Endangered Species Law & Policy

On June 1, 2012, a sharply divided Ninth Circuit sitting en banc filed an opinion in Karuk Tribe of California v. U.S. Forest Service, No. 05-16801 (June 1, 2012) (pdf) holding that U.S. Forest Service "approvals" of notices of intent (NOIs) to undertake suction dredge mining are discretionary agency actions that may affect listed coho salmon designated critical habitat in the Klamath National Forest, thus triggering a duty to consult under section 7 of the Endangered Species Act (ESA). 

The en banc opinion reverses both the district court and a prior panel opinion in which a divided three-judge panel held that the Forest Service was not required to consult because the "approvals" at issue are tantamount to decisions not to require "plans of operations" for proposed dredging, and are therefore agency inaction, not agency action.  Judge William A. Fletcher wrote the dissenting opinion in last year's decision, but he wrote for the 7-4 majority of the en banc court.

As a threshold matter, the court held that the case was not moot despite the fact that the four NOIs at issue expired at the end of 2004 and California has imposed a temporary moratorium on suction dredge mining.  The court determined that the Tribe's claims are capable of repetition, but due to the one-year duration of the NOIs, they would evade judicial review.  Moreover, the suction dredge moratorium does not ban other forms of mining in coho salmon critical habitat such as motorized sluicing, and, in any event, the moratorium is set to expire on June 30, 2016.

On the merits, the majority determined that the NOI "approvals" constitute affirmative agency action because the Forest Service's regulations require district ranger approval of an NOI; the district ranger and the miners' correspondence indicated that the district ranger's responses to the submitted NOIs were "authorizations"; in two instances, the district ranger indicated that the proposed mining could not proceed without a plan of operations; and the Forest Service periodically inspects mining operations to determine if they are complying with the protective criteria set forth in the NOIs.

In a sharply worded dissent, Judge Milan D. Smith argues that the majority "now flouts . . . 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."  Slip Op. at 6109 (emphasis original).

In Judge Smith's view -- joined by Chief Judge Kozinski, and circuit judges Ikuta and Murguia -- the regulations at issue do not require district ranger "authorization" prior to mining carried out pursuant to an NOI.  Instead, by statute, miners have the right to mine in the national forests.  And Forest Service regulations make it clear that the NOI is intended to provide the information the Forest Service needs to decide whether to require a "plan of operations" for the proposed mining activity.  According to the regulations, if NOI establishes that the mining is not likely to lead to significant disturbance of surface resources, no plan of operations is required.  Thus, a decision not to require a plan of operations is not an affirmative "authorization" of mining activity, but rather the agency's decision not to act.

The dissent criticizes the majority for relying on the fact that the district ranger and miners sometimes referred to the NOIs as "authorizing" or "approving" the proposed mining activities.  The dissent points out that question whether an NOI is an authorization is purely legal, and does not depend on the particular facts of the case.  In addition, the court is not bound by the parties' characterizations of the NOIs, and a district ranger is not charged with issuing binding interpretations of agency regulations.  Thus, the dissent reasons, the court need not defer to the ranger's choice of words.  In addition, relying on the district ranger's terminology under the circumstances of this case could lead to the absurd conclusion that section 7 consultation is required for an NOI if a district ranger says so; but not required if the ranger avoids calling it an "authorization."

In this case, the miners informally consulted with the district ranger in an effort to draft their NOIs in such a way that the proposed mining would not trigger the need for a plan of operations.  The majority cited this process as evidence that the district engineer was exercising his discretion to impose conditions of approval on the mining activities.  The dissent argues that this is both bad law and bad policy:  the Ninth Circuit has held that agency advice is not agency action for purposes of ESA section 7.  And finding agency action in such informal consultation will deter agencies from offering advice on how to comply with the law, and encourage miners forgo the NOI process altogether.

In other words, according to the dissent, the decision will be bad for the Forest Service, bad for the courts, and bad for the environment.

Given the substantial disagreement between the majority and the dissent, and the national implications for the Forest Service's management of sensitive habitat in the national forests, it appears likely that the Forest Service will seek Supreme Court review of the decision.