Consultation Under the Endangered Species Act on the Klamath River

Posted on June 15, 2012 by Larry Ausherman

The Ninth Circuit’s en banc opinion in Karuk Tribe of California v. United States Forest Service belongs on your summer reading list.  It holds your attention on two levels.  First, the majority broadly construes consultation requirements of the Endangered Species Act (“ESA”) in the context of mining in National Forests.  Then, the dissent provides a memorable critique of “extreme environmental decisions” by the Ninth Circuit.

The case applies the ESA to regulation by the United States Forest Service of small-scale gold mining on the Klamath River in the Klamath National Forest in northern California.  The river is critical habitat for endangered salmon, and the river’s bed also contains gold deposits that are mined by miners who hold rights under the General Mining Law of 1872.  Mining methods include suction dredging of the river bed, and views differ about the effects of mining on the salmon.  The Forest Service mining regulations at issue divide mining activities within National Forests into three categories:  those that “will not”, “might,” and “will likely” cause significant disturbance of surface resources.  For planned mining activities that either “might” or “will likely” cause such disturbance, the miner must file a notice of intent to operate (“NOI”).  After reviewing the NOI, the District Ranger determines whether a plan of operations is also required.  A plan of operations is more detailed than an NOI and is required only for mining that “will likely” cause significant surface resource disturbance.  If the Forest Service determines that significant surface disturbance is not likely, the NOI satisfies the requirements of the regulations.  But the ESA may impose additional requirements.  It requires the Forest Service to consult with the Fish and Wildlife Service before taking discretionary “agency action” that “may affect” a species listed as threatened or endangered.  Otherwise, consultation is not required. 

The fundamental issue in Karuk Tribe is whether a Forest Service decision not to require a plan of operations was “agency action” requiring consultation under the ESA or mere agency inaction that does not require consultation.  Several miners filed NOIs for proposed operations, and in response to the NOIs the District Ranger essentially imposed conditions but decided not to require plans of operations.  The Ranger did not consult the United States Fish and Wildlife Service in reaching that decision.  The Karuk Tribe sued the Forest Service and asserted consultation was required.  The Forest Service defended its failure to consult by arguing that the NOI was a mere notice and its action on the NOI was only a decision not to regulate, rather than “agency action” under the ESA.  The district court ruled in favor of the Forest Service.  In 2011, a divided panel of the Ninth Circuit affirmed the district court’s holding that such consultation was not required because the District Ranger’s decision was not “agency action” under the ESA.  But upon rehearing the case en banc, the court reversed its previous decision and found that the District Ranger’s decision rose to the level of “agency action” and triggered consultation requirements of the ESA.  The court reasoned that the decision was agency action because when the Forest Service considered the NOIs, it affirmatively authorized mining to proceed and the mining may affect the salmon. 

The dissenting opinion is essential reading for lawyers who have represented clients entangled in extensive environmental regulation.  It ventures well beyond the issues presented by Karuk Tribe to criticize various Ninth Circuit environmental decisions as “extreme”.  Featuring art and prose from Gulliver’s Travels, and invoking works of Dante and Aldous Huxley, the dissenting opinion urges that the court exercise judicial restraint in construing environmental laws.  Finally, the dissent recounts specific examples of harm to employment, industry, and local government that it attributes to the court’s creation of “burdensome, entangling environmental regulation out of the vapors”.  You might take this one to the beach as long as your destination is not the Island of Lilliput.



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