Court decision could help miners

By JAYSON JACOBY

Baker City Herald

An Eastern Oregon mining group is the winner, at least for now, in the dispute over a state law that requires miners to get a permit from a state agency before they use suction dredges to suck gold from streambeds.

But precisely what the Eastern Oregon Mining Association (EOMA) has won — or indeed whether this even qualifies as a victory — is not clear.

The Oregon Court of Appeals concluded, in a ruling announced Wednesday, that the state lacks the legal authority to issue what are known as “700-PM” permits to miners who use suction dredges.

EOMA officials have argued for several years that the state exceeded its jurisdiction by requiring those permits under the auspices of the federal Clean Water Act.

The three-judge panel of Walter Edmonds, Robert Wollheim and Timothy J. Sercombe concluded that the state, by issuing 700-PM permits, has in effect stepped on the statutory toes of the U.S. Army Corps of Engineers.

Specifically, the state permits, which are administered by the Department of Environmental Quality, deal with “dredged material.”

The Appeals Court judges, citing federal law and past legal rulings, concluded that the Corps of Engineers has the sole authority to regulate dredged material as a means of enforcing the Clean Water Act.

A second purpose of the 700-PM permits — to limit how much dirt suction dredges stir up — is within the state’s bailiwick, the judges wrote in the 18-page opinion.

But because the permits do not “grapple with those distinctions,” they are “invalid,” according to the judges.

The opinion has no immediate effect because suction dredging isn’t allowed until July 1 at the soonest, said Jan Alexander, an EOMA member from the Unity area.

Dredging is prohibited during most of the year to protect fish eggs, said Alexander, who does not herself use a suction dredge.

Quite a few other miners do use the devices in Northeastern Oregon, she said — although suction dredges are much more popular in the southwestern corner of the state.

Although Alexander said the Appeals Court opinion is gratifying in that it validates the EOMA’s contention that the state was overly aggressive in regulating suction dredging, the ultimate effect of the ruling could make matters more complicated for miners rather than less.

Alexander thinks it’s possible that miners who use dredges might end up needing to secure two permits from the Corps of Engineers, rather than a single state permit.

“Two permits would just be ridiculous,” she said.

Chuck Chase of Baker City, the EOMA’s executive director, agrees.

“(The judges) left a great big gray area,” Chase said. “We’ll probably be discussing this at our next meeting, but we might have to go back to court to try to get a clear decision.”

Chase said he would not object to having the Corps of Engineers issue permits that impose the same limits on suction dredging that are in place now.

Miners worry more about the DEQ, he said, because the state a few years ago proposed much more stringent rules that even the smallest suction dredges could never comply with.

The case before the Appeals Court is unusual in that both the mining association and a trio of environmental groups — among them the Hells Canyon Preservation Council of La Grande — agreed that the 700-PM permits are invalid.

Their reasons, however, are vastly different.

The miners, as mentioned, contend that the state went too far in requiring miners to obtain and comply with the terms of the permits.

But the environmental groups argued that the state didn’t go far enough.

They believe the permits are invalid because they don’t meet the standards of either the federal Clean Water Act or of Oregon’s pollution control laws.

The groups also alleged that the permit rules that the state adopted were so different from the original proposed rules that it was impossible for the groups to submit meaningful comments before the rules took effect.