Ninth Circuit panel is skeptical of suction dredge miner’s defense in $150,000 enforcement action.

Suction dredge mining photograph from brief of Idaho Conservation League.

During oral argument in the appeal of a lawsuit (Idaho Conservation League v. Poe) brought to enforce the Clean Water Act permitting requirements against an Idaho suction dredge miner, the three-judge panel of the Ninth Circuit Court of Appeals expressed strong skepticism toward the miner’s principal defense. 

The miner argued that its suction dredge mining operation does not involve a “discharge” requiring a Clean Water Act NPDES permit because the process does not result in “any addition of any pollutant” to the Clearwater River.  The miner reasoned that gravel, sediments, and other materials disturbed by the mining operation are already in the stream; therefore, nothing has been “added”.  The defect in this argument is that the Ninth Circuit addressed this issue in prior cases, in particular Rybacheck v. EPA, and upheld EPA’s interpretation that the “addition” of pollutants includes the “resuspension” of sand and dirt discharged in wastewater from a placer mining sluice box, “even if the material discharged originally comes from the streambed itself.”  The three judges all questioned why they should overrule their earlier decisions.