Legal Mining Law

CHRONOLOGIC OUTLINE OF LITIGATION CONCERNING THE 700PM PERMIT:
As of December 9, 2010

PART I: CONCERNING THE 2005 700PM PERMIT

1. JULY, 2005: The Oregon Dept. of Environmental Quality (DEQ) issues the new "700PM" General Permit for all suction dredge operations in Oregon.

2. AUGUST 2005: A coalition of environmentalist organizations (i.e. Northwest Environmental Defense Center (NEDC), Siskiyou Regional Education Project (SREP), and the Hells Canyon Preservation Society (HCPS) – collectively "NEDC") file challenges to the new 700PM permit in the Oregon Court of Appeals; claiming (among other things) that the new permit was not restrictive enough.

3. FALL 2005: The Eastern Oregon Mining Association (EOMA) files to intervene in the NEDC challenge, and files a challenge of their own against the new 700PM permit in the Oregon Court of Appeals; claiming (among other things) that it was the wrong permit issued under authority that DEQ does not have.

THE ISSUE: DEQ issues the 700PM permit in part under state law, and in part through an agreement with the U.S. Environmental Protection Agency (EPA) under Section 402 of the federal Clean Water Act (CWA), making the DEQ permit a "National Pollutant Discharge Elimination System" (NPDES) permit . . . the very same kind of permit required by municipal sewage treatment plants and other heavy industries that discharge "pollutants" into (i.e.; "add") waters of the United States!

However, under the CWA, the discharges of "dredged material" back into the very same waters that it came from was exempted from Sec. 402 and EPA jurisdiction and is instead under the jurisdiction of the Corps under Sec. 404 of the CWA. Because of this, EOMA argued that DEQ was regulating suction dredges under 402 authority when if such discharges even fall under the CWA they would properly be under 404 and the Corps and not 402 and the EPA; and because of that, DEQ exceeded their authority and the permit should be declared invalid.

4. FALL 2005 – DEC. 23, 2009: What followed was several series of briefs arguing standing & intervention which EOMA won (i.e.; was allowed to intervene and challenge), followed by several layers of briefs arguing the 402 vs 404 issues, followed by oral arguments in the Oregon Court of Appeals on Sept. 5, 2008, which led up to a decision by the OR Court of Appeals Dec. 23, 2009.

EOMA "won" -- in that the court found that the 2005 700PM permit exceeded DEQ's authority and declared the permit invalid. The court agreed with EOMA in that the discharge from suction dredging consisted of "dredged material" (i.e.; rocks, gravel, sand, etc.) which is totally under the jurisdiction of the Corps and Sec. 404 -- and not under the EPA and Sec. 402 . . . which should have been the end of it.

However, the Appeals Court then went on to say that the discharge of "turbid wastewater" (particles that stay in suspension) was under the jurisdiction of the EPA and Sec. 402 of the CWA; in otherwords, the court decision says the discharges from suction dredges requires both a 402 and a 404 permit . . . even when the CWA explicitly states that if you need a 404 permit, then you don't need a 402 . . . (an understanding of the CWA that was upheld by the U.S. Supreme Court as recently as June, 2009 (6 months before the Oregon court reached their decision).

Upon receiving the ruling, EOMA filed a Motion for Reconsideration, which was promptly denied.

5. MARCH 24, 2010: With no other avenue open to them, on March 24, 2010, EOMA filed a Petition for Review in the Oregon Supreme Court, asking the high court to revoke the Appeals Court decision removing the duel permit regime and clarifying that Sec. 402 of the CWA does not apply.

6. SEPT. 17, 2010: The Oregon Supreme Court agrees to hear the EOMA petition.

7. SEPT. 27, 2010: The State (DEQ) files a Motion to Dismiss the EOMA case as moot on the grounds that they (DEQ) are no longer issuing the 2005 700PM permit but are instead, as of July 2010, issuing the new 2010 700PM permit.

8. OCT. 8, 2010: EOMA files a Response to the Motion to Dismiss, and the Declaration of James Buchal, arguing that the issues involved are ongoing and not moot.

9. OCT. 21, 2010: DEQ files a Reply to EOMAs Response, again arguing the issue is moot.

10. NOV. 1, 2010: EOMA gets the last word by filing a Surreply to the Motion to Dismiss.

11. NOV. 10, 2010: The Oregon Supreme Court Dismisses the EOMA Petition on the grounds of mootness.

12. NOV. 24, 2010: EOMA files a last ditch plea as a Petition for Reconsideration . . . and now we wait to hear if the high court will change its decision and hear the case.

13. As of DEC. 9, 2010: No word from the Oregon Supreme Court.

12/23/09: Decision by the OR Court of Appeals

PART II: CONCERNING THE 2010 700PM PERMIT

1. JULY 1, 2010: DEQ issues a new 700PM permit with even more stringent restrictions than the 2005 permit; and issues the new permit in part under the jurisdiction of Sec. 402 of the CWA as a NPDES permit.

Also, instead of issuing the new permit as an "Administrative Rule" (like with all the previous permits), DEQ now issued the new permit as an "Order", bypassing EQC approval and other administrative procedures. By issuing the new permit as an order (instead of as an administrative rule), DEQ forces challenges to the new permit to begin at the Circuit Court level (instead of in the Appeals Court as with challenges to a rule).

Because of the irregularity of issuing these permits as "orders" instead of as "administrative rules" (and other factors), EOMA and the Waldo Mining District (WMD) decide to cover all the bases and file Petitions for Review of the new 2010 700PM permit in the Oregon Circuit Court for Baker County, and in the Oregon Court of Appeals, as outlined below:

2. SEPT. 24, 2010: EOMA files a Petition for Judicial Review in the Circuit Court for the State of Oregon in Baker County; arguing once again that it is the wrong permit, under the wrong jurisdiction, and contains unwarranted prohibitive restrictions, etc..

3. SEPT. 24, 2010: WMD files a Petition for Judicial Review in the Oregon Court of Appeals, arguing once again that it is the wrong permit, under the wrong jurisdiction, and contains unwarranted prohibitive restrictions, etc..

4. SEPT. 28, 2010: NEDC (along with Klamath/Siskiyou Wild and one individual) file a Petition for Review in the Circuit Court for the State of Oregon in Multnomah County, arguing among other things that they will be financially harmed by the existence of suction dredge mining (i.e.; by not managing to stop suction dredge mining, NEDC claims they will loose credibility with future members and donors and thus suffer economic lose).

5. POST SEPT. 28, 2010: At this point, several motions over several issues are filed in the circuit courts by NEDC, EOMA, and DEQ and in the Court of Appeals by WMD and DEQ:
A. IN THE CIRCUIT COURTS OF BAKER, MULTNOMAH, AND MARION COUNTIES:

Right after NEDC filed in Multnomah Co., EMOA filed to intervene. At the same time, DEQ filed a Motion to Change Venue in Baker Co. to get the EOMA case moved to Marion County (as that is much more convenient for DEQ employees and state attorneys). After a lengthy period of briefs, the court decided in favor of the State and the EOMA case will now be heard in Marion Co.. The State is also working to get the NEDC case transferred to Marion Co., and once that is settled, the decision on intervention will be decided. Also yet to be decided are motions from EOMA that 1) NEDC does not have standing and their case should be denied; or at the minimum 2) the court should put a "stay" on the NEDC case until the EOMA case is heard. In the meantime, we wait to hear from the Multnomah Co. Circuit Court on the NEDC issue(s).

B. IN THE OREGON COURT OF APPEALS

Soon after WMD filed their Petition, DEQ argued that WMD applied to the wrong court (as the permit in question was issued as an "order" instead of as an "administrative rule"). WMD has responded that the "order" was really a "rule" and therefore they are in the proper court; or, if found to be in error (and the "order" was in fact an "order"), WMD asks to be transferred to the Circuit Court of Josephine County. To date (12/9), we await the courts decision on "order vs rule" and which court WMD should be in.

6. OCT. 22, 2010: EOMA files the Declaration of Guy Michael in Baker County, further substantiating the EOMA claims to stay in Baker County.

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