United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER RE: DEFENDANT SHANNON
POE'S MOTION TO DISMISS PLAINTIFF IDAHO CONSERVATION
LEAGUE'S COMPLAINT (DKT. 17)
E. BUSH CHIEF U.S. MAGISTRATE JUDGE
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:
The South Fork Clearwater River
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.
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.
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
Suction Dredging and NPDES Permit Requirements Under the
Clean Water Act
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.
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
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).
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. 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.
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.
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.
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).
State of Idaho Permitting Requirements for Suction
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).
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
ICL, Mr. Poe, and the South Fork Clearwater River
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).
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.
Poe's 2014 Suction Dredge Activity and EPA's Notice
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.
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.
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.
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).
Poe's Suction Dredges in 2015
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.
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)).
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