Idaho Conservation League v. Poe

          MEMORANDUM DECISION AND ORDER RE: DEFENDANT SHANNON POE'S MOTION TO DISMISS PLAINTIFF IDAHO CONSERVATION LEAGUE'S COMPLAINT (DKT. 17)

          RONALD E. BUSH CHIEF U.S. MAGISTRATE JUDGE

         Pending before the Court is Defendant Shannon Poe's Motion to Dismiss Plaintiff Idaho Conservation League's (“ICL”) Complaint (Dkt. 17). Having carefully considered the record, participated in oral argument, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:

         I. RELEVANT BACKGROUND

         A. The South Fork Clearwater River

         1. The South Fork Clearwater River is a navigable water located in north-central Idaho, which the State of Idaho has designated as a State Recreational River. See Compl., ¶ 40 (Dkt. 1). The South Fork Clearwater River is also eligible for designation under the federal Wild and Scenic Rivers Act due to its remarkable values. See id.

         2. The South Fork Clearwater River is a habitat for many native fish species, including those listed as “threatened” under the Endangered Species Act (Snake River steelhead trout, Snake River fall Chinook salmon, and Columbia Basin bull trout). See id. at ¶ 42. The Nez Perce Tribe also rely on the South Fork Clearwater River in their efforts to reintroduce native coho salmon and Pacific lamprey. See id. at ¶ 43. In 2010 the United States Fish and Wildlife Service (“USFWS”) designated the South Fork Clearwater River as a critical habitat for bull trout. See id. at ¶ 42.

         3. The South Fork Clearwater River is designated by the State of Idaho as an “impaired” water body along its entire length due to excessive sediment and temperature pollution. See id. at ¶ 44. Bank stabilization, channel stabilization, bank re-vegetation, and sediment traps have been implemented on the South Fork Clearwater River in an effort to control sediment pollutants. See id. at ¶ 45.

         B. Suction Dredging and NPDES Permit Requirements Under the Clean Water Act

         4. Suction dredge mining involves using a floating watercraft device with a pump to suck water, riverbed sands, and minerals through a nozzle in an effort to sort gold. See Opp. to MTD, p. 3 (Dkt. 20). The water, sand, and minerals are then discharged back into the river, along with sediments and potential pollutants. See id.

         5. Under the Clean Water Act (“CWA”), a National Pollutant Discharge Elimination System (“NPDES”) permit is required to operate a suction dredge due to potential sediment pollution arising from the activity. See id. NPDES permits are issued by the Environmental Protection Agency (“EPA”) on a yearly basis to dredgers that meet and follow certain conditions to prevent harm to aquatic environments. See id.

         6. The CWA prohibits the “discharge of any pollutant by any person” to waters of the United States, unless authorized by an NPDES permit. See 33 U.S.C. §§ 1311(a), 1342(a); see also Compl., ¶ 18 (Dkt. 1). The CWA defines “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12); see also Compl., ¶ 19 (Dkt. 1).

         7. To facilitate NPDES permitting for pollution discharges from suction dredges in Idaho, the EPA issued the “NPDES General Permit” in 2013 and reissued it in 2018. See id. at ¶ 24. Suction Dredge General Permits are available to miners discharging pollutants from small suction dredges (dredges with intake nozzles less than or equal to five inches in diameter and a cumulative rating of 15 horsepower or less) to some but not all Idaho rivers.^[1] See id. at ¶ 25. Suction Dredge General Permits place conditions on the discharge of rock and sand from each mining operation and require monitoring and reporting to protect water quality and aquatic resources. See id.

         a. Suction Dredge General Permits include effluent limits which (1) prohibit any visible increase in turbidity (any cloudiness or muddiness) above background levels beyond 500 feet downstream while a dredge operates, and (2) require modification, curtailment, or cessation of dredging to stop any such violation. See Opp. to MTD, p. 4 (Dkt. 20). On the South Fork Clearwater River, dredgers must also (1) limit processing to an average of two cubic yards per hour over an eight-hour day, and (2) meet additional specific turbidity limits, depending on background turbidity levels. See id.

         b. Suction Dredge General Permits also include 12 best management practices, addressing silt and clay areas, encountering mercury, operating 800 feet apart, fish passage, spawning fish and spawning habitat, alterations to the active stream channel, erosion and undercutting, dams and diversions, moving natural obstructions, other mechanized equipment in water, refueling and hazardous material storage, invasive species, and screen mesh opening for intake nozzles. See id. Permittees must display their Miner Number on their dredge and vehicle and monitor and report turbidity daily. See id.

         8. To obtain authorization to discharge pollutants from a suction dredge for an operation that is not eligible for the Suction Dredge General Permit, a miner must apply for and receive an individual NPDES permit from the EPA. See Compl., ¶ 27 (Dkt. 1). Individual NPDES permits must include conditions that will ensure compliance with the CWA. See id. At a minimum, NPDES permits must include technology-based pollution limitations, any more stringent limitations necessary to meet water quality standards in the receiving water, and pollution discharge monitoring and reporting requirements. See id. (citing 33 U.S.C. §§ 1311, 1318, 1342).

         C. State of Idaho Permitting Requirements for Suction Dredging

         9. In addition to obtaining an NPDES permit, dredgers in the State of Idaho must also obtain a permit from the Idaho Department of Water Resources (“IDWR”) under the Stream Channel Protection Program, and may be required to obtain approval from the Idaho Department of Lands when dredging in state-designated navigable streams. See Compl., ¶ 35 (Dkt. 1) (citing I.C. § 42-3801, et seq.). The IDWR's mining instructions notify dredgers of the need to obtain an NPDES permit through the EPA. See id. at ¶ 37 (citing Stream Channel Alteration by Recreational Mining Activities: IDWR Instructions for 2018, IDWR (Rev. Jun. 22, 2018), p. 1).

         10. The IDWR approved the South Fork Clearwater River Plan - Comprehensive State Water Plan in 2004, designating the South Fork Clearwater River as a State Recreational River under Idaho Code § 42-1735A. See id. at ¶ 38. The plan limits/prohibits certain activities (including recreational dredge mining) to preserve water quality and/or wildlife habitat, and requires that dredge sites be inspected by the IDWR with a fisheries biologist. See id. at ¶ 38.

         D. ICL, Mr. Poe, and the South Fork Clearwater River

         11. Since 2005, ICL has devoted time and resources every year to protect and restore water quality and fisheries throughout the rivers and streams of Idaho, including the South Fork Clearwater River watershed. See ICL's Opp. to MTD p. 5 (Dkt. 20); See also Oppenheimer Decl., ¶¶ 19-47 (Dkt. 20-16).

         12. Defendant Shannon Poe is a miner and the Chief Executive Officer and/or President of the American Mining Rights Association (“AMRA”). See Compl., ¶ 56 (Dkt. 1). AMRA's website lists four AMRA mining claims in north Idaho totaling 80 acres, including the South Fork Clearwater River. See id.

         Mr. Poe's 2014 Suction Dredge Activity and EPA's Notice of Violation

         13. In 2014, Mr. Poe applied for and received approval from IDWR to suction dredge mine in Idaho for the 2014 season. See id. at ¶ 54. However, he did not apply for or receive an NPDES permit authorizing him under the CWA to suction dredge mine in Idaho in 2014. See id.

         14. From July 14, 2014 to August 15, 2014 (the 2014 dredge season), Mr. Poe operated a suction dredge and discharged sediment and/or other pollutants into the South Fork Clearwater River on more than one day. See id. at ¶ 55. Mr. Poe admitted to dredging on Idaho rivers in 2014, including 13 days on the South Fork Clearwater River in online posts. See Id. at ¶ 57. On August 16, 2014, Mr. Poe wrote an online post, recognizing the necessity of obtaining an NPDES permit and his defiance to do so. See Id. at ¶ 59.

         15. Following the 2014 dredging season, on or around October 17, 2014, Mr. Poe received a notice from the EPA, notifying him that he was in violation of the CWA by operating a suction dredge and discharging pollutants into the South Fork Clearwater River without an NPDES permit. See Mem. ISO MTD, p. 7 (Dkt. 17-1) (citing Ex. 1, Att. A to Poe Decl. (Dkt. 17-2)). The EPA requested information from Mr. Poe for each day that a dredge was operated on the South Fork Clearwater River in July and August of 2014. See id.

         16. On November 13, 2014, Mr. Poe's attorney responded to the EPA, citing case law holding that dredge operations did not result in a discharge of pollutants and, therefore, Mr. Poe's operations did not require an NPDES permit under the CWA. See Mem. ISO MTD, pp. 7-8 (Dkt. 17-1) (citing Ex. 1, Att. B to Poe Decl. (Dkt. 17-2)). The EPA never responded and did not pursue enforcement in 2014 or later. See Poe Decl., ¶ 7 (Dkt. 17-2).

         Mr. Poe's Suction Dredges in 2015

         17. In 2015, Mr. Poe obtained approval from the IDWR to suction dredge mine in Idaho during the 2015 season. See ICL's Compl., ¶ 60 (Dkt. 1). Mr. Poe operated a suction dredge on the South Fork Clearwater River in 2015 on one or more days without applying for or receiving an NPDES permit for that year. See Id. at ¶ 61.

         18. In July 2015, the Forest Service performed site inspections on the South Fork Clearwater River. See Ex. G to Oppenheimer Decl. (Dkt. 20-23). The Forest Service prepared and attempted to deliver notices of noncompliance to Mr. Poe while he was dredging on the South Fork Clearwater River. See Opp. to MTD p. 6 (Dkt. 20) (citing Ex. G to Oppenheimer Decl. (Dkt. 20-23)).

         19. In August 2015, Mr. Poe admitted dredging on the South Fork Clearwater River in an online post. See Compl., ¶ 62 (Dkt. 1). In August and September 2015, Mr. Poe made several online posts discussing standing up to the EPA ...