Suction Dredging Causes Alarm in California

"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.

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