Parkening v. Idaho State Board of Land Commissioners

No. 12170 (Idaho Dist. Ct. December 5, 1977)

Granting plaintiffs' motion for summary judgment, the court voids a mining lease in the bed of a scenic river and enjoins removal of sand and gravel by the State Transportation Department. The proposed removal would constitute "dredging" and is prohibited under the Idaho Dredge Mining Act. The Department was issued a lease by defendant for the removal of sand and gravel from a portion of a river included within the National Wild and Scenic River System. The Idaho Dredge Mining Act prohibits "dredge mining in any form" on portions of the National Wild and Scenic River System, and the court reads a broader meaning into the term "dredge mining" as used here than as defined in other parts of the state law and holds the proposed removal in this case to fall within the scope of that term. Furthermore, in light of the policies behind the Wild and Scenic Rivers Act and the Idaho Dredge Mining Act and the injurious effects of dredge mining, the court reads the intent of the state legislature as opposing any dredging activity that would alter or disturb the natural condition of the Idaho segments of the National Wild and Scenic Rivers System.

Plaintiffs previously brought this case before the United States District Court for Idaho. Parkening v. Idaho State Board of Land Commissioners, No. 3-75-45, ELR PEND. LIT. 65283 (D. Id., filed July 15, 1975). The case was dismissed for lack of federal jurisdiction, and an appeal is pending in the Ninth Circuit.

Counsel for Plaintiffs
Scott W. Reed
P.O. Box A, Coeur d'Alene ID 83814
(208) 664-2161

Counsel for Defendants
Ursula Kettlewell, Ass't Attorney General
State House, Boise ID 83720
(208) 384-2400

[8 ELR 20102]

Swanstrom, J.:

[8 ELR 20103]

This matter is before the court on plaintiffs' motion for summary judgment and defendants' cross motion for summary judgment. In addition to the complaint and answer, plaintiffs' motion for summary judgment is supported by a copy of the transcript of a hearing held September 19, 1974, in Grangeville, Idaho, and by a copy of the State of Idaho River Bed Lease #2246. Defendants' motion for summary judgment is supported by the affidavits of Terry Maley, Edward S. Middlemist, and E. Dean Tisdale. A hearing was held on these motions on November 17, 1977, at which Scott W. Reed appeared as attorney for plaintiffs, and Ursula Kettlewell, Assistant Attorney General appeared for defendants. At the hearing oral arguments were made to the court and both counsel had previously submitted written briefs.

The court having now considered the matters is of the opinion that plaintiffs' motion for summary judgment ought to be granted, and defendants' cross motion for summary judgment ought to be denied for the following reasons.

The ultimate question presented by these motions for summary judgment is whether the removal of sand and gravel by the State Transportation Department from the bed of the Middle Fork of Clearwater River above Kooskia, Idaho, under the proposed lease from the State Board of Land Commissioners, would constitute a "dredging" of the river that is prohibited by any of the provisions of the Idaho Dredge and Placer Mining Protection Act (compiled as IDAHO CODE §§ 47-1312-47-1322) or is prohibited by IDAHO CODE § 47-1323 (as added by 1970 S.L., Ch. 244, § 1).

It is the state's position that the proposed lease is authorized under IDAHO CODE § 47-704 and that the proposed method of gravel removal under the lease does not constitute "dredging" as defined by IDAHO CODE § 47-1313.

Originally the lease application and the proposed lease contemplated five gravel removal sites, described as gravel bars lying in the Middle Fork of the Clearwater River. Before this suit was commenced, the State Transportation Department withdrew its request to lease sites numbered three, four, and five (see letter attached to affidavit of E. Dean Tisdale). (Only sites number one and two remain in the proposed lease.)

It is the plaintiffs' contention that the proposed lease shows on its face that it was issued under the authority of the Idaho Dredge and Placer Mining Protection Act (hereinafter referred to as the Dredge Mining Act). Plaintiffs further contend that the three affidavits submitted by defendants in support of defendants' motion for summary judgment are an attempt to alter and impeach the terms of a written instrument, and that defendants should not be permitted to deny what the lease itself states about the mining activity that would or could be permitted under the lease.

In its opening paragraph the lease recites that it is made ". . . under and pursuant to Title 47, Chapter 7, IDAHO CODE, as amended:"

IDAHO CODE § 47-704 authorizes the State Board of Land Commissioners to lease tracts not exceeding 640 acres:

for prospecting and mining purposes, and mineral deposits, except for leases for oil, gas and other hydrocarbons, that may be contained in any portion of the unsold lands of the State or that may be contained in state lands sold with a reservation of mineral deposits or belong to the State of Idaho by reason of being situated between the high water marks of navigable rivers of the State, . . . .

In respect to whether "mining" activity is contemplated by this lease, the following language in the lease is noted:

Paragraph #2, page 1:

. . . does lease and demise unto the leasee exclusive right and privilege to mine the bed of the Middle Fork of the Clearwater River, between high water marks thereof, for sand and gravel deposits, . . .

Paragraph #4, page 1 (after describing the locations of the various gravel bars):

. . . together with the right to use and occupy so much of the bed of the said river as may be reasonably incident to the mining, operation and removal, of said sand and gravel deposits bound therein, and subject to the conditions laid down in said Title 47, Chapter 7, Idaho Code, for a period of five (5) years from the date of this lease; provided, however, that said leasee shall at all times maintain the navigability of the portion of the river so leased during all of said mining operations, to the same extent and degree as said river is generally navigable and further to comply with all reasonable rules and regulations laid down by said State Board of Land Commissioners, under the authority delegated to them by Title 47, Chapter 7, Idaho Code, and also by the Idaho Dredge and Placer Mining Protective Act, (Title 47, Chapter 15, [sic] IDAHO CODE).

Paragraph #3, page 1:

To commence actual mining operations upon the land covered by this lease within twenty-four (24) months from the execution of this lease, and that all mining operations shall be done in a good and workmanlike manner, using the most approved methods of mining, which in the judgment of the lessee will extract the largest percent of values from said leased land, and to substantially protect all surface openings or workings where persons or animals are likely to be injured by falling therein, or endangered otherwise, except as the lessor shall otherwise direct.

Paragraph #5, page 2:

That no operation may be carried on which will be detrimental to the activities of the Bureau of Reclamation as determined by the State Reclamation Engineer and that where washing operations return flow back into the river, that it be run into a settling pond so that fish life will not be jeopardized.

Paragraph #8, page 2:

That the mining rights and privileges leased as aforesaid extend to and include only sand and gravel deposits, and that no right or privilege respecting any other kind of mineral, or minerals, in place are granted, or intended to be granted by this lease.

Paragraph #12, page 2:

That the lessee shall not pollute the said river, or make it unfit for domestic or for irrigation use, and it is hereby made the duty of the lessee to see that such waters are not so polluted or made unfit for such uses; That the lessee shall adhere to rules and regulations issued under authority of the Idaho Dredge Mining Protection Act.

Paragraph #14, page 3:

Special Conditions: Area #1, being Highway Department Source No. Id-99, and Area #2, being Highway Department Source No. Id-112. These two areas may be worked during low water periods and excavation of material will not be conducted in the flowing stream bed. If a hot plant should be set up at either Area #1 or #2, it must have dust control equipment adequate to prevent air pollution. If a crushing plant is set up on either area it must have adequate dust control equipment and any water effluent will be conducted into a settling pond before being allowed to reenter the river.

IDAHO CODE § 47-1503(4), which is a part of the Surface Mining Act, defines "mineral" to include sand and gravel.

Considering the applicable law and the language employed in the lease, it is apparent that the parties to lease considered the removal of sand and gravel to be a "mining activity." The next question is whether such mining activity constitutes a form of prohibited dredge mining.

The affidavit of Terry S. Maley, Administrator, of the Division of Earth Resources of the Idaho Department of Lands, filed in support of defendants' cross motion for summary judgment, states in part as follows:

Affiant further states that he is familiar with the techniques and procedures of dredge and placer mining; and [8 ELR 20104] that he is also familiar with the methods and procedures used to extract material from gravel bars under these leases. Affiant further states that, under these leases, the gravel bars generally are stripped down to or near the water level by bulldozers and front-end loaders, operated as much as possible, out of the flowing water.

Affiant further states that the procedures used to recover the surface gravels from these river bars will not involve "the use of a dredge boat or sluice washing plant" and thus do not qualify as "dredge or other placer mining" as defined by the Dredge and Placer Mining Protection Act (IDAHO CODE § 47-1313).

The affidavit of E. Dean Tisdale, Administrator of the Division of Highways, of the Idaho Transportation Department, states in part that:

. . . the methods used to extract materials under the terms of the lease will consist of removing rock or gravel from exposed bars during low water by a bulldozer or front-end loader and transporting them to a crusher also situated on dry land and probably above the high water mark; that no dredge boat or sluice washing plant will ever be used nor their use contemplated; that the extraction of the materials as proposed will not result in the discharge of effluent into the Clearwater River or any other streams; that no fill will be deposited into any stream as a result of operations under said leases; . . . .

The Dredge Mining Act contains the following:

47-1313. Definitions. — For the purposes of this Act dredge or other placer mining means any dredge or other placer mining operations to recover minerals with the use of a dredge boat or sluice washing plant whether fed by bucket line as a part of such dredge or by separate drag line or other method capable of moving more than two (2) cubic yards of earth material per hour. (1955 Init. Meas., § 2; Am. 1969, Ch. 281, § 2, P. 845.)

Assuming for the purposes of these motions for summary judgment that the state will employ the methods of gravel removal that are set forth in the two affidavits, then this activity would not constitute "dredge or other placer mining" within the meaning of § 47-1313, because no "dredge boat or sluice washing plant" would be used.

However, in 1970 the Idaho Legislature added § 47-1323 to the Dredge Mining Act. This section reads as follows:

Section 47-1323. Dredge mining of water bodies making up the National Wild and Scenic Rivers System prohibited. Dredge mining in any form shall be prohibited on:

(1) The Middle Fork of the Clearwater River, from the Town of Kooskia upstream to the Town of Lowell; the Loscha River from its junction with the Selway at Lowell forming the Middle Fork, upstream to the Powell Ranger Station; and the Selway River from Lowell upstream to its origin;

(2) The Middle Fork of the Salmon River, from its origin to its confluence with the Main Salmon River. (IDAHO CODE § 47-1323, as added by 1970, Ch. 244, § 1, P. 659.)

The above section was amended in 1977 to also prohibit dredge mining on the St. Joe River.

Section 47-1323 prohibits dredge mining in any form on the Middle Fork of the Clearwater River. The court feels that the particular language used is significant in that it imports a broader meaning to the term "dredge mining" than is given to the term in § 47-1313.

Chapter 244, Idaho Session Laws 1970, contains no statement of policy or declaration of purpose to guide the court in its interpretation or application of § 47-1323, but its language is direct and unequivocal: "dredge mining in any form shall be prohibited."

Our 1970 Idaho Legislature would have been aware of the Congressional Declaration of Policy set forth in § 1271 of the Wild and Scenic Rivers Act passed by Congress in 1968 as Public Law 90-542, § 1(b), October 2, 1968, 82 Stat. 906:

§ 1271. Congressional declaration of policy:

It is hereby declared to be the policy of the United States that certain selected rivers of the Nation which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values, shall be preserved in free-flowing conditions, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations. The Congress declares that the established national policy of dam and other construction at appropriate sections of the rivers of the United States needs to be complemented by a policy that would preserve other selected rivers of sections thereof in their free-flowing condition to protect the water quality of such rivers and to fulfill other vital national conservation purposes.

and, of course, the policy of the Idaho Dredge Mining Act, which is contained in § 47-1312:

47-1312. Policy. — It is hereby declared to be the policy of the State of Idaho to protect the lands, streams and water courses within the State, from destruction by dredge mining and by placer mining, and to preserve the same for the enjoyment, use and benefit of all of the people, and that clean water in the streams of Idaho is in the public interest.

The State of Idaho has previously recognized that the Dredge Mining Act — applicable to all of the rivers of our state — has as its objectives the prevention of:

(a) Pollution of State Waters; (b) injury to fish aquatic wildlife habitat in State waters; (c) removal of wildlife forage and habitat; (d) creation of aesthetically displeasing areas; (e) reduction of property values upon the tax rolls; and (f) creation of areas dangerous to the passage of person and wildlife.

State ex rel. Andrus v. Click, 97 Idaho 791, 554 P.2d 969 (1976).

It is therefore logical to conclude that the Idaho Legislature, in speaking to the two unique, nationally acclaimed Idaho rivers, designated as wild and scenic, intended by the use of the term "dredging in any form," to mean any dredging activity that would disturb or alter the natural condition of these streams. If we could sum up, in one word what appears to be the legislative purpose in enacting § 47-1323, that word would be "preservation." Protection from harmful dredging activity must be the intent.

The method to be employed by the State Transportation Department involves the use of heavy equipment in the river bed, such equipment admittedly to be operated "as much as possible, out of the flowing water." (The language underlined by the court infers that it would be necessary at times to operate such equipment in the flowing water.) By the use of such equipment as bulldozers and front-end loaders it is contemplated that gravel bars will be "stripped down to or near the (lowest) water level." Thousands of cubic yards of gravel could be removed from the river beds by such methods in relative short periods of time, and the activity could be repeated annually over the five-year term of the proposed lease, assuming there was any sand or gravel remaining in those sites to be removed.

Whether the removed gravel would be run through some sort of a crushing and or washing process conducted above the high water mark is not established and is not important. What occurs in the river bed is what is important here, and what occurs if the State is permitted to remove the gravel is a form of dredging of the river bed, prohibited by IDAHO CODE § 47-1323.

Plaintiffs are entitled to have judgment from this court.

Declaring the proposed river bed lease #2246 null and void, and restraining and enjoining defendants from proceeding further with any removal of sand or gravel under said lease.

[8 ELR 20105]

For plaintiffs' costs and attorney fees, to be hereafter determined and fixed by the court.

Plaintiffs' attorney shall prepare and submit to the court and to opposing counsel a proposed form of judgment and affidavit for costs and attorney fees.