Friday, April 8, 2011

Karuk Tribe v. US Forestry Service

Apr 7: In the U.S. Court of Appeals, Ninth Circuit, Case No. 05-16801. Appealed from the United States District Court for the Northern District of California. The Appeals Court explains that Section 7 of the Endangered Species Act (ESA), § 1536(a)(2), requires interagency consultation for any Federal agency action that may affect a listed species. In this opinion, the Appeals Court determines whether a United States Forest Service (USFS) District Ranger's (Ranger) decision that a proposed mining operation may proceed according to the miner's Notice of Intent (NOI) and will not require a Plan of Operations (Plan) is an "agency action" for purposes of triggering the ESA's interagency consulting obligations.
    The majority Appeals Court said, "We hold that the NOI process does not constitute an 'agency action,' as that term is defined under the ESA. The Ranger's receipt of an NOI and resulting decision not to require a Plan is most accurately described as an agency decision not to act. Because ' "inaction" is not "action" for section 7(a)(2) purposes,' W. Watersheds Project v. Matejko, 468 F.3d 1099, 1108 (9th Cir. 2006), we affirm the district court's denial of summary judgment on the Tribe's ESA challenge to the NOI process."
    The majority concludes, "The mining laws provide miners like The New 49'ers with the 'right, not the mere privilege' to prospect for gold in the Klamath River and its tributaries. We therefore find it is most accurate to say that the mining laws, not the USFS, authorize the mining activities at issue here. The USFS has adopted a simple review process to sort between those mining activities it will regulate in order to conserve forest resources, and those activities it will not regulate because such regulation would be unnecessary and unduly interfere with mining rights. The USFS's limited and internal review of an NOI for the purpose of confirming that the miner does not need to submit a Plan for approval (because the activities are unlikely to cause any significant disturbance of the forest or river) is an agency decision not to regulate legal private conduct. In other words, the USFS's decision at issue results in agency inaction, not agency action."
    In a lengthy dissenting opinion the dissenting Judge said, "I respectfully but emphatically dissent from the conclusion of the majority to the contrary." He said, "I would therefore hold that the Forest Service must consult with the Fish and Wildlife Service and the National Marine Fisheries Service before allowing suction dredge mining to proceed under NOIs in the Klamath National Forest. . . The majority attempts to minimize the impact of suction dredge mining, stating it is 'best described' as moving 'a few cubic inches at a time' and 'affect[ing] about one quarter of a cubic yard of the river.' Maj. Op. at 4648, 4653. A typical suction dredge picks up from the bottom of the stream and deposits in a tailings pile about one-quarter of a cubic yard of material per day. A cubic yard contains 11,664 cubic inches. Many square yards of stream bottom are scoured in order to obtain one-quarter of a cubic yard of movable material per day, but the record does not tell us how many."
    Access the complete opinion and dissent (click here).

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