Several interrelated Idaho-based gold mining companies brought suit under the Clean Water Act’s citizen enforcement provision on Tuesday, claiming that the federal government has and continues to illegally discharge pollutants into several of the companies’ mining sites in the Boise and Payette National Forests. The complaint, filed in the District of Idaho, alleged that the United States of America, United States Department of Agriculture, the United States Forest Service (USFS), the U.S. Secretary of Agriculture, and the USFS Chief have allowed prohibited pollutants to flow onto sites where plaintiffs Idaho Gold Resources Company, LLC, Stibnite Gold Company, and Midas Gold Idaho, Inc. (collectively Midas) operate gold mines.
The present suit follows a 2019 case filed by the Nez Perce Tribe against Midas for allegedly discharging pollutants into parts of the Snake River and its tributaries without a valid National Pollution Discharge Elimination System (NPDES) permit. In the instant action, the plaintiffs seek to exculpate themselves, pointing instead to the United States government as the party responsible for the illegal discharges from land it owns in fee simple.
If the Nez Perce Tribe’s allegations regarding pollutant detection on five different sites are true, the complaint averred, “then point sources located on lands owned and operated by the United States and USFS are impacting water quality at (Midas’s sites), including in streams and rivers that pass through patented lands held by (the Midas subsidiaries), and subjecting Midas to potential clean-up costs and penalties associated with those discharges.” The plaintiffs also contended that “historic operations or approvals by USFS may also have caused or exacerbated water quality issues at the Site, including for the locations where the Tribe is alleging that Midas is violating the CWA.”
The historic activities cited in the complaint include mining and natural mineralization, which could have resulted in deposition of aluminum, arsenic, antimony, cyanide, iron, manganese, mercury, and thallium, into the Snake River and its tributaries at concentrations exceeding relevant water quality standards. The complaint asserted that “(s)uch contributions have occurred on multiple occasions during the past five years and are ongoing on at least one of those properties.”
If the Nez Perce Tribe obtains the full relief requested, that “Midas remediate surface seeps, the surface flow of water, and rock piles, any of which would. . . trigger the requirement that Midas secure permits from USFS authorizing such work,” Midas would be in an “untenable position,” the complaint claims, because “(c)omplying with the injunction would require Midas to disregard the permitting requirement for lands that Midas does not own.”
In turn, the plaintiffs seek declaratory relief establishing that the United States owns the land on which the point sources of the pollution are located and is responsible for any CWA NPDES violations. They also request an injunction to prevent the further discharge of pollutants, the assessment of CWA-sanctioned civil penalties, and reimbursement of their litigation costs and expenses.
The plaintiffs are represented by Givens Pursley LLP.