Judge tosses miners' attempt to block dredging moratorium

A federal judge today upheld Oregon's five-year moratorium on suction-dredge mining in wild salmon habitat when he tossed out a suit filed by miners who argued federal laws trump state environmental rules.

U.S. District Magistrate Judge Mark Clarke ruled that the Oregon Legislature legally banned suction dredging throughout most of the Rogue Basin and elsewhere in Western Oregon until 2021 over concerns about dredging turbidity and the impacts on salmon habitat.

The Galice Mining District and others who filed the suit in October had hoped language in the Mining Act of 1872 that precludes mining bans would squelch the state's moratorium. But Clarke ruled that the moratorium is not an outright ban and that dry-land mining can occur outside of the wild salmon streams under the moratorium.

Clarke also ruled that the Mining Act must be viewed "in the context of the extensive federal and state regulations governing mining that have been enacted since 1872."

Pete Frost, staff lawyer for the Eugene-based Western Environmental Law Center, said the ruling shows that the miners were "too narrowly focused on what they were portraying as their right" to mine based on the 1872 law and ignoring other federal laws that protect natural resources.

Clarke's opinion cited the federal Clean Water Act as specifically giving states authority to regulate water pollution.

"Judge Clarke's opinion is correct in looking broadly at federal laws and not focusing exclusively on those the miners picked," Frost said.

Rick Barclay, president of the Galice Mining District, did not immediately return telephone calls seeking comment.

Suction-dredge mining employs a floating vacuum to suck gravel from a stream bottom. Materials vacuumed by the dredge then go through a sluice to allow miners to strain out gold and other heavy metals, while sand, silt and other fine materials are discharged into the water.

Wild-salmon advocates say the process damages spawning grounds and rearing habitat. Miners have argued that current laws already protect salmon and their habitat, and they have argued that no peer-reviewed study on suction dredging proves it ruins salmon habitat.

In 2013, the Legislature passed Senate Bill 838, which detailed new dredging restrictions, capped the number of dredging permits offered annually in Oregon, and limited some of the times, locations and manner for how dredgers operate. It was designed to sunset at the end of 2015 to give the Legislature time to grapple with permanent rules, which never materialized.

That same bill included the five-year moratorium to begin Jan. 2 if no permanent solution was reached in the 2015 Legislature.

It bans suction dredging within wild salmon and steelhead spawning habitat in creeks and rivers deemed "essential salmon habitat." That effectively bans suction dredges in the Illinois River, the Rogue River and its tributaries below Lost Creek Lake and the Applegate River and its tributaries below Applegate Lake.

The exceptions in the Rogue Basin downstream of Lost Creek Lake would be small headwater streams where state fish biologists have not documented wild salmon or steelhead spawning or rearing, and they also represent areas not normally mined with suction dredges.

State Sen. Alan Bates, who wrote SB 838, said he expects the Legislature next year to take up permanent dredging rules to go into effect once the moratorium lapses.

Russ Stauff, Oregon Department of Fish and Wildlife Rogue Watershed manager, said his agency was looking forward to supporting the Legislature's upcoming efforts to write permanent rules. 

Reach Mail Tribune reporter Mark Freeman at 541-776-4470 or mfreeman@mailtribune.com. Follow him on Twitter at www.twitter.com/MTwriterFreeman.

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