Despite court ruling, gravel operation remains open on Mayes County creek

The Mayes County man who sued 5 years ago to stop a gravel operation on Saline Creek says it’s time the  Ozark Materials  River Rock Company shut down the operation.

Earlier this month, the U.S. Supreme Court declined to hear the company’s appeal following a ruling by the Denver Federal Appeals court upholding David Benham’s lawsuit.

As OK Energy Today reported in March, the U.S. 10th Circuit Court of Appeals ruled in favor of Benham and attorney Jason Aamodt with the Indian Environmental Law Group of Tulsa., assessing a $35,000 fine and $400,000 in attorney fees against the company.

The two have been fighting the travel operation since 2011 and filed suit under Section 505 of the Clean Water Act. It allows private individuals to file suit on Clean Water Act violations without any involvement by federal or state agencies.

As for Ozark Materials, the firm is unclear of its next move, according to the Tulsa World.

On June 1, Judge John Dowdell in the Northern Oklahoma U.S. District Court issued an order accepting a restoration plan forwarded by Benham, according to the original ruling, that named the Cherokee Nation as the entity to hold a conservation easement and monitor progress of Ozark’s restoration project. The judge also ordered, as part of Benham’s plan, that Ozark must apply for an “after-the-fact” Section 404 Clean Water Act permit “in order to ensure future compliance with the CWA.”

Ozark Materials owner Brad Eastman and attorney Wilfred Wright Jr. of Claremore then filed a petition for a “writ of certiorari,” a request for review of the lower court’s ruling by the Supreme Court. That petition was denied Oct. 1, but the gravel pit continues to operate and no restorations have begun.

Eastman said Friday his next move is unknown, and he needs to consult with his attorney. “Call me back in a month or two,” he said.

Aamodt charged that state and federal agencies have fallen short in their enforcement of the Clean Water Act and that an important Oklahoma reference stream continues to suffer. Reference streams are water bodies recognized as holding important and pristine ecological characteristics.

“They should be stepping in and shutting him down right now,” he said of the U.S. Army Corps of Engineers and Oklahoma Department of Mines. “The guy is a law-breaker. It’s not me saying that, it’s four different federal judges, and we’re in this situation because the agencies are ineffective and do a poor job of enforcement in this state.”

“David Benham shouldn’t have had to have done this in the first place,” he said. “The agencies should be embarrassed; they’re doing a terrible job.”

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