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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National Association Regional Utility Commissioners v. U.S. DOE

Jun 1: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-1066 & 11-1068. On Petitions for Review of Final Actions of the Department of Energy (DOE). The Appeals Court explains that petitioners, the National Association Regional Utility Commissioners nuclear power plant owners and operators, ask the court to review a November 2010 determination by the Secretary of Energy finding that there was no basis for suspending, or otherwise adjusting, annual fees collected from them totaling some $750 million a year. Those fees are intended to cover the full costs of the government's long-term disposal of civilian nuclear waste. But the Administration has discontinued development of Yucca Mountain, which was the designated location for the disposal of the waste.

 

    According to petitioners, the Secretary's 2010 determination, made subsequent to that decision, failed to examine (or even mention) the anticipated costs of disposal, or compare them to expected revenues from the fees (and associated interest and investment income). The Secretary's determination is claimed, thereby, to have violated the 1982 Nuclear Waste Policy Act (the Act), which obliges the Secretary to annually "evaluate whether collection of the fee will provide sufficient revenues" to offset program costs. In the absence of such evaluation, it is argued, the determination was invalid, and because no future program has replaced Yucca Mountain, petitioners contend that the Secretary is obliged to suspend the fees and report his action to Congress.

 

    The Appeals Court ruled, "We conclude that the Secretary has failed to perform a valid evaluation, as he is obliged to do under the Act, but we do not think it appropriate to order the suspension of the fee at this time. Instead, we remand to the Secretary with directions to comply with the statute within six months. The panel will retain jurisdiction over this case so that any further review would be expedited."

 

    NARUC President David Wright of South Carolina issued a statement saying, "Today's decision by the court is an important victory for nuclear-power consumers. The court made clear that the Energy Department has not justified continued payments into the Nuclear Waste Fund. Although the court did not suspend these payments, the Energy Department is on notice that they must do a thorough and complete assessment within six months as to whether the fees -- charged to nuclear utilities and passed through to their consumers -- are necessary. If the Department does not, the court stated that they have the authority to suspend the payments into the Fund. Nuclear-power utilities and their consumers have paid more than $30 billion into the Nuclear Waste Fund for nearly 30 years. To date they have nothing to show for their investment except political delays, bureaucratic red tape, and a hole in the Nevada desert. Today's decision will force the Energy Department to do its job and prove why it should continue fees for a nuclear-waste program that it says no longer exists. We believe the evidence demonstrates that until and unless a new nuclear-waste policy is developed, consumers should be given a break."

 

   Access the complete opinion (click here). Access the NARUC statement (click here). [#Energy/Nuclear, #Haz/Nuclear, #CADC]

 

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