Suction dredge miners lost another round in federal court this week when a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that federal mining law does not prevent the state of Oregon from protecting rivers and streams from activity that threatens wild salmon. The miners should cut their losses and pursue their hobby where it is still permitted: in streams that are not identified as essential salmon habitat, or in salmon streams but not using motorized dredging equipment.
The battle over suction dredging — which uses gasoline engines to vacuum up gravel from riverbeds and extract gold and other heavy metals before returning the silt to the river — has been going on for years. Oregon lawmakers in 2016 enacted a moratorium on the practice after California and Idaho imposed restrictions, sending dredgers flooding into Oregon.
Miners challenged the five-year moratorium in court, arguing that the federal Mining Act of 1872 gave them the right to search for gold without state interference. They framed their argument in terms of what they call the “War on the West” — restrictions on traditional resource extraction from public land enacted to protect the environment. A U.S. magistrate judge tossed out that lawsuit, ruling that the federal Clean Water Act gave states authority over water pollution, and that the dredging moratorium didn’t preclude all mining because dry-land gold mining could still take place outside salmon streams.
Last year, the Oregon Legislature adopted and Gov. Kate Brown signed Senate Bill 3, ending the temporary moratorium and imposing a permanent ban. On Monday, the 9th Circuit panel affirmed that the state has the power to restrict suction dredging on salmon streams, noting that the state ban applies only to some streams — most of Eastern Oregon is still open to suction dredging — and to only one form of mining, so the “right to mine” is not infringed.
It was not immediately clear whether the miners will appeal the ruling to the full 9th Circuit or to the Supreme Court. They should heed the well-reasoned ruling and hunt for gold where they are still permitted to.