Suction dredge mining: the United States Forest Service hands miners the golden ticket.

• Author: Delcotto, Adrianne

1. INTRODUCTION II. GOLD MINING A. The Dark Shadow of the Gold Rush B. Suction Dredge: The Modern Golden Goose 1. Commandeering the Suction Dredge 2. Environmental Havoc III. FIGHT AGAINST SUCTION DREDGING ON STATE AND FEDERAL LANDS A. California's Moratorium B. USFS's Mandates: Offering Minimal Controls in National Forests 1. National Forest Management Act Requirements 2. USFS's Failure to Use Best Available Science C. USFS's Reign Over the Siskiyou IV. OUTDATED MINING LAWS A. No Automatic "Right to Mine" B. Invalid Recreational Mining Claims C. Mandatory Compliance with Environmental Laws 1. Clean Water Act Requirements 2. The Endangered Species Act V. FUTURE OF THE SISKIYOU NATIONAL FOREST A. The Hardrock Mining and Reclamation Act of 2009 B. Wilderness Designation VI. CONCLUSION I. INTRODUCTION

   "For a short time we lived quietly. But this could not last. White men had found gold in the mountains around the land of winding water." (1) "For in the true nature of things, if we rightly consider, every green tree is far more glorious than if it were made of gold and silver." (2) The story of the Rogue River-Siskiyou National Forest (Siskiyou National Forest) begins in the golden hills of California and trickles into the lush Oregon forest. (3) Gold lured the masses to California in 1849 (4) and into Oregon by the 1850s; (5) in their quest for wealth these miners wreaked environmental havoc within western waters. (6) Today, gold lures the suction dredges (7) into Oregon and California, culminating in the Siskiyou National Forest. (8) Though the United States Forest Service (USFS or Forest Service) freely allows these miners to rim their dredges, the miners also face activists and local governments that oppose suction dredging for its harmful environmental impact. (9)

   The great environmental havoc modern suction dredging causes in aquatic ecosystems actually began in 1849 with the Gold Rush. Gold Rush miners left behind mercury-laden waters that remain today. (10) This toxic legacy follows modern miners deep into the California and Oregon forests, where their vacuum powered diesel dredges stir up mercury-laden waters and disrupt valuable salmon habitat. (11)

   Recently, the battle against suction dredge mining came to a temporary halt on California state lands when Governor Schwarzenegger signed into law a temporary moratorium banning suction dredge mining. (12) Although this temporarily halted suction dredge mining in California, the battle rages on inside the Siskiyou National Forest and particularly in Oregon, where miners envision a golden opportunity to stake new mining claims. (13) So far, attempts to reduce suction dredge mining in the Siskiyou proved futile. In 2009, the Ninth Circuit, in Siskiyou Regional Education Project v. United States Forest Service, (14) declined to force USFS to require a plan of operation for recreational suction dredgers mining within the national forest. (15)

   This Chapter explores the suction dredging debate, concluding that USFS exercises too much discretion in allowing suction dredge mining inside the Siskiyou National Forest. Part I examines the background of the recreational suction dredge mining debate: the Gold Rush as it relates to mining today; modern suction dredge mining practices; and the ecological harm that miners cause to riparian reserves and the aquatic ecosystem. Part II explores gold mining regulation in the Pacific Northwest, comparing California's temporary mining ban with USFS's hands-off approach, which is supported by statute and recent court cases. Part In argues that if it desired, USFS could ban suction dredges in national forests, since suction dredgers' "right to mine" under the General Mining Law of 1872 (Mining Law) (16) is laden with limitations. Part IV contemplates the future of suction dredge mining in the Siskiyou and examines proposals to update mining laws and designate new wilderness areas; if implemented, such actions would restrict USFS's broad approval of suction dredge mining within the Siskiyou.

2. GOLD MINING

   Modern suction dredge miners follow the same golden dream as their predecessors. Though suction dredge mining is not as outwardly harmful as mining techniques of the 19th Century Gold Rush, just below the surface of western waters, suction dredges stir up toxic sediments and disrupt fish habitat, causing great eeological harm.

   1. The Dark Shadow of the Gold Rush

      The modern West burst into existence in 1848 with the discovery of gold on the American River in California. (17) The first miners to arrive, known as the 49'ers, discovered massive deposits, offering them the chance to strike it rich by simply panning for gold. (18) Unfortunately early miners adopted harmful practices such as adding mercury to sluice boxes to amalgamate finer gold particles. (19) As easy placer gold became sparse, miners adopted even more destructive practices, including hydraulic mining and hard rock mining, to get at gold deeply embedded within the earth. (20) Inevitably each individual miner left a mercury footprint in the California waters that they mined. (21)

      Gold miners knew little of mercury's danger; they did not understand the long-term effects on humans and the environment. (22) Because of its cost, miners tried to recover and reuse the mercury (23) but inevitably, millions of pounds were lost to the environment from placer and hardrock mining. (24) Mercury remains in western waters today and is effortlessly "panned out of gravel or sucked from creek and riverbeds with a turkey baster." (25) Mercury, after conversion by microbial action into methylmercury, easily incorporates into the tissues of microbes, plants, and animals, eventually crossing the blood-brain barrier in living organisms and becoming deadly. (26)

      When miners flooded into California in 1849 they brought a "get rich quick" attitude, with no concern for the law or the environment. (27) Existing laws offered little environmental protection; (28) the Federal government's promotion of mining--reflected by the Mining Law incentivized miners to head west and strip western waters for gold. Miners risked their lives to reach the golden promise, and "anything that stood in the way ... was pushed aside or destroyed." (29) The same golden dream drives today's suction dredge miners into the Siskiyou National Forest, an area still suffering from a lack of legal protections.

   2. Suction Dredge: The Modern Golden Goose

      Much like their predecessors, the New 49'ers (30) and similar groups of recreational miners flood western streams and rivers with dreams of striking it rich, refusing to acknowledge the environmental havoc they inflict. (31) Suction dredge mining is not as apparently destructive as hydraulic and hardrock mining, however it substantially impacts sensitive aquatic ecosystems by creating unstable riverbeds for endangered salmon and steelhead egg incubation (32) and disrupting dormant mercury piles that are deadly to human and aquatic life. (33) Throughout the Northwest, these destructive recreational miners enter as guests of the federal government, operating within precious national forests. (34)

      1. Commandeering the Suction Dredge

         Today recreational miners either pan for gold or use a modern suction dredge, while industrial gold miners use either large suction dredge machines or a form of hard rock mining. (35) Recreational miners such as the New 49'ers do not engage in hardrock mining as miners did during the Gold Rush. (36) Instead these weekenders search for placer gold that resides along the bottom of river and streambeds. (37) To reach such placer gold, miners must delve into the sediment that makes up the stream and riverbed, sifting out the golden grains. (38)

         Miners use an engine-powered hose to remove streambed materials, such as rocks, sand, gravel, silt, gold, and other materials, including any biological materials that may reside on the bed. (39) The materials pass through the suction hose, which varies from two to ten inches in diameter, and then through a sluice box. (40) Miners separate and trap the dense gold from other streambed materials, dumping gravel, sediments, and biological materials back into the stream. (41) Dredging normally occurs in ten feet of water or less, but larger size dredges often have hookah-air systems, allowing divers to reach the beds of deeper rivers. (42) Miners suck up the streambed "as quickly as the operator is able to feed it into the suction nozzle," suggesting that the miners do not discriminately select what materials are sucked up the hose. (43) As the miners dredge, they move large boulders and rocks out of the way, further disrupting the streambed. (44)

      2. Environmental Havoc

         Suction dredge mining causes harm to the aquatic ecosystem by stirring up mercury, depositing sediment, and creating unstable habitat conditions for aquatic species. (45) Modern suction dredge mining does not require mercury but cannot avoid disrupting and redistributing the mercury deposits of its predecessors. (46) By disrupting mercury pockets lying dormant in western waters, suction dredge mining reallocates the mercury into the water, exposing aquatic life and eventually humans to the toxin. (47) Even in a controlled study, in which scientists specifically used a suction dredge to collect mercury by targeting mercury hotspots, two percent of mercury that the scientists intended to collect accidently escaped and re-deposited into the water. (48) Once no longer dormant, the mercury was "easily transported away by the river"; the escaped mercury concentrations were "more than ten times higher than needed to classify it as a hazardous waste." (49)

         Mercury disrupted by suction dredges poisons aquatic and human life. The United States Environmental Protection Agency confirmed that the "primary route by which the U.S. population is exposed to methylmercury is through the consumption of fish." (50) When miners release dormant mercury into fish filled...