Monday, June 4, 2012

Karuk Tribe of California v. US Forest Service

Jun 1: 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. In this en banc panel, the Appeals Court considers whether the U.S. Forest Service must consult with appropriate federal wildlife agencies under Section 7 of the Endangered Species Act (ESA) before allowing mining activities to proceed under a Notice of Intent (NOI) in critical habitat of a listed species. The ESA requires consultation with the Fish and Wildlife Service or the NOAA Fisheries Service for any "agency action" that "may affect" a listed species or its critical habitat.
    The Appeals Court identified what it called "two substantive questions" -- The first is whether the Forest Service's approval of four NOIs to conduct mining in the Klamath National Forest is "agency action" within the meaning of Section 7. Under
established case law, they said, "there is 'agency action' whenever an agency makes an affirmative, discretionary decision about whether, or under what conditions, to allow private activity to proceed. The record in this case shows that Forest Service District Rangers made affirmative, discretionary decisions about whether, and under what conditions, to allow mining to proceed under the NOIs."
    They indicated that the second question is whether the approved mining activities "may affect" a listed species or its critical habitat. They said, "Forest Service regulations require a NOI for all proposed mining activities that 'might cause' disturbance of surface resources, which include fisheries and wildlife habitat. . . In this case, the Forest Service approved mining activities in and along the Klamath River, which is critical habitat for threatened coho salmon. The record shows that the mining activities approved under NOIs satisfy the 'may affect' standard.
    The Appeals Court in a 7-4 decision ruled, "We therefore hold that the Forest Service violated the ESA by not consulting with the appropriate wildlife agencies before approving NOIs to conduct mining activities in coho salmon critical habitat within the Klamath National Forest." In an footnote the majority also indicated that, "The parties appear to assume that if consultation is required under Section 7, it is required with both agencies [i.e. Fish and Wildlife Service and the NOAA Fisheries Service]. Without deciding the question, we also will so assume."
    The ruling overrules the previous 2-1 majority opinion that concluded, "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." [See WIMS 4/8/11].
    In its conclusion, the majority en banc panel said, "There is 'agency action' under Section 7 of the ESA whenever an agency makes an affirmative, discretionary decision about whether, or under what conditions, to allow private activity to proceed. In approving the NOIs challenged in this case, the Forest Service made affirmative, discretionary decisions to authorize mining activities under specified protective criteria. By definition, mining activities requiring a NOI are those that 'might cause' disturbance of surface resources, including underwater fisheries habitat. The Forest Service does not dispute that the mining activities it approved in this case 'may affect' critical habitat of coho salmon in the Klamath River system. The Forest Service therefore had a duty under Section 7 of the ESA to consult with the relevant wildlife agencies before approving the NOIs. We reverse the district court's denial of summary judgment on the Karuk Tribe's ESA claim and remand for entry of judgment in favor of the Tribe."
    In a stinging dissenting opinion that opened by citing a passage from Jonathan Swift, Gulliver's Travels, Chapter 1; the minority 4 Justices said, "Here we go again. Until today, it was well-established that a regulatory agency's 'inaction' is not 'action' that triggers the Endangered Species Act's (ESA) arduous interagency consultation process. W. Watersheds Project v. Matejko, 468 F.3d 1099, 1108 (9th Cir. 2006). Yet the majority now flouts this crystal-clear and common sense precedent, and for the first time holds that an agency's decision not to act forces it into a bureaucratic morass. In my view [and those joining Justices], decisions such as this one, and some other environmental cases recently handed down by our court (see Part VII, infra), undermine the rule of law, and make poor Gulliver's situation seem fortunate when compared to the plight of those entangled in the ligatures of new rules created out of thin air by such decisions."
    The dissent concluded, "No legislature or regulatory agency would enact sweeping rules that create such economic chaos, shutter entire industries, and cause thousands of people to lose their jobs. That is because the legislative and executive branches are directly accountable to the people through elections, and its members know they would be removed swiftly from office were they to enact such rules. In contrast, in order to preserve the vitally important principle of judicial independence, we are not politically accountable. However, because of our lack of public accountability, our job is constitutionally confined to interpreting laws, not creating them out of whole cloth. Unfortunately, I believe the record is clear that our court has strayed with lamentable frequency from its constitutionally limited role (as illustrated supra) when it comes to construing environmental law. When we do so, I fear that we undermine public support for the independence of the judiciary, and cause many to despair of the promise of the rule of law."
    Access the complete opinion and dissent (click here). [#Wildlife, #CA9]
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