Karuk Tribe v. United States Forest Service
681 F.3d 1006
| 9th Cir. | 2012Background
- Karuk Tribe challenges four Forest Service NOIs to mine in coho salmon critical habitat in the Klamath National Forest for ESA Section 7 consultation.
- Regulations classify mining activities by potential disturbance; NOIs are used for activities that might disturb surface resources, with Plans of Operations required if significant disturbance is likely.
- Forest Service approved four NOIs in 2004 without consulting Fish and Wildlife Service or NOAA Fisheries Service; some related NOIs and district decisions are discussed to show agency practice.
- Coho salmon in the Klamath River system were listed as threatened in 1997 and designated critical habitat in 1999; mining activities near habitat may affect these fish.
- District Rangers set discretionary criteria (cold-water refugia protection, dredge-density limits, and tailings management) to govern NOI approvals in Happy Camp District.
- Mootness issues are addressed; the court finds the dispute capable of repetition yet evading review because NOIs recur annually and moratoriums are temporary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NOI approvals constitute agency action under ESA §7 | Forest Service actions affirmatively authorize mining via NOIs. | NOIs are informational or non-authorizing; action occurs only with a Plan. | Yes, NOI approvals constitute agency action under §7. |
| Whether the approved mining may affect listed species or critical habitat | Mining in coho habitat may affect listed species; ESA §7 duty to consult triggered. | Record shows no effect on coho or habitat; actions comply with regulations. | Yes, mining may affect coho salmon and its critical habitat; consultation required. |
Key Cases Cited
- Turtle Island Restoration Network v. Nat’l Marine Fisheries Serv., 340 F.3d 969 (9th Cir. 2003) (may affect threshold for §7 consultation)
- Cal. ex rel. Lockyer v. U.S. Dep’t of Agric., 575 F.3d 999 (9th Cir. 2009) (low threshold for triggering consultation)
- Siskiyou Reg’l Educ. Project v. U.S. Forest Serv., 565 F.3d 545 (9th Cir. 2009) (NOI approvals can be final agency action; discretion to require Plan)
- Marbled Murrelet v. Babbitt, 83 F.3d 1068 (9th Cir. 1996) (informal advice not triggering §7; need for agency action)
- Cal. Sportfishing Prot. Alliance v. Fed. Energy Regulatory Comm’n, 472 F.3d 593 (9th Cir. 2006) (no §7 duty where agency action is not affirmative authorization)
- Sierra Club v. Babbitt, 65 F.3d 1502 (9th Cir. 1995) (private activity requires authorization; agency not obliged to consult on advice)
- Nw. Forest Res. Council v. Pilchuck Audubon Soc’y, 97 F.3d 1161 (9th Cir. 1996) (agency action requires affirmative authorization)
- Home Builders v. Defenders of Wildlife, 551 U.S. 644 (U.S. Supreme Court 2007) (discretionary involvement needed for §7 duties; not all mandates create action)