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A Test Case to Expose the Tyranny of the Administrative State

- AMERICAN THINKER - Janet Levy - APRIL 26, 2023 -

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.

A gold suction dredge (Photo credit: US Forest Service CC BY 2.0 license)

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.


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.


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LEIA MAIS >

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