797 F.3d 645
9th Cir.2015Background
- KS Wild sued the U.S. Forest Service under the ESA’s citizen-suit provision, alleging the Service approved recreational suction-dredge mining in Rogue River–Siskiyou National Forest without consulting NMFS under ESA §7.
- KS Wild sent a June 12, 2012 notice letter alleging numerous NOIs (notices of intent to operate) in 2010–2012 affecting critical coho salmon habitat; the letter listed dates but not complete claim/location details.
- Forest Supervisor MacWhorter replied that KS Wild’s letter lacked specific miner/claim/location details but identified some matching Ranger letters and said the Forest was reviewing NOIs for consultation obligations.
- KS Wild later sent an October 3, 2012 letter with an updated list of 31 specific suction-dredge projects; KS Wild filed suit on October 22, 2012 relying on the June letter for jurisdictional notice.
- The district court dismissed for lack of subject-matter jurisdiction, holding the June notice was deficient for failing to identify specific authorized mining operations; KS Wild appealed.
- The Ninth Circuit reversed, holding the June notice was sufficiently specific in light of the Forest Service’s superior access to NOI and habitat information.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether KS Wild’s June 2012 notice satisfied ESA §1540(g)(2)(A)(i)’s 60‑day notice requirement | June letter provided sufficient information (dates, activity, geographic scope, and effects on critical habitat) to allow Forest Service to identify and abate violations | June letter was too vague—failed to identify miners, claims, locations, or specific authorizations, so it did not permit the Forest Service to identify asserted violations | Held: Notice was sufficient. Given Forest Service’s superior access to NOI and habitat records, the June letter allowed identification and remedial action; jurisdiction exists |
Key Cases Cited
- Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006 (9th Cir. 2012) (agency review of NOIs constituted federal action triggering ESA §7 consultation)
- Sw. Ctr. for Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515 (9th Cir. 1998) (ESA notice requirement is jurisdictional; strict compliance required)
- Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502 (9th Cir. 2013) (notice may identify representative examples where defendant can identify additional violations from its records)
- Cmty. Ass’n for Restoration of the Env’t v. Henry Bosma Dairy, 305 F.3d 943 (9th Cir. 2002) (notice listing some violations can suffice for other similar violations originating from same source)
- San Francisco BayKeeper v. Tosco Corp., 309 F.3d 1153 (9th Cir. 2002) (general allegations plus representative dates can satisfy notice where defendant can identify exact dates from its records)
- Hallstrom v. Tillamook Cnty., 493 U.S. 20 (1989) (strict compliance with citizen-suit notice timeliness and party-identification requirements serves agency enforcement and corrective opportunities)