Ninth Circuit Rules that Endangered Species Act Consultation is Required for Certain Certain Notice of Intent Level-Projects on Federal Land

Karuk Tribe of California v. US Forest Service

(2012) 681 F.3d 1006

In Karuk Tribe of California v. US Forest Service (2012) 681 F.3d 1006, the Ninth Circuit Court of Appeals decided in a 7-4 en banc (full court) decision to require the US Forest Service to consult with federal wildlife agencies (Fish and Wildlife Service (FWS) or National Marine Fisheries Service (NMFS)) before allowing recreational mining activities in critical coho salmon habitat to proceed under a Notice of Intent ("NOI"). Ninth Circuit decisions are controlling in California, Arizona, Nevada, Idaho, Montana, Oregon, Washington, Alaska, Hawaii and Guam.

Forest Service regulations establish three tiers of review for mining activity on federal Forest Service lands: de minimis activities that will not cause significant disturbance of surface resources; activities that might cause disturbance of surface resources; and activities that will likely cause disturbance of surface resources. Individuals are entitled to conduct de minimis activities without notify the Forest Service or obtaining its approval. Middle-level activities require an individual to submit a "Notice of Intent" (NOI) to the Forest Service, after which time the Forest Service has 15 days to review and determine whether the proposed activities require a more detailed "Plan of Operations" instead. More significant activities require a Plan of Operations, which entails reclamation responsibilities and environmental review pursuant to the National Environmental Policy Act (NEPA), among other things.

In the case, several recreational miners, including individuals and a recreational mining club, submitted NOIs in 2004 to the Happy Camp District Forest Service office in the Klamath National Forest. The NOIs all proposed either small-scale suction dredging or motorized sluicing on federal mining claims located on the Klamath River or its tributaries. Each of the NOIs at issue proposed activities within identified critical coho salmon habitat.

The Forest Service evaluated the NOIs for consistency with certain fishery protection measures it had identified after consultation with Forest Service biologists and the Karuk Tribe, and either "approved" or "denied" the NOIs on the basis of consistency with these protective measures. The Forest Service did not consult with FWS or NMFS prior to "approving" the NOIs.

The Karuk Tribe subsequently sued in federal district court, alleging, among other things, that the Forest Service violated the federal Endangered Species Act (ESA) by failing to formally consult under ESA Section 7 with FWS and NMFS prior to its action on the NOIs. The federal district court ruled against the Tribe, as did a divided panel of the Ninth Circuit Court of Appeals. The Tribe asked the Ninth Circuit to rehear the case en banc.

On rehearing the Court addressed two issues: (1) whether the Forest Service's review of the four NOIs is "agency action" within the meaning of ESA Section 7, requiring consultation; and (2) whether the approved mining activities "may affect" listed species. The Court focused primarily on the first issue.

The Forest Service contended that its review of the NOIs was not an "agency action" subject to Section 7 consultation requirements. The Forest Service argued that prospectors and miners have a statutory right, not a mere privilege, to engage in mining activities on federal lands under the 1872 General Mining Law and the 1897 act that created the national forests. Review of the NOIs, therefore, was not an exercise of discretionary authority, but served only to determine whether the proposed mining activities required a more detailed Plan of Operations. By "approving" the NOIs, the Forest Service argued, it did not approve the underlying mining activities, but instead merely acknowledged the planned activities and determined that no Plan of Operations was required.

The Ninth Circuit disagreed. The Court first held that the Forest Service's review of NOIs was "agency action" because it constituted an "affirmative authorization" of the proposed mining activities. The Court noted in support that when engaging in review and correspondence regarding the NOIs, the Forest Service and the miners referenced "approval" or "denial" of the submitted NOIs, which the Court took as evidence that the parties understood that the NOI must be "approved" before mining operations may commence.

Second, the Court held that the Forest Service's review of the NOIs involved "discretionary involvement or control" over the proposed mining activities. In connection with its review of the NOIs, the Forest Service requested the miners to include certain fishery protection measures. The Court took this as evidence that the Forest Service had influenced a private activity to benefit a listed species, indicating exercise of discretion over the proposed activities.

In sum, the Court concluded that because the Forest Service in correspondence stated that it "approved" the NOIs, and because the Forest Service requested miners to incorporate certain fishery protection measures to engage in mining activities under the NOI, the Forest Service engaged in "agency action" and was required to first consult with FWS and NMFS.

In a lengthy dissent joined by Chief Judge Kozinski and Judges Ikuta and Murguia, Judge Smith argued that the majority opinion distorted established law and created new law out of whole cloth. First, the dissent argues that the federal laws entitling the public to engage in mining activities and the Forest Service regulations concerning review of mining activities show that the NOIs were merely information gathering tools and in no way discretionary authorizations. The NOIs, further, constituted the Forest Service's decision to take no further action on the proposed activities (such as to require a Plan of Operations), which is not the same as affirmative agency action. The dissent noted that this conclusion remains the same even though the Forest Service and miners apparently believed that the NOI must be "approved."

Finally, the dissent argued that the Forest Service's recommendation that the miners incorporate the fishery protections were informal discussions advising the miners on how to avoid causing significant environmental impacts that would require a higher level review. The miners' voluntary incorporation of these protections was not an exercise of agency control over the underlying activity that would subject the Forest Service's actions to Section 7 requirements, but the miners' voluntary action to avoid requiring a Plan of Operations.

The dissent highlighted the direct implications of the Court's decision: the decision effectively eliminates recreational NOI-level mining on Forest Service lands, because while the NOI process is designed to allow projects to proceed in a few weeks, Section 7 consultation can require months or years. The dissent cited a Government Accountability Office report that nearly 40 percent of FWS and NMFS consultations were untimely, and required two or three years to complete. This result, according to the dissent, both denies recreational miners the ability to exercise their statutory rights, and also results in economic losses directly to the miners and to the businesses that support their activities.

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