Petition for Writ of Certiorari — Shannon Poe, Petitioner v. Idaho Conservation League

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Appendix

Table of Contents

Opinion, U.S. Court of Appeals for the Ninth

Circuit, filed November 20, 2023 ........................ 1a

Memorandum Decision and Order Re:

Plaintiff Idaho Conservation League’s

Motion for Remedies, U.S. District Court,

District of Idaho, filed September 28, 2022 ...... 21a

Memorandum Decision and Order Re:

Idaho Conservation League’s Motion for

Summary Judgment on Liability and

Shannon Poe’s Motion for Summary

Judgment, U.S. District Court,

District of Idaho, filed June 4, 2021 ................. 61a

Order (denying petition for rehearing en banc),

U.S. Court of Appeals for the Ninth

Circuit, filed January 11, 2024 ......................... 97a

1a

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IDAHO CONSERVATION

LEAGUE,

Plaintiff-Appellee,

No. 22-35978

D.C. No. 1:18-cv00353-REP

v.

SHANNON POE,

OPINION

Defendant-Appellant.

Appeal from the United States District Court

for the District of Idaho

Raymond Edward Patricco, Jr.,

Magistrate Judge, Presiding

Argued and Submitted October 5, 2023

Seattle, Washington

Filed November 20, 2023

Before: KIM McLANE WARDLAW and MILAN D.

SMITH, JR., Circuit Judges, and ROBERT L.

HINKLE,* District Judge.

Opinion by Judge Milan D. Smith, Jr.

_________________________________________________

* The Honorable Robert L. Hinkle, United States District Judge

for the Northern District of Florida, sitting by designation.

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SUMMARY**

_________________________________________________

Environmental Law

The panel affirmed the district court’s grant of

summary judgment in favor of the Idaho Conservation

League in the League’s action under the Clean Water

Act against Shannon Poe, who engaged in instream

suction dredge mining, a method of placer mining, in

Idaho’s South Fork Clearwater River without a

National Pollutant Discharge Eliminating System

permit.

The panel held that to establish a violation of the

Clean Water Act’s NPDES requirements, also referred

to as Section 402 permitting, a plaintiff must prove

that the defendant (1) discharged, i.e., added (2) a

pollutant (3) to navigable waters (4) from (5) a point

source. As to the first element, the panel held that

Poe’s suction dredge mining “added” a pollutant to the

South Fork. The panel followed Rybachek v. EPA, 904

F.2d 1276 (9th Cir. 1990), which upheld

Environmental Protection Agency regulations

interpreting the Clean Water Act as prohibiting

discharges from placer mining sluice boxes unless

done in compliance with a Section 402 permit. In two

subsequent cases, S. Fla Water Mgmt. Dist. v.

Miccosukee Tribe of Indians, 541 U.S. 95 (2004), and

L.A. Cnty. Flood Control Dist. V. Nat. Res. Def.

Council, Inc., 568 U.S. 78 (2013), the Supreme Court

held that the transfer of polluted water from one

location to another within the same waterbody did not

** This summary constitutes no part of the opinion of the court.

It has been prepared by court staff for the convenience of the

reader.

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constitute an “addition” of pollutants. Here, by

contrast, Poe excavated from the riverbed materials

that were not already suspended in the water. The

panel concluded that Rybachek was not “clearly

irreconcilable” with L.A. County or Miccosukee Tribe’s

holdings, and it therefore was still good law.

The panel further held that the processed material

discharged from Poe’s suction dredge mining was a

pollutant, not dredged or fill material, and therefore

required an NPDES permit under Section 402 of the

Clean Water Act, rather than a permit from the Army

Corps of Engineers under Section 404. Because the

meaning of the Act and its implementing regulations

was ambiguous, the panel deferred to the official joint

conclusion of the EPA and the Corps.

_________________________________________________

COUNSEL

Frank D. Garrison IV (argued), Pacific Legal

Foundation, Arlington, Virginia; Damien M. Schiff,

Pacific Legal Foundation, Sacramento, California;

Danielle Bettencourt, Fairfield and Woods PC,

Denver, Colorado; for Defendant-Appellant.

Bryan Hurlbutt (argued) and Laurence J. Lucas,

Advocates for the West, Boise, Idaho, for PlaintiffAppellee.

_________________________________________________

OPINION

M. SMITH, Circuit Judge:

This appeal raises questions of statutory

interpretation concerning the Clean Water Act

(CWA), 33 U.S.C. § 1311(a). For several years,

Shannon Poe engaged in instream suction dredge

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mining in Idaho’s South Fork Clearwater River (the

South Fork) without a National Pollutant Discharge

Eliminating System (NPDES) permit. Plaintiff Idaho

Conservation League (ICL) sued Poe, arguing that he

violated the CWA each time he operated a suction

dredge on the South Fork without an NPDES permit.

Poe countered that (1) his suction dredge mining did

not add pollutants to the South Fork and therefore did

not require an NPDES permit, and (2) even if his

suction dredge mining did add pollutants, those

pollutants are “dredged” or “fill” material regulated

exclusively pursuant to Section 404, not Section 402,

of the CWA. The district court granted summary

judgment to ICL. Poe appeals the judgment as to

liability. We affirm.

STATUTORY AND

REGULATORY BACKGROUND

Congress enacted the CWA “to restore and

maintain the chemical, physical, and biological

integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).

The CWA “categorically prohibits any discharge of a

pollutant from a point source without a permit.”

Comm. to Save Mokelumne River v. E. Bay Mun. Util.

Dist., 13 F.3d 305, 309 (9th Cir. 1993). “[D]ischarge of

a pollutant” is defined as the “addition of any

pollutant to navigable waters from any point source

. . . .” 33 U.S.C. § 1362(12). The CWA defines

“pollutant” broadly to include “dredged spoil,” “solid

waste,” “rock,” “sand,” and “industrial . . . waste

discharged into water.” 33 U.S.C. § 1362(6). A point

source is “any discernible, confined and discrete

conveyance . . . .” 33 U.S.C. § 1362(14). Navigable

waters are defined as “the waters of the United States

. . . .” 33 U.S.C. § 1362(7). The CWA does not define

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what constitutes the “addition” of a pollutant. See 33

U.S.C. § 1362.

Before discharging any pollutant, one must obtain

a permit from either the Environmental Protection

Agency (the EPA) or the Army Corps of Engineers (the

Corps). See 33 U.S.C. §§ 1311(a), 1342, 1344. The

NPDES permitting program (also referred to as

Section 402 permitting) authorizes the EPA to issue

permits “for the discharge of any pollutant, or

combination of pollutants,” on the condition that the

discharge will otherwise comply with the CWA. 33

U.S.C. § 1342(a)(1). Section 404 of the CWA

authorizes the Corps to issue permits “for the

discharge of dredged or fill material . . . .” 33 U.S.C.

§ 1344(a). When a discharge requires a Section 404

permit, it does not require a Section 402 permit. See

33 U.S.C. § 1342(a)(1); 40 C.F.R. § 122.3(b). The CWA

does not define “discharge of dredged material” or

“dredged material.” See 33 U.S.C. §§ 1342, 1362.

FACTUAL AND PROCEDURAL BACKGROUND

Suction dredge mining is a method of placer

mining that uses a floating watercraft device with a

pump to suck water, riverbed sands, and minerals

through a nozzle. The water and riverbed material are

run through a “sluice box,” where gold and other

heavy metals are separated out. Water, sand, and

minerals are then discharged back into the river,

along with sediments and other pollutants. Dredging

creates tailing piles behind the dredge, where larger

and heavier processed riverbed materials are

discarded and settle to the river bottom nearby.

Tailing piles can rise to the surface level of the river

and can span most of the river’s width.

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Dredging overburden and bedrock involves

dismantling the riverbed by dislodging and moving

rocks and boulders, and breaking up tightly bound

sediments using the miner’s hands, the dredge nozzle,

and other tools, like crowbars. The resulting holes can

be several feet deep under the riverbed.

During the 2014, 2015, and 2018 dredge seasons,

Poe suction dredge mined forty-two days on the South

Fork, a navigable water located in north-central

Idaho. Poe never obtained an NPDES permit

pursuant to Section 402 of the CWA.

On August 10, 2018, ICL sued Poe, alleging that

Poe was violating the CWA by failing to obtain an

NPDES permit while dredging and discharging

sediment and other pollutants in the South Fork. On

December 21, 2018, Poe filed a motion to dismiss

arguing that (1) the district court lacked subject

matter jurisdiction because, in part, ICL’s 2017 and

2018 notice letters were not sent via certified mail as

required by the CWA and its implementing

regulations; and (2) ICL lacked standing to the bring

the suit in the first instance. The district court denied

the motion.

ICL then moved for summary judgment on

liability. Poe cross-moved for summary judgment. On

June 4, 2021, the district court granted summary

judgment to ICL, concluding that (1) Poe’s suction

dredge mining added pollutants to the South Fork,

thereby requiring an NPDES permit under Section

402 of the CWA; and (2) the processed material

discharged from Poe’s suction dredge mining was a

pollutant, not dredged or fill material, requiring an

NPDES permit under Section 402 of the CWA rather

than a permit under Section 404. The court thereafter

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enjoined Poe from suction dredge mining in the South

Fork without a valid CWA Section 402 permit and

imposed a $150,000 civil penalty. Poe appeals the

judgment as to liability.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review de novo a district court’s decision to grant

summary judgment. Lopez v. Smith, 203 F.3d 1122,

1131 (9th Cir. 2000) (en banc). We “must determine

whether, viewing the evidence in the light most

favorable to the nonmoving party, there are any

genuine issues of material fact and whether the

district court correctly applied the relevant

substantive law.” Id. Summary judgment is

appropriate where “there is no genuine dispute as to

any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

ANALYSIS

I. Dumping Suction Dredge Mining Waste into

the South Fork Is an “Addition” of Pollutants

Pursuant to the CWA.

To establish a violation of the CWA’s NPDES

requirements, “a plaintiff must prove that defendant[]

(1) discharged, i.e., added (2) a pollutant (3) to

navigable waters (4) from (5) a point source.” Comm.

to Save Mokelumne River, 13 F.3d at 308. The parties

dispute the first element—whether Poe’s suction

dredge mining “added” a pollutant to the South Fork.

What amounts to the “addition” of a pollutant is

not defined under the CWA. “It is well settled that the

starting point for interpreting a statute is the

language of the statute itself.” Olympic Forest Coal. v.

Coast Seafoods Co., 884 F.3d 901, 905 (9th Cir. 2018)

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(quoting Gwaltney of Smithfield, Ltd. v. Chesapeake

Bay Found., Inc., 484 U.S. 49, 56 (1987)). “When

interpreting a statute, we first use the ‘traditional

tools of statutory construction,’ to determine whether

Congress directly addressed the ‘precise question at

issue.’” Id. (quoting Chevron, U.S.A., Inc. v. Nat. Res.

Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984)). “If the

precise question at issue is addressed, then the

‘unambiguously expressed intent of Congress

controls.’” Id. (quoting Chevron, 467 U.S. at 843).

Where a statute is ambiguous, courts defer to the

reasonable interpretation of the agency charged with

administering that statute. See Chevron, 467 U.S. at

844.

Since the 1970s, the EPA has interpreted the CWA

as prohibiting discharges from placer mining sluice

boxes unless done in compliance with a Section 402

permit. See Trustees for Alaska v. EPA, 749 F.2d 549,

552–53 (9th Cir. 1984) (reviewing the EPA’s issuance

of Section 402 permits to gold placer miners in 1976

and 1977). In 1988, the EPA adopted industry-wide

regulations setting effluent limitations for Section 402

permits for gold placer miners, including gold mining

from floating dredges. See 40 C.F.R. § 440.140.

In Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990),

miners challenged these regulations, arguing that

placer mining does not cause the “addition” of a

pollutant. We rejected that argument. We noted that

“resuspension” of streambed materials “may be

interpreted to be an addition of a pollutant under the

Act,” and we deferred to the EPA’s reasonable

interpretation that such activity constitutes the

“addition” of a pollutant under the CWA. Id. at 1285–

86 (first citing Avoyelles Sportsmen’s League, Inc. v.

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Marsh, 715 F.2d 897, 923 (5th Cir. 1983) (stating that

“[t]he word ‘addition,’ as used in the definition of the

term ‘discharge,’ may reasonably be understood to

include ‘redeposit’”); and then citing United States v.

M.C.C. of Florida, Inc., 772 F.2d 1501, 1506 (11th Cir.

1985) (action of digging up sediment and redepositing

it on sea bottom by boat propellers constitutes an

addition of pollutants), vacated and remanded on

other grounds, 481 U.S. 1034 (1987)). We further

explained: “Because the EPA has been charged with

administering the [CWA], we must show great

deference to the Agency’s interpretation of the Act. We

especially defer where the Agency’s decision on the

meaning or reach of the [CWA] involves reconciling

conflicting policies committed to the Agency’s care and

expertise under the Act.” Id. at 1284 (citation

omitted).

Poe’s mining activities fall squarely within the

scope of Rybachek. Undisputed evidence in the record,

including photos and descriptions of Poe’s dredge

operating on the South Fork, shows that he

“excavate[d] the dirt and gravel” in the river using a

high-pressure blaster nozzle, “extract[ed] any gold”

and other heavy metals, and “discharge[d] the dirt

and other non-[heavy metal] materials into the

water.” See id. at 1285. That is, Poe engaged in placer

mining “subject to regulation under the [CWA].” Id.

Poe, therefore, “added” pollutants to the South Fork.

See id. (“[W]e will not strike down the EPA’s finding

that placer mining discharges pollutants within the

meaning of the Act.”); see also Borden Ranch P’ship v.

U.S. Army Corps of Engineers, 261 F.3d 810, 814 (9th

Cir. 2001) (reaffirming Rybachek, which “held that

removing material from a stream bed, sifting out the

gold, and returning the material to the stream bed

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was an ‘addition’ of a pollutant’”), aff’d, 537 U.S. 99

(2002).

In response, Poe argues that (1) Rybachek is no

longer good law in light of subsequent Supreme Court

decisions or, in the alternative, (2) the court should

not apply Chevron deference and overrule Rybachek.

Neither argument is persuasive.

Poe suggests that the Supreme Court has, since

Rybachek, twice confirmed the “commonsense

interpretation” of the CWA—i.e., that a person does

not illegally discharge a pollutant unless he or she

adds new material from the outside world. See S. Fla.

Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541

U.S. 95 (2004); L.A. Cnty. Flood Control Dist. v. Nat.

Res. Def. Council, Inc., 568 U.S. 78 (2013). That is,

according to Poe, Miccosukee Tribe and L.A. County

eviscerate the logic of Rybachek. But these cases are

both distinguishable from Rybachek and inapposite

here. In Miccosukee Tribe, polluted water was

removed from a canal, transported through a pump

station, and deposited into a reservoir a short distance

away. See 541 U.S. at 98–99. The Court held that

pumping polluted water from, and back into, the same

body of water, without more, “cannot constitute an

‘addition’ of pollutants.” Id. at 109–10 (“As the Second

Circuit put it in Trout Unlimited, if one takes a ladle

of soup from a pot, lifts it above the pot, and pours it

back into the pot, one has not ‘added’ soup or anything

else to the pot.” (citing Catskill Mountains Chapter of

Trout Unlimited, Inc. v. City of N.Y., 273 F.3d 481, 492

(2d Cir. 2001) (cleaned up)). In L.A. County, the Court

held that “the flow of water from an improved portion

of a navigable waterway into an unimproved portion

of the very same waterway does not qualify as a

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discharge of pollutants under the CWA.” 568 U.S. at

83. In both cases, polluted water was transferred from

one location to another within the same waterbody.

Here, by contrast, Poe excavated rocks, gravel,

sand, sediment, and silt from the riverbed. Poe

punched holes in the riverbed by excavating through

layers of riverbed down to the bedrock. Poe then

processed the materials by running them through the

sluice on his dredge, and then discarded the waste

material into the water. This added a plume of turbid

wastewater to the South Fork. These materials were

not already suspended in the water; they were

previously deposited in the riverbed. Poe’s dredging

was therefore not simple water transfer.

As the district court correctly observed,

Poe’s reliance on [L.A. County and

Miccosukee Tribe] misses the point. Suction

dredge mining does not simply transfer

water (what the above cases address); to the

contrary, it excavates rock, gravel, sand,

and sediment from the riverbed and then

adds those materials back to the river—this

time, in suspended form.

See also EPA, 2018 Response to Comments Idaho

Small Suction Dredge General Permit (GP) (“If,

during suction dredging, only water was picked up

and placed back within the same waterbody . . . , no

permit would be necessary. However, in suction

dredging, bed material is also picked up with water.

Picking up the bed material is in fact the very purpose

of suction dredging—the bed material is processed to

produce gold. This process is an intervening use that

causes the addition of pollutants [rock and sand, see

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CWA § 502(6)] to be discharged to waters of the

United States. As a result . . . an NPDES permit is

required for the discharge from this activity.”

(alteration in original) (citation omitted)). Thus,

Miccosukee Tribe and L.A. County do not disturb our

holding in Rybachek, which remains good law.

In addition, or in the alternative, Poe asks us not

to apply Chevron deference and to overrule Rybachek.

Specifically, Poe argues that (1) the ordinary meaning

of “addition” under the CWA is clear, making Chevron

deference inappropriate, (2) Chevron should not be

applied where a statute may subject individuals to

criminal penalties, and (3) Chevron should not be

applied where the EPA has taken inconsistent

positions on the meaning of “addition” under the

CWA. Adopting any of these theories would require us

to depart from our ruling in Rybachek. A three-judge

panel may depart from controlling circuit precedent

only if “our prior circuit authority is clearly

irreconcilable with the reasoning or theory of

intervening higher authority.” Miller v. Gammie, 335

F.3d 889, 893 (9th Cir. 2003) (en banc). “[T]he ‘clearly

irreconcilable’ requirement ‘is a high standard.’” Fed.

Trade Comm’n v. Consumer Def., LLC, 926 F.3d 1208,

1213 (9th Cir. 2019) (quoting Rodriguez v. AT&T

Mobility Servs. LLC, 728 F.3d 975, 979 (9th Cir.

2013)). “[I]f we can apply our precedent consistently

with that of the higher authority, we must do so.” Id.

As explained above, Rybachek’s holding regarding

placer mining is not irreconcilable, let alone “clearly

irreconcilable,” with L.A. County or Miccosukee Tribe’s

holdings regarding the transfer of water within a

single waterbody. We therefore follow Rybachek on

the issues raised by Poe and hold that Poe’s instream

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suction dredge mining constitutes the “addition” of a

pollutant under the CWA.

II. The Processed Material Discharged from

Instream Suction Dredge Mining is a

Pollutant that Requires a Section 402 Permit.

Poe also argues that, even if his suction dredge

mining adds pollutants to the South Fork, the waste

discharged from his operation constitutes “dredged” or

“fill material” over which the Corps has exclusive

permitting authority.1 Poe makes this argument

pursuant to (1) the ordinary meaning of “dredged

material” under the CWA and (2) the ordinary

meaning of the Corps’ own regulatory definition of

“dredged material.” Neither argument is persuasive.

Under the CWA, pollution discharges require a

Section 402 permit from the EPA, unless the

discharge is “dredged or fill material” requiring a

Section 404 permit from the Corps. See 33 U.S.C.

§§ 1342, 1344; 40 C.F.R. § 122.3; Coeur Alaska, Inc. v.

Se. Alaska Conservation Council, 557 U.S. 261, 274

(2009). The terms “dredged material” and “discharge

of dredged material” are not defined under the CWA.

See 33 U.S.C. § 1362; Olympic Forest Coal., 884 F.3d

at 905 (“It is well settled that the starting point for

interpreting a statute is the language of the statute

itself.”). Nor does the statute define whether material

1 The Oregon Supreme Court recently addressed this issue. See

E. Or. Mining Ass’n v. Dep’t of Env’t Quality, 445 P.3d 251, 274

(2019) (EOMA) (deferring to the “EPA’s and the Corps’

reasonable conclusion that the EPA (or its state delegate) has the

authority to issue a permit under section 402 for all the processed

waste discharged as a result of suction dredge mining”). We find

EOMA well-reasoned and persuasive and substantially follow its

analysis, as did the district court.

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that is dredged from navigable water remains

“dredged material” after it has been processed. That

is, nothing in the CWA says that once a material has

been dredged, it remains a dredged material forever.

If, as the district court explained (citing EOMA, 445

P.3d 251, 257 (2019)), processing dredged material

can change its character, the text of the statute does

not identify the point at which the processed material

becomes a pollutant other than dredged material that

is subject to the EPA’s rather than the Corps’

permitting authority. The CWA therefore does not, in

plain terms, address the question presented here.

We next look to the regulations promulgated to

implement the Act. See Coeur Alaska, 557 U.S. at

277–78 (explaining that, if the text of the CWA is

ambiguous, courts look to the agencies’ implementing

regulations and, if those regulations are ambiguous,

to the agencies’ interpretation and application of their

regulations to determine what the CWA means)). The

CWA regulations define “dredged material” as

“material that is excavated and dredged from waters

of the United States,” but offer no further explanation

of the term. See 33 C.F.R. § 323.2(c). Like the CWA,

the regulations do not specifically address the

question of which agency has the authority to permit

the discharge of dredged material that has been

processed, such as the leftover waste material that is

discharged during suction dredge mining.

Absent clear direction from either the CWA or the

regulations promulgated thereunder, we look to the

agencies’ interpretation and application of those

regulations. See Coeur Alaska, 557 U.S. at 277–78;

Kisor v. Wilkie, 139 S. Ct. 2400, 2415–18 (2019). The

EPA and Corps have long agreed that when materials

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are dredged from a waterbody and are subsequently

processed, they are no longer dredged materials and

have become industrial waste, rock, sand, or other

CWA pollutants regulated under Section 402.2 For

example, in their 1986 memorandum of agreement,

the EPA and the Corps agreed that “placer mining

wastes” were the type of “pollutant” discharged in

“liquid, semi-liquid, or suspended form” subject to

Section 402, not Section 404. Memorandum of

Agreement Concerning Regulation of Discharge of

Solid Waste Under the Clean Water Act, 51 Fed. Reg.

8871, 8872 (March 14, 1986). A 1990 Regulatory

Guidance Letter from the Corps states that once

“dredged material” is “subsequently processed to

remove desired elements, its nature has been

changed” and “it is no longer dredged material”

regulated under Section 404. U.S. Army Corps of

Engineers, Regulation of Waste Disposal from InStream Place Mining, Regulatory Guidance Letter 8810 (July 28, 1990), https://usace.contentdm.oclc.org/u

tils/getfile/collection/p16021coll9/id/1386; see also

U.S. Army Corps of Engineers, Regulatory Guidance

Letters, https://www.usace.army.mil/Missions/CivilWorks/Regulatory-Program-and-Permits/GuidanceLetters (noting that, “unless superseded by specific

provisions of subsequently issued regulations or

guidance, the content provided in [Regulatory

Guidance Letters] generally remains valid after the

expiration date”). The Corps explained: “The raw

materials associated with placer mining operations

are not being excavated simply to change their

locations as in a normal dredging operation, but

The district court included a more detailed account of the

regulatory history, which Poe does not contest on appeal.

2

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rather to obtain materials for processing, and the

residue of this processing should be considered waste.”

As the district court noted, “whatever patchwork of

permitting authority has existed over time, from at

least 2013 (via the general permitting process,

initiated in 2010 and after notice and comment), it is

the EPA that has required a Section 402 permit for

suction dredge mining.” “This fact, coupled with the

overall approach to and assignment and acceptance of

responsibilities under the EPA’s and the Corps’

interpretation of the applicable regulations to suction

dredge mining . . . , confirms that the agencies have

taken an official position and made a fair and

considered judgment, based on its substantive

expertise, that the operation of a suction dredge

results in the discharge of processed wastes, thus

requiring Section 402 permits.” We therefore defer to

the agencies’ reasonable interpretation of the CWA

and implementing regulations that the processed

material discharged from Poe’s suction dredge mining

is a pollutant, not a dredged or fill material, and

requires an NPDES permit under Section 402 of the

CWA. See Kisor, 139 S. Ct. 2400.

Poe’s arguments to the contrary are unavailing.

Principally, citing the dissent in EOMA, Poe argues

that (1) the text of Section 404 itself is enough to settle

the case: suction dredge mining does “dredge”

material, and, in a literal sense, that material is then

“discharged” into the water, and (2) the Corps’

regulation defining “dredged material” is not

genuinely ambiguous as to the question over whether

instream suction dredge mining is regulated under

Section 404 once ordinary interpretive methods have

been applied. However, as explained above, even if the

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material starts as dredged material, that fact does not

settle the issue of whether material that was dredged

remains “dredged material” after it has been

processed. Poe processed the materials dredged from

the riverbed when he ran them through the sluice on

his dredge, extracted heavy metals and other

materials, and discharged the remaining waste and

sediments into the South Fork.

In any event, the meaning of the CWA and

implementing regulations remains sufficiently

ambiguous that deference to the agencies’ official joint

conclusion is appropriate. See Coeur Alaska, 557 U.S.

at 277–78. As the Oregon Supreme Court noted,

“[b]oth the statutes and the regulations are genuinely

ambiguous on [this] question.” EOMA, 445 P.3d at

270. The concern here “is not with the navigability of

the water body, a concern that falls within the Corps’

expertise; rather, the concern is with the health of the

water body, a concern that lies at the heart of the

EPA’s expertise. The Corps and the EPA reasonably

could conclude that the EPA was better suited than

the Corps to make th[e]se types of water quality

decisions.” Id. at 272.

CONCLUSION

For the foregoing reasons, the district court’s grant

of summary judgment to ICL is AFFIRMED.

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[cited in Idaho Conservation League v. Shannon Poe

No. 22-35978 archived on November 16, 2023]

INFORMATIONAL COPY ONLY

Regulatory Guidance Letter 88-10

SUBJECT: Regulation of Waste Disposal from

In-Stream Placer Mining

DATE: July 28, 1990

EXPIRES: December 31, 1990

Paragraph B.5. in the Army’s 23 Jan 86

Memorandum of Agreement (MDA) with EPA,

concerning the regulation of solid waste discharges

under the Clean Water Act, states that discharges

that result from in-stream mining activities are

subject to regulation under Section 402 and not under

Section 404.

Dredged material is that material which is

excavated from the waters of the United States.

However, if this material is subsequently processed to

remove desired elements, its nature has been

changed; it is no longer dredged material. The raw

materials associated with placer mining operations

are not being excavated simply to change their

location as in a normal dredging operation, but rather

to obtain materials for processing, and the residue of

this processing should be considered waste. Therefore,

placer mining waste is no longer dredged material

once it has been processed, and its discharge cannot

be considered to be a “discharge of dredged material”

subject to regulation under Section 404.

This guidance expires 31 Dec 90 unless sooner

revised or rescinded.

19a

[cited in Idaho Conservation League v. Shannon Poe

No. 22-35978 archived on November 16, 2023]

US Army Corps of Engineers Headquarters Website

Regulatory Guidance Letters

Regulatory Guidance Letters (RGLs) were

developed by the Corps as a system to organize and

track written guidance issued to its field agencies.

RGL’s are normally issued as a result of evolving

policy; judicial decisions and changes to the Corps

regulations or another agency’s regulations which

affect the permit program. RGL’s are used only to

interpret or clarify Regulatory Program policy, but do

not provide mandatory guidance to the Corps district

offices. RGL’s are sequentially numbered and expire

on a specific date. However, unless superseded by

specific provisions of subsequently issued regulations

or guidance, the content provided in RGL’s generally

remains valid after the expiration date. The Corps

incorporates most of the guidance provided by RGL’s

whenever it revises its permit regulations.

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20a

[cited in Idaho Conservation League v. Shannon Poe

No. 22-35978 archived on November 16, 2023]

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21a

Filed September 28, 2022

UNITED STATES DISTRICT COURT

DISTRICT OF IDAHO

IDAHO

CONSERVATION

LEAGUE,

Plaintiff,

vs.

SHANNON POE,

Defendant.

Case No.: 1:18-cv-353-REP

MEMORANDUM

DECISION AND

ORDER RE:

PLAINTIFF IDAHO

CONSERVATION

LEAGUE’S MOTION

FOR REMEDIES

(Dkt. 59)

Pending before the Court is Plaintiff Idaho

Conservation League’s Motion for Remedies (Dkt. 59).

Having carefully reviewed the record and the parties’

briefs, the Court finds that the facts and legal

arguments are adequately presented. Accordingly, in

the interest of avoiding further delay, and because the

Court finds that the decisional process would not be

significantly aided by oral argument, the Court will

decide the Motion without oral argument. Dist. Idaho

Loc. Civ. R. 7.1(d)(1)(B).1 For the reasons that follow,

the Motion is granted insofar as the Court will issue

injunctive relief and assess civil penalties against

Defendant Shannon Poe in the amount of $150,000.

1 Through correspondence with the Court, the parties confirmed

that their briefing did not request oral argument and neither

party was otherwise requesting one.

22a

I. RELEVANT BACKGROUND

The circumstances giving rise to this citizen-suit

enforcement action are largely undisputed:2 Mr. Poe

suction dredge mined 42 days on the SFCR during the

2014, 2015, and 2018 dredge seasons (running from

July 15 to August 15 each year) without ever

obtaining an NPDES permit under Section 402 of the

CWA.

Through this action, ICL argued that Mr. Poe

violated the CWA each of the 42 times he operated a

suction dredge on the SFCR without an NPDES

permit. Mr. Poe countered that (i) his suction dredge

mining did not actually add pollutants to the SFCR

and therefore did not require an NPDES permit (or

any other CWA permit) in the first place; and even if

his suction dredge mining did add pollutants,

(ii) those pollutants are “dredged” or “fill” material

regulated exclusively under Section 404 (not Section

402) of the CWA and therefore did not require an

NPDES permit, and (iii) any discharges of dredged or

In denying Defendant Shannon Poe’s Motion to Dismiss on

September 30, 2019, the Court generally discussed the

characteristics of the South Fork Clearwater River (“SFCR”);

recreational suction dredge mining and National Pollutant

Discharge Elimination System (“NPDES”) permit requirements

under the Clean Water Act (“CWA”); Idaho’s permitting

requirements for suction dredge mining; Mr. Poe’s suction dredge

mining activities on the SFCR without an NPDES permit in

2014, 2015, and 2018; and Plaintiff Idaho Conservation League’s

(“ICL”) correspondence to Mr. Poe in 2016, 2017, and 2018,

advising him of its intention to initiate a CWA citizen suit

against him if he continued to suction dredge mine in Idaho

without an NPDES permit. Idaho Conservation League v. Poe,

421 F. Supp. 3d 983, 986–90 (D. Idaho 2019). This backdrop,

while important for perspective, will not be repeated in depth

here.

2

23a

fill material from his suction dredge mining are only

“incidental fallback,” making them exempt under

Section 404 of the CWA anyway. The parties agreed

to bifurcate the case into two separate phases: a

liability phase decided on the parties’ cross-motions

for summary judgment, followed by a remedial phase

as necessary.

On June 4, 2021, the Court granted summary

judgment in ICL’s favor. Idaho Conservation League

v. Poe, 2021 WL 2316158 (D. Idaho 2021). At that

time, U.S. Magistrate Judge Ronald E. Bush

concluded that (i) Mr. Poe’s suction dredge mining

added pollutants to the SFCR, thus requiring an

NPDES permit under Section 402 of the CWA; and

(ii) the processed material discharged from Mr. Poe’s

at-issue suction dredge mining is a pollutant, not

dredged or fill material, and required an NPDES

permit under Section 402 of the CWA. Id. at *2–12.3

With the liability phase now complete, the action

shifts to the remedial phase, framed by ICL’s pending

Motion for Remedies. ICL requests that, owing to

Mr. Poe’s CWA violations, the Court order (i) an

injunction barring Mr. Poe from suction dredge

mining in Idaho unless he obtains and complies with

an NPDES permit under the CWA, and (ii) civil

penalties against Mr. Poe of at least $564,924. Mem.

ISO Mot. for Remedies at 3, 7–22 (Dkt. 59-1). Mr. Poe

responds that an injunction is unnecessary and moot

because there are no longer any illegal discharges to

enjoin and that, regardless, a $60,924 civil penalty is

The undersigned inherited this case from Judge Bush on

June 11, 2021. Before then, Judge Bush presided over the action

and issued rulings on multiple aspects of the case, including the

liability phase.

3

24a

more in line with the environmental impacts of such

dredge mining and will sufficiently deter him from

ever suction dredge mining on the SFCR without an

NPDES permit again. Resp. to Mot. for Remedies at 5,

9–24 (Dkt. 63). These arguments are taken up below.

II. DISCUSSION

A. Legal Standards

The CWA authorizes courts “to order that relief it

considers necessary to secure prompt compliance with

the Act,” including an “order of immediate cessation.”

Weinberger v. Romero-Barcelo, 456 U.S. 305, 320

(1982); see also 33 U.S.C. §§ 1319(b),(d) & 1365(a).

Discretion is vested in the court to either grant or deny

a request for injunctive relief depending upon its view

of the range of public interests at issue. Weinberger,

456 U.S. at 320. If a court chooses to grant an

injunction, however, it must meet the requirements of

Federal Rule of Civil Procedure 65(d), which requires

that every injunction (i) state the reasons why it was

issued, (ii) state its terms specifically, and

(iii) describe in reasonable detail—without reference

to the complaint or other document—the act or acts

restrained or required. Fed. R. Civ. P. 65(d); see also

Reno Air Racing Ass’n. Inc. v. McCord, 452 F.3d 1126,

1132 (9th Cir. 2006).

The CWA additionally permits courts “to apply any

appropriate civil penalties.” 33 U.S.C. § 1365(a). Civil

penalties are mandated for CWA violations. 33 U.S.C.

§ 1319(d) (any person who violates the CWA “shall be

subject to a civil penalty not to exceed $25,000 per day

for each violation.”) (emphasis added); see also

Natural Res. Def. Council. v. Sw. Marine, Inc., 236

F.3d 985, 1001 (9th Cir. 2000) (holding that penalties

25a

are mandatory if violation of CWA is found). The

maximum daily penalty has increased periodically to

account for inflation. Relevant here, for violations that

occurred between December 6, 2013 and November 2,

2015, the maximum penalty is $37,500 per violation;

for violations that occurred after November 2, 2015

(where penalties are assessed after January 12, 2022),

the maximum penalty is $59,973. 40 C.F.R. § 19.4 at

Tables 1 & 2. Unlike damages in other civil cases,

these penalties do not inure to the citizen plaintiffs,

but are payable to the United States Treasury. See

Friends of the Earth v. Laidlaw Envtl. Servs., Inc., 528

U.S. 167, 173 (2000).

As between injunctive relief and civil penalties,

“the district court has discretion to determine which

form of relief is best suited, in the particular case, to

abate current violations and deter future ones.” Id. at

192.

B. Injunctive Relief Is Appropriate to Ensure

Compliance With the CWA

ICL requests a permanent injunction barring

Mr. Poe from suction dredge mining in Idaho unless

he obtains and complies with an NPDES permit under

Section 402 of the CWA. Mem. ISO Mot. for Remedies

at 7 (Dkt. 59-1).

The standard for a permanent injunction is

essentially the same as for a preliminary injunction

with the exception that the plaintiff need not show a

likelihood of success on the merits because actual

success has already been achieved. Amoco Prod. Co. v.

Gambell, 480 U.S. 531, 546 n.12 (1987). Therefore, to

demonstrate that a permanent injunction should

issue, the plaintiff must establish the following:

26a

“(i) that it has suffered an irreparable injury; (ii) that

remedies available at law, such as monetary damages,

are inadequate to compensate for that injury;

(iii) that, considering the balance of hardships

between the plaintiff and defendant, a remedy in

equity is warranted; and (iv) that the public interest

would not be disserved by a permanent injunction.”

Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139,

156-57 (2010).

This traditional balancing of harms applies in the

environmental context. The Lands Council v. McNair,

537 F.3d 981, 1005 (9th Cir. 2008) (“Our law does not

. . . allow us to abandon a balance of harms analysis

just because a potential environmental injury is at

issue.”). However, injunctive relief “is not

mechanically obligated . . . for every violation of law.”

Weinberger, 456 U.S. at 313. Courts have broad

latitude when determining the scope of an injunction

and must balance the equities between the parties

and give due regard to the public interest. Geertson

Seed Farms v. Johanns, 570 F.3d 1130, 1136 (9th Cir.

2009). If proper, any injunctive relief should be framed

“no broader than required by the precise facts.”

Schlesinger v. Reservists Comm. to Stop the War, 418

U.S. 208, 222 (1974); see also Stormans, Inc. v.

Selecky, 586 F.3d 1109, 1140 (9th Cir. 2009)

(“‘Injunctive relief . . . must be tailored to remedy the

specific harm alleged.’ ‘An overbroad injunction is an

abuse of discretion.’”) (quoting Lamb-Weston v.

McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir.

1991)).

ICL argues that the elements comprising a

permanent injunction are met and thereby justify the

requested injunctive relief. Mem. ISO Mot. for

27a

Remedies at 3, 8–12 (Dkt. 59-1). Mr. Poe disagrees—

not because any of the elemental prerequisites for a

permanent injunction do not exist per se, but because

a permanent injunction is unnecessary and moot since

he is no longer suction dredge mining in Idaho and

civil penalties are available to deter future CWA

violations. Resp. to Mot. for Remedies at 13–16 (Dkt.

63). Though sensible on their face, Mr. Poe’s

arguments are ultimately unpersuasive here. An

injunction is warranted.

1. An Injunction Prevents Irreparable Injury

“Environmental injury, by its nature . . . is often

permanent or at least of long duration, i.e.,

irreparable. If such injury is sufficiently likely,

therefore, the balance of harms will usually favor the

issuance of an injunction to protect the environment.”

Amoco Prod., 480 U.S. at 545 (emphasis added).

During the earlier liability phase, the Court concluded

as a matter of law that Mr. Poe’s suction dredge

mining added pollutants to the SFCR, stating in

relevant part:

A Section 402/NPDES permit is required if

a person (i) discharged, i.e., added (ii) a

pollutant (iii) to navigable waters (iv) from

(v) a point source. There is no dispute that

rock and sand passing through a suction

dredge is a pollutant; that the [SFCR] is a

navigable water; and that a suction dredge

is a point source. In turn, this reveals a

lynchpin issue of the case: whether

Mr. Poe’s suction dredge mining involves

the “discharge” or “addition” of a pollutant

to the [SFCR]. ICL says it does. Mr. Poe says

it does not.

28a

....

Suction dredge mining does not simply

transfer water . . . ; to the contrary, it

excavates rock, gravel, sand, and sediment

from the riverbed and then adds those

materials back to the river—this time, in

suspended form. If Mr. Poe’s suction dredge

just sucked up river water from—and back

into—the [SFCR] (along with any pollutants

already in the water), he would be

transferring water and not adding any

pollutants . . . . but that is neither suction

dredge mining nor what Mr. Poe did on the

[SFCR] during the 2014, 2015, and 2018

dredging seasons.

In sum, the very nature of Mr. Poe’s suction

dredge mining added pollutants to the

[SFCR] [and] require[s] an NPDES permit

under Section 402 of the CWA.

Poe, 2021 WL 2316158, at *3, 6–7 (emphasis in

original, internal quotation marks and citations

omitted). But ICL cannot obtain injunctive relief

merely because the Court has made a finding of

liability under the CWA; it still must connect the legal

dots between Mr. Poe’s suction dredge mining and

corresponding irreparable injury.

ICL does this by juxtaposing the SFCR’s pristine

ecosystem with suction dredge mining activity

generally. It points out how, on the one hand, the

SFCR is a “State Protected River”; is eligible as a

federal wild and scenic river; and is a vital fishery,

inhabited by many native fish species, including those

listed as “threatened” under the Endangered Species

29a

Act (“ESA”) (steelhead trout, fall Chinook salmon, and

bull trout). Mem. ISO Mot. for Remedies at 5–6, 9

(Dkt. 59-1) (citing Ex. 7 to Poe MTD at 45 (Dkt. 17-3);4

Ex. 8 to Poe MTD at 3–83 (Dkt. 17-4); Ex. V to 2nd

Hurlbutt Decl. at 1 (Dkt. 38-13)). Yet, on the other

hand, it emphasizes how the SFCR is still listed as an

“impaired” water body because it fails to meet CWA

standards for sediment and temperature pollution;

how the rock, sand, sediment, and silt discharged from

suction dredge mining degrades water quality and

impedes river habitat restoration; and how the

sediment and fine silt discharged by a suction dredge

reduces oxygen levels, aquatic cover, forage, and

invertebrate production, which impact the survival of

fish eggs and alevins, the growth in older and juvenile

fish, and ultimately fish migrations and spawning

seasons. Mem. ISO Mot. for Remedies at 6, 9 (Dkt. 591) (citing ICL SOF at ¶¶ 3, 10 (Dkt. 38-1); Ex. U to 2nd

Hurlbutt Decl. at 1–2 (Dkt. 38-12)).

More specific to Mr. Poe’s suction dredge mining on

the SFCR, ICL highlights the opinions of its expert,

Dan Kenney.5 Mr. Kenney discusses basic stream

Though listed as a “State Protected River,” the SFCR has

exemptions for recreational suction dredge mining. Ex. 7 to Poe

MTD at 45 (Dkt. 17-3). Even so, this acknowledgment exists

within the “Fact Sheet” to an EPA proposal to reissue an NPDES

General Permit to small suction dredgers operating in Idaho. Id.

at 1.

4

5 Mr. Kenney is a former Forest Service fisheries biologist with

extensive experience monitoring and assessing suction dredge

mining and its impacts in the Clearwater River watershed,

including the SFCR. Kenney Rpt., attached as Ex. G to 4th

Hurlbutt Decl. at 1–3 (Dkt. 59-9). In addition to scientific papers

and state and federal agency studies and reports on suction

30a

morphology and biology, suction dredge mining in

relation to the SFCR stream morphology in particular,

and Mr. Poe’s site-specific suction dredge mining in

2014, 2015, and 2018, before summarizing the

physical and biological effects of those same dredging

activities on the SFCR. Kenney Rpt. attached as Ex.

G to 4th Hurlbutt Decl. at 3–24 (Dkt. 59-9). On that

last point, Mr. Kenney notes the following:

• There is ample evidence that Mr. Poe’s 2014,

2015, and 2018 activities on the SFCR affected

algae, invertebrates, and fish. As described

above, a total of up to about 3,400 square feet of

surface substrate, predominately algae-covered

rocks (gravel and larger), was removed from the

SFCR during the 3 dredging seasons and some

were either overturned or dropped into the

dredge holes, while a separate but at least

equal-sized area of the SFCR surface substrate

was covered with tailings piles or fine sediment

by Mr. Poe’s activities.

• Given that the SFCR is already considered

“impaired” due to too much fine sediment, some

of the dredged and otherwise modified areas

likely had too-thick of a layer of fine sediment

pre-dredging to allow algae to grow, and so the

total amount of attached algae harmed by

Mr. Poe may be somewhat less than 3,400

square feet. Attached algae is a food source for

many aquatic invertebrates, so, at least locally

dredge mining and its impacts, Mr. Kenney’s opinions are based

on photos, videos, and reports of Mr. Poe’s suction dredge mining

on the SFCR in 2014, 2015, and 2018. Mr. Poe challenges aspects

of Mr. Kenney’s opinions but not his qualifications.

31a

and temporarily, the primary production of the

SFCR was reduced.

• The same surface substrate modified by 2014,

2015, and 2018 dredging by Mr. Poe was

habitat for aquatic invertebrates, as was at

least a portion of the hyporheic zone, and so the

manipulation of the substrate in the dredging

process caused an unknown number of

individuals to be loosed into the water column,

and another unknown number of individuals to

be covered by or have their interstitial habitat

infiltrated by sand and smaller fines. . . . [I]t

seems likely that hundreds of thousands of

aquatic insects were displaced, harmed, or

killed by Mr. Poe’s dredging activities.

• The fine sediment brought to the substrate

surface or suspended in the water column by

Mr. Poe’s dredges would have been mostly

scoured away from the substrate surface in

direct vicinity of the dredging sites within a few

months—these fines did not disappear from the

river,

however,

but

did

contribute

incrementally to degraded aquatic habitat

locally for miles downstream on the SFCR and

eventually to the mainstem Clearwater River.

• I cannot say with certainty that Mr. Poe’s

activities would have directly injure or killed

any individuals of special status species,

however, stream margins are often important

habitat for juvenile steelhead and other

salmonids and my October 7, 2015 notes for the

upper unauthorized dredging site state that the

“(b)ank undercut by dredger for length of hole.”

The downstream Poe dredge hole at the 2018 #1

32a

site was at the stream edge, as were Sites #2

and #3 that year. The Poe primary dredging

area in 2014 was in mid-channel, however, and

I don’t know where Mr. Poe dredged at the

downstream (Moose Creek) site.

• I think it likely that direct and indirect adverse

effects to aquatic insect growth, survival, and

abundance (even if incremental, localized, or

temporary) were caused by Mr. Poe’s suction

dredging in each year he dredged on the SFCR.

In regard to 2018 SFCR suction dredging, a

report commissioned by IDWR [(Idaho

Department of Water Resources)] concluded

that “(a)ll disturbed areas will experience a

reduction in invertebrate production from fine

sediment, leading to a reduction in foraging

opportunities for anadromous and resident fish

species.”

• While some small fish are apparently not

repelled by suction dredging operations, it is

possible that some SFCR fish were physically

or behaviorally excluded from rearing, holding,

and migratory habitat by the Poe operations.

. . . . [W]hile noise, activity, and turbidity

definitely can modify adult fish behavior, the

degree to which the Poe operations did so is

unknown, but likely minor compared with

effects on habitat.

• When Mr. Poe and his assistants suctioned

substrate at depth, they were also bringing

gravel and finer rock particles to the surface to

cover the existing substrate surface in the

SFCR channel. These particles, as noted above

regarding aquatic invertebrates, infiltrated

33a

interstitial spaces in some portions of the

dredging reach. Juvenile and subadult

salmonids, including bull trout, often seek out

interstitial habitat (especially that among

cobbles and boulders) during diel feeding

periods (or winter in general). The

rearrangement and addition of fine sediment to

the stream channel during Mr. Poe’s suction

dredging activities is likely to have reduced the

local quantity or quality of such habitat, even

considering that some of these fines would have

been scoured from the dredging sites by

subsequent high flow events and deposited

downstream. The effects of the addition of

previously-unmobilized fine sediment from the

Poe dredging likely incrementally reduced

interstitial hiding cover for fish in the SFCR

channel for miles downstream.

• Based on my experience in delineating NPCNF

[(Nez Perce-Clearwater National Forest)]approved dredging reaches, the areas that

Mr. Poe dredged and covered with tailings and

fines in each relevant year do not appear to be

spawning habitat for any special status fish

species, and so there was a low likelihood that

his activities directly affected salmonid redds,

eggs, or pre-emergent fry. On the other hand,

there are areas with suitable spawning habitat

for steelhead (and to a lesser extent, spring and

fall Chinook salmon) within a few hundred feet

downstream of at least the Sasquatch 2 sites for

each year, and I think that is reasonable to

assume that this habitat was incrementally

degraded by the excavation of previously

immobile fine sediment.

34a

• Excavation and dispersion of previouslysequestered fines by dredging operations can

contribute to the pollution in the SFCR that the

EPA is attempting to control through the

TMDL [(Total Maximum Daily Load)] and the

NPDES permitting process which Mr. Poe has

defied and encouraged others to defy.

• The effects of suction dredging on water

quality, stream channel conditions, and stream

biota are real and some of these effects are

similar to the effects of natural phenomena

such as flooding and erosion.

• Even if the adverse effects of Mr. Poe’s dredging

were entirely erased each year by high

streamflows (and many are not), these effect

would still be manifest for days, weeks, or

months. These periods constitute a substantial

part of a lifetime to many or most aquatic

organisms. Similarly, and particularly in 2015

and 2018, even if the adverse effects of each of

Mr. Poe’s dredging operations are considered as

insignificant in isolation (and many are not),

Mr. Poe set up his operations nearby other

dredgers in a relatively short river reach, such

that the cumulative effects of these activities

were most likely to be exacerbated.

• The goal of a suction dredge miner is to find

gold through the dismantling of a portion of the

physical structure of a stream. Because most

placer gold will find its way to or near the

bedrock surface, typically at least several feet

below the substrate surface, this dismantling is

essentially an overturning and redistribution of

the existing structure of the stream at the

35a

dredging site. Because flowing water, both

concurrently with and subsequent to dredging,

transmits these physical effects downstream,

the effects of the dredging are not confined to

the immediate dredge mining area.

• Mr. Poe’s dredging operations on the SFCR in

2014, 2015, and 2018 had demonstrable

immediate and enduring effects on SFCR water

quality and stream channel morphology. Based

on my training, experience, and my review of

the scientific literature, I believe that these

physical effects were harmful to individual

aquatic organisms in the SFCR. The degree and

duration of Mr. Poe’s dredging operations’ harm

to populations of these organisms or the SFCR

biological community cannot be known with

certainty but I believe that incremental and

cumulate adverse effects should be considered

plausible and likely.

Id. at 24–29, 30–31 (internal citations omitted).

Mr. Poe takes issue with certain of Mr. Kenney’s

opinions, offering up an expert of his own: Andréa

Rabe.6 Ms. Rabe contends that, while suction dredge

Ms. Rabe has a bachelors in genetics and anthropology, a

masters in botany, and is a certified professional wetlands

scientist. Rabe Rpt., attached as Ex. 1 to Resp. to Mot. for

Remedies at 15 (Dkt. 63-2). Ms. Rabe has over 23 years’

experience conducting water quality monitoring, stream surveys,

habitat assessments, and wetlands delineations; preparing

water quality monitoring plans; and preparing and

implementing restoration plans. Id. Ms. Rabe reviewed

Mr. Kenney’s report and the documents he relied on, as well as

additional photos and videos of Mr. Poe’s dredging operations,

state and federal permit requirements, and the Forest Service

6

36a

mining may impact water quality, stream channel

conditions, and stream biota due to the movement and

release of fine sediments, small-scale suction dredge

mining (like Mr. Poe’s) does not (or at least can be

conducted in a manner to reduce and eliminate such

impacts). Rabe Rpt., attached as Ex. 1 to Resp. to Mot.

for Remedies at 3, 11–12 (Dkt. 63-2). She more

directly opines that Mr. Poe’s suction dredge mining

on the dates in question mostly7 followed permitting

authorities’

operating

procedures

and

how

Mr. Kenney’s claims do not unequivocally establish

injury to the SFCR. Id. at 3–11, 15. Importantly, she

does not ultimately disagree that there are likely

impacts from Mr. Poe’s dredging operations, just that

any such impacts are not occurring to the extent

expressed by Mr. Kenney given Mr. Poe’s adherence

to these operating procedures—even without having

ever obtained an NPDES permit. Id. at 12, 15 (“This

reduction and elimination of impacts will occur

whether the operating procedures are implemented as

permit conditions or as best management practices by

a suction dredge operator. . . . Mr. Poe employed most

of these best management practices in his operations

during the dredging seasons in 2014, 2015, and 2018,

thereby reducing the impacts from his small-scale

and Bureau of Land Management’s Decision Record for SmallScale Dredging in Orogrande and French Creeks and South Fork

Clearwater River.

7 Suction dredge operations should not discharge within 800 feet

of another suction dredge operation discharge that is occurring

at the same time. Rabe Rpt., attached as Ex. 1 to Resp. to Mot.

for Remedies at 5 (Dkt. 63-2). Ms. Rabe acknowledges that

Mr. Poe was not always at least 800 feet from the next dredge

operation, but he did add spacing to maintain lower levels of

turbidity. Id.

37a

suction dredging operation on water quality, stream

channel conditions, and stream biota.”) (emphasis

added).8

From this, it is clear that suction dredge mining

(even small-scale, recreational suction dredge mining)

disturbs a riverbed’s substrate and discharges

sediment into the water column, causing aesthetic

and environmental harm. This is especially the case

in a sensitive environment like the SFCR—a critical

habitat for ESA-listed species and an alreadyimpaired river due to the failure to meet state water

quality standards for sediment and temperature.

Fortunately, steps can be taken to mitigate these

harms, including a permitting process that outlines a

specific suction dredge mining season and strict

operational protocols.

Here, however, Mr. Poe never secured an NPDES

permit before suction dredge mining 42 days on the

SFCR. These repeated failures constitute CWA

violations because his dredging activities added

pollutants to the waterway and caused environmental

harm. Environmental harm in this sense amounts to

irreparable injury. Amoco, 480 U.S. at 545

(environmental injury, “by its nature,” is irreparable).

That Mr. Poe may have obtained other permits with

overlapping protections does not upend this

conclusion. Otherwise, there would be no purpose to

the CWA’s application in this setting. The CWA

regime exists alongside state permitting requirements

8 To be clear, Mr. Poe does not offer Ms. Rabe’s opinions to contest

ICL’s argument that his suction dredge mining on the SFCR

caused irreparable injury. Rather, these opinions support his

argument that any harm was de minimis and that any civil

penalties should reflect that reality. See infra.

38a

and applies across all users as a whole, not just

Mr. Poe. A contrary position is not supported in the

law and the Court will not stake that ground now.

This is particularly the case given CWA’s

straightforward objective: “to restore and maintain

the integrity of the chemical, physical, and biological

integrity of the Nation’s waters.” 33 U.S.C. § 1251(a);

see also Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597,

602 (2013) (“A central provision of the [CWA] is its

requirement that individuals, corporations, and

governments secure [NPDES] permits before

discharging pollution from any point source into the

navigable waters of the United States.”).

With irreparable injury established, case law hints

that the remaining factors favor injunctive relief to

protect the environment. Amoco, 480 U.S. at 545 (“If

such [irreparable] injury is sufficiently likely,

therefore, the balance of harms will usually favor the

issuance of an injunction to protect the environment.”)

(emphasis added); but see Earth Island Inst. v.

Carlton, 626 F.3d 462, 474 (9th Cir. 2010) (declining

“to adopt a rule that any potential environmental

injury automatically merits an injunction.”)

(emphasis in original, internal quotation marks and

citation omitted). The Court briefly addresses these

factors below for completeness’ sake.

2. Legal Remedies Are Inadequate

The Supreme Court has recognized that, in most

instances, environmental harms are not readily

compensable by money damages. Amoco, 480 U.S. at

545 (“Environmental injury, by its nature, can seldom

be adequately remedied by money damages and is

often permanent or at least of long duration, i.e.

irreparable.”) (emphasis added). Moreover, money

39a

damages are not even available to ICL. The only relief

available in a CWA citizen-suit enforcement action is

the enforcement of standards, limitations, and orders,

or the application of civil penalties paid to the United

States Treasury. 33 U.S.C. § 1365(a). As a result, legal

remedies are plainly inadequate.

3. The Balance of Hardships Favors an

Injunction

Even where environmental injury is established,

courts must still engage in the traditional balancing

of harms test before entering an injunction. This

includes a consideration of all of the competing

interests at stake including potential economic harm.

Carlton, 626 F.3d at 475. Here, there is no

counterweight to the irreparable injury caused by

Mr. Poe’s permitless suction dredge mining on the

SFCR. That is, any burden in complying with the

CWA by securing the legallynecessary NPDES

permit—what the requested injunctive relief

requires—is not a hardship, let alone one that would

eclipse the above-stated environmental harms. See

Idaho Conservation League v. Atlanta Gold Corp., 879

F. Supp. 2d 1148, 1161 (D. Idaho 2012) (“Harm to

environment outweighs a defendant’s financial

interests, particularly where violations are of a

longstanding and continual nature.”).

4. An Injunction Is in the Public Interest

Courts have recognized that ensuring protection of

the environment serves an important public interest.

McNair, 537 F.3d at 1005 (“[P]reserving environmental resources is certainly in the public’s interest.”);

Earth Island Inst., 442 F.3d at 1177 (“The

preservation of our environment . . . is clearly in the

40a

public interest.”). Recognizing the public interest in

protecting the environment, it is likewise very much

in the public interest to expect compliance with the

CWA. See U.S. v. Akers, 785 F.2d 814, 823 (9th Cir.

1986) (“[C]ourts have noted that the public interest

requires strict enforcement of the [CWA] to effectuate

its purpose of protecting sensitive aquatic environments.”); Atlanta Gold Corp., 879 F. Supp. 2d at 1162

(“Water is the West’s most precious resource. Keeping

Idaho’s waters sufficiently clear of toxic elements so

that they can support all the beneficial uses for which

the State has designated them is a critical public

interest . . . .”). Mr. Poe does not argue otherwise.

5. Other Factors Do Not Undermine the Need for

an Injunction

Beyond the customary factors that inform the

propriety of an injunction, Mr. Poe’s arguments

against one take a more practical, big-picture

approach. He claims that an injunction is simply

(i) unnecessary to secure his compliance with the

CWA because he is not currently suction dredge

mining in Idaho (and has not done so since 2018) and

(ii) moot given the availability of civil penalties. Resp.

to Mot. for Remedies at 13–16 (Dkt. 63). These

arguments are without merit.

First, it is misleading to suggest that Mr. Poe

complied with the CWA once ICL brought this action.

See id. at 14 (Mr. Poe stating: “[I]f a defendant comes

into compliance with the CWA after a complaint is

filed, then the principles of mootness prevent

maintenance of a suit for injunctive relief . . . .”). It

may be true that he has not technically violated the

CWA since then, but that is only because he has not

suction dredge mined in Idaho and therefore never

41a

needed to pull an NPDES permit. This is not because

he has proactively secured an NPDES permit before

again suction dredge mining in the state. The

distinction is important when understanding that the

mere cessation of a challenged practice in response to

pending litigation “does not moot a case unless the

party alleging mootness can show that the ‘allegedly

wrongful behavior could not reasonably be expected to

recur.’” Nat. Res. Def. Council v. Cnty. of Los Angeles,

840 F.3d 1098, 1104 (9th Cir. 2016) (quoting Laidlaw,

528 U.S. at 189) (emphasis added); see also Idaho

Rural Council v. Bosma, 143 F. Supp. 2d 1169, 1177

(D. Idaho 2001) (recognizing “a presumption of future

injury” when a defendant has voluntarily ceased

illegal activity in response to litigation, even if the

cessation occurs before a complaint is filed.”). Without

the exception, “‘courts would be compelled to leave

[t]he defendant . . . free to return to his old ways.’”

Porter v. Bowen, 496 F.3d 1009, 1017 (9th Cir. 2007)

(quoting U.S. v. Concentrated Phosphate Exp. Ass’n,

393 U.S. 199, 203 (1968)).

The standard for determining whether a case has

been mooted by a defendant’s voluntary conduct is

“stringent.” Laidlaw, 528 U.S. at 189; Concentrated

Phosphate, 393 U.S. at 203 (“A case might become

moot if subsequent events made it absolutely clear

that the allegedly wrongful behavior could not

reasonably be expected to recur.”) (emphasis added).

“The ‘heavy burden of persua[ding]’ the court that the

challenged conduct cannot reasonably be expected to

start up again lies with the party asserting mootness.”

Laidlaw, 528 U.S. at 189 (quoting Concentrated

Phosphate, 393 U.S. at 203). This burden “protects

plaintiffs from defendants who seek to evade sanction

by predictable protestations of repentance and

42a

reform.” Gwaltney of Smithfield v. Chesapeake Bay

Found., 484 U.S. 49, 67 (1987).

The Court previously touched on this issue in

relation to Mr. Poe’s efforts to dismiss the action at its

outset. At that time, Mr. Poe argued that the Court

did not have subject matter jurisdiction because ICL

failed to meet the CWA’s notice requirements.

Specifically, Mr. Poe argued that ICL’s 2016 notice

letter advising him that it intended to initiate a

citizen-suit enforcement action relied on wholly past

violations, not prospective ones. Poe, 421 F. Supp. 3d

at 991. The Court disagreed, stating:

Mr. Poe properly acknowledges that [ICL]

must have a good faith allegation of

continuing or intermittent violations for a

court to have jurisdiction over a suit. . . .

Here, ICL made good faith allegations of

continuing/ intermittent CWA violations

based not only on Mr. Poe’s history of

suction dredging on the [SFCR], but also his

public statements about his past dredging,

about his ongoing dredging, and about his

plans for dredging in future years (including

statements about defying the EPA and the

CWA). Indeed, it could reasonably be said

that Mr. Poe was intentionally advertising

to the world not just the fact of his prior

suction dredging activities but also the fact

of his intended future suction dredging

activities. That Mr. Poe ultimately resumed

suction dredging activities on the [SFCR] in

2018

without

any

NPDES

permit

substantiates

ICL’s

concerns

about

43a

Mr. Poe’s “continuing”

violations back in 2016.

and

“ongoing”

Id. at 993 (citing Sierra Club v. Union Oil Co. of Cal.,

853 F.2d 667, 671 (9th Cir. 1988) (agreeing that risk

of ongoing violations must be “completely eradicated”

for citizen suit to be precluded, holding: “Intermittent

or sporadic violations do not cease to be ongoing until

the date when there is no real likelihood of

repetition.”)).

A similar rationale applies now. Yes, Mr. Poe

properly stresses how he has not suction dredge mined

in Idaho since 2018. And while that fact may suggest

he does not intend to pick back up where he left off, it

does not satisfy his burden to establish compliance

with the CWA in the future. To be sure, in the past,

Mr. Poe has simply indicated that he “do[es] not

intend to dredge in future years without the

appropriate permits.” Ex. C to Oppenheimer Decl.

(Dkt. 20-19) (emphasis added). It is unclear what this

commitment means or ever meant. Critically, Mr. Poe

suction dredge mined on the SFCR in 2018 without an

NPDES permit precisely because he does not believe

an NPDES permit is required to do so. Cf. Resp. to

Mot. for Remedies at 15 (Dkt. 63) (Mr. Poe

acknowledging that “he never stated that he would

not mine without first obtaining an NPDES permit.”).

Alas, that is what this entire case has been about.

At bottom, Mr. Poe must show that there is “no

reasonable expectation that the wrong will be

repeated” and that it is “absolutely clear that the

allegedly wrongful behavior would not reasonably be

expected to recur.” Gwaltney, 484 U.S. at 66. Despite

no known CWA violations since 2018, Mr. Poe has not

met that high burden here. See Atlanta Gold, 879 F.

44a

Supp. 2d at 1162 (fact that violations were “of a

continual, and long-standing nature” and that

defendant “passed up opportunities to fix the problem,

strongly suggests that the added impetus of an

injunction is necessary.”). An injunction is neither

unnecessary nor moot.

Second, civil penalties—even considerable ones—

do not preclude injunctive relief. These remedies are

not mutually exclusive. In fact, the CWA authorizes

courts to impose one, the other, or even both. Supra;

see also Idaho Conservation League v. Magar, 2015

WL 632367, at *9 (D. Idaho 2015) (“[T]he Court finds

both a substantial civil penalty and an injunction are

necessary to remedy Magar’s violations of the CWA.”);

Atlanta Gold, 879 F. Supp. 2d at 1171 (“To

summarize, the longstanding and serious nature of

the violations in this case require injunctive relief. A

substantial civil penalty is also necessary in order to

have a deterrent effect on future pollution . . . .”);

Bosma, 143 F. Supp. 2d at 1177 (“[A]n injunction

against the Bosmas and their dairy operation will

redress, at least in part, the injury of which the IRC

complains. Additionally, the civil penalties sought by

IRC will likely deter the Bosmas and other NPDES

permit violators from polluting the affected waters in

the future.”). Simply put, whether civil penalties are

imposed here (or the amount of such penalties) is

immaterial;

the

factors

discussed

herein

independently support injunctive relief.

6. The Injunction is Limited to the SFCR

As an extraordinary remedy, an injunction’s scope

must be narrowly and specifically tailored to fit the

dispute that gives rise to its issuance, and not more.

Stormans, Inc. v. Selecky, 586 F.3d 1109, 1140 (9th

45a

Cir. 2009) (“‘Injunctive relief . . . must be tailored to

remedy the specific harm alleged.’ ‘An overbroad

injunction is an abuse of discretion.’”) (quoting LambWeston v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th

Cir. 1991)).

ICL seeks to enjoin Mr. Poe from suction dredge

mining throughout Idaho unless he obtains and

complies with an NPDES permit under the CWA.

Mem. ISO Mot. for Remedies at 3, 5, (Dkt. 59-1). But

this action is tied only to Mr. Poe’s suction dredge

mining on the SFCR. There is no evidence in the

record concerning what Mr. Poe did (or did not do)

elsewhere in the state and ICL makes no claims

relating to any such conduct. So, a state-wide

injunction is not justified.

Mr. Poe counters that no injunction is warranted

at all. He complains that one would amount to a

disfavored “obey the law” injunction and is

“excessively intrusive” because it would require the

Court’s continual supervision. Resp. to Mot. for

Remedies at 13–14 (Dkt. 63). Not so. The injunction is

not vague but rather sufficiently specific. It requires

Mr. Poe to secure and comply with an NPDES permit

before suction dredge mining on the SFCR in the

future. These simple and straightforward terms are

enough. Further, no judicial oversight is warranted

here. Once this action is closed, ICL can move to reopen the case and pursue contempt proceedings as

necessary. See, e.g., Idaho Conservation League v.

Atlanta Gold Corp., 2017 WL 4099815 at *1 (D. Idaho

2017) (“This decision resolves a Motion for Civil

Contempt . . . . This is a re-opened Clean Water Act

case, first filed in 2011.”).

46a

Consequently, an injunction will be issued barring

Mr. Poe from suction dredge mining on the SFCR

unless he obtains and complies in good faith with an

NPDES permit under the CWA.

C. Civil Penalties in the Amount of $150,000

Are Warranted

ICL asks the Court to impose a civil penalty of at

least $564,924 for Mr. Poe’s 42 CWA violations. Mem.

ISO Mot. for Remedies at 14–22 (Dkt. 59-1). Mr. Poe

argues the Court should reject ICL’s request as

excessive and unduly burdensome, proposing that a

$60,924 penalty more accurately addresses his

conduct and the surrounding circumstances. Resp. to

Mot. for Remedies at 16–24 (Dkt. 63).

Congress has vested courts with the authority to

determine an appropriate civil penalty for CWA

violations. Tull v. U.S., 481 U.S. 412, 427 (1987). Like

other penalties, the purpose of a penalty under the

CWA is to provide restitution, punish the violator, and

deter similar conduct by the violator and others. Id. at

422. “A penalty must be high enough so that the

discharger cannot ‘write it off’ as an acceptable

environmental trade-off for doing business.” Hawaii’s

Thousand Friends v. City and Cnty. of Honolulu, 821

F. Supp. 1368, 1394 (D. Haw. 1993).

Civil penalties in CWA cases involve “highly

discretionary calculations that take into account

multiple factors.” Tull, 481 U.S. at 427. The factors

courts must consider are: (i) the seriousness of the

violations; (ii) the economic benefit, if any, resulting

from the violations; (iii) any history of such violations;

(iv) any good faith efforts to comply with the

applicable requirements; (v) the economic impact of

47a

the penalty on the violator; and (vi) any other matters

as justice may require. 33 U.S.C. § 1319(d).

When considering these statutorily-enumerated

factors, courts generally employ either a “top-down” or

“bottom-up” approach. Atlanta Gold, 879 F. Supp. 2d

at 1165 (comparing Sierra Club v. Cedar Point Oil Co.,

73 F.3d 546, 573–74 (5th Cir. 1996) (employing topdown approach), with U.S. v. Smithfield Foods, Inc.,

191 F.3d 516, 528–29 (4th Cir. 1999) (taking bottomup approach)). The top-down approach requires the

court to first calculate the maximum penalty, and

then, if necessary, to adjust the penalty downward in

consideration of the six statutory factors. Cedar Point,

73 F.3d at 573. The bottom-up method begins with

calculating the economic benefit realized by the

defendant as a result of his non-compliance, and then

adjusts that amount upward or downward based on

the court’s evaluation of the remaining factors.

Smithfield Foods, 191 F.3d at 528.

ICL does not insist on either a top-down or bottomup approach to calculating the proper civil penalties

here. It references a $1,957,041 maximum penalty.9 It

settles on a proposed penalty of at least $564,924.

ICL’s figure is guided in large part by the $6,600

penalty imposed in a similar EPA civil enforcement

action (Erlanson (discussed infra)) relating to a single

day of unpermitted suction dredge mining on the

SFCR in 2015. Here, citing Mr. Poe’s flagrant

violations and need for deterrence, the ICL doubled

the per-violation penalty to $13,200 and added

Mr. Poe’s $10,524 economic gain to the total penalty.

9 This represents a total of 25 violations in 2014 and 2015 at

$37,500 per violation ($937,500) and 17 violations in 2018 at

$59,973 per violation ($1,019,541).

48a

Mem. ISO Mot. for Remedies at 13–16 (Dkt. 59-1).

Mr. Poe favors a bottom-up approach because,

according to him, it better reflects the minimal

environmental harm caused by his suction dredge

mining. Resp. to Mot. for Remedies at 17 (Dkt. 63).

The Court will employ the bottom-up approach as

the most practical to these facts. This case is unique

in that Mr. Poe did not outright ignore the need for an

NPDES permit in the typical sense. His decision not

to secure an NPDES permit was informed, at least in

part, by advice from his attorney, coupled with their

correspondence with the EPA about whether he even

needed an NPDES permit in the first instance. See

infra. Also, it is not exactly clear how Mr. Poe’s suction

dredge mining violated NPDES permit standards

(aside from not securing an NPDES permit in and of

itself). Id. These considerations favor a bottom-up

approach rather than beginning with a nearly

$2 million maximum civil penalty and working down.

See Atlanta Gold, 879 F. Supp. 2d at 1166 (describing

bottom-up approach as “more practical in this

scenario, as arsenic and iron differ greatly in terms of

the degree of the environmental harm they cause.”).

With that, the Court turns to the above-referenced

statutory factors for calculating CWA-related

penalties.

1. The Economic Benefit From Mr. Poe’s CWA

Violations

Mr. Poe’s most obvious economic benefit in suction

dredge mining on the SFCR without an NPDES

permit is the value of mineral resources (gold)

extracted therefrom. Remedial phase discovery

revealed that Mr. Poe mined up to six ounces of gold

across 2014, 2015, and 2018. Mem. ISO Mot. for

49a

Remedies at 18 (Dkt. 59-1). At an estimated value of

$1,754 per ounce, the value of Mr. Poe’s unpermitted

haul amounts to at least $10,524. Id. Mr. Poe does not

disagree; he folds this exact amount into his own civil

penalty proposal. Resp. to Mot. for Remedies at 17, 24

(Dkt. 63). The civil penalty therefore begins at $10,524

and is subject to adjustment in light of the remaining

factors.

2. The Seriousness and History of Mr. Poe’s CWA

Violations

Congress flatly prohibited “the discharge of any

pollutant by any person” except as in compliance with

the CWA. 33 U.S.C. § 1311(a). There is no dispute that

Mr. Poe violated this prohibition time and again when

he suction dredge mined on the SFCR without an

NPDES permit in 2014, 2015, and 2018. These

violations are unquestionably serious. They not only

violated the law, but also caused environmental harm

by lowering water quality. See supra.

But in assessing the “seriousness” of these

violations, it is important to keep in mind that suction

dredge mining is allowed on the SFCR. In other words,

this is not a case of Mr. Poe suction dredge mining at

a time and place where it was not lawfully permitted.

His problem is that he repeatedly suction dredge

mined without an NPDES permit (even if he did have

a state IDWR permit with some—though not

completely—overlapping best management practices).

See, e.g., Poe, 421 F. Supp. 3d at 998, n.6 (in denying

Mr. Poe’s earlier Motion to Dismiss, Judge Bush

explaining that “the IDWR and NPDES permits are

not identical, as there is some overlap but also

numerous differences.”). Still, Mr. Poe argues that

ICL has not claimed that he violated either his IDWR

50a

permit or any actual NPDES permit requirements

(except for the 800-foot separation requirement (see

supra)). Resp. to Mot. for Remedies at 12, 17–20 (Dkt.

63); but see Reply ISO Mot. for Remedies at 11, n.4

(Dkt. 64) (ICL identifying instances where Mr. Poe

violated IDWR permit and reporting requirements

attached to NPDES permits). If so, how do the

environmental impacts of Mr. Poe’s unpermitted

suction dredge mining stack up against another’s

permitted suction dredge mining? If they are

comparable, how “serious” are Mr. Poe’s CWA

violations when evaluating a commensurate civil

penalty? See, e.g., Magar, 2015 WL 632367, at *5

(difficulty in attributing water quality problems to

illegal discharges “neither compel nor preclude a

reduction to the maximum civil penalty”); but cf.

Atlanta Gold, 879 F. Supp. 2d at 1168 (finding

discharges of arsenic and iron in excess of effluent

limitations over three-year period sufficient to justify

significant upward adjustment of total civil penalty).

The record does not neatly confront these

questions except to underscore the spectrum of

possible CWA violations and corresponding levels of

impact (seriousness). What is clear, however, is that

Mr. Poe violated the CWA when he suction dredge

mined 42 days on the SFCR without the required

NPDES permit and that these activities added

pollutants to the river and caused environmental

harm. Supra. Any similarities between properlypermitted mining activities and Mr. Poe’s

unpermitted (but nonetheless allegedly compliant)

mining activities largely miss the point and represent

a false equivalence. Mr. Poe should not have been

suction dredge mining without an NPDES permit at

all. The liability phase confirmed as much. Had he not,

51a

he never would have discharged pollutants into the

waterway, even if his activities otherwise complied

with a hypothetical NPDES permit (that may not have

even been issued). Each of the 42 times he did this

represents a serious CWA violation that, together,

warrant an upward adjustment of the civil penalty

amount.

3. Mr. Poe’s Good Faith Efforts to Comply With

the CWA

Good faith efforts to comply with applicable

requirements may reduce civil penalties. This factor

turns on whether Mr. Poe “took any actions to

decrease the number of violations or made efforts to

mitigate the impact of [his] violations on the

environment.” U.S. v. Smithfield Foods, Inc., 972 F.

Supp. 338, 349–50 (E.D. Va. 1997).

ICL argues that Mr. Poe took no steps to comply

with the CWA or to mitigate the effects of his suction

dredge mining. Mem. ISO Mot. for Remedies at 20

(Dkt. 59-1) (“Poe’s compliance efforts could hardly be

less vigorous. In fact, non-compliance has often been

Poe’s stated intention . . . .”) (emphasis in original). In

response, Mr. Poe does not walk back his belief that

suction dredge mining does not require an NPDES

permit or that he has openly suction dredge mined in

opposition to the EPA. Resp. to Mot. for Remedies at

21 (Dkt. 63). He instead claims that his opinions are

protected by the First Amendment, while noting his

consistent

compliance

with

IDWR

permit

requirements to show that he “still respected the

conditions that are in place to minimize and eliminate

the environmental impacts of his operations.” Id.

52a

Whatever protections exist via the First

Amendment, they do not excuse violations of the law

and certainly do not amount to good faith efforts to

comply with the CWA. Just the opposite. And while

observing state permitting requirements is better

than the alternative, its attendant “no harm no foul”

logic comes up short when assessing Mr. Poe’s good

faith efforts to respect a different, albeit parallel,

permitting standard that may have applied to

preclude his suction dredge mining on the SFCR and

foreclosed its environmental impacts altogether.

Supra. In short, these aspects of Mr. Poe’s

counterarguments are misplaced.

Despite all this, it is noteworthy that Mr. Poe’s

insistence against an NPDES permit did not seem to

be a knee-jerk reaction to an inconvenient legal

requirement getting in the way of his gold mining

pursuits. He was told this by his own attorneys before

he first suction dredge mined in Idaho in 2014. Poe

Dep., attached as Ex. B to 2nd Hurlbutt Decl. at 13:8–

20 (Dkt. 38-5) (“Q: When you went to Idaho, did you

have an NPDES permit for suction dredging in Idaho

in 2014? A: No. Q: Had you applied for one? A: No. Q:

And why didn’t you have one, Mr. Poe? A: At the

advice of my attorney, I didn’t. I was informed that I

did not need one.”); see also Poe Decl. ISO MSJ at ¶12

(Dkt. 39-4) (“I did not obtain an NPDES permit from

the Environmental Protection Agency (EPA) [in 2014]

because I was informed by my attorney that one was

not required.”). What’s more, after receiving notice

from the EPA in October 2014 about violating the

CWA for suction dredge mining on the SFCR without

an NPDES permit, Mr. Poe’s counsel wrote back and

explained why the EPA’s position was wrong. Exs. A

& B to Poe Decl. ISO Mot. to Dismiss (Dkt. 17-2). The

53a

EPA never responded, never contacted Mr. Poe or his

attorney again, and never took any further action. It

was thus no real surprise when Mr. Poe suction

dredge mined in Idaho in 2015 and 2018 without an

NPDES permit, even after receiving ICL’s “intent to

sue” notices in 2016, 2017, and 2018. Poe Decl. ISO

MSJ at ¶ 15 (Dkt. 39-4) (“I did not obtain an NPDES

permit from the EPA [in 2015] because, according to

counsel, the IDWR permit was the only permit I was

legally required to get.”); id. at ¶ 19 (same for 2018).

It is therefore possible to argue that this is not a

situation where Mr. Poe obviously knew better but

acted on his impulses and misguided convictions

anyway. His attorney told him that an NPDES permit

was not required and this advice aligned with his own

subjective view on the matter.10 That said, it does not

establish a good faith effort to comply with the CWA

(even if it may countenance against a finding of

outright bad faith) or render him legally blameless.

Short of actually securing the required NPDES permit

before suction dredge mining, the proper course of

action in this instance was to administratively engage

to resolution or proactively seek relief from the courts.

Mr. Poe purposely chose not to, ignored violation

notices, and proceeded to repeatedly suction dredge

mine on the SFCR without a permit. He ultimately did

so to his own detriment. Accordingly, an upward

adjustment of the civil penalty amount is in order.

10 In this way, ICL’s reliance on Erlanson is undercut. There,

Mr. Erlanson submitted an NPDES permit application to the

EPA but was denied. In re Dale Erlanson, Sr., Docket No. CWA10-2016-0109 (U.S. Environmental Protection Agency) at 7,

attached as Ex. D to 4th Hurlbutt Decl. (Dkt. 59-6). He suction

dredge mined anyway.

54a

4. The Economic Impact on Mr. Poe

Courts may reduce the civil penalty against a party

if the maximum statutory penalty would work an

undue hardship. Atlantic States Legal Found. v.

Universal Tool & Stamping Co., 786 F. Supp. 743,

753–54 (N.D. Ind. 1992). This factor will not reduce

the amount of the penalty unless the violator can show

that the penalty will have a “ruinous effect.” Magar,

2015 WL 632367, at *7 (citing U.S. v. Gulf Park Water

Co., 14 F. Supp. 2d 854, 868 (S.D. Miss. 1998)).

ICL argues that a penalty of at least $564,924

(already reduced from the $1,957,041 maximum

penalty) is warranted and will not impose an undue

burden on Mr. Poe given his personal assets and close

affiliation with AMRA.11 Mem. ISO Mot. for Remedies

at 21–22 (Dkt. 59-1). Mr. Poe insists that ICL

overstates his financial association with AMRA and

that ICL’s proposed penalty “places a significant

burden” on him individually. Resp. to Mot. for

Remedies at 21–23 (Dkt. 63). He submits that a

$60,924 penalty is more appropriate. Id. at 24.

Mr. Poe is an individual professional miner and

claims to have limited annual income and only a

limited number of assets. Id. at 23. To that end, he

states that his main source of income over the last few

years comes from his mining operations, a previouslyowned rental property, and the small consulting fees

received from AMRA. Id. He goes on to identify $3,000

in savings, a 2007 truck worth $5,000–$8,000, a 1985

11 AMRA is a 501(c)(3) non-profit that provides “mining education

and assist[s] small miners and public land users with issues that

arise when mining on state and federal lands.” Poe Decl. ISO

MSJ at ¶ 2 (Dkt. 39-4). “AMRA focuses on regulatory initiatives

that directly affect small miners.” Id.

55a

mobile home worth about $15,000, roughly 16 ounces

of gold valued at $28,064, and $75,000 in proceeds

from a recent sale of a 10-acre parcel of land. Id.12 ICL

does not dispute these figures or argue that Mr. Poe is

capable of paying its proposed civil penalty from these

rather modest income sources and assets; its

argument centers on Mr. Poe’s alleged access to

AMRA’s significant financial resources. Reply ISO

Mot. for Remedies at 111–12 (Dkt. 64). The economic

impact that a penalty will have on Mr. Poe

consequently rises and falls with the contours of this

relationship.

To begin, Mr. Poe is a founder and the President of

AMRA. Resp. to Mot. for Remedies at 5–6 (Dkt. 63).

He submits posts and uploads videos to AMRA’s

webpage about proposed federal and state legislation,

general mining activity, and issues impacting water

rights. He promotes AMRA during his mining trips.

He submits his mining activities as content on

AMRA’s webpage. Id. at 6. Despite this administrative

involvement with AMRA, the record reveals that all of

Mr. Poe’s suction dredge mining on the SFCR in 2014,

2015, and 2018 was done at his own expense, under

his own personal IDWR permits, and for his own

personal economic benefit—not AMRA’s. Id. at 6 & 23.

In this context, there is no basis to conclude that

Mr. Poe and AMRA are effectively one-and-the-same.

This action bears that out, with ICL asserting

12 In comparison, the plaintiff in Magar had $11,914.36 deposited

in various bank accounts, $3 million in unencumbered assets,

and $45,974.58 in monthly income. Magar, 2015 WL 632367, at

*7 (“Given evidence that Magar has substantial income and

unencumbered assets, the Court is not persuaded that a

substantial civil penalty would lead Magar to financial ruin.”).

Mr. Poe does not have these same resources.

56a

claims only against Mr. Poe individually, not AMRA

institutionally.

At the same time, Mr. Poe concedes that AMRA

provides monetary support to miners, including

himself, that are dealing with legal issues. Id. at 6; see

also Ex. C. to Hurlbutt Decl. (Dkt. 20-4) (AMRA

fundraising posting: “We could use some new

members, we have legal bills to pay . . . . You can

support AMRA with a $5 monthly donation.

Remember, this goes to fight for your mining rights

. . . .”); Ex. B to 4th Hurlbutt Decl. (Dkt. 59-4) (“We

will be doing many outings, fundraisers, dinners and

even yes . . . another Walk for Liberty to raise money

for this legal fight. . . . If you’d like to make a donation

or join AMRA, clink the link below.”) (emphasis

added); id. at Ex. C (Dkt. 59-5) (“[W]e need to spend a

large amount of money to get [this case] to appeal. We

are looking to raise $150,000 to get there folks. . . .

Want to make a cash donation, click the link below.”).

The true extent of this support, however, and whether

it would apply to a civil monetary penalty, is

unknown. At the end of the day, the mere possibility

of Mr. Poe’s access to AMRA’s legal defense fund

definitely generates “smoke” but not enough “fire” to

legitimize ICL’s matter-of-fact statement that, owing

to his ties to AMRA, “[Mr.] Poe has significant funds

to pay a penalty” of at least $564,924. Mem. ISO Mot.

for Remedies at 22 (Dkt. 59-1). The record is simply

too underdeveloped for such a broad legal conclusion.

All in all, the Court is satisfied that imposing a

civil penalty of at least $564,924 would have a more

drastic effect on Mr. Poe than is needed to account for

his CWA violations and ensure future compliance.

This does not mean that Mr. Poe’s suggested $60,924

57a

penalty prevails by default either. To the contrary,

Mr. Poe fails to explain the basis for this significantly

lower amount13 or how a higher penalty would be

ruinous to him. Because Mr. Poe failed to meet this

burden, the Court is not limited to the $60,924 penalty

he proposes.

5. Other Considerations

It is not unusual to try and determine whether a

civil penalty is equitable by drawing comparisons to

analogous cases. See U.S. v. Righter, 2010 WL

4977046, at *4 (M.D. Pa. 2010) (performing side-byside comparison of two cases to fashion equitable

penalty). Both ICL and Mr. Poe attempt to do this.

Compare Mem. ISO Mot. for Remedies at 14–16 (Dkt.

59-1), with Resp. to Mot. for Remedies at 23–24 (Dkt.

63). These exercises are helpful in the abstract, but

rarely supply an “apples to apples” comparison that

uncovers an obvious answer. Cases may deal with

different facts, different party statuses (individual vs.

corporate), different legal proceedings (court vs.

administrative), different manners of resolution

(settlement vs. finding of liability), or just different

methods of calculation (high per violation penalties in

low volume cases vs. low per violation penalties in

high volume cases) that frustrate comparison. Id. The

following chart incorporates the parties’ cases and

confirms as much:

13 More specifically, Mr. Poe has not supplied the basis for his

suggested $1,200 per day violation of the CWA. This figure,

multiplied by Mr. Poe’s 42 CWA violations, and then added to his

$10,524 economic benefit, amounts to $60,924.

C

I

I

I

I

I

C

Atlanta Gold

Magar

Erlanson

Rice

Grissom

Rogue

Riverkeeper

Poe

$1,957,041

$99,525,000

$203,256

$16,000

$16,000

$187,500

$75,150,500

Max Penalty

??

$96,150 (~1%)

$24,000 (~12%)

$3,600 (~23%)

$6,600 (~41%)

$100,000 (~53%)

$2 million (~3%)

Imposed Penalty

42

2,654

9

1

1

5

2,000

Violations

??

$37.50/per

$2,667/per

$3,600/per

$6,600/per

$20,000/per

$1,000/per

Per

violation

14 ICL cites to Atlanta Gold, Magar, and Erlanson; Mr. Poe cites to Rice, Grissom, and Rogue Riverkeeper.

Status

Case14

58a

59a

Of note, Erlanson, Rice, and Grissom dealt with

suction dredge mining on the SFCR without an

NPDES permit which the Court considers relevant

when evaluating the seriousness of Mr. Poe’s CWA

violations. However, only Erlanson included a finding

of liability (albeit administratively); the Rice and

Grissom penalties resulted from settlements with the

EPA. In all, the cases are difficult to reconcile and

fact-dependent. Accordingly, they provide only limited

comparative guidance.

Suffice it to say, and mindful of the complexities

inherent in cases like this, the Court exercises its

discretion and assesses a total civil penalty of

$150,000 for Mr. Poe’s 42 CWA violations. This

amount includes (i) the $10,524 direct economic

benefit that Mr. Poe received from his CWA violations

and (ii) $139,476 ($3,320.86 per violation) following

the Court’s evaluation of the remaining § 1319(d)

factors. Supra.

This penalty represents less than 8% of the

maximum possible penalty, yet can still be read

consistently with the penalties imposed in analogous

cases. It recognizes on the one hand the serious nature

of Mr. Poe’s 42 violations over three years; on the

other hand, it does not ignore the fact that suction

dredge mining is allowed on the SFCR (when properly

permitted) and that Mr. Poe is an individual suction

dredge miner, mines for his own personal benefit, and

has limited resources (though receives financial

support—to some degree—from AMRA). With these

overarching considerations in mind, the Court is

satisfied that this penalty accounts for the harm

involved, deters future violations, and represents an

equitable application of the law.

60a

III. ORDER

Based on the foregoing, IT IS HEREBY ORDERED

that ICL’s Motion for Remedies (Dkt. 59) is

GRANTED as follows:

1. An

injunction

consistent

with

this

Memorandum Decision and Order shall issue as part

of a separate judgment.

2. Defendant Shannon Poe shall pay a civil

penalty of $150,000 to the United States Treasury.

3. Within 14 days of this Memorandum Decision

and Order, the parties are instructed to submit a joint

proposal to the Court, addressing (i) the terms of the

injunction and (ii) a deadline for the $150,000

payment

and

any

corresponding

payment

schedule/logistics.

DATED: September 28, 2022

/s/ Raymond F. Patricco

Honorable Raymond E. Patricco

Chief U.S. Magistrate Judge

61a

Filed June 4, 2021

UNITED STATES DISTRICT COURT

DISTRICT OF IDAHO

IDAHO

CONSERVATION

LEAGUE,

Plaintiff,

vs.

SHANNON POE,

Defendant.

Case No.: 1:18-cv-353-REB

MEMORANDUM

DECISION AND

ORDER RE:

IDAHO

CONSERVATION

LEAGUE’S MOTION

FOR SUMMARY

JUDGMENT ON

LIABILITY

(Dkt. 38)

SHANNON POE’S

MOTION FOR

SUMMARY JUDGMENT

(Dkt. 39)

Pending before the Court is Plaintiff Idaho

Conservation League’s Motion for Summary

Judgment on Liability (Dkt. 38) and Defendant

Shannon Poe’s Motion for Summary Judgment (Dkt.

39). 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

The pertinent facts that now frame the legal issues

involved in this case (and as presented in the parties’

cross-motions for summary judgment) are largely

62a

undisputed1—namely, that Mr. Poe suction dredge

mined 42 days on the South Fork Clearwater River

during the 2014, 2015, and 2018 dredge seasons

(running from July 15 to August 15 each year),

without ever obtaining an NPDES permit under

Section 402 of the CWA. ICL argues that Mr. Poe

violated the CWA each time he operated a suction

dredge on the South Fork Clearwater River without

an NPDES permit. Mr. Poe disagrees, countering that

(1) his suction dredge mining did not add pollutants to

the South Fork Clearwater River and therefore did

not require an NPDES permit (or any other CWA

permit) in the first instance; and (2) even if his suction

dredge mining did add pollutants, those pollutants are

“dredged” or “fill” material regulated exclusively

under Section 404 (not Section 402) of the CWA and

therefore did not require an NPDES permit.2 This

Memorandum Decision and Order confronts these

Within its September 30, 2019 Memorandum Decision and

Order denying Defendant Shannon Poe’s Motion to Dismiss, the

Court generally discussed the characteristics of the South Fork

Clearwater River; recreational suction dredge mining and

National Pollutant Discharge Elimination System (“NPDES”)

permit requirements under the Clean Water Act (“CWA”);

Idaho’s permitting requirements for suction dredging; Mr. Poe’s

suction dredge activity on the South Fork Clearwater River

without an NPDES permit in 2014, 2015, and 2018; and Plaintiff

Idaho Conservation League’s (“ICL”) correspondence to Mr. Poe

in 2016, 2017, and 2018 advising him of its intention to initiate

a CWA citizen suit against him if he continued to suction dredge

in Idaho without an NPDES permit. See generally 9/30/19 MDO,

pp. 1–8 (Dkt. 26). This backdrop, while important for context, will

not be repeated here.

1

Mr. Poe further argues that any discharges from his suction

dredge mining are only “incidental fallback,” making them

exempt from Section 404 of the CWA in any event.

2

63a

positions, resolving the question of whether Mr. Poe’s

suction dredge mining is governed under Section 402

or Section 404 of the CWA.

II. LEGAL STANDARD

Summary judgment requires a showing that, as to

any claim or defense, “there is no genuine dispute as

to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A

principal purpose of summary judgment “is to isolate

and dispose of factually unsupported claims . . . .”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It is

“not a disfavored procedural shortcut”; rather, it is the

“principal tool[ ] by which factually insufficient claims

or defenses [can] be isolated and prevented from going

to trial with the attendant unwarranted consumption

of public and private resources.” Id. at 327. “[T]he

mere existence of some alleged factual dispute

between the parties will not defeat an otherwise

properly supported motion for summary judgment.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48

(1986). There must be a genuine dispute as to any

material fact—a fact “that may affect the outcome of

the case.” Id. at 248.

The evidence must be viewed in the light most

favorable to the non-moving party, and the court must

not make credibility findings. See id. at 255. Direct

testimony of the non-movant, however implausible,

must be believed. See Leslie v. Grupo ICA, 198 F.3d

1152, 1159 (9th Cir. 1999). However, the court is not

required to adopt unreasonable inferences from

circumstantial evidence. See McLaughlin v. Liu, 849

F.2d 1205, 1208 (9th Cir. 1988).

64a

In deciding cross-motions for summary judgment,

the court considers each party’s evidence. See Las

Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532 (9th

Cir. 2011); see also Fair Hous. Council of Riverside

Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1134 (9th

Cir. 2001) (“[W]hen simultaneous cross-motions for

summary judgment on the same claim are before the

court, the court must consider the appropriate

evidentiary material identified, and submitted in

support of both motions, and in opposition to both

motions, before ruling on each of them.”). The court

must independently search the record for factual

disputes. See Fair Hous. Council of Riverside Cnty.,

Inc. v. Riverside Two, 249 F.3d 1132, 1134 (9th Cir.

2001). Even though the filing of cross-motions for

summary judgment means that both parties

essentially assert that there are no material factual

disputes, the Court nonetheless must decide whether

disputes as to material fact are present. See id.

The moving party bears the initial burden of

demonstrating the absence of a genuine dispute as to

material fact. See Devereaux v. Abbey, 263 F.3d 1070,

1076 (9th Cir. 2001). Affirmative evidence (such as

affidavits or deposition excerpts) is not required to

meet this burden, as the movant may simply point out

the absence of evidence supporting the non-moving

party’s case. See Fairbank v. Wunderman Cato

Johnson, 212 F.3d 528, 532 (9th Cir. 2000). Doing so

shifts the burden to the non-movant to produce

evidence sufficient to support a favorable jury verdict.

See Devereaux, 263 F.3d at 1076. The non-movant

must go beyond the pleadings and show “by [his] own

affidavits, or by the depositions, answers to

interrogatories, or admissions on file” that a genuine

dispute of material fact exists. Celotex, 477 U.S. at

65a

324. Where reasonable minds could differ on the

material facts at issue, summary judgment should not

be granted. See Anderson, 477 U.S. at 251.

III. DISCUSSION

The CWA prohibits the discharge of any pollutant

into the waters of the United States unless the

Environmental Protection Agency (“EPA”) or the

Army Corps of Engineers (the “Corps”) has issued a

permit authorizing the discharge. See 33 U.S.C.

§§ 1311(a), 1342 (EPA and “[NPDES]” permits),3 1344

(Corps and “Permits for dredged and fill material”).

Neither ICL nor Mr. Poe disputes that the material

passing through Mr. Poe’s suction dredge and into the

South Fork Clearwater River falls within the

definition of a “pollutant”4 under the CWA; instead,

the parties dispute which agency—the EPA via

Section 402 of the CWA or the Corps via Section 404

of the CWA—has authority under the CWA to permit

the discharge, if any, of such pollutants into the South

Fork Clearwater River. For the reasons that follow,

the Court concludes that the EPA and Section 402 of

the CWA control the circumstances giving rise to the

instant action.

3 Of note, an NPDES permit is not required for discharges of

dredged or fill material into navigable waters. See 33 U.S.C.

§ 1342(a)(1) (“Except as provided in section[ ] . . . 1344 of this title,

the Administrator may . . . issue a permit for the discharge of a

pollutant . . . .”) (emphasis added); see also infra (discussing

question of whether suction dredge mining is dredge or fill

activity). The CWA defines “navigable waters” as “the waters of

the United States, including territorial seas.” 33 U.S.C. § 1362(7)

4 The CWA provides that “pollutant” means, among other things,

“dredged spoil,” “rock,” “sand,” and “cellar dirt” “discharged into

water.” 33 U.S.C. § 1362(6).

66a

A. Mr. Poe’s Suction Dredge Mining Added

Pollutants to the South Fork Clearwater

River, Thus Requiring an NPDES Permit

Under Section 402 of the CWA

A Section 402/NPDES permit is required if a

person “(1) discharged, i.e., added (2) a pollutant (3) to

navigable waters (4) from (5) a point source.” Comm.

to Save Mokelumne River v. East Bay Mun. Utility

Dist., 13 F.3d 305, 308 (9th Cir. 1993) (citing Nat’l

Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 165 (D.C. Cir.

1982)); see also 33 U.S.C. §§ 1311(a), 1342(a)(1),

1362(12) (CWA defining “discharge of a pollutant” as

“any addition of any pollutant to navigable waters

from any point source”). There is no dispute that rock

and sand passing through a suction dredge is a

pollutant; that the South Fork Clearwater River is a

navigable water; and that a suction dredge is a point

source. Compare ICL’s Mem. ISO MSJ, pp. 13–16

(Dkt. 38-2), with Poe’s Opp. to ICL’s MSJ, p. 8 (Dkt.

43). In turn, this reveals a lynchpin issue of the case:

whether Mr. Poe’s suction dredge mining involves the

“discharge” or “addition” of a pollutant to the South

Fork Clearwater River. ICL says it does. Mr. Poe says

it does not.

According to Mr. Poe, “suction dredge mining adds

nothing to the dredged streambed material that is

returned to the river or stream,” essentially arguing

that, because suction dredge mining does not add

anything to the water not already there to begin with,

there can be no addition of any pollutant and thus no

discharge of a pollutant for the EPA to permit. Poe’s

Opp. to ICL’s MSJ, p. 10 (Dkt. 43); see also Poe’s Mem.

ISO MSJ, pp. 9–12 (Dkt. 39-2). The CWA does not

resolve the issue by clearly defining (or defining at all)

67a

what the term “addition” means in this setting. But

the EPA has, interpreting it to include the

“resuspension” of rocks and sands from a placer

mining sluice box to a stream, even when those

materials came from the bed of the stream itself—an

interpretation the Ninth Circuit adopted in Rybachek

v. EPA, 904 F.2d 1276 (9th Cir. 1990).

In Rybachek, miners challenged the EPA’s CWA

regulations that required treating sluice box

discharge water from placer mining, arguing that

placer mining does not cause the “addition” of a

pollutant. The Ninth Circuit rejected that argument,

explaining:

In the sluicing process, a miner places the

ore in an on-site washing plant (usually a

sluice box) which has small submerged

dams (riffles) attached to its bottom. He

causes water to be run over the paydirt in

the sluice box; when the heavier materials

(including gold) fall, they are caught by the

riffles. The lighter sand, dirt, and clay

particles are left suspended in the

wastewater released from the sluice box.

Placer mining typically is conducted directly

in streambeds or on adjacent property. The

water usually enters the sluice box through

gravity, but may sometimes also enter

through the use of pumping equipment. At

some point after the process described

above, the water in the sluice box is

discharged. The discharges from placer

mining can have aesthetic and waterquality impacts on waters both in the

immediate vicinity and downstream. Toxic

68a

metals, including arsenic, cadmium, lead,

zinc, and copper, have been found at a

higher concentration in streams where

mining occurs than in non-mining streams.

....

[W]e will not strike down the EPA’s finding

that placer mining discharges pollutants

within the meaning of the [CWA]. Placer

miners excavate the dirt and gravel in and

around waterways, extract any gold, and

discharge the dirt and other non-gold

material into the water.

On the one hand, if the material discharged

is not from the streambed itself, but from

the bank alongside, this is clearly the

discharge into navigable waters of a

pollutant under the [CWA]. Congress

defined “pollutant” as meaning, among

other things, “dredged spoil . . ., rock, sand,

[and] cellar dirt . . . .” 33 U.S.C. § 1362(6)

(1982). The term “pollutant” thus

encompasses the materials segregated from

gold in placer mining. Congress defined

“discharge” as any “addition [ ] to navigable

waters from any point source.” 33 U.S.C.

§ 1362(12) (1982). Because, under this

scenario, the material discharged is coming

not from the streambed itself, but from

outside it, this clearly constitutes an

“addition.”

And on the other hand, even if the material

discharged originally comes from the

streambed itself, such resuspension may be

69a

interpreted to be an addition of a pollutant

under the [CWA]. See Avoyelles Sportsmen’s

League, Inc. v. Marsh, 715 F.2d 897, 923

(5th Cir. 1983) (stating that “[t]he word

‘addition,’ as used in the definition of the

term ‘discharge,’ may reasonably be

understood to include ‘redeposit’”); United

States v. M.C.C. of Florida, Inc., 772 F.2d

1501, 1506 (11th Cir. 1985) (action of

digging up sediment and redepositing it on

sea bottom by boat propellers constitutes an

addition of pollutants). We will follow the

lead of the Fifth and Eleventh Circuits and

defer to the EPA’s interpretation of the word

“addition” in the [CWA].

Id. at 1282, 1285–86 (certain internal citations

omitted, emphasis added); see also Borden Ranch

P’ship v. U.S. Army Corps of Eng’rs, 261 F.3d 810,

814–15 (9th Cir. 2001) (upholding Rybachek in context

of “deep ripping” in protected wetlands, stating:

“[A]ctivities that destroy the ecology of a wetland are

not immune from the [CWA] merely because they do

not involve the introduction of material brought in

from somewhere else. . . . [B]y ripping up the bottom

layer of soil, the water that was trapped can now drain

out. While it is true, that in so doing, no new material

has been ‘added,’ a ‘pollutant’ has certainly been

‘added.’”); E. Or. Mining Assoc. v. Dep’t of Envtl.

Quality, 445 P.3d 251, 254–55 (Or. 2019) (“EOMA”)

(though acknowledging a federal Court of Appeals

decision does not bind state court interpreting federal

law, nonetheless “agree[ing] with Rybachek that the

EPA reasonably has concluded that the suspension of

solids and the remobilization of heavy metals

resulting from suction dredge mining constitutes the

70a

‘addition’ of a pollutant that requires a permit under

the [CWA].”).5

Because the court in Rybachek recognized that the

statutory term “addition” is ambiguous, it deferred to

the EPA’s reasonable conclusion that the suspension

of solids resulting from placer mining—a practice that

includes suction dredge mining—constitutes the

“addition” of a pollutant within the meaning of the

CWA. See Rybachek, 904 F.2d at 1284–86 (citing

Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467

U.S. 837, 844 (1984); EPA v. Nat’l Crushed Stone

Ass’n, 449 U.S. 64, 83 (1980) (stating that “this Court

shows great deference to the interpretation given the

statute by the officers or agency charged with its

administration”)). The undersigned agrees—not only

that the CWA (was and) remains ambiguous on this

point, but also that the EPA (did and) continues to

reasonably interpret “addition” of a pollutant to

include the byproduct of suction dredge mining that

likewise warrants agency deference.

5 Mr. Poe argues that “[o]nly the Supreme Court of Oregon has

relied on Rybachek to conclude that the resuspension of and the

remobilization of heavy materials from suction dredge mining

constitute an ‘addition’ of a pollutant under the CWA requiring

a Section 402 permit.” Poe’s Opp. to ICL’s MSJ, p. 17 (Dkt. 43).

Even if true, Poe fails to also note that no other court has

specifically addressed whether suction dredge mining causes an

“addition” of a pollutant. Moreover, he similarly says nothing

about that fact that there are no cases that reject Rybachek’s

holding or its application to these (or similar) facts. Though

EOMA’s holding is not binding on this Court, the undersigned

finds that its consideration of and decision upon the very same

issues comprehensive and persuasive, such that this

Memorandum Decision and Order largely tracks the analysis

contained therein and is to be read consistently where

appropriate.

71a

For example, in 2018, responding to comments

regarding the reissuance of the General Permit for

suction dredge mining in Idaho, the EPA’s regional

office reaffirmed that the suspension of solid

materials caused by suction dredge mining constitutes

the “addition” of a pollutant to the water. See Resp. to

Comments Idaho Small Dredge General Permit (GP)

at p. 5, attached as Ex. Z to Second Hurlbutt Decl.

(Dkt. 38-17) (citing and discussing Rybachek). In

response to a different comment, the EPA explained:

If, during suction dredging, only water was

picked up and placed back within the same

water body, the commenter would be correct

that no permit would be necessary.

However, in suction dredging, bed material

is also picked up with water. Picking up the

bed material is in fact the very purpose of

suction dredging—the bed material is

processed to produce gold. This process is an

intervening use that causes the addition of

pollutants [rock and sand, see CWA

§ 502(6)] to be discharged to waters of the

United States. As a result, . . . an NPDES

permit is required for the discharge from

this activity.

Id. at p. 6 (internal citation omitted); see also infra

(noting same response’s consideration and rejection of

S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541

U.S. 95 (2004)). Then, when later reissuing the

General Permit for suction dredge mining in Idaho,

the EPA again decided that suction dredge mining

adds pollutants to the river, explaining further:

Dredging systems are classified as hydraulic

or mechanical (including bucket dredging),

72a

depending on the methods of digging.

Suction dredges, the most common

hydraulic dredging system, are popular with

small scale and recreational gold placer

miners. Suction dredges consist of a

supporting hull with a mining control

system, excavating and lifting mechanism,

gold recovery circuit, and waste disposal

system. All floating dredges are designed to

work as a unit to extract, classify,

beneficiate ores, and discharge. The disposal

system is a discrete conveyance, or point

source, from which pollutants are or may be

discharged.

Because suction dredges work the stream

bed, the discharges from suction dredges

consist of stream water and bed material.

The primary pollutant of concern in the

discharges from a suction dredge is

suspended solids, defined as total

suspended non-filterable solids. The

suspended solids discharged from suction

dredges result from the agitation of stream

water and stream bed material in the

dredge while processing the material. The

discharged suspended solids result in a

turbidity plume, or cloudiness, in the

receiving water. This discharge, when

released into waters of the United States,

constitutes the addition of a pollutant from a

point source that is subject to NPDES

permitting.

2018 Fact Sheet at p. 8, attached as Ex. 7 to MTD

(Dkt. 17-3) (emphasis added); see also EOMA, 445

73a

P.3d at 254–55 (noting, and giving deference to

additional (1) restrictions that reflect “EPA’s

considered conclusion that suction dredge mining can

result in the addition of pollutants to navigable waters

in the form of suspended solids and ‘remobilized’

heavy metals,” and (2) Corps and EPA regulations

“recogniz[ing] that redepositing materials dredged

from stream and river beds constitutes a regulable

discharge or addition of a pollutant”).

Mr. Poe insists, however, that suction dredge

mining cannot introduce or add any new pollutants

into the water because “[t]hese materials already exist

within the water body . . . .” Poe’s Opp. to ICL’s MSJ,

p. 11 (Dkt. 43). He claims that “[t]his movement is

similar to the Supreme Court cases holding that a

movement of water and pollutants through dams,

pump stations, and other drainages does not result in

the ‘addition’ of a pollutant into waters of the United

States.” Id. (citing Los Angeles Cnty. Flood Control

Dist. v. Nat. Res. Def. Council, Inc., 568 U.S. 78, 80–

82 (2013) (“L.A. County”); Miccosukee Tribe, 541 U.S.

at 109–112 (2004)). But these cases do not speak to the

situation at hand and thus do not operate to overturn

Rybachek.

In L.A. County, the Supreme Court reaffirmed that

“the transfer of polluted water between ‘two parts of

the same water body’ does not constitute a discharge

of pollutants under the CWA.” L.A. County, 568 U.S.

at 82. “No pollutants are ‘added’ to a water body,” the

Court said, “when water is merely transferred

between different portions of that water body.” Id.

Similarly, in Miccosukee Tribe, polluted water was

removed from a canal, transported through a pump

station, and then deposited into a nearby reservoir.

74a

See Miccosukee Tribe, 541 U.S. at 100. The Court held

that, if the canal and reservoir were simply two parts

of the same water body, then there is no “addition” of

pollutants, analogizing to ladling soup from a pot and

simply pouring the ladled soup back into the pot. See

id. at 109–112 (“[I]f C-11 and WCA-3 are simply two

parts of the same water body, pumping water from one

into the other cannot constitute an ‘addition’ of

pollutants. . . . ‘If one takes a ladle of soup from a pot,

lifts it above the pot, and pours it back into the pot,

one has not ‘added’ soup or anything else to the pot.’”)

(internal citation omitted, quoting Catskill Mountains

Chapter of Trout Unlimited v. City of New York, 273

F.3d, 481, 492 (2nd Cir. 2001)).

Mr. Poe’s reliance on these cases misses the point.

Suction dredge mining does not simply transfer water

(what the above cases address); to the contrary, it

excavates rock, gravel, sand, and sediment from the

riverbed and then adds those materials back to the

river—this time, in suspended form. See EOMA, 445

P.3d at 255 (distinguishing L.A. County and

Miccosukee Tribe, pointing out: “[T]he EPA

reasonably could find that suction dredge mining does

more than merely transfer polluted water from one

part of the same water body to another. Rather, the

EPA reasonably could find that suction dredge mining

adds suspended solids to the water and can

‘remobilize’ heavy metals that otherwise would have

remained undisturbed and relatively inactive in the

sediment of stream and river beds.”) (internal

quotation marks omitted). If Mr. Poe’s suction dredge

just sucked up river water from—and back into—the

South Fork Clearwater River (along with any

pollutants already in the water), he would be

transferring water and not adding any pollutants

75a

under L.A. County and Miccosukee Tribe.6 But that is

neither suction dredge mining, nor what Mr. Poe did

on the South Fork Clearwater River during the 2014,

2015, and 2018 dredging seasons.7

The EPA stated as much when responding to a comment

submitted as part of the reissuance of the General Permit for

suction dredge mining in Idaho. See Resp. to Comments Idaho

Small Dredge General Permit (GP) at p. 6, attached as Ex. Z to

Second Hurlbutt Decl. (Dkt. 38-17) (“The soup ladle example

referenced by the commenter refers to a water transfer, which

means ‘an activity that conveys or connects waters of the U.S.

without subjecting the transferred water to intervening

industrial, municipal, or commercial use’ (40 C.F.R. § 122.3(i)).

Notably, ‘[t]his exclusion does not apply to pollutants introduced

by the water transfer activity itself to the water being

transferred.’ Id. If, during suction dredging, only water was

picked up and placed back within the same water body, the

commenter would be correct that no permit would be necessary.

See South Florida Water Management Dist. v. Miccosukee Tribe

of Indians, 541 U.S. 95 (2004). However, in suction dredging, bed

material is also picked up . . . .”); see supra.

6

The EPA has also pursued CWA administrative enforcement

actions against two other dredge miners on the South Fork

Clearwater River for their unpermitted dredging in 2015. See

ICL SOF No. 41 (Dkt. 38-1). In one action, the miner and the EPA

entered into a Consent Agreement, with that miner agreeing to

pay a civil penalty. See id. In the other, the EPA prevailed before

an ALJ in proving CWA liability for discharging pollutants from

a suction dredge without an NPDES permit, with the ALJ

characterizing that miner’s reliance on L.A. County and

Miccosukee Tribe as “misplaced because:

7

[T]he operation of Respondent’s suction dredge

involves the removal of otherwise latent materials

from the bed of the South Fork Clearwater River, the

separation of the materials by weight as they travel

through the dredge, and the reintroduction of the

leftover lighter materials to the waterway in a

physically altered form, namely, suspended solids,

76a

In sum, the very nature of Mr. Poe’s suction dredge

mining added pollutants to the South Fork

Clearwater River. Rybachek therefore applies to

require an NPDES permit under Section 402 of the

CWA.8

thereby transforming those materials into

“pollutants” and altering the base of the river where

the materials are both removed and redeposited. This

process can hardly be likened to the simple transfer

of water.

Id. (citing 9/27/18 Order on Complainant’s Motion for

Accelerated Decision, pp. 18–19, attached as Ex. BB to Second

Hurlbutt Decl. (Dkt. 38-19)).

8 Mr. Poe questions the scope of Rybachek’s holding, claiming

that (1) it did not speak to the issue of whether recreational

suction dredge mining results in the discharge of dredged or fill

material, and that (2) its position on whether suction dredge

mining absolutely adds pollutants to a water body was more

equivocal than not. See Poe’s Opp. to ICL’s MSJ, pp. 14–18 (Dkt.

43). However, Rybachek is not being cited here to claim that

suction dredge mining does not involve dredge or fill material;

rather, Rybachek supports the conclusion that suction dredge

mining adds pollutants to a waterbody, alongside agency

deference. See infra (discussing dredge or fill material vis à vis

suction dredge mining). Second, any traction gained by pointing

out that Rybachek only held that a resuspension of materials

“may be interpreted to be an addition of a pollutant under the

[CWA],” recedes when, at the very least, the comparisons to be

drawn from Rybachek’s analysis to the instant action are

nonetheless obvious and compelling, and that, other than EOMA,

no other court has confronted whether suction dredge mining

adds pollutants to the water body. And, on that score, EOMA

unquestionably applied Rybachek to hold that it does. See supra.

77a

B. The Processed Material Discharged From

Mr. Poe’s Suction Dredge Mining on the

South Fork Clearwater River Is a Pollutant,

not Dredged or Fill Material, and Requires

an NPDES Permit Under Section 402 of the

CWA

Mr. Poe alternatively argues that, even if his

suction dredge mining adds pollutants to the South

Fork Clearwater River, the waste discharged from his

operation constitutes dredged or fill material over

which the Corps has exclusive permitting authority.

See Poe’s Mem. ISO MSJ, pp. 4–9 (Dkt. 39-2) (citing

Coeur Alaska, Inc. v. S.E. Alaska Conservation

Council, 557 U.S. 261, 273–74 (2009) (if single

discharge constitutes “dredged or fill material” and

another “pollutant,” only Corps has authority under

CWA to issue permit authorizing discharge of that

material into navigable water)).9 He contends that the

Corps’ regulations implementing the CWA (in

9 The initial issue in Coeur Alaska was whether the EPA or the

Corps had authority under the CWA to issue a permit for the

discharge of mining slurry into a lake. See Coeur Alaska, 557 U.S.

at 273. The parties agreed that the slurry constituted both “fill”

(which was subject to the Corps’ permitting authority) and a

“pollutant” (which was subject to the EPA’s permitting

authority). See id. at 275. The Court concluded that, in those

circumstances, the CWA gave the Corps sole authority to issue a

permit for the discharge of the slurry into the lake. See id. at

273–74. Therefore, to be clear, Coeur Alaska only decided who—

between the Corps or the EPA—had permitting authority in

instances where a discharge simultaneously involved fill and a

pollutant; it did not address whether suction dredge mining

actually discharged either fill or a pollutant (because, again, the

parties agreed that both existed). Here, however, the parties

disagree over whether the material discharged from Mr. Poe’s

suction dredge mining constitutes dredged material or a

pollutant/processed waste. See, e.g., EOMA, 445 P.3d at 256–57.

78a

particular, its definitions for “discharge of dredged

material” and “dredge material”) equivocally establish

that suction dredge mining falls under the Corp’s

Section 404 authority as a discharge of either dredged

or fill material—full stop. See Poe’s Mem. ISO MSJ,

pp. 8–9 (Dkt. 39-2) (“Under any reading of the

regulations, suction dredge mining involves the

discharge of dredged or fill material regulated by the

Corps under Section 404. The regulations provide an

answer and, therefore, ‘there is no plausible reason for

[agency] deference’ in this case.”) (quoting Kisor v.

Wilke, 139 S.Ct. 2400, 2415 (2019)). The undersigned

is not so convinced.

To begin, the CWA does not define the phrases

“dredged material” or the “discharge of dredged

material.” See EOMA, 445 P.3d at 257 (“More

specifically, it does not define whether material that

was dredged from navigable water remains ‘dredged

material’ after it has been processed. And, if

processing dredged material can change its character,

the text does not identify the point at which the

processed material becomes a pollutant other than

dredged material that is subject to the EPA’s rather

than the Corps’ permitting authority.”). “[I]f Congress

has not spoken directly to that issue, then the Corps

and the EPA’s reasonable interpretation of the [CWA]

both in issuing regulations and interpreting their

regulations is entitled to deference in determining

whether a discharge constitutes ‘fill,’ ‘dredged

material,’ or some other ‘pollutant.’” Id. (citing Coeur

Alaska, 557 U.S. at 277–78 (explaining that, if text of

CWA is ambiguous, courts look to agencies’

implementing regulations and, if those regulations

are ambiguous, to agencies’ interpretation and

application of their regulations to determine what

79a

CWA means)). Except, as EOMA highlights (after

setting out the regulatory history in “mind-numbing”

detail), the regulations implementing the CWA—

while persuasive and dispositive to Mr. Poe (see

supra))—do not specifically address which agency has

authority to permit the discharge of material resulting

from suction dredge mining and, to that end, are not

free of ambiguity themselves. Tracking EOMA, the

issue’s landscape in that respect unfolds as follows:

• In 1975, the Corps adopted definitions of

“dredged material” and the “discharge of

dredged material.”

The regulations defined (1) “dredged

material” as “material that is excavated or

dredged from navigable waters,” and

(2) “discharge of dredged material” as:

any addition of dredged material, in

excess of one cubic yard when used in

a single or incidental operation, into

navigable waters. The term includes,

without limitation, the addition of

dredged material to a specified

disposal site located in navigable

waters and the runoff or overflow

from a contained land or water

disposal

area.

Discharges

of

pollutants into navigable waters

resulting

from

the

onshore

subsequent processing of dredged

material that is extracted for any

commercial use (other than fill) are

not included within this term and are

subject to Section 402 of the [CWA].

80a

33 C.F.R. §§ 209.120(d)(4),(5) (1976). These

definitions

have

remained

largely

unchanged. Compare id., with 33 C.F.R.

§§ 323.2(c),(d); see also Poe’s Mem. ISO

MSJ, p. 5 (Dkt. 39-2).

Importantly, the definition of “discharge of

dredged material” identified an exception to

that definition, providing that “[d]ischarges

of pollutants into navigable waters resulting

from the onshore subsequent processing of

dredged material extracted for any

commercial use (other than fill) are not

included within the term and are subject to

Section 402 of the [CWA].” 33 C.F.R.

§ 209.120(d)(5) (1976); compare id., with 33

C.F.R. § 323.2(d)(2)(i); see also Poe’s Mem.

ISO MSJ, p. 6 (Dkt. 39-2). In explaining the

exception,

the

Corps

stated

that

“[d]ischarges of materials from land based

commercial

washing

operations

are

regulated under Section 402 of the [CWA]”

by the EPA. 40 Fed. Reg. 31320, 31321

(July 25, 1975); Poe’s Mem. ISO MSJ, p. 6

(Dkt. 39-2).10

10 In EOMA, the court found that “[t]he exception makes clear

that the act of processing dredged material can result in the

discharge of a ‘pollutant’ that requires a permit from the EPA

under Section 402 rather than the discharge of ‘dredged material’

that requires a permit from the Corps under Section 404.”

EOMA, 445 P.3d at 259 (emphasis added); see also id. at n.8.

Even so, the petitioners there (like Mr. Poe here) relied on the

exception to argue that it distinguished between discharges

resulting from processing dredged material on land (subject to

the EPA’s permitting authority), and discharges resulting from

81a

• In 1977, the Corps considered when the

discharge of “waste materials such as

sludge, garbage, trash, and debris in water”

would constitute “fill” that was subject to

the Corps’ permitting authority and when

they would constitute another pollutant

that was subject to the EPA’s permitting

authority. See 42 Fed. Reg. 37122–30

(July 19, 1977).

Initially, the Corps took the position that

the answer to that question turned on the

processing dredged material over water (subject to the Corps’

permitting authority). See id.; compare with Poe’s Mem. ISO

MSJ, p. 7 (Dkt. 39-2) (“Suction dredge mining also does not

involve ‘onshore processing’ under 33 C.F.R. § 323.2(d)(2)(i),

because mining and any discharge occur entirely in-stream. The

exclusion for Section 404 regulation does not apply since the

discharged dredge material is also not processed nor

commercially washed on the land, it simply passes through the

dredge and over a sluice box back into the same river.”). The

court in EOMA disagreed with the distinction, noting that (1) the

exception applies to discharges from onshore processing of

dredged material that is extracted for a commercial use, but that

if dredged material is extracted for some other use (a recreational

one, for example), then the exception does not apply regardless

of whether the dredged material is processed over land or water;

and (2) the reference to a single exception to the definition of

“discharge of dredged material” does not ipso facto mean that the

Corps intended that all other discharges resulted from landbased and water-based processing of dredged material would be

subject to the Corps’, rather than the EPA’s, permitting

authority. EOMA, 445 P.3d at 259–60 (“Because the 1975

regulatory definition of ‘discharge of dredged material’ either

does not address or does not unambiguously resolve whether

discharges resulting from suction dredge mining are subject to

the Corps’ or the EPA’s permitting authority, we look to the ways

in which the Corps and the EPA subsequently resolved that

issue.”).

82a

purpose for which those materials were

discharged into the water. See id. It

modified the definition of “fill” in the 1977

regulations to “exclude those pollutants that

are discharged into water primarily to

dispose of waste,” with the result being that

the EPA would have permitting authority

over waste discharged primarily for that

purpose, while the Corps would have

permitting authority over waste that was

discharged primarily to convert wetlands

into dry land. See id.; compare with 33

C.F.R. §§ 323.2(e)(1)(i-ii),(2),(f) (“Examples

of such fill material include, but are not

limited to: rock, sand, soil, clay, plastics,

construction debris, wood ships, overburden

from mining or other excavation activities,

and materials used to create any structure

or infrastructure in the waters of the United

States.”).

• In 1986, the EPA and the Corps entered into

a Memorandum of Agreement “to resolve a

difference (since 1980) between Army and

EPA over the appropriate CWA program for

regulating certain discharges of solid wastes

into waters of the United States.” 51 Fed.

Reg. 8871 (March 14, 1986). Among other

things, the Agreement established criteria

to determine when waste would be

considered “fill” subject to the Corps’

authority, and when it would be considered

another pollutant subject to the EPA’s

authority. See id. at 8872 (“Whereas the

definitions of the term “fill material”

contained in the aforementioned regulations

83a

have created uncertainty as to whether

Section 402 of the [CWA] or Section 404 is

intended to regulate discharges of solid

waste materials into waters of the United

States for the purpose of disposal of waste

. . . .”).

The Agreement identified four criteria for

determining when waste discharged into

water ordinarily would be regarded as fill

subject to the Corps’ authority. See id. (at

¶¶ B(4)(a–d)).

Relevant

here,

the

Agreement then described when waste

discharged into the water would be

considered a pollutant subject to the EPA’s

authority:

[A] pollutant (other than dredged

material) will normally be considered

by EPA and the Corps to be subject to

Section 402 if it is a discharge in

liquid, semi-liquid, or suspended form

or if it is a discharge of solid material

of a homogenous nature normally

associated with single industry

wastes, and from a fixed conveyance,

or if trucked, from a single site and

set of known processes. These

materials include placer mining

wastes, phosphate mining wastes,

titanium mining wastes, sand and

gravel wastes, fly ash, and drilling

muds. As appropriate, EPA and the

84a

Corps will identify additional such

materials.

Id. at ¶ B(5) (emphasis added).11

• Also in 1986, the Corps issued a regulation

defining the term “discharge of dredged

material,” as used in Section 404, to mean

“any addition of dredged material into the

waters of the United States,” but expressly

excluding “de minimis, incidental soil

movement

occurring

during

normal

dredging operations.” 51 Fed. Reg. 41,206,

41,232 (November. 13, 1986).

• In 1990, the Corps issued a regulatory

guidance letter that interpreted the 1986

Memorandum of Agreement and stated that

the material discharged as a result of placer

mining is subject to the EPA’s exclusive

permitting authority:

Paragraph B.5 in the Army’s 23 Jan

86 Memorandum of Agreement

(MDA) with EPA, concerning the

11 In EOMA, the Court found the first sentence of paragraph B(5)

to be broad enough to include unprocessed dredged material

within EPA’s permitting authority (explaining why it was

explicitly excepted), whereas its second sentence identifies

specific examples of processed waste that will be subject to the

EPA’s authority. See EOMA, 445 P.3d at 261–62 (“Not only does

the second sentence expressly name the specific types of

processed waste over which the EPA will have permitting

authority, but it lists ‘placer mining wastes,’ which includes

waste from suction dredge mining, as one of the wastes that will

fall within the EPA’s authority. Put differently, the second

sentence makes clear that placer mining wastes are pollutants

other than dredged material and thus subject to the EPA’s

permitting authority.”).

85a

regulation of solid waste discharges

under the [CWA], states that

discharges that result from in-stream

mining activities are subject to

regulation under Section 402 and not

under Section 404.

Dredged material is that material

which is excavated from the waters of

the United States. However, if this

material is subsequently processed to

remove desired elements, its nature

has been changed; it is no longer

dredged material. The raw materials

associated with placer mining

operations are not being excavated

simply to change their location as in

a normal dredging operation, but

rather to obtain materials for

processing, and the residue of this

processing should be considered

waste. Therefore, placer mining

waste is no longer dredged material

once it has been processed, and its

discharge cannot be considered to be a

“discharge of dredged material”

subject to regulation under Section

404.

Corps’ Regulatory Guidance Letter 88-10,

SUBJECT: Regulation of Waste Disposal

from In-Stream Placer Mining, attached as

Ex. A to Third Hurlbutt Decl. (Dkt. 44-2)

(emphasis added).

• In 1993, the Corps excluded “de minimus,

incidental soil movement occurring during

86a

normal dredging operations” from the

definition of “discharge of dredged material”

and expanded the regulatory definition to

include “‘[a]ny addition, including any

redeposit of dredged material, including

excavated material, into waters of the

United States.’” Nat’l Mining Ass’n v. U.S.

Army Corps of Eng’rs, 145 F.3d 1399, 1402

(D.C. Cir. 1998) (quoting 33 C.F.R.

§ 323.2(d)(1)(iii) (1993)). Responding to

challenges that this expanded definition

now included “incidental fallback” that

occurred during dredging, the Court of

Appeals for the District of Columbia Circuit

held that “incidental fallback” did not

require a permit under the CWA. See Nat’l

Mining Ass’n, 145 F.3d at 1404 (“[T]he

straightforward statutory term ‘addition’

cannot reasonably be said to encompass the

situation in which material is removed from

the waters of the United States and a small

portion of it happens to fall back.”). The

Court of Appeals therefore directed the

Corps to exclude “incidental fallback” from

the definition of “discharge of dredged

materials.” See id. at 1406 (reconciling

direction to exclude “incidental fallback”

from definition of “discharge of dredged

materials” with Rybachek, reasoning:

“[Rybachek addressed] “the discrete act of

dumping leftover material into the stream

after it had been processed,” not “imperfect

extraction, i.e., extraction accompanied by

incidental fallback of dirt and gravel.”).

87a

• In 1999, the Corps initially declined to

define “incidental fallback” and explained

that it would identify it on a case-by-case

basis. See Fed. Reg. 25120, 25121 (May 10,

1999) (“[W]e have promulgated today’s rule

to comply with the injunction issued in

[Nat’l Mining Ass’n], and as described

below, will expeditiously undertake notice

and comment rulemaking that will make a

reasoned attempt to more clearly delineate

the scope of CWA jurisdiction over

redeposits of dredged material in waters of

the U.S. In the interim, we will determine

on a case-by-case basis whether a particular

redeposit of dredged material in waters of

the United States requires a Section 404

permit,

consistent

with

our

CWA

authorities and governing case law.”).

• In 2000, the Corps issued a proposed rule in

the form of a rebuttable presumption that

identified the types of mechanized earthmoving activities that ordinarily would

result in the discharge of dredged material.

See 65 Fed. Reg. 50108, 50111–12

(August. 16, 2000) (“Today’s proposed rule

would modify our definition of “discharge of

dredged material” by establishing a

rebuttable presumption that regulable

discharges result from certain types of

activities in waters of the U.S. In particular,

the proposal would apply the rebuttable

presumption to mechanized land clearing,

ditching, channelization, in-stream mining,

or other mechanized excavation activity in

waters of the U.S., including wetlands.”).

88a

The effect of the proposed rule was to shift

the burden of persuasion to the regulated

party to prove that any discharge was only

incidental fallback. See id at 50113

(“Persons proposing to conduct activities

subject to today’s proposal may rebut the

presumption that a regulable discharge of

dredged material would occur by showing

that the activity is planned and conducted

so as to result only in incidental fallback. . . .

Today’s

proposal

would

state

our

expectation that, absent a demonstration to

the contrary, the activities addressed in the

proposed rule typically will result in more

than incidental fallback and thus result in

regulable

redeposits

of

dredged

material.”).12

12 In the preamble to the 2000 proposed rule, the Corps again

recognized the apparent distinction between processes and

unprocessed dredged material when citing to Rybachek. See 65

Fed. Reg. at 50110 (explaining Rybachek as: “removal of dirt and

gravel from a streambed and its subsequent redeposit in the

waterway after segregation of minerals in an ‘addition of a

pollutant’ under the CWA subject to EPA’s Section 402

authority”). That description is consistent with Nat’l Mining

Ass’n’s earlier-referenced explanation that Rybachek had

addressed “the discrete act of dumping leftover material into the

stream after it had been processed,” not “imperfect extraction,

i.e., extraction accompanied by incidental fallback of dirt and

gravel.” See supra (citing Nat’l Mining Ass’n, 145 F.3d at 1406).

The court in EOMA suggests that the explanation for the 2000

proposed rule goes even further than Nat’l Mining Ass’n, and

(together with the 2001 final rule (see infra)) is “consistent with

the Corps’ and the EPA’s earlier conclusion that the discharge of

placer mining waste is not the discharge of dredged material and

that, as a result, the EPA is authorized to issue permits under

89a

• In 2001, the Corps issued a final rule that

retained the substance of the presumption,

but stated that the burden of proof would

not shift. See 33 C.F.R. § 323.2(d)(2)(i). The

2001 rule sought to define the phrase

“incidental fallback” in two ways: (1) by

identifying the types of activities that

ordinarily will result in something more

than incidental fallback; and (2) by

specifically defining the phrase:

(i) The Corps and the EPA regard the

use of mechanized earthmoving

equipment to conduct land clearing,

ditching, channelization, in-stream

mining or other earth-moving activity

in waters of the United States as

resulting in a discharge of dredged

material

unless

project-specific

evidence shows that the activity

results in only incidental fallback.

This paragraph (i) does not and is not

intended to shift any burden in any

administrative or judicial proceeding.

(ii) Incidental

fallback

is

the

redeposit of small volumes of dredged

material that is incidental to

excavation activity in waters of the

United States when such material

falls back to substantially the same

place as the initial removal.

Section 402 of the [CWA] for the processed waste discharged as

a result of suction dredge mining” (and decidedly “[not] an intent

to depart from the conclusion in the 1986 Memorandum of

Agreement”). EOMA, 445 P.3d at 265.

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Examples of incidental fallback

include soil that is disturbed when

dirt is shoveled and the back-spill

that comes off the bucket when such

small volume of soil or dirt falls into

substantially the same place from

which it was initially removed.

Id. at §§ 323.2(d)(2)(i–ii) (2001).13

13 Like Mr. Poe here, the petitioners in EOMA argued that the

reference to “in-stream mining” in paragraph (i) includes suction

dredge mining which establishes that suction dredge mining

ordinarily results in the discharge of dredged material subject to

the Corps’ authority. Compare EOMA, 445 P.3d at 264, with

Poe’s Mem. ISO MSJ, p. 8 (Dkt. 39-2) (citing and quoting 66 Fed.

Reg. 4550, 4560–4561 (January 17, 2001)). But the court in

EOMA highlighted how the petitioners “focus[ed] on only half the

sentence,” since the rule applies only to “the use of mechanized

earth-moving equipment to conduct . . . in-stream mining.”

EOMA, 445 P.3d at 264 (“The small shop-vac-like equipment

used to conduct suction dredge mining hardly qualifies as

‘mechanized earth-moving equipment,’ unless one views vacuum

cleaners and other small suction devices as ‘mechanized earthmoving equipment.’ Were there any doubt about the matter, the

explanation for the 2001 rule removes it. It explains that the

phrase ‘mechanized earth-moving equipment’ refers to

‘bulldozers, graders, backhoes, bucket dredges, and the like.’”)

(quoting 66 Fed. Reg. 4552 (January 17, 2001)). Additionally, the

court declared that “[t]he 2001 rule was not intended to

determine, nor did it determine, whether discharges resulting

from processing dredged material were subject to the Corps or

the EPA’s permitting authority,” and “[w]hen both the entire rule

and the reason for promulgating it are considered, we cannot

agree with petitioners that the 2001 rule signaled a departure

from the Corps and the EPA’s stated position in the 1986

Memorandum of Agreement.” Id. Regardless, in 2008, the Corps

repealed the 2001 rule listing the type of earth-moving activities

that ordinarily would result in the discharge of dredged material

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Against this scrim, the undersigned finds that the

CWA’s text and the agencies’ implementing

regulations leave open another critical question:

whether other instances of processing dredged

material (beyond the one instance identified in the

regulations for onshore processing (see supra)) will

result in the discharge of a pollutant subject to Section

402 or the discharge of dredged material subject to

Section 404. See, e.g., EOMA, 445 P.3d at 270 (“[T]he

regulations do not resolve whether the discharges

resulting from suction dredge mining constitute a

pollutant subject to Section 402 or dredged material

subject to Section 404. Both the statutes and the

regulations are genuinely ambiguous on that

question.”) (emphasis added); see also id. at 271

(same). This uncertainty necessitates an examination

of the history, both of the EPA and the Corps, of

issuing permits for suction dredge mining. See id. at

266 (“It is precisely because the regulations leave that

question open that the EPA and the Corps’ application

of the statute and regulations matters.”) (emphasis

added).

Addressing the same issue, EOMA examined the

historical issuance of EPA general permits (and the

Corps’ corresponding acknowledgment) for suction

dredge mining in Alaska and Idaho. See id. at 266–68.

In each instance, the court found a shared

understanding between the two agencies that

acknowledged the EPA’s permitting authority as to

and simply excepted “incidental fallback” from the definition of

discharge of dredge material. See id. at 263 (citing 33 C.F.R.

§ 323.2(d)(2)(iii) (2008)); see also id. at n.16 (Not relying too

heavily on fact of repeal when “[n]either the 1986 Memorandum

of Agreement or the Corps’ 1990 guidelines letter . . . are

currently in force.”).

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suction dredge mining. See id. at 267 (for Alaska: “As

the Corps’ and the EPA’s joint exercise of authority in

Alaska demonstrates, those agencies have adhered to

the distinction reflected in the 1986 Memorandum of

Agreement and stated in the Corps’ 1990 regulatory

guidance letter. The EPA has issued permits for

discharges resulting from small scale suction dredge

mining, and the Corps has recognized the EPA’s

authority to do so.”); see also id. at 268 (for Idaho: “The

EPA thus reaffirmed that the material discharged as

a result of suction dredge mining is a pollutant that

requires a permit from the EPA under Section 402 and

not dredged material that requires a permit from the

Corps under Section 404.”) (citing and quoting Resp.

to Comments Idaho Small Dredge General Permit

(GP) at p. 7, attached as Ex. Z to Second Hurlbutt

Decl. (Dkt. 38-17) (discussing (1) commenters’

confusion between “discharge of dredged material”

and “discharge of pollutant,” while reaffirming its

position that material discharged as result of suction

dredge mining is “discharge of pollutant” subject to

regulation under Section 402 and not incidental

fallback, and (2) how Corps “routinely informs

applicants who request a [Section] 404 permit for

small suction dredging in Idaho that, unless a

regulable discharge of dredged or fill material will

occur, the EPA is the lead agency for the activity.”)).

After rejecting other possibly-consistent applications

between the agencies on the issue (one of which

Mr. Poe also cites here (see Poe Mem. ISO MSJ,

pp. 17–18 (Dkt. 39-2))), EOMA ultimately concluded:

In our view, the regulatory history reveals

that, from 1986 to 2018, the EPA and the

Corps have been on the same page. From the

1986 Memorandum of Agreement between

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the EPA and the Corps to the general

permits issued by the EPA in 2018 and the

Corps in 2017, both agencies consistently

have recognized that processed waste

discharged as a result of suction dredge

mining is a pollutant that requires a permit

from the EPA under Section 402. Similarly,

they consistently have concluded that the

discharge resulting from suction dredge

mining is not “dredged material” that

requires a permit from the Corps under

Section 404.

EOMA, 445 P.3d at 269 (emphasis added); see also

id. at 273 (same).

ICL urges the Court to follow EOMA’s lead here.

See generally ICL’s Opp. to Poe’s MSJ, pp. 6–16 (Dkt.

44). ICL references how, in 2004, the Idaho

Department of Environmental Quality, Nez Perce

Tribe, and EPA prepared the South Fork Clearwater

Subbasin Assessment and Total Maximum Daily

Loads (“2004 TMDL”) to address sediment and

temperature pollution, and stated therein that suction

dredge mining requires a Section 402 permit. See id.

at p. 10 (citing 2004 TMDL at p. 100, attached as Ex.

W to Second Hurlbutt Decl. (38-14) (“Suction dredges

are considered to be point sources, and therefore are

required to obtain an NPDES permit to discharge

. . . .”)).

The Court acknowledges that even with such

additional context, as with the regulations themselves

(see supra), there is space to argue otherwise—

specifically, that the EPA and the Corps have not

consistently applied Sections 402 and 404 to suction

dredge mining activity over the years—an argument

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that Mr. Poe puts forward. See Poe’s Mem. ISO MSJ,

pp. 16–18 (Dkt. 39-2); but see ICL’s Opp. to Poe’s MSJ,

pp. 9–13 (Dkt. 44).14 But whatever patchwork of

permitting authority has existed over time, from at

least 2013 (via the general permitting process,

initiated in 2010 and after notice and comment), it is

the EPA that has required a Section 402 permit for

suction dredge mining. This fact, coupled with the

overall approach to and assignment and acceptance of

responsibilities under the EPA’s and the Corps’

interpretation of the applicable regulations to suction

dredge mining (see supra), confirms that the agencies

have taken an official position and made a fair and

considered judgment, based on its substantive

14 Moreover, responding to Mr. Poe’s claim that the EPA

previously endorsed the Idaho Department of Water Resources’

(“IDWR”) permit program as sufficient, ICL points out that such

an argument not only overlooks the undisputed current state of

the EPA’s and the Corps’ permitting authority (in Idaho and

elsewhere), it also fails to reconcile the distinctions between the

IDWR and Section 402 permitting programs. See ICL’s Opp. to

Poe’s MSJ, pp. 10–11 (Dkt. 44) (“IDWR’s permitting program was

not and is not an authorized CWA program; IDWR’s program

implements Idaho’s state law for protecting streambeds and

streambanks from alterations. . . . EPA’s view on the

environmental adequacy of a non-CWA state program like

IDWR’s simply has no bearing on whether CWA permits are

required.”); see also ICL’s Reply ISO MSJ, pp. 9–10 (Dkt. 46)

(same); Resp. to Comments Idaho Small Dredge General Permit

(GP) at p. 6, attached as Ex. Z to Second Hurlbutt Decl. (Dkt. 3817) (discussing distinction between IDWR and EPA permits in

response to commenter question: “The EPA permit and the

[IDWR] permit are issued under two different authorities for two

different reasons. The EPA NPDES permit is issued pursuant to

the [CWA] and is an authorization to discharge wastewater to

waters of the United States. IDWR regulates the alteration of

stream channels from the use of recreational mining equipment

in a stream under the Idaho Stream Channel Protection Act.”).

95a

expertise, that the operation of a suction dredge

results in the discharge of processed wastes, thus

requiring Section 402 permits. See, e.g., EOMA, 445

P.3d at 272 (“The concern is not with the navigability

of the water body, a concern that falls within the

Corps’ expertise; rather, the concern is with the health

of the water body, a concern that lies at the heart of

the EPA’s expertise. The Corps and the EPA

reasonably could conclude that the EPA was better

suited than the Corps to make those types of water

quality decisions. The risks posed by the cumulative

effects of multiple suction dredge mining operations

on the overall health of a stream differ from the sort

of engineering issues that the Corps typically

addresses.”). The Court therefore defers to the

interpretation by these agencies that the processed

material discharged from Mr. Poe’s suction dredge

mining on the South Fork Clearwater river is a

pollutant, not dredged or fill material, and requires an

NPDES permit under Section 402 of the CWA.

IV. ORDER

Based on the foregoing, IT IS HEREBY ORDERED

that (1) Plaintiff Idaho Conservation League’s Motion

for Summary Judgment on Liability (Dkt. 38) is

GRANTED; and (2) Defendant Shannon Poe’s Motion

for Summary Judgment (Dkt. 39) is DENIED.

Within two weeks of the date of filing of this

Memorandum Decision and Order, the parties are to

file a joint status report, speaking to any subsequent

96a

stages left to be decided in the case and proposed

briefing schedules, for such remaining issues, if any.

DATED: June 4, 2021

/s/ Ronald E. Bush

Ronald E. Bush

Chief U.S. Magistrate Judge

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Filed January 11, 2024

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IDAHO CONSERVATION

LEAGUE,

Plaintiff-Appellee,

v.

SHANNON POE,

Defendant-Appellant.

No. 22-35978

D.C. No. 1:18-cv00353-REP

District of Idaho,

Boise

ORDER

Before: WARDLAW and M. SMITH, Circuit Judges,

and HINKLE,* District Judge.

Judges Wardlaw and M. Smith vote to deny the

petition for rehearing en banc, and Judge Hinkle so

recommends. The full court has been advised of the

petition for rehearing en banc, and no judge requested

a vote on whether to rehear the matter en banc. Fed.

R. App. P. 35. The petition for rehearing en banc is

DENIED.

* The Honorable Robert L. Hinkle, United States District Judge

for the Northern District of Florida, sitting by designation.