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Karuk Tribe of California v. US
Forest Service
05-16801
-- June 01, 2012
The appellate court has reversed and remanded prior judgment
on the Karuk ESA case on issuance of NOIs on mining on the KNF.
http://www.ca9.uscourts.gov/datastore/opinions/2012/06/01/05-16801.pdf
http://caselaw.findlaw.com/us-9th-circuit/1602109.html?DCMP=NWL-pro_envtl
Conclusion [24] 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. [25] 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.
REVERSED and REMANDED.
Read the dissenting opinions.
M. SMITH, Circuit Judge, with whom KOZINSKI, Chief Judge, joins,
and with whom IKUTA and MURGUIA, Circuit Judges, join as to
Parts I through VI, dissenting:
"I attempted to rise, but was not able to stir: for, as I
happened to lie on my back, I found my arms and legs were
strongly fastened on each side to the ground; and my hair, which
was long and thick, tied down in the same manner. I likewise
felt several slender ligatures across my body, from my arm-pits
to my thighs. I could only look upwards; the sun began to grow
hot, and the light offended my eyes." —Jonathan Swift,
GULLIVER’S TRAVELS, Chapter 1.
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, 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. I. Mining in national forests The right to
mine on national lands is established by the Mining Act of 1872,
30 U.S.C. § 21 et seq.: ‘Under the provisions of the Mining Act,
an individual may enter and explore land in the public domain in
search of valuable mineral deposits. After minerals are
discovered, the claimant may file a “mining claim” with the
Bureau of Land Management (BLM), which if approved, entitles the
claimant to the right of exclusive possession of that claim, as
long as the requirements of the Mining Act are met. Although
ownership of a mining claim does not confer fee title to the
claimant, the claimant does have the right to extract all
minerals from the claim without paying royalties to the United
States. KARUK TRIBE OF CALIFORNIA v. USFS 6109 Swanson v.
Babbitt, 3 F.3d 1348, 1350 (9th Cir. 1993). The Mining Act’s
permissive regime extends to national forests as well. The 1897
act that created the national forests and provided rules
governing those forests’ use, see Organic Administration Act, 16
U.S.C. §§ 473-78, emphasized that its provisions do not
“prohibit any person from entering upon such national forests
for all proper and lawful purposes, including that of
prospecting, locating, and developing the mineral resources
thereof. Such persons must comply with the rules and regulations
covering such national forests.” 16 U.S.C.§ 478. When the U.S.
Forest Service issued the mining regulations at issue in this
case, the Service emphasized “that prospectors and miners have a
statutory right, not mere privilege, under the 1872 mining law
and the Act of June 4, 1897, to go upon and use the open public
domain lands of the National Forest System for the purposes of
mineral exploration, development and production.” National
Forests Surface Use Under U.S. Mining Laws, 39 Fed. Reg. 31,317,
at 31,317 (Aug. 28, 1974)
(emphasis added). II. The regulatory scheme This case turns on
whether a Forest Service District Ranger’s receipt of,
consideration of, and response to a miner’s notice of intention
to operate—a Notice of Intent—is an agency action that
authorizes mining activities on national forests. This
distinction is critical because the ESA requires federal
agencies to consult with the Fish and Wildlife Service or NOAA
Fisheries Service before taking “any action authorized, funded,
or carried out by such agency” that might harm a listed species.
16 U.S.C. § 1536(a)(2). The ESA’s implementing regulations
(promulgated by the Secretaries of Commerce and the Interior)
offer a list of examples of agency action, including (in
relevant part) “the
6110 KARUK TRIBE OF CALIFORNIA v. USFS granting of licenses,
contracts, leases, easements, rights-ofway, permits, or
grants-in-aid.” 50 C.F.R. § 402.02 (2004). In this appeal,
Plaintiff-Appellant asserts a single claim challenging the
District Ranger’s failure to consult with the Fish and Wildlife
Service or NOAA Fisheries Service when deciding to allow certain
suction dredge mining to proceed under a Notice of Intent rather
than a Plan of Operations. The dispute here is narrow:
specifically, does the Forest lK Service’s handling of Notices
of Intent constitute an “authorization” of private mining
activity under the ESA? To answer this question, one must have a
clear understanding of the operative regulations. In recognition
of the “statutory right, not mere privilege” to mine in national
forests, the Forest Service has carefully tailored its
regulations to balance environmental goals with miners’ unique
pre-existing rights of access to national forests. See National
Forests Surface Use, 39 Fed. Reg. 31,317 (Aug. 28, 1974). These
regulations apply only to mining activities on Forest Service
lands. 36 C.F.R. § 228.2 (2004).1 All mining “operations” must
“be conducted so as, where feasible, to minimize adverse
environmental impacts on National Forest surface resources.” Id.
§ 228.8(e); see also id. § 228.3(a) (defining “operations”
broadly for purposes of these regulations). This
environmental-impact provision requires compliance with federal
air and water quality standards, as well as (among other things)
the use of “all practicable measures to maintain and protect
fisheries and wildlife habitat which may be affected by the
operations.” Id. § 228.8. Forest Service officials must
“periodically inspect operations to determine if the operator is
complying with the[se] regulations,” and inform non-compliant
miners how to bring their activities into compliance. Id. §
228.7.
1Because the challenged Notice of Intent decisions were made in
2004, I rely upon the 2004 version of the regulation. KARUK
TRIBE OF CALIFORNIA v. USFS 6111 In addition to these generally
applicable limitations on mining in the national forests, the
Forest Service imposes additional requirements depending on the
mining activities’ potential environmental impact. For purposes
of these additional requirements, mining activities are divided
into three categories: activities that “will not,” “might,” and
“will likely” lead to “significant disturbance of surface
resources.” Id. § 228.4(a), (a)(1)(v). For activities that “will
not” significantly disturb surface resources—including
“occasionally remov[ing] small mineral samples or specimens,”
and “remov[ing] . . . a reasonable amount of mineral deposit for
analysis and study”—persons may freely enter the national forest
to conduct those activities. Id. § 228.4(a)(1), (a)(2)(ii),
(a)(2)(iii). For more substantial mining activities that “might”
or “will likely” cause resource disturbance, miners must file a
“notice of intention to operate”—a Notice of Intent, which is
the focus of this appeal. Id. § 228.4(a).2 The Notice of Intent
is a straightforward document, requiring miners to list: (1) the
name, address, and telephone number of the operator; (2) the
area involved; (3) the nature of the proposed operations; (4)
the route of access to the area; and (5) the method of transport
to be used. U.S. Forest Serv., Notice of Intent Instructions: 36
CFR 228.4(a) - Locatable Minerals, http://www.fs.usda.gov/
Internet/FSE_DOCUMENTS/fsm9_020952.pdf (last visited May 4,
2012); see also 36 C.F.R. § 228.4(a)(2)(iii) (2004). Once “a
notice of intent is filed, the District Ranger will, within 15
days of receipt thereof, notify the operator whether a plan of
operations is required.” 36 C.F.R. § 228.4(a)(2)(iii)
(2004). A Plan of Operations is required if the proposed mining
activities “will likely” cause significant surface resource
2For purposes of this dissent, it is unnecessary to resolve
whether suction dredge mining “may affect” Coho salmon. My
primary disagreement with the majority stems from its finding of
an agency “action.”
6112 KARUK TRIBE OF CALIFORNIA v. USFS disturbance. Id. §
228.4(a). In contrast, if “significant disturbance is not
likely,” then a Plan of Operations “is not required.” Siskiyou
Reg’l Educ. Project v. U.S. Forest Serv.,
565 F.3d 545, 557 (9th Cir. 2009) (emphasis in original).
“[M]ining activity that might cause disturbance of surface
resources, yet [is] not likely to do so . . . require[s] only a
notice of intent under 36 C.F.R. § 228.4(a).” Id. (emphasis in
original). If the District Ranger requests a Plan of Operations,
the Plan must contain “[i]nformation sufficient to describe or
identify the type of operations proposed and how they would be
conducted, the type and standard of existing and proposed roads
or access routes, the means of transportation used . . . , the
period during which the proposed activity will take place, and
measures to be taken to meet the requirements for environmental
protection in § 228.8.” 36 C.F.R. § 228.4(c)(3)
(2004). The District Ranger must “complet[e] . . . an
environmental analysis in connection with each proposed
operating plan,” id. § 228.4(f), and within thirty days of
submission (or ninety days if necessary), either “approve[ ] the
plan” or “[n]otify the operator of any changes in, or additions
to, the plan of operations deemed necessary to meet the purpose
of the regulations in this part.” Id. § 228.5(a)(1), (3).3 III.
Forest Service’s interpretation of its regulations The majority
asserts that the Forest Service’s decision not to require a Plan
of Action for the mining activities described in a Notice of
Intent constitutes an implicit authorization of those mining
activities, therefore equating the Forest Service’s “decision”
with an agency “authorization” under the ESA.
3In some cases, the District Ranger will inform the miner that a
Plan of Operations is unnecessary, id. § 228.5(a)(2), or require
the filing of an environmental statement with the Council on
Environmental Quality, id. § 228.5(a)(5). KARUK TRIBE OF
CALIFORNIA v. USFS 6113 The Forest Service never contemplated
such a result. The Forest Service’s explanation of its mining
regulations establishes that a Notice of Intent is used as an
informationgathering tool, not an application for a mining
permit. Consistent with the Forest Service’s interpretations,
the Ranger’s response to a Notice of Intent is analogous to the
Notice of Intent itself, and provides merely notice of the
agency’s review decision. It is not a permit, and does not
impose regulations on private conduct as does a Plan of
Operations. The Forest Service interprets the Notice of Intent
as an information-gathering tool used to decide whether a miner
should file a Plan of Operations: “[T]he requirement for prior
submission of a notice of intent to operate alerts the Forest
Service that an operator proposes to conduct mining operations
on [National Forest Service] lands which the operator believes
might, but are not likely to, cause significant disturbance of
[National Forest Service] surface resources and gives the Forest
Service the opportunity to determine whether the agency agrees
with that assessment such that the Forest Service will not
exercise its discretion to regulate those operations.
Clarification as to When a Notice of Intent To Operate and/or
Plan of Operation Is Needed for Locatable Mineral Operations on
National Forest System Lands, 70 Fed. Reg. 32,713, at 32,720
(June 6, 2005) (emphasis added).4 The Forest Service adds that
the Notice of Intent process was designed to be “a simple
notification procedure” that would
4I rely on the Forest Service’s 2005 clarification of its mining
rules because this document contains the clearest and most
thorough explanation of the history and application of these
regulations. The 2005 clarification did not materially change
the operative provisions. 70 Fed. Reg. at
32,727-28.
6114 KARUK TRIBE OF CALIFORNIA v. USFS “assist prospectors in
determining whether their operations would or would not require
the filing of an operating plan. Needless uncertainties and
expense in time and money in filing unnecessary operating plans
could be avoided thereby . . . . [The
1974 notice-and-comment rulemaking] record makes it clear that a
notice of intent to operate was not intended to be a regulatory
instrument; it simply was meant to be a notice given to the
Forest Service by an operator which describes the operator’s
plan to conduct operations on [National Forest Service] lands.
Further, this record demonstrates that the intended trigger for
a notice of intent to operate is reasonable uncertainty on the
part of the operator as to the significance of the potential
effects of the proposed operations. In such a circumstance, the
early alert provided by a notice of intent to operate would
advance the interests of both the Forest Service and the
operator by facilitating resolution of the question, “Is
submission and approval of a plan of operations required before
the operator can commence proposed operations?” Id. at 32,728
(emphasis added). Under the Forest Service’s regulations, a
Notice of Intent is exactly what its name implies: a notice from
the miner, not a permit or license issued by the agency. It is
merely a precautionary agency notification procedure, which is
at most a preliminary step prior to agency action being taken.
IV. Precedent distinguishing “action” from “inaction” Our
precedent establishes that there is a significant difference
between a decision not to act and an affirmative authorization.
These cases distinguish between “agency action” and “agency
inaction,” and illustrate the meaning of the operative
regulation’s reference to “licenses,” “permits,” and the like.
KARUK TRIBE OF CALIFORNIA v. USFS 6115
50 C.F.R. § 402.02 (2004). In the pertinent cases involving
“agency action,” the agency takes an affirmative step that
allows private conduct to take place; without the agency’s
affirmative action (such as issuing a permit, license, or
contract), the private conduct could not occur.5 In the
pertinent cases involving agency inaction, private conduct may
take place until the agency takes affirmative steps to
intervene. The relevant case law requires us to identify the
default position: if the agency does nothing, can the private
activity take place? If the activity can proceed regardless of
whether the agency takes any actions, then the activity does not
involve the agency’s “granting of licenses, contracts, leases,
easements, rights-of-way, permits, or grants-in-aid” as required
for “agency action” under the regulations. Id. Western
Watersheds Project involved the BLM’s regulation
(or, more accurately, non-regulation) of private parties’
diversions of water that were done pursuant to those parties’
pre-existing rights-of-way. 468 F.3d at 1103. Similar to this
case, nineteenth-century federal laws recognized those rightsof-
way, id. at 1103-04, but the BLM retained the power to regulate
diversions that were more than “ ‘substantial deviation[ s]’ ”
from prior uses, id. at 1109 (quoting 43 C.F.R. § 2803.2(b)
(2004) (promulgated in 1986)). We assumed that the BLM had the
power to regulate the diversions in dispute, and held that the
BLM’s failure to exercise this power was not an “agency action”
triggering ESA consultation obligations. Id. at 1108-09. We
explained that agency “ ‘inaction’ is not ‘action’ for section
7(a)(2) purposes.” Id. at 1108. “[T]he BLM did not fund the
diversions, it did not issue permits, it did not grant
contracts, it did not build dams, nor did it divert
5For example, Turtle Island Restoration Network v. National
Marine Fisheries Service, 340 F.3d 969 (9th Cir. 2003), involved
an agency’s issuance of permits to fishing vessels. The
operative statutory regime “require[ d] United States vessels to
obtain permits to engage in fishing operations on the high seas
. . . .” Id. at 973 (emphasis added). In other words, absent an
agency permit, the vessels could not undertake their fishing
operations.
6116 KARUK TRIBE OF CALIFORNIA v. USFS streams.” Id. at 1109
(emphasis in original). Rather, the BLM made a decision not to
regulate, which was not “agency action” under the ESA. We
explained that “the duty to consult is triggered by affirmative
actions.” Id. at 1102; see also Marbled Murrelet v. Babbitt, 83
F.3d 1068, 1070 (9th Cir. 1996)
(“Protection of endangered species would not be enhanced by a
rule which would require a federal agency to perform the
burdensome procedural tasks mandated by section 7 simply because
it advised or consulted with a private party.”); Cal.
Sportfishing Protection Alliance v. FERC, 472 F.3d 593, 595,
598 (9th Cir. 2006) (holding that “the agency[ ] ha[d] proposed
no affirmative act that would trigger the consultation
requirement” for operations of a hydroelectric plant that were
authorized by an earlier and ongoing permit, even though the
agency was empowered to “unilaterally institute proceedings to
amend the license if it so chose”). Predictably, the majority
relegates discussion of this precedent to a brief citation and
entirely fails to distinguish it from this case. Moreover, the
majority does not point to a single opinion in which any court
has held that such inaction triggers the ESA’s consultation
requirements. Granted, Western Watersheds Project addressed both
prongs of the ESA’s “agency action” requirement: first, whether
there is agency action as defined in 50 C.F.R. § 402.02, and
second, whether that agency action is “discretionary,”
50 C.F.R. § 402.03. Here, I address only the “action”
requirement, because the agency has discretion when deciding
whether or not to act. But the regulations and case law show
that these two requirements—action and discretion —are
conjunctive, not disjunctive. If the agency has discretion to
act but decides not to act, then there is no agency action under
the ESA. An almost identical regulatory scheme was at issue in
Sierra Club v. Penfold, 857 F.2d 1307 (9th Cir. 1988). Under
43 C.F.R. § 3809 (1986), the BLM uses a three-tiered approach to
regulating placer mining on federal lands within KARUK TRIBE OF
CALIFORNIA v. USFS 6117 its jurisdiction. First are “casual” use
mines, for which no notice or approval is required. 857 F.2d at
1309. Second are “notice” mines, for which no BLM approval is
required but for which the miner must submit basic information
to the BLM about the proposed operations at least fifteen days
prior to commencing them. Id. BLM monitors “casual” and “notice”
mining operations for compliance. Id. at 1310. Third are “plan”
mines, which must be approved by the BLM and subjected to
environmental assessment before the operation may proceed. Id.
at 1309. The BLM’s approach to “casual,” “notice,” and “plan”
mining operations follows the same structure as the Forest
Service’s approach to mining activities that “are not likely
to,” “might,” and “are likely to” cause significant surface
resource disturbance. See 36 C.F.R. § 228.4. This similarity was
intentional. 45 Fed. Reg. 78,906 (Nov. 26, 1980)
(explaining that the regulations were designed “to be as
consistent as possible with the Forest Service regulations”). At
issue in Penfold was whether the BLM’s approval of Notice mines
is a “major Federal action.” Such a finding would trigger the
National Environmental Policy Act’s
(NEPA) requirement that the BLM file an environmental impact
statement. We held that the approval was not a major Federal
action. 857 F.2d at 1314. Penfold can be read to say that the
BLM’s review of a notice is a “marginal” agency action, just not
a “major” one. See id. at 1313-14. But just as actions must be
“major” to trigger NEPA obligations, actions carried out
entirely by private parties must involve “affirmative” federal
agency authorization to trigger section 7’s consultation
requirement. The mere fact that the agency is involved in some
way is not enough. Thus, even assuming the Tribe is correct that
the threshold for triggering environmental compliance under the
ESA is lower than for NEPA, I nonetheless find our previous
determination that a similar notice scheme was not the sort of
agency action that requires envi-
6118 KARUK TRIBE OF CALIFORNIA v. USFS ronmental compliance to
be additional persuasive authority in support of the district
court’s holding. I emphasize the narrowness of the question
before us; I do not argue that every Forest Service “decision”
is exempted from ESA consultation. The Forest Service’s mining
regulations are clearly distinguishable from the Forest
Service’s other regulatory activities. For example, the Forest
Service must consult under the ESA when it creates and
implements Land and Resource Management Plans, which govern
“every individual project” in each national forest. Pac. Rivers
Council v. Thomas, 30 F.3d 1050, 1053 (9th Cir. 1994). In
addition, the Forest Service’s negotiation and execution of
timber-sale contracts, 16 U.S.C. § 472a(a); 36 C.F.R. § 223.1
(2011), is undoubtedly an agency “authoriz[ation]” that requires
ESA consultation. See 50 C.F.R. § 402.02 (2004) (agency actions
include “granting of . . . contracts”); see also Nw. Forest Res.
Council v. Pilchuck Audubon Soc’y, 97 F.3d 1161, 1167 (9th Cir.
1996) (noting that Forest Service consulted with Fish and
Wildlife Service regarding timber sales’ effect on marbled
murrelets). The same is true for the Forest Service’s
construction of roads in the national forest. Thomas v.
Peterson, 753 F.2d 754, 763-64 (9th Cir. 1985). Likewise, “all
grazing and livestock use on National Forest System lands and on
other lands under Forest Service control must be authorized by a
grazing or livestock use permit.” 36 C.F.R. § 222.3 (2011). The
Forest Service’s grant and oversight of such permits is
undeniably “agency action” subject to the ESA consultation
requirement. See Forest Guardians v. Johanns, 450 F.3d 455,
457-58, 463 (9th Cir. 2006). But here, Notices of Intent are not
permits, contracts, or plans issued by the Forest Service. They
are mere notifications about miners’ activities. Certainly, the
Forest Service retains discretion to require miners to submit a
Plan of Operations under appropriate circumstances. That was the
conclusion reached in a recent Administrative Procedures Act
decision, Siskiyou Regional Education Project v. U.S. Forest
KARUK TRIBE OF CALIFORNIA v. USFS 6119 Service: “determining
which operations are likely to cause significant disturbance of
surface resources—and therefore require a plan of
operations—requires a discretionary determination by a district
ranger.” 565 F.3d at 557 (emphasis omitted). But the Forest
Service’s decision not to require a Plan of Operations is simply
not an “authorization” as defined by the statute and
regulations. The majority’s proposed new category of agency
conduct—implicit agency action—finds little support in the
statutes, regulations, and case law. The district court’s
opinion in this case follows naturally from Western Watersheds
Project. Although the majority characterizes the Forest
Service’s response to a Notice of Intent as an “approval,” an
“authorization,” and a “rejection,” the relevant regulations
show that the Forest Service is not approving, authorizing, or
rejecting anything. It is receiving and analyzing information,
and deciding not to take further action. V. Subjective views of
the parties The majority relies heavily on the fact that the
District Ranger and the miners in this case understood the
Notice of Intent to be an “authorization.” At first glance, this
case-specific reasoning may be enticing: after all, the miners
sought the Ranger’s “approv[al]” and the Ranger “authoriz[ed]”
their activities. But this path of reasoning is full of legal
obstacles, any one of which should be dispositive of the
ultimate legal question under the ESA. First, a similar argument
was considered and rejected in Sierra Club v. Babbitt, 65 F.3d
1502 (9th Cir. 1995), where we held that the BLM’s letter
purporting to “approv[e]” a construction project could not “be
construed as an authorization within the meaning of [ESA]
section 7(a)(2)” because the BLM’s letter did not otherwise
satisfy the statutory criteria of an ESA authorization. Id. at
1511.
6120 KARUK TRIBE OF CALIFORNIA v. USFS Second, we are not bound
by litigants’ concessions of law
(even assuming that the miners’ and Ranger’s letters can be
deemed “concessions”). E.g., United States v. Ogles, 440 F.3d
1095, 1099 (9th Cir. 2006) (en banc). Third, the District Ranger
has no authority to interpret the ESA or its implementing
regulations, so his use of the term “authorization” cannot
reasonably be read as an interpretation of the ESA regulations,
50 C.F.R. §§ 402.02-03 (2004).6 See generally Robertson, 490
U.S. at 359 (discussing deference owed to agency’s
interpretation of its regulations); Chevron U.S.A. Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837,
843-45 (1984). Fourth—as even the Plaintiffs-Appellants
recognize—the question of whether an agency’s course of conduct
constitutes an “agency action” under the ESA is a legal
question, not a factual one. Nat’l Wildlife Fed’n v. Brownlee,
402 F. Supp. 2d
1, 11 (D.D.C. 2005). Finally, to understand why the parties’
conduct in this case cannot control our application of the ESA
and its regulations, consider the implications of such a
holding. A single District Ranger would be subjected to the ESA
consultation process because he used the word “authorize” when
responding to a Notice of Intent. However, no other District
Ranger in the country would be subjected to the ESA under
similar circumstances, even though those District Rangers
operate under the same Forest Service regulations governing
Notices of Intent. It goes without saying that this result makes
little, if any,
6Regulatory authority under the ESA is delegated to the
Departments of Interior and Commerce, see Nat’l Ass’n of Home
Builders v. Defenders of Wildlife, 551 U.S. 644, 651, 664-65
(2007), whereas the Forest Service is a part of the Department
of Agriculture, see U.S. Forest Service, “U.S. Forest Service
History: Agency Organization,” http:// www.foresthistory.org/ASPNET/Policy/Agency_Organization/index.aspx
(last visited May 4, 2012). KARUK TRIBE OF CALIFORNIA v. USFS
6121 sense as an application of our national environmental
protection laws. VI. Discussions between miners and district
rangers The majority also relies on the fact that informal
discussions take place between miners and district rangers
regarding how the miners can modify their proposed activities to
avoid triggering the obligation to prepare a Plan of Operations.
For instance, a ranger may advise miners how to change their
plans in a way that will avoid causing significant surface
resource disturbances. If the miners do so, and describe their
appropriately modified activities in Notices of Intent, the
regulations do not require anything further; the miners are
authorized to proceed with their mining activities under the
General Mining Law. The majority mistakenly attempts to
characterize such informal discussions as the Forest Service’s
exercise of discretion to approve or deny an NOI. But we have
long held that these sorts of informal, voluntary discussions do
not constitute an agency action. Marbled Murrelet v. Babbitt, 83
F.3d
1068 (9th Cir. 1996). Marbled Murrelet is directly on point. In
that case, we held that a joint letter from U.S. Forest Service
and the California Department of Fish and Game to a timber
company describing “specific conditions that must be followed to
. . . avoid ‘take’ of the identified species under the ESA” was
“merely provid[ing] advice” that did not trigger section 7
consultation under the ESA. Id. at 1074. As we explained,
“[p]rotection of endangered species would not be enhanced by a
rule which would require a federal agency to perform the
burdensome procedural tasks mandated by section
7 simply because it advised or consulted with a private party.
Such a rule would be a disincentive for the agency to give such
advice or consultation.” Id. The majority takes exactly that
step here. In holding that a miner’s submission of an NOI
triggers section 7 consultation
6122 KARUK TRIBE OF CALIFORNIA v. USFS under the ESA, the
majority discourages miners from discussing their proposed
activities with the Forest Service to voluntarily reduce their
impact on the environment, and rather encourages miners to make
their own determination that their activities are not likely to
“cause significant disturbance of surface resources,” 36 C.F.R.
§ 228.4(a), and thus no NOI need be filed. VII. Brave New World
Abandon all hope, ye who enter here. — Dante Alighieri, THE
DIVINE COMEDY, Inferno Canto III
I cannot conclude my dissent without considering the impact of
the majority’s decision in this case, and others like it, which,
in my view, flout our precedents and undermine the rule of law.
In doing so, I intend no personal disrespect or offense to any
of my colleagues. My intent is solely to illuminate the downside
of our actions in such environmental cases. By rendering the
Forest Service impotent to meaningfully address low impact
mining, the majority 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. In contrast, ESA interagency consultation
requires a formal biological assessment and conferences, and can
delay projects for months or years. Although the ESA generally
requires agencies to complete consultations within ninety days,
16 U.S.C. § 1536(b), the agencies frequently miss their
deadlines due to personnel shortages. One study found that
nearly 40 percent of U.S. Fish and Wildlife Service ESA
consultations were untimely, with some taking two or three
years. Government Accountability Office, More Federal Management
Attention is Needed to Improve the Consultation Process, March
2004. Moreover, formal consultation comes at great costs to the
private applicants, often requiring them to hire outside experts
KARUK TRIBE OF CALIFORNIA v. USFS 6123 because the agency is
backlogged. Id. Most miners affected by this decision will have
neither the resources nor the patience to pursue a consultation
with the EPA; they will simply give up, and curse the Ninth
Circuit.
As a result, a number of people will lose their jobs and the
businesses that have invested in the equipment used in the
relevant mining activities will lose much of their value. In
2008, California issued about 3,500 permits for such mining, and
18 percent of those miners received “a significant portion of
income” from the dredging. See Justin Scheck, California Sifts
Gold Claims, The Wall Street Journal, April 29, 2012. The gold
mining operation in this case, the New 49ers, organizes
recreational weekend gold-mining excursions. The majority’s
opinion effectively forces these people to await the lengthy and
costly ESA consultation process if they wish to pursue their
mining activities, or simply ignore the process, at their peril.
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.
The result? The imminent decimation of what remains of the
Northwest timber industry. The American Loggers Council
estimates that the decision, if implemented, will result in up
to three million more permit applications nationwide. The
6124 KARUK TRIBE OF CALIFORNIA v. USFS timber industry is not
the only group criticizing Brown. Three of Oregon’s leading
politicians quickly attacked the ruling. Oregon U.S. Senator Ron
Wyden predicted that this opinion “would shut down forestry on
private, state and tribal lands by subjecting it to the same,
endless cycle of litigation.” Oregon Congressman Kurt Schrader
called the opinion a “bad decision” that would create “another
layer of unnecessary bureaucracy.” Oregon Governor John
Kitzhaber branded the opinion as “legally flawed.”
Oregon political leaders have good reason to be concerned about
the impact of our rulings on logging. Decades of court
injunctions already have battered the state’s timber industry,
once a dominant employer that paid excellent wages. In the
1970s and 1980s, the wood product industry employed more than
70,000 Oregonians and paid 30 percent more than the state
average wage. Now, the industry employs 25,000 people and pays
the state average wage. Josh Lehner, Historical Look at Oregon’s
Wood Product Industry, Oregon Office of Economic Analysis, Jan.
23, 2012, available at http://oregoneconomicanalysis.wordpress.com/2012/01/23/
historical-look-at-oregons-wood-product-industry/ (last visited
May 4, 2012). Requiring millions of burdensome new permits will
only accelerate the decline.
Brown also profoundly harms rural local governments. Because
counties receive twenty-five percent of the revenues from timber
harvests on federal land, the decrease in logging has caused
shorter school days, smaller police forces, and closures of
public libraries. Moreover, Brown subjects rural counties to the
burdensome permitting requirement if their roads are used for
logging. The Association of Oregon Counties estimates that the
decision will increase planning costs to Oregon counties by $56
million.
More recently, a panel majority of our court handed down Pacific
Rivers Council v. United States Forest Service, 668 F.3d 609
(9th Cir. 2012). The Forest Service spent years KARUK TRIBE OF
CALIFORNIA v. USFS 6125 developing a forest management plan for
11.5 million acres of national forest land in the Sierra Nevada.
We overturned that plan, holding that the Forest Service’s
programmatic environmental impact statement must “analyze
environmental consequences of a proposed plan as soon as it is
‘reasonably possible’ to do so.” Id. at 623. This conflicts with
our longstanding rule that “NEPA requires a full evaluation of
sitespecific impacts only when a ‘critical decision’ has been
made to act on site development—i.e., when ‘the agency proposes
to make an irreversible and irretrievable commitment of the
availability of resources to [a] project at a particular site.’
” Friends of Yosemite Valley v. Norton, 348 F.3d 789, 801 (9th
Cir. 2003) (quoting California v. Block, 690 F.2d 753, 761
(9th Cir. 1982)). Pacific Rivers Council’s de facto reversal of
well-established precedent will dramatically impede any future
logging in the West. Because environmental agencies will never
be certain whether the unclear “reasonably possible” standard
applies, it will take even longer for the agencies to approve
forest plans.
Farmers, too, have suffered, and will continue to suffer, from
the impact of similarly extreme environmental decisions. The
Central Valley Project Improvement Act, Pub. L. No.
102-575, 106 Stat. 4600 (1992), requires that 800,000 acre feet
of water in California’s Central Valley Project be designated
for “the primary purpose of implementing the fish, wildlife, and
habitat restoration purposes and measures[.]” In San Luis &
Delta-Mendota Water Authority v. United States,
672 F.3d 676 (9th Cir. 2012), the majority inexplicably read
this requirement to mean that water counts toward that yield
only if it “predominantly contributes to one of the primary
purpose programs.” Id. at 697. This interpretation has
absolutely no basis in the statutory text. The practical impact
of this decision is that there will be less, perhaps far less,
water for irrigation in the San Joaquin Valley’s $20 billion
crop industry. Id. at 715-16 (M. Smith, J., dissenting). The
region’s farms and communities, and the thousands of people
employed there, already have suffered because of the lack of
6126 KARUK TRIBE OF CALIFORNIA v. USFS water, with approximately
250,000 acres of farmland now lying fallow, and unemployment
ranging between 20 percent and 40 percent. Id.
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.7 I respectfully dissent.
7“[R]epeated and essentially head-on confrontations between the
lifetenured branch and the representative branches of government
will not, in the long run, be beneficial to either. The public
confidence essential to the former and the vitality critical to
the latter may well erode if we do not exercise self-restraint
in the utilization of our power to negative the actions of the
other branches.” United States v. Richardson, 418 U.S. 166,
188 (1974) (Powell, J., concurring
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