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En banc 9th Circuit says Forest Service must consult on mining NOI’s in critical habitat

 Posted by on June 12, 2012  Court calls, Critical habitat, Daily Links, FWS, NMFS
Jun 122012
 

An en banc panel of the Ninth Circuit Court of Appeals has held that the Forest Service must consult with FWS and/or NMFS before approving Notices of Intent to conduct mining in endangered species’ critical habitat (Karuk Tribe of California v. U.S. Forest Service, 05-16801, 6/1/2012).

In its June 1 ruling, the court overturned a previous decision issued by a three-judge panel that included Circuit Judges William A. Fletcher and Milan D. Smith Jr., and Senior U.S. District Judge James D. Todd, sitting by designation from the Western District of Tennessee. Fletcher dissented from the court’s initial opinion.

K-14 – Lower Seiad and Portuguese Creek Claims

This time around, Fletcher got to write the opinion, from which Smith and Chief Judge Alex Kozinski dissented. Circuit Judges Mary Murguia and Sandra Ikuta joined those two in all respects but one — the section where Smith said that the majority had “render[ed] the Forest Service impotent to meaningfully address low-impact mining,” which “effectively shuts
down the entire suction dredge mining industry in the states within our jurisdiction.”

“The informal Notice of Intent process allows projects to proceed within a few weeks,” Smith wrote. “In contrast, ESA interagency consultation requires a formal biological assessment and conferences, and can delay projects for months or years.”

District rangers made “affirmative, discretionary decisions”

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 our established case law, 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.

The second is whether the approved mining activities “may affect” a listed species or its critical habitat. Forest Service regulations require a NOI for all proposed mining activities that “might cause” disturbance of surface resources, which include fisheries and wildlife habitat. 36 C.F.R. §§ 228.4(a), 228.8(e). 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.

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.

Authorization of action brings NOI approval under ESA’s umbrella: Majority

The court took note of the Forest Service’s contention that “approval of a NOI is merely a decision not to regulate the proposed mining activities. See 70 Fed. Reg. at 32,720; id. at 32,728 (“a notice of intent to operate was not intended to be a regulatory instrument”).”

“But the test under the ESA,” the court continued, “is whether the agency authorizes, funds, or carries out the activity, at least in part. 50 C.F.R. § 402.02 (emphasis added).”

In addition, the court said that in its 1988 Penfold decision (full cite below), “we held that BLM’s review of notice mines was a ‘federal action’ — albeit, a ‘marginal’ instead of a ‘major’ action. Under Section 7 of the ESA, a federal agency action need not be ‘major’ to trigger the duty to consult. It need only be an ‘agency action.’ Thus, Penfold cuts against rather than in favor of the Forest Service and the Miners.”

The dissenters saw things differently. Here are some excerpts:

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.

. . .

Unfortunately, this is not the first time our court has broken from decades of precedent and created burdensome, entangling environmental regulations out of the vapors. In one of the most extreme recent examples, our court held that timber companies must obtain Environmental Protection Agency permits for stormwater runoff that flows from primary logging roads into systems of ditches, culverts, and channels. Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063 (9th Cir. 2011). In the nearly four decades since the Clean Water Act was enacted, no court or government agency had ever imposed such a requirement. Indeed, the EPA promulgated regulations that explicitly exempted logging from this arduous permitting requirement. Id. at 1073. Yet our court decided to disregard the regulation and require the permits.

Background from the decision:

The Tribe brought suit in federal district court alleging that the Forest Service violated the ESA, the National Environmental Policy Act (“NEPA”), and the National Forest Management Act (“NFMA”) when it approved the four NOIs to conduct mining in and along the Klamath River in the Happy Camp District. Karuk Tribe of Cal. v. U.S. Forest Serv. (“Karuk I”), 379 F. Supp. 2d 1071, 1085 (N.D. Cal. 2005).

 The Tribe sought declaratory and injunctive relief. The New 49’ers and Raymond Koons, an individual who leases several mining claims to the New 49’ers on the Klamath River, intervened as defendants in the suit. Id. at 1077. Initially, the Tribe also  challenged five Plans of Operations approved by the Forest Service during the 2004 mining season, but the Tribe dropped those claims in April 2005 after the agency agreed in a stipulated settlement that it violated the ESA and NEPA when it approved the Plans. In other words, the Forest Service agreed that it had a duty under the ESA to consult with the appropriate wildlife agencies, and under NEPA to prepare additional environmental review documents, before approving the Plans.

In July 2005, the district court denied the Tribe’s motion for summary judgment and ruled against the Tribe on all remaining claims. Id. at 1103. Briefing on appeal was stayed by agreement of the parties until we decided a case involving suction dredge mining in the Siskiyou National Forest in Oregon. Siskiyou Reg’l Educ. Project v. U.S. Forest Serv., 565 F.3d 545 (9th Cir. 2009). When briefing resumed, the Tribe pursued only the ESA claim, arguing that the Forest Service violated its duty to consult with the expert wildlife agencies before approving the four NOIs.

In April 2011, a divided panel of this court affirmed the district court’s denial of summary judgment, holding that the Forest Service’s decision to allow proposed mining activities to proceed pursuant to a NOI did not constitute “agency action” under the ESA. Karuk Tribe v. U.S. Forest Serv. (“Karuk II”), 640 F.3d 979 (9th Cir. 2011). We agreed to rehear the case en banc. 658 F.3d 953 (9th Cir. 2011).

Armstrong’s decision

In her decision in 2005, U.S. District Judge Saundra Brown Armstrong said the “Ninth Circuit’s holding in [Sierra Club v.] Penfold 857 F. 2d 1307 (1988)] makes clear that a federal agency’s review of mining “notices” is not a “federal action” within the meaning of NEPA. Although this factor is also not necessarily dispositive with respect to an ESA claim, it weighs heavily in favor of a finding that the Forest Service[] does not “authorize” an NOI merely by reviewing it and, thus, the NOI review process, in and of itself, is not a “federal action.”

Coverage of the decision, as well as links to the oral argument and briefs filed in the case, can be found at turtletalk.wordpress.com, which looks to be an excellent place to keep abreast of legal developments affecting Native Americans.

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