Ninth Circuit Upholds Ban on Oregon Dredge Mining

(CN) – Federal law allows Oregon’s ban on suction dredge gold mining in rivers where salmon spawn, according to a Ninth Circuit ruling against a group of miners who challenged the restrictions.

“We find in these statutes no indication that Congress intended to preempt state environmental regulation merely because it might be viewed as ‘prohibitory,’” U.S. Circuit Judge Raymond Fisher wrote for the majority in Wednesday’s opinion.

In 2013, the Oregon Legislature passed a law that imposed a moratorium on suction dredge mining in any state waters that could affect the spawning ground habitat or water quality of salmon and bull trout.

The state legislature later adopted a senate bill that permanently restricted the use of motorized mining equipment in “essential habitat” for those fish.

Suction dredge mining sucks up the top layer of streambeds and pumps it through sluices to seek gold and silver in placer deposits. California banned the practice nearly a decade ago, and miners in Idaho need permits for it.

Three months before Oregon enacted the moratorium, a group of miners sued the state in federal court, claiming federal law pre-empts the ban.

The eight individual miners, three companies and a mining district also challenged the state’s designation of certain waters as “essential salmon habitat.”

According to the miners, 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.”

A district court judge ruled in favor of the state, concluding that the senate bill was a reasonable environmental regulation allowed by federal law.

The miners appealed to the Ninth Circuit, which rejected their argument that the ban on suction dredge mining was a state land use planning law.

Instead, the panel’s majority found the law is separate from Oregon’s land use system, which is run by the state’s Land Conservation and Development Commission and Land Use Board of Appeals.

But the miners based much of their argument around federal mining laws that they claim pre-empted state regulation.

They essentially argued “that Congress intended to meet the nation’s environmental needs solely through the process of reclamation, not through regulation of mining itself,” Fisher wrote for the majority in a 52-page opinion.

“This reading, however, lacks any basis in the statutory text or in case law,” he continued.

Moreover, the miners’ “proposed distinction between regulations that are ‘prohibitory’ or ‘regulatory’ in their ‘fundamental character’ is neither workable nor grounded in the federal statutes upon which the plaintiffs rely,” according to Fisher.

U.S. Circuit Judge Andrew Hurwitz joined Fisher in the majority.

But in an 18-page dissent, U.S. Circuit Judge N.R. Smith characterized the ban on motorized mining as a land use regulation because it “does not identify an environmental standard to be achieved but instead restricts a particular use of federal land.”

“The obvious and less restrictive regulation here would be to simply require that mining activity in essential habitat areas be conducted in a manner that does not adversely affect fish habitat,” Smith wrote.

In other words, the state could ban non-motorized mining that harms the salmon and trout populations while allowing motorized mining that complies with the requirements to preserve their habitats, he argued.

The state could also take efforts to outright ban mining on essential habitat on federal lands or amend its laws, Smith suggested.

“In short, a win for the miners is not likely to lead to environmental disaster as the majority portends,” the judge wrote.

Environmental groups who support the law intervened in the case.

“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,” the group Oregon Wild says on its website.

“But the cost to Oregon’s rivers and environment from using polluting suction dredges can be enormous,” it added.

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