Mining Advocates Challenging Approval of State Suction Dredge Permit Program Argue that Federal Law Preempts State Laws and Regulations, Including CEQA

Several petitioners representing both mining and environmental interests have filed separate suits in state superior courts seeking to set aside the California Department of Fish and Wildlife’s approval of the Suction Dredge Permit Program and its certification of the Final Supplemental EIR for the program. On one hand, the Karuk Tribe, fisheries groups, and environmental groups have brought claims under CEQA and the Fish and Game Code, alleging that the suction dredge permit program would result in significant environmental impacts and unacceptable impacts to endangered fish. On the other hand, parties advocating mining rights argue that the suction dredge permit program is too restrictive because the corresponding EIR erroneously exaggerated environmental impacts from suction dredging.  These mining advocates are arguing that various federal mining laws preempt state law and regulations, including CEQA. If these preemption arguments are successful, the existing CEQA claims brought by the Karuk Tribe and environmental groups, as well as any future CEQA challenges to mining regulations, could be moot.

Suction dredging uses motorized pumps and sluice boxes to mine gold from the beds of streams, rivers and lakes. In 2005, the Karuk Tribe brought a CEQA suit challenging the Department of Fish and Game’s previous environmental review of a proposed suction dredge program. This action resulted in a December 2006 Order and Consent Judgment requiring the Department to complete an updated environmental review and rulemaking by June 20, 2008. When the Department failed to meet this deadline, the Karuk Tribe and a coalition of environmental and fisheries activists filed a new action in February 2009. The court in this second suit issued a preliminary injunction in July 2009 prohibiting the Department from spending any state funds for the issuance of suction dredge permits until after CEQA review was completed.

This judicial prohibition of suction dredging was mirrored in several legislative actions. On August 5, 2009, the Governor signed SB 670 into law establishing a temporary ban on suction mining until after the Department had completed its environmental review. After the Department issued a Draft Supplemental EIR and draft regulations for the suction dredge program in February 2011, AB 120 went into effect on July 26, 2011. The law imposed more limitations on suction dredge mining and extended the prohibition on motorized suction dredging until June 30, 2016 or until environmental review and other conditions have been met. This legislation prompted the First District Court of Appeal to lift the July 2009 preliminary injunction. Most recently on July 27, 2012, the legislature again prohibited suction dredge mining with SB 1018, which eliminated the June 30, 2016 sunset provision in AB 120.

The Department issued revised suction dredge mining regulations on February 17, 2012, and a Final Supplemental EIR for the Suction Dredge Permit Program on March 7, 2012.  The Department adopted updated suction dredge regulations on March 16, 2012. Finally, on March 20, 2012 the Department adopted its Final Statement of Reasons and CEQA Findings of Fact.

The six different cases that were subsequently filed in three different counties are now one coordinated proceeding before the San Bernardino Superior Court. (Suction Dredge Mining Cases, Case No. JCPDS4720.) The list of plaintiffs includes the Karuk Tribe, The New 49’ers, Public Lands for the People, Western Mining Alliance, the Center for Biological Diversity, and numerous other advocates of both environmental and mining interests.

The 49’ers, et al., and Public Lands for the People, et al., filed amended complaints and petitions for writ of mandate on March 14, 2013. Among other causes of action involving inverse condemnation, CEQA, the Administrative Procedure Act, and the Endangered Species Act, the plaintiff mining groups are alleging that federal law creating property rights in mining claims preempt any conflicting state laws or regulations. The pertinent federal laws they list include: The Mining Acts of 1866, the Federal Mining Law of 1872, the Mining and Minerals Policy Act of 1970, the Federal Land Policy and Management Act of 1976, and the Multiple Surface Use Act. These plaintiffs argue that the new state suction dredge regulations interfere with the operation of the scheme of federal mining laws because federal laws give miners an absolute right to enter and use federal public lands for the purpose of mining. As a derivative argument, they also assert that federal laws would preempt CEQA to the extent that CEQA stands as an obstacle to the plaintiffs securing suction dredge permits.

The Suction Dredge Mining Cases are currently pending before the Honorable Gilbert G. Ochoa of the San Bernardino Superior Court.

(Written by Elizabeth Sarine)