March 15, 2014 in Opinion

Editorial: Dredging, nullification have no place in Idaho


The Spokesman-Review Editorial Board

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The Idaho Office of Attorney General is apparently going to have to write opinions regarding the futility of state efforts to nullify federal law until its lawyers run out of ink.

Nullification – the assertion that state law can supersede federal – has been around almost since final state ratification of the U.S. Constitution in 1790. No one has successfully argued its validity in law or, in the case of the Confederacy, by force of arms. But those aggrieved by an overbearing federal government never give up on the notion.

Certainly not in Boise.

Last month, Assistant Chief Deputy Brian Kane briefed Rep. Paul Shepherd on the several laws, constitutional provisions and U.S. Supreme Court rulings that support the regulatory authority of the U.S. Environmental Protection Agency in Idaho. He went through a similar exercise in January 2011 in response to a question from Rep. William Killen about theories that might support nullification.

His opinion then was almost simultaneous, and synonymous, with another from Deputy Attorney General Douglas Conde prepared for Rep. Pete Nielsen.

No matter. Last week, the House Resources Committee passed HB 473, which declares EPA authority “null and void and of no force and effect in this state.”

The bill is pure grandstanding. And its motivation, the inability of dredgers to get EPA permits, is unworthy of the gesture.

Even small-scale dredging is detrimental to other in-stream water uses. The activity is banned in Oregon and California.

The EPA has issued 80 five-year permits in Idaho but has refused to grant others in waters protected for scenic reasons or for purposes of protecting water quality. A 1955 law says placer miners – dredgers – must prove working their claims will not interfere with other water uses and that the value of any minerals recovered must exceed those of the other uses.

Even at $1,000 an ounce, gold is not worth the destruction of Idaho’s waterways and fisheries. And evidence and testimony presented at a January 2013 administrative law hearing strongly suggested there is little, if any, gold to be found in some of the streams dredgers want to despoil.

The arrogance of some would-be gold-dusters, some of whom purchased their claims on eBay, did not help their cause. A few had posted signs telling recreational users to stay out.

But Shepherd is no less presumptuous.

“I say to the Attorney General, even though he’s a lawyer and I’m not, that I’m right – because the laymen wrote the Constitution.”

Laymen? Like George Washington and James Madison?

Supreme Court Chief Justice John Marshall wrote the first opinion against nullification in 1819.

The right way to minimize the EPA’s footprint, as Conde noted, is to adopt state regulatory practices that are equivalent to the federal. The state has done just that for clean air, solid waste disposal and drinking water. A bill signed Friday by Gov. Butch Otter moves Idaho toward doing that for pollution discharge systems, which could include placer mining.

But dredging should have no place in Idaho, and neither should silly notions of nullification.

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