A Test Case to Expose the Tyranny of the Administrative State
Let us suppose you draw water and sediment in small quantities from a stream bed. After removing some solid material, you let the remainder flow back into the stream without adding anything. Are you polluting the stream? Common sense dictates one answer. But an overzealous Idaho green group and a federal court do not see it that way.
So Shannon Poe, a suction dredge miner, ended up paying a $150,000 fine after a citizen suit was brought against him in 2018 by the Idaho Conservation League (ICL). Technically, the fine, imposed by Chief U.S. Magistrate Judge Raymond E. Patricco in September 2022, was for not obtaining permits for suction mining (NPDES permit IDG370000). Which means the activity isn’t banned outright as polluting. But before that, Chief U.S. Magistrate Judge Ronald E. Bush (see page 11 of his judgement) had determined that “the very nature of Mr. Poe’s suction dredge mining added pollutants to the South Fork Clearwater River.”
In March this year, Poe appealed the ruling in the U.S. Court of Appeals for the Ninth Circuit. He is being defended by the pro bono law firm Pacific Legal Foundation (PLF). The foundation says that in fining Poe, the U.S. District Court in Idaho relied on a 1990 judgement of the Ninth Circuit court that went by the Environment Protection Agency’s (EPA) dubious interpretation of the Clean Water Act (CWA). The PLF maintains this is indefensible, and points out that the 33-year-old ruling has essentially been overruled by the Supreme Court on at least two occasions.
The crux of the issue is whether arbitrary interpretation of the law by an independent executive agency like the EPA, run by bureaucrats and experts and insulated from elected authority, holds weight. More broadly, whether it must be allowed. Unelected bureaucrats constituting the ‘administrative state’ have imposed thousands of regulations on many aspects of our lives. This subverts the principle of government of, by, and for the people. Too often, the liberty of citizens like Poe is curtailed; they find themselves fighting the weight of the federal government and facing fines and imprisonment.
Poe, who serves on the Mariposa (CA) County Board of Supervisors, has been suction dredge mining since 2007. In the pioneering American tradition of the Forty-niners, he and thousands of small-scale dredge miners make a living from gold isolated from sediment. They use high-pressure gasoline-powered pumps, about the size of a lawnmower, to pass water and gravel into a sluice, which retains the gold and expels everything else.
A gold suction dredge (Photo credit: US Forest Service CC BY 2.0 license)
In the process, heavy elements, including lead and mercury, get trapped. So the process actually cleans streams. If a fish is sucked up, it passes through the sluice and returns to the water unharmed. Poe demonstrates the occurrence in a video using a variety of fruit that exit the sluice intact and unbruised.
He cites a biologist’s conclusions that fish thrive in dredged environments, and that the activity in fact creates fish habitats, making it easier for them to find or make holes to hide from predators. Two former EPA scientists, Joseph C. Greene and Claudia Wise, have frequently given expert opinion that suction dredge mining does not harm fish. Two of their in-depth reports are on pages 31-47 of Appendix K to the Suction Dredging Scoping Report, submitted to the California governor, and available here.
Indeed, the first time Poe faced opposition (in 2009) was over harming fish in the Merced River in California. Then-governor Arnold Schwarzenegger had banned suction dredge mining, claiming that it killed salmon, though a dam prevents salmon from entering the Merced. Realizing that many battles lay ahead, Poe founded the American Mining Rights Association in 2012 to promote and preserve rights to access and mine on public lands. It has more than 10,000 dues-paying members, according to a submission to the Supreme Court (page 8). Meanwhile, green groups, more passionate than informed, have been able to restrict suction dredge mining in several western states.
Poe’s position that suction dredge mining does not pollute waterways is supported by the Supreme Court decisions in Los Angeles County Flood Control District v. Natural Resources Defense Council (NRDC) Inc (2013) and South Florida Water Management District v. Miccosukee Tribe (2004). In the former, environmental group NRDC had alleged that Los Angeles County, by transporting stormwater through rivers and channels flowing to the Pacific Ocean as part of its flood-control function, was discharging pollutants and could not do so without a National Pollutant Discharge Elimination System (NPDES) permit. The high court ruled that there was no “discharge of pollutant” and so no permit was required.
In its defense, Los Angeles County had cited the latter judgement of the court. The Miccosukee tribe had contended that by pumping water from a canal into a reservoir, South Florida was causing pollution and hence breaking the law by operating without an NPDES permit. The court had ruled that when water – even if it is polluted to begin with – is transferred within a single water body, there is no addition of pollutant. So the permit is not required. Suction dredge mining can be viewed as an extremely scaled down instance of such transfer.
That is for the Ninth Circuit Court to decide. The larger issue remains, however, of the growing power of the administrative state, deeply influenced by activist groups and so-called experts in all fields who have arrogated power from the people’s representatives in Congress to legislate. The last thing on their minds is accountability. Suspect science is imposed arbitrarily as binding decisions, and debate is discouraged or overridden.
The U.S. Fish & Wildlife Service, for example, diverted water from farmers to protect an allegedly endangered fish without the consent of the people or any independent oversight and verification from the scientific community. Another example is the LaPant v. Corp of Army Engineers case, in which a farmer received a cease-and-desist letter to suspend operations for illegally filling wetlands on a wheat field. All Jack LaPant had done was move dirt in the normal course of farming; he ended up paying fines and legal fees. In Sackett v. EPA, property owners have been unable to build a home on their land as it was declared a protected wetland with regulated “navigable water” though there is no connection to any waterway.
The epitome of such arbitrary mandates was when former President Obama ran into Congressional resistance to drastically change the nation’s power grid with a cap-and-trade bill, ostensibly to combat climate change. He proceeded to act on his own through an executive order and working with the EPA. His imperious statement on resistance had been, “I’ve got a pen and I’ve got a phone and I can use that pen to sign executive orders, and take executive actions and administrative actions that move the ball forward.” Fortunately, he was thwarted by the Supreme Court.
Poe and all conservatives who believe that action originating in environmental alarmism must not affect people’s livelihoods await the Ninth Circuit Court’s decision. His challenge to the EPA’s interpretation of law is a challenge to the administrative state. It is heartening that many individuals and groups are fighting to end its hold on Americans’ lives.