OAKLAND, Calif. (CN) – The Karuk Tribe and nine environmental groups claim in court that the California Department of Fish and Game approved suction dredge mining in state rivers, again, without proper environmental review.
The Karuk, the Center for Biological Diversity and others filed the writ of mandate petition in Alameda County Court.
Suction dredge mining is a way to mine for gold in the riverbeds, streams and lakes. Motorized pumps vacuum up water and sediment, which is passed over a sluice box mounted to a floating pontoon. Dense particles such as gold are caught in the sluice box and the rest of the sediment is dumped back into the river.
Suction dredge mining is used primarily by recreational and hobbyist gold miners, who need annual permits from the Department of Fish and Game. The permit entitles miners to suction-dredge any river in California, under agency guidelines.
The Karuk, a tribe of about 3,300, have their administrative center in Happy Camp, in the Klamath Forest near the Oregon state line. Their ancestral homeland is along the Klamath River and fish and fishing are central to their traditions and way of life.
The Karuk say the department began issuing suction dredge mining permits in 1994. The state said then that rivers inhabited by threatened or endangered species must be closed to suction dredge mining to prevent harm to these species, and that periodical reviews of the regulations must be done to account for future listings of endangered species.
In 1997, the department drafted a new environmental impact report and proposed amendments to the regulations, which were never implemented. The Karuk Tribe filed its first action against Fish and Game in 2005 for failing to update its regulations. During the course of that litigation, the department submitted sworn declarations that its suction dredge program violates the California Environmental Quality Act (CEQA) and its own codes, and had determined that “suction dredge mining caused deleterious effects on the endangered coho salmon in the Klamath, Scott and Salmon Rivers,” according to Karuk’s new complaint.
Fish and Game was ordered to conduct a CEQA review of its regulations on suction dredge mining and endangered species in the watersheds of the three rivers in 2006. The court gave the agency until 2008 to complete its review – a deadline which Fish and Game missed, but the agency continued to issue suction dredge mining permits anyway, the Karuk say.
The Karuk sued again in 2009 to enjoin the department from issuing any more permits until it had completed its review, which the court granted. California’s Legislature also weighed in, passing Senate Bill 670, forbidding Fish and Game from issuing any more permits until it had completed all environmental reviews and adopted updates to its regulations.
Fish and Game finally issued its draft environmental review in 2011, 2½ years after the original court order. The Karuk say that draft acknowledged “significant and unavoidable impacts to water quality and toxicology, biological resources, cultural resources, noise, and cumulatively significant impacts to water quality and wildlife resources. …
“Petitioners provided extensive comments regarding the significant environmental impacts of the draft regulations and the failure of the SEIR [state environmental impact review] to adequately comply with CEQA. During the public comment period, numerous federal, state and local agencies submitted comments critical of the program and the environmental review. For example, the State Water Resources Control Board, California Native American Heritage Commission, and federal Environmental Protection Agency submitted comments that were critical of the regulations and recommended that the current moratorium be extended until and unless the department adopted a suction dredge program that reduces the significant impacts of suction dredge mining,” according to the complaint.
California lawmakers intervened again, with Assembly Bill 120, which added two conditions that Fish and Game must meet before issuing permits again. Any new regulations governing suction dredge mining must “fully mitigate all identified significant environmental impacts” and fees must be in place to “fully cover all costs to the department related to the administration of the program,” according to the complaint, which cites AB 120. Lawmakers extended the ban on suction dredge mining permits until 2016, unless the department met its obligations before then. The agency issued its revised regulations in February this year. The revisions would reduce the number of suction dredge mining permits issued to 1,500 annually, create density restriction on contemporaneous dredge operations and limit suction dredge operations on certain streams and rivers, the Karuk say.
“The regulations would, however, still result in direct significant adverse impacts to water quality through the disturbance and resuspension of historic mercury in streams, and through impacts on special status bird species, cultural resources, and noise, and through cumulatively significant impacts to water quality and wildlife. The revised regulations also included a statement, without supporting analysis, that the suction dredge program would not be deleterious to fish,” according to the complaint.
Again, federal, state and local agencies and lawmakers joined the petitioners in submitting critical comments about the proposal to Fish and Game. The agency released its final environmental impact report in March, without a comment period, and adopted new regulations to permit suction dredge mining in California after the moratorium ends in 2016.
The Karuk list 17 deficiencies in the state’s suction dredge mining plan, call the environmental impact report inadequate, in violation of CEQA, and its adoption an abuse of discretion and power. The tribe says Fish and Game failed to disclose or analyze the program’s impacts on the environment, failed to adopt an environmental baseline for its analysis, which contributed to a flawed EIR, and failed to adopt “feasible mitigation measures, in contravention of CEQA’s requirements that mitigation measures be clearly defined and enforceable.”
The state also failed to consider reasonable alternatives suggested by the public and lawmakers, failed to adequately respond to comments submitted by the public, and never provided its final impact report to the public for review at all, the Karuk say.
Fish and Game failed to disclose conflicts with local, state and federal laws that would be affected by opening waterways to suction dredge mining, including its own code governing wild trout streams and the federal Wild and Scenic Rivers, state and National Parks, and Wilderness Areas laws, according to the complaint. And Fish and Game “failed to properly determine that economic, legal, social, technological or other benefits of the program were overriding considerations that permitted approval despite significant impacts on the environment.”
“As a result of the foregoing defects, respondents prejudicially abused their discretion by certifying an EIR that does not comply with CEQA and by approving the program in reliance thereon. Accordingly, respondents’ certification of the EIR and approval of the program must be set aside,” the complaint states.
Fish and Game’s determination that suction dredge mining will not significantly harm fish is not supported by substantial evidence or law and “has relied upon an improper definition and standard of ‘deleterious’ to make a finding that the suction dredge program will not be deleterious to fish,” the Karuk say.
“The department adopted a suction dredge program in abrogation of its affirmative duty to protect public trust resources, including the fish and wildlife resources,” which is a violation of the Fish and Game code, according to the complaint.
The petitioners seek a writ of mandate setting aside the suction dredge mining program and its certification until the agency has complied with its CEQA obligations, and a restraining order and injunction until all federal, state, local and the Fish and Game Department’s own requirements are met.
The plaintiffs are the Karuk Tribe, the Center for Biological Diversity, the Pacific Coast Federation of Fishermen’s Associations, the Institute for Fisheries Resources, Friends of the River, California Sportfishing Protection Alliance, Foothill Angler’s Coalition, North Fork American River Alliance, Upper American River Foundation, and Central Sierra Environmental Resource Center.
They are represented by Danielle Fugere and Lynne Saxton of the Environmental Law Foundation in Oakland.
Jonathan Evans represents the Center for Biological Diversity, with assistance from Glen Spain, E. Robert Wright and Carissa Andresen.