and summary by attorney James Buchal

Sent by James Foley, Property and Mining Rights Advocate, Klamath River, California 4/8/11

This case was a continuation of the Karuk's earlier challenge of the U.S. Forest Service (USFS) regulation which allows prospecting or mining under a Notice of Intent (NOI) when the activity does not create a substantial disturbance of surface resources.

The 9th Circuit overruled the Karuk's argument that a USFS Ranger's decision to allow mining under a NOI amounted to an action that required additional consultation with other federal agencies, which would have created substantial delays before the prospecting or mining activity could proceed.

I asked our attorney James Buchal, who was the only council present that was arguing on behalf of the mining industry, to write a short summary. Here it is:

On April 7, 2011, the United States Court of Appeals for the Ninth Circuit affirmed a California district court’s rejection of the Karuk Tribe’s attempt to snarl any and all suction dredge mining in cumbersome interagency consultation processes under the federal Endangered Species Act. The case concerned the legal significance of miners sending notices of intent to the U.S. Forest Service under the Forest Service’s 36 C.F.R. Part 228 regulations. The Forest Service had reviewed notices of intent from The New 49’ers and others, and advised those giving notice that no plan of operations would be required. The Karuk Tribe contended that the district rangers’ review of such notices made the mining “agency action” that required consultation with the National Marine Fisheries Service and/or U.S. Fish and Wildlife Service pursuant to section 7 of the Endangered Species Act.

Two of the three Ninth Circuit judges (Milan Smith, the brother of former Oregon Senator Gordon Smith and James Todd, a senior district court judge from Tennessee) determined that the Forest Service’s review of such notices did not make the mining “agency action” subject to the consultation requirement. Simply put, the majority determined that the Forest Service’s decision not to require a plan of operations was “inaction”, not “agency action”. The majority also reaffirmed limitations on the authority of the Forest Service to regulate mining (regulatory authority will “materialize only when mining is likely to cause significant disturbance of surface resources”), and agreed that it was the mining laws, not the Forest Service, that authorized the mining at issue.

The dissenting judge, William A. Fletcher, wrote at great length, attempting to find “agency action” in the process by which rangers reviewed the submitted notices, and based upon the erroneous view that no miner could commence mining under a notice of intent unless and until the notice was approved by the Forest Service, thereby, in his view, “authorizing” the action.