge mining sucks up the top layer of streambeds and pumps it through sluices to seek gold and silver in placer deposits. SB 838 also bars it upstream 100 years from “ordinary high water.”
California banned suction dredge mining in 2009, and Idaho miners are required to get permits. Oregon’s law states that the moratorium is meant to protect water quality and spawning habit of “anadromous salmonids or natural reproducing populations of bull trout.”
Anadromous fish are spawned in fresh water, live in salt water, and migrate inland again to spawn. Bull trout were listed as a threatened species in 1998 in all Lower 48 states, and critical habitat was set aside for them in 2005.
Lead plaintiff Joshua Caleb Bohmker et al. claim the law is pre-empted by at least seven federal laws dating back to the Mining Acts of 1866, and by federal regulations.
His co-plaintiffs allege a number of violations and handicaps, including federally registered mining permits, degenerative arthritis that makes motorized mining equipment necessary, historical rights to mining in certain districts, and harm to a plaintiff small business that makes suction dredging equipment.
They also dispute the designation of certain waters as “essential salmon habitat” (ESH).
“The state defines ESH to refer to nearly all bodies of water where indigenous salmonids could conceivably be found – and some where they cannot, for the state’s designations frequently include water bodies utterly inaccessible to indigenous salmonids,” the complaint states.
They claim the moratorium “renders effective exploration for valuable mineral deposits on federal lands within a closed area impossible” and interferes with the “federal purpose of fostering and encouraging mineral development on federal land.”
Environmental groups advocated for the law.
“While the goal of suction dredge miners is to strike it rich by finding gold or other precious metals, the reality is the overwhelming majority will never make enough money to pay for their equipment,” Oregon Wild says on its website. “But the cost to Oregon’s rivers and environment from using polluting suction dredges can be enormous.”
But the plaintiffs say the law is pre-empted by the Mining Acts of 1866; the Federal Mining Law of 1872; the Mining and Minerals Policy Act of 1970; the Surface Mining and Reclamation Act ; 16 U.S.C. § 481 (Use of Waters); 43 U.S.C. § 661 (Appropriation of waters on public lands); the Federal Land Policy and Management Act of 1976; the Multiple Surface Use Act; and numerous sections of the Code of Regulations.
They want its enforcement enjoined.
They are represented by James Buchal, with Murphy & Buchal, of Portland.
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