On April 7, 2011, the U.S. Court of Appeals for the Ninth Circuit held that a United States Forest Service (USFS) District Ranger's decision that proposed recreational suction dredge mining in the Klamath National Forest may proceed according to the miners' Notices of Intent (NOIs) without a Plan of Operations is not an "agency action," and therefore consultation is not required under section 7 of the Endangered Species Act. Karuk Tribe of California v. U.S. Forest Service, No. 05–16801, 2011 WL 1312564 (9th Cir. April 7, 2011) (PDF).
Specifically, the majority held that the District Ranger's decision not to require a Plan of Operation for the dredging "is an agency decision not to regulate legal private conduct. In other words, the USFS's decision at issue results in agency inaction, not agency action." Id. at *11.
The Karuk Tribe presented evidence that the cumulative impact of recreational suction dredge mining to threatened Coho salmon and their critical habitat in the Klamath River "may affect" listed species by killing salmon and other fish eggs, killing food sources, destabilizing spawning substrate, and otherwise disturbing the salmon and their reproductive activities. But the court's holding turned on the more fundamental question whether the District Ranger's determination that no Plan of Operations is required constitutes an "agency action."
The Tribe argued that the Ranger's decision is a decision to authorize the operations described in an NOI, therefore, consultation with the National Marine Fisheries Service is required under section 7.
A majority of the three-judge panel disagreed, concluding instead that "the NOI process was designed to be 'a simple notification procedure' that would 'assist prospectors in determining whether their operations would or would not require the filing of an operating plan.'" Id. at *6-7. In other words, a decision not to require a Plan of Operations is not a "permit," as the Tribe contended. Instead, the NOIs were agency inaction, not "agency action" that could trigger a duty to consult under section 7.
The majority found it especially significant that under Organic Administration Act of 1897 and the General Mining Law of 1872, miners have a right to enter public lands to prospect and remove mineral deposits. Under Forest Service regulations, a Plan of Operations for mining activities on national forest land is required only if the District Ranger determines that the mining is likely to cause significant disturbance of surface resources. Under the Forest Service regulations, once an NOI is filed, the District Ranger is not required to respond at all unless he or she determines that the mining will likely cause a significant disturbance of surface resources. Thus a Ranger's response to an NOI "is analogous to the NOI itself, a notice of the agency's review decision. It is not a permit, and does not impose regulations on the private conduct as does a Plan [of Operations]." Id. at *7.
In his dissenting opinion, Judge William A. Fletcher concluded that the Forest Service has taken affirmative agency action because "[t]he Forest Service makes an actual decision whether to allow suction dredging to proceed pursuant to an NOI." Id. at *15. In addition, Judge Fletcher concluded that the Forest Service exercised discretion in approving or disapproving the NOIs in three ways. First, "the Forest Service exercised discretion in formulating criteria for the protection of critical habitat of listed coho salmon" that "governed the approval or denial of NOIs for suction dredge mining." Id. at *23. Second, the Forest Service exercised discretion in refusing to approve an NOI where it determined that the NOI provided insufficient protection of fish habitat and insufficient mitigation for the loose tailing piles left by the dredges. Id. at *24. And third, the Forest Service exercised discretion insofar as its employees applied different criteria for the protection of fish habitat in different districts of the Klamath National Forest. Id.
The majority rejected these arguments, arguing that the Tribe failed to argue that the formulation of protective criteria was itself an agency action triggering a duty to consult under section 7 (id. at *3 n.6), and although the Forest Service exercised discretion in determining whether to require a Plan of Operations, the NOIs at issue were not "agency actions" but rather inactions (id. at *5 n.8).
It remains to be seen whether the Tribe will file a petition for rehearing or a petition for certiorari seeking to have the decision overturned.