Karuk Tribe v. United States Forest ServiceKaruk Tribe v. United States Forest Service
Lead Opinion
OPINION
We consider whether the U.S. Forest Service must consult with appropriate federal wildlife agencies under Section 7 of the Endangered Species Act (“ESA”) before allowing mining activities to proceed under a Notice of Intent (“NOI”) in critical habitat of a listed species. The ESA requires consultation with the Fish and Wildlife Service or the NOAA Fisheries Service for any “agency action” that “may affect” a listed species or its critical habitat.
The first is whether the Forest Service’s approval of four NOIs to conduct mining in the Klamath National Forest is “agency action” within the meaning of Section 7. Under our established case law, there is “agency action” whenever an agency makes an affirmative, discretionary decision about whether, or under what conditions, to allow private activity to proceed. The record in this case shows that Forest Service District Rangers made affirmative, discretionary decisions about whether, and under what conditions, to allow mining to proceed under the NOIs.
The second is whether the approved mining activities “may affect” a listed species or its critical habitat. Forest Service regulations require a NOI for all proposed mining activities that “might cause” disturbance of surface resources, which include fisheries and wildlife habitat.
We therefore hold that the Forest Service violated the ESA by not consulting with the appropriate wildlife agencies
I. Background
The Karuk Tribe has inhabited what is now northern California since time immemorial. The Klamath River originates in southeastern Oregon, runs through northern California, and empties into the Pacific Ocean about forty miles south of the California-Oregon border. In northern California, the Klamath River passes through the Six Rivers and Klamath National Forests. The Klamath River system is home to several species of fish, including coho salmon. Coho salmon in the Klamath River system were listed as “threatened” under the ESA in 1997. 62 Fed.Reg. 24,588 (May 6, 1997). The Klamath River system and adjacent streamside riparian zones were designated as critical habitat for coho salmon in 1999. 64 Fed.Reg. 24,049 (May 5, 1999). The Karuk Tribe depends on coho salmon in the Klamath River system for cultural, religious, and subsistence uses.
The rivers and streams of the Klamath River system also contain gold. Commercial gold mining in and around the rivers and streams of California was halted long ago due, in part, to extreme environmental harm caused by large-scale placer mining. See generally People v. Gold Run Ditch & Mining Co.,
The Karuk Tribe contends that these mining activities adversely affect fish, including coho salmon, in the Klamath River system. The Tribe challenges the Forest Service’s approval of four NOIs to conduct mining activities in coho salmon critical habitat in the Klamath National Forest, without first consulting with federal wildlife agencies pursuant to Section 7 of the ESA.
A. Mining Regulations
Under the General Mining Law of 1872, a private citizen may enter public lands for the purpose of prospecting and mining.
In 1974, the Forest Service promulgated regulations to minimize the adverse environmental impacts of mining activities in National Forests. 39 Fed.Reg. 31,317 (Aug. 28, 1974);
At issue in this appeal is the middle category of mining activities: those that “might cause” disturbance of surface resources.
The Forest Service revised its regulations in 2005 to clarify when a NOI or Plan is required. See 70 Fed.Reg. 32,713 (June 6, 2005). The revised regulations provide examples of de minimis mining activities — such as gold panning, metal detecting, and mineral sampling — that “will not cause” significant disturbance of surface resources and thus require neither a NOI or Plan.
B. 2004 Mining Season
Before the start of the 2004 mining season, representatives of the Karuk Tribe expressed concern to the Forest Service about the effects of suction dredge mining on fisheries in the Klamath River system. The District Ranger for the Happy Camp District of the Klamath National Forest, Alan Vandiver, responded by organizing meetings that included Tribal leaders, miners, and district officials. Vandiver also consulted with Forest Service biologists Bill Bemis and Jon Grunbaum. Vandiver wrote the following memorandum on May 24, 2004:
On April 20th a meeting was held in Orleans to discuss possible fisheries issues relating to dredging. A number of opinions were shared on the possible effects....
Following the Orleans meeting I asked our District Fisheries biologists, Bill Bemis and Jon Grunbaum, to develop recommendations, for my consideration, for the upcoming dredging season. They were not able to come to agreement on a list of fisheries recommendations. Their opinions varied widely on the effect of dredge operations on fisheries. I identified three key fisheries issues specific to the Happy Camp District[:] cold water refugia areas in the Klamath River, the intensity of dredge activities and the stability of spawning gravels in some portions of Elk Creek. These issues I used to help develop a threshold for determining a significant level of surface disturbance. I felt it was important from a cumulative effects standpoint to determine a threshold ofdredge density on the streams, as well as identify the critical cold water refugia areas....
... I discussed at length with Bill [Bemis] and Jon [Grunbaum] the effect on fisheries if the dredge activity was concentrated or dispersed over the length of the river. Concentrated use would result in longer river stretches without dredge activity and therefore less possible impacts to fisheries in the longer stretches. Distributed use would result in dispersed possible effects over the entire length of the river.... Considering the limited dredge operations in cold water refugia areas and the limited dredge access, I developed a threshold of 10 dredges per mile on the Klamath River and 3 dredges per mile on the Klamath tributaries. My thinking was the larger Klamath River, excluding the cold water refugia, could accommodate more dredge density with less impact than the smaller tributaries.
The first of the four NOIs challenged in this appeal was submitted by the New 49’ers, a recreational mining company. The New 49’ers own and lease numerous mining claims in and around the Klamath and Six Rivers National Forests. On May 17, 2004, District Ranger Vandiver met with two representatives of the New 49’ers and other interested parties. Based on his earlier consultation with Bemis and Grun-baum, Vandiver instructed the New 49’ers on “three primary issues.”
First, Vandiver instructed the New 49’ers that areas of cold water habitat, or “cold water refugia,” must be maintained within 500 feet of the mouths of twenty-two named creeks that feed into the Kla-math River. Second, he instructed them that tailings piles must be raked back into the “dredge holes in critical spawning areas” of Elk Creek “in a timely manner as operations proceed, but no later than the end of the season.” Third, he instructed them that there could be no more than ten dredges per mile on the Klamath River, and no more than three dredges per mile on Klamath tributaries.
On May 24, 2004, a week after their meeting with Vandiver, the New 49’ers submitted an eight-page, single-spaced NOI for mining activities in the Happy Camp District during the 2004 season. The NOI proposed suction dredge mining in approximately 35 miles of the Klamath River and its tributaries. The NOI also proposed motorized sluicing within the mean high water mark adjacent to the streams. In accordance with Vandiver’s instructions, the NOI specified that no dredging would occur in specified cold water refugia in the summer and early fall, that dredging holes would be filled in coho salmon spawning grounds on Elk Creek, and that dredge density would not exceed ten dredges per mile on the Klamath River and three dredges per mile on its tributaries.
On May 25, Vandiver sent the New 49’ers a letter approving their NOI. He wrote: ‘You may begin your mining operations when you obtain all applicable State and Federal permits. This authorization expires December 31, 2004.” On May 26, Bemis sent a “Note to the File” stating:
The Notice of Intent (NOI) for the new 49’ers this year has an intensity of approximately 40 dredges over the 35 miles of the Klamath covered by their claims. They have agreed to a density of no more than 10 dredges in any one-mile at anytime. The new 49’ers have agreed to avoid the area around tributaries to the Klamath Rivers. The club has agreed to pull back dredging tailings in a critical reach within Elk Creek. These agreements and others explained in the NOI should reduce the impacts to anadromous fisheries on the Happy Camp Ranger District.
As recommended by the Forest Service, no dredging will be conducted on the Klamath River within 500 feet above and below the mouth of Independence Creek between June 15th and October 15th. I totally disagree with these distances and believe that dredging is actually beneficial to fish survival, but I am willing to follow these recommendations in order to continue with my mining operations.
Vandiver approved the NOI on June 14.
The third NOI was submitted by Robert Hamilton, an individual miner who planned to mine four claims. He submitted his NOI on June 2, 2004. The NOI stated that he planned to use a four-inch suction dredge for about two weeks during July. Under the heading “Precautions,” he wrote that he would limit dredge density to three per mile, and that “Mailings will be returned to dredge hole[s] if possible in shallow areas or spread over [a] large area in deep areas.” Vandiver approved the NOI on June 15.
The fourth NOI was submitted by Ralph Easley, an individual miner who planned to mine a single claim. He submitted his NOI on June 14. The NOI stated that he planned to use a four-inch suction dredge from the beginning of July to the end of September. He wrote that the “[d]redge tailings will be raked back into dredge holes.” Vandiver approved the NOI on June 15.
The Forest Service never consulted with the Fish and Wildlife Service or NOAA Fisheries Service before approving the four NOIs.
In addition to the four NOIs specifically challenged in this appeal, the record includes other NOIs for mining activities during the 2004 season in the Six Rivers and Klamath National Forests. These NOIs provide important information about the Forest Service’s practices with respect to mining pursuant to NOIs.
First, on April 26, 2004, the New 49’ers submitted another eight-page, single-spaced NOI that proposed suction dredging and motorized sluicing in and along the Salmon River in the Orleans District of the Six Rivers National Forest. On May 13, Acting Forest Supervisor William Metz refused to approve the NOI. Metz wrote:
There is an important cold water refugia at the mouth of Wooley Creek that was discussed on the April 23, 2004 field trip as needing protection. This was not mentioned in your NOI. Protection of this refugia is critical to the survival of migrating anadromous fish.
Metz wrote further:
Due to the anadromous fisheries in the lower Salmon River the stability of spawning gravels for fish redds [spawning nests] is a major concern. Redds can be lost if loose tailing piles erode away by stream course action while eggs are still present.... Any resubmitted NOI or Plan of Operation needs to address the need to flatten tailings piles and rolling large dislodged rocks on the edge of the dredged holes back into the holes.
On May 24, the New 49’ers submitted a revised NOI for mining in the Orleans District. Dave McCracken, General Manager of the New 49’ers, wrote in a cover letter to the NOI, “If this Notice does not adequately address your concerns [then] I
From the substantial amount of dialog we have had with your office, other District offices, the Supervisor’s office, Ka-ruk Tribal leaders, active members of the Salmon River Restoration Council and others within local communities over the past several months, it has become increasingly clear that there are too many sensitive issues for us to try and manage a group mining activity along the Salmon River at this time.
Second, on April 28, 2004, the New 49’ers submitted a seven-page, single-spaced NOI to conduct suction dredging and motorized sluicing in the Scott River District of the Klamath National Forest. The NOI proposed an estimated fifteen dredges along fifteen miles of streams, with “[densities of above five dredges per 100 yards ... not anticipated.” The NOI made a general commitment concerning mining in cold water refugia at the mouths of tributaries, stating that the New 49’ers would work with the Forest Service to identify these areas and “to adjust their operation to prevent, disturbance and stress to these fish during critical time periods.” Unlike the NOIs for mining in the Happy Camp and Orleans Districts, the NOI for the Scott River District made no provision for raking tailings piles back into dredge holes. On May 10, District Ranger Ray Haupt refused to approve the NOI, but for reasons unrelated to protection of fisheries. Haupt wrote:
I am unable to allow your proposed mining operations for the [Scott River District] under a NOI because of your bonded campsite which allows your club members to camp (occupancy) longer than the 14 day camping limit. Your current Plan of Operations allows for extended camping (longer than 14 days) for your members, while they are actively engaged in mining. I am approving your mining operations for 2004 under a Plan of Operations with the following conditions....
None of the conditions in the approved Plan related to specific cold water refugia or tailings piles.
C. Procedural Background
The Tribe brought suit in federal district court alleging that the Forest Service violated the ESA, the National Environmental Policy Act (“NEPA”), and the National Forest Management Act (“NFMA”) when it approved the four NOIs to conduct mining in and along the Klamath River in the Happy Camp District. Karuk Tribe of Cal. v. U.S. Forest Serv. (“Karuk I ”),
In July 2005, the district court denied the Tribe’s motion for summary judgment and ruled against the Tribe on all remaining claims. Id. at 1103. Briefing on appeal was stayed by agreement of the parties until we decided a case involving suction
In April 2011, a divided panel of this court affirmed the district court’s denial of summary judgment, holding that the Forest Service’s decision to allow proposed mining activities to proceed pursuant to a NOI did not constitute “agency action” under the ESA. Karuk Tribe v. U.S. Forest Serv. (“Karuk II ”),
II. Standard of Review
We review de novo a district court’s denial of summary judgment. Russell Country Sportsmen v. U.S. Forest Serv.,
An agency’s compliance with the ESA is reviewed under the Administrative Procedure Act (“APA”). Westlands Water Dist. v. U.S. Dep’t of Interior,
Although we defer to an agency’s interpretation of its own regulations and the statutes it is charged with administering, Cal. Dep’t of Water Res. v. Fed. Energy Regulatory Comm’n,
III. Discussion
A. Mootness
As a preliminary matter, we must decide whether intervening events have rendered the Karuk Tribe’s claims for declaratory and injunctive relief moot. “The Supreme Court has emphasized that the doctrine of mootness is more flexible than other strands of justiciability doctrine.” Jacobus v. Alaska,
In this appeal, the Tribe challenges the Forest Service’s approval of four NOIs allowing mining activities in and
We have repeatedly held that similar actions lasting only one or two years evade review. See, e.g., Natural Res. Def. Council, Inc. v. Evans,
The controversy is capable of repetition because the Tribe has shown “a reasonable expectation that the Forest Service will engage in the challenged conduct again.” Alaska Ctr. for the Envt.,
The Forest Service and the Miners argue that the controversy is moot because the California legislature has imposed a statewide moratorium on suction dredge mining.
The moratorium does not moot this appeal for two reasons. First, the suction dredge moratorium does not prohibit other mining activities at issue in this case. Throughout this litigation, the Tribe has challenged the Forest Service’s approval of NOIs to conduct not only suction dredge mining in the Klamath River, but also mining activities outside the stream channel, such as motorized sluicing. See, e.g., Karuk I,
Second, even if these other mining activities were not at issue, the state’s moratorium on suction dredge mining is only temporary. See City of Los Angeles v. Lyons,
A case becomes moot on appeal if “ ‘events have completely and irrevocably eradicated the effects of the alleged violation,’ ” and there is “ ‘no reasonable ... expectation that the alleged violation will recur.’ ” Am. Cargo Transp., Inc. v. United States,
Because we conclude thаt this appeal is not moot, we proceed to the merits.
B. Consultation Under the Endangered Species Act
We have described Section 7 as the “heart of the ESA.” W. Watersheds Pro
Section 7 imposes on all agencies a duty to consult with either the Fish and Wildlife Service or the NOAA Fisheries Service before engaging in any discretionary action that may affect a listed species or critical habitat. Turtle Island Restoration Network v. Nat’l Marine Fisheries Serv.,
Section 7(a)(2) of the ESA provides:
Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an “agency action ”) is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species....
Regulations implementing Section 7 provide:
Each Federal agency shall review its actions at the earliest possible time to determine whether any action may affect listed species or critical habitat. If such a determination is made, formal consultation is required....
We discuss the “agency action” and “may affect” requirements in turn.
1. Agency Action
Section 7 of the ESA defines agency action as “any action authorized, funded, or carried out by [a federal] agency.”
Action means all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas. Examples include, but are not limited to: (a) actions intended to conserve listed species or their habitat; (b) the promulgation of regulations; (c) the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid; or (d) actions directly or indirectly causing modifications to the land, water, or air.
The ESA implementing regulations limit Section 7’s application to “ ‘actions in which there is discretionary Federal involvement or control.’ ” Nat’l Ass’n of Home Builders v. Defenders of Wildlife,
Our “agency action” inquiry is two-fold. First, we ask whether a federal agency affirmatively authorized, funded, or carried out the underlying activity. Second, we determine whether the agency had some discretion to influence or change the activity for the benefit of a protected species.
a. Affirmative Authorization
We have repeatedly held that the ESA’s use of the term “agency action” is to be construed broadly. W. Watersheds Project v. Matejko,
An agency must consult under Section 7 only when it makes an “affirmative” act or authorization. Cal. Sportfishing Prot. Alliance v. Fed. Energy Regulatory Comm’n,
Here, the Forest Service’s mining regulations and actions demonstrate that the agency affirmatively authorized private mining activities when it approved the four challenged NOIs. By regulation, the Forest Service must authorize mining activities before they may proceed under a NOI. The regulations require that a miner submit a NOI for proposed mining activities.
The actions of both the Forest Service and the miners in this case accord with the understanding that the agency affirmatively authorizes mining activities when it approves a NOI. The District Ranger’s letter approving the New 49’ers NOI for the 2004 mining season stated, “You may begin your mining operations when you obtain all applicable State and Federal permits. This authorization expires December 31, 2004.” The District Ranger’s letters approving six NOIs for the 2010, 2011, and 2012 mining seasons stated, “I am allowing your proposed mining activities ... under a NOI with the following conditions.” Another District Ranger stated in a letter rejecting a NOI for the 2004 season that he was “unable to allow your proposed mining operations ... under a NOI.” The miners also understood that they were seeking authorization. In one instance, the New 49’ers sent a letter stating: “We would like to make a correction to our Notice of Intent which was recently approved on May 25, 2004.” In another instance, a miner amended her NOI to accommodate Forest Service protective criteria about cold water refugia. She wrote, “I totally disagree with these distances and believe that dredging is actually beneficial to fish survival, but I am willing to follow these recommendations in order to continue with my mining operations.”
Cal. Sportfishing, Matejko, and Marbled Murrelet involved private-party activities that required no affirmative act or authorization by the agency. The private parties in those cases were not required to submit proposals to the agency, and the agency was not required to respond affirmatively to the private parties. Here, by contrast, a person proposing to conduct mining activities that might cause disturbance of surface resources must submit a NOI for approval, and the District Ranger must respond within 15 days.
The District Rangers affirmatively responded to all six non-withdrawn NOIs in the record for the 2004 mining season. The Forest Service approved four of them and denied two. The District Ranger for the Happy Camp District also affirmatively approved all six NOIs for the 2010, 2011, and 2012 mining seasons. There is no NOI in the record, other than the one that was withdrawn, that the Forest Service did not affirmatively act to approve or deny. Thus, the Forest Service’s mandatory, affirmative response to a NOI clearly
In Siskiyou,
The Forest Service and the Miners contend that the underlying mining activities are authorized by the General Mining Law, rather than by the agency’s approval of the NOIs. But private activities can and do have more than one source of authority, and more than one source of restrictions on that authority. See
The Forest Service contends that approval of a NOI is merely a decision not to regulate the proposed mining activities. See 70 Fed.Reg. at 32,720; id. at 32,728 (“a notice of intent to operate was not intended to be a regulatory instrument”). But the test under the ESA is whether the agency authorizes, funds, or carries out the activity, at least in part.
Finally, the Forest Service and the Miners point to our holding in Sierra Club v. Penfold, 857 F.2d 1307 (9th Cir.1988), which involved Bureau of Land Management (“BLM”) mining regulations similar to the Forest Service regulations at issue in this appeal. In Penfold, we held that BLM’s review of “notice” mining operations did not constitute a “major federal action” triggering the need for an environmental assessment under NEPA. Id. at 1313-14. Although the “major federal action” standard under NEPA is similar to the more liberal “agency action” standard under the ESA, Marbled Murrelet,
In sum, the Forest Service’s approval of the four challenged NOIs constituted agency action under Section 7 of the ESA. b. Discretionary Involvement or Control
The ESA implementing regulations provide that Section 7 applies only to actions “in which there is discretionary Federal involvement or control.”
To trigger the ESA consultation requirement, the discretionary control retained by the federal agency also must have the capacity to inure to the benefit of a protected species. Turtle Island,
Here, the Forest Service’s mining regulations and actions demonstrate that the decision whether to approve a NOI is a discretionary determination through which the agency can influence private mining activities to benefit listed species. In Siskiyou,
The agency’s exercise of discretion under the mining regulations also may influence the mining activities to protect a listed species. The overriding purpose of the regulations is “to minimize [the] adverse environmental impacts” of mining activities on federal forest lands.
The record in this case reveals at least three ways in which the Forest Service exercised discretion when deciding whether, and under what conditions, to approve NOIs for mining activities in the Klamath and Six Rivers National Forests.
First, the Forest Service exercised discretion by formulating criteria for the protection of coho salmon habitat. Those criteria governed the approval or denial of NOIs. As described in detail above, District Ranger Vandiver of the Happy Camp District prepared for the 2004 mining season by meeting with Forest Service biologists Bemis and Grunbaum. After consulting with them, Vandiver formulated criteria for protecting coho salmon habitat from the effects of suction dredge mining conducted pursuant to NOIs. He specified by name each of the tributaries to the Klamath River that provided cold water refugia that should be protected, he specified the maximum number of dredges per mile on the river and on its tributaries, and he required that tailings be raked back into dredge holes.
Second, the Forest Service exercised discretion by refusing to approve a detailed NOI submitted by the New 49’ers for mining activities in the Orleans District of the Six Rivers National Forest. Acting Forest Supervisor Metz refused to approve the NOI because, in his view, it provided insufficient protection of fisheries habitat: a cold water refugia at the mouth of a particular creek was not mentioned in the NOI, and there was insufficient mitigation of the dangers posed by loose tailings piles left by the dredges. The New 49’ers submitted a new NOI, but then withdrew it five days later. The New 49’ers’ representative wrote that despite “substantial ... dialog,” the Forest Service’s protective conditions meant that “there are too many sensitive issues for us to try and manage a group mining activity along the Salmon River at this time.”
Third, the Forest Service exercised discretion when it applied different criteria for the protection of fisheries habitat in different districts of the Klamath National Forest. District Ranger Vandiver developed and applied very specific protective criteria for granting or denying NOIs in the Happy Camp District. Different protective criteria for NOIs were developed and applied in the Scott River District. There is nothing in the record to tell us how the criteria were developed in the Scott River District. But it is clear that those criteria were different, at least in their application, from those in the Happy Camp District. The New 49’ers submitted a NOI to District Ranger Haupt in the Scott River District that complied in full with one of the criteria applied in the Happy Camp District by specifying the maximum number of dredges per mile. The NOI complied, to some degree, with a second Happy Camp criterion by committing to work with the Forest Service to identify cold water refugia. But the NOI did not promise to observe any particular cold water refugia and did not promise to stay a specified distance from any creek mouth. Finally, the NOI did not comply at all with the third Happy Camp criterion, for it did not mention raking tailings piles back into dredge holes. Scott River District Ranger Haupt denied the NOI for reasons unrelated to these three criteria, and he did not include these criteria in the approved Plan of Operations. Discretion is defined as “ ‘the power or right to decide or act according to one’s own judgment; freedom of judgment or choice.’ ” Home Builders,
Under our established case law, there is “agency action” sufficient to trigger the ESA consultation duty whenever
2. May Affect Listed Species or Critical Habitat
An agency has a duty to consult under Section 7 of the ESA for any discretionary agency action that “may affect” a listed species or designated critical habitat. Turtle Island,
We have previously explained that “may affect” is a “relatively low” threshold for triggering consultation. Cal. ex rel. Lockyer v. U.S. Dep’t of Agric.,
Whether the mining activities approved by the Forest Service in this case “may affect” critical habitat of a listed species can almost be resolved as a textual matter. By definition, mining activities that require a NOI “might cause” disturbance of surface resources.
The Miners, however, contend that the record is “devoid of any evidence” that the mining activities may affect coho salmon. The Miners make two arguments in support of their contention. Neither argument withstands scrutiny.
Second, the Miners argue that Vandi-ver’s consultation with Forest Sérvice biologists, and the resulting habitat protection criteria, “assured” that there would be “no impact whatsoever on listed species.” This argument cuts against, rather than in favor of, the Miners. The fact that District Ranger Vandiver formulated criteria to mitigate effects of suction dredging on coho salmon habitat does not mean that the “may affect” standard was not met. Indeed, that Vandiver consulted with Forest Service biologists in an attеmpt to reduce a possible adverse impact on coho salmon and their habitat suggests exactly the opposite. After Vandiver approved a NOI to conduct mining activities in and along the Klamath River for the 2004 mining season, Forest Service biologist Bemis sent a “Note to the File” stating that the miners’ compliance with Vandiver’s specified criteria should “reduce” — not eliminate — “the impacts to anadromous fisheries on the Happy Camp Ranger District.” The agency has never suggested that the approved mining activities would have “no effect” on coho salmon or their critical habitat. See Sw. Ctr. for Biological Diversity,
Moreover, the record in this appeal includes ample evidence that the mining activities approved under the NOIs in the Happy Camp District “may affect” coho salmon and their critical habitat. Coho salmon in the Klamath River system were listed as threatened in 1997, and the river and adjacent riparian zones were designated as critical habitat two years later. In listing the coho salmon, the Fisheries Service noted that the salmon population was “very depressed.” 62 Fed.Reg. at 24,588. The Fisheries Service concluded that “human-induced impacts,” such as over-harvesting, hatchery practices, and habitat modification including mining, had played a significant role in the decline and had “reduced the coho salmon populations’ resiliency” in the face of natural challenges. Id. at 24,591. The Fisheries Service also concluded that “existing regulatory mechanisms are either inadequate or not implemented well enough to conserve” the salmon. Id. at 24,588.
The record also includes information about the effects of suction dredge mining
We conclude that the mining activities approved by the Forest Service in this case “may affect” the listed coho salmon and its critical habitat. Indeed, as a textual matter, mining activities in designated critical habitat that require approval under a NOI likely satisfy the low threshold triggering the duty to consult under the ESA. See 64 Fed.Reg. at 24,050 (“designation of critical habitat provides Federal agencies with a clear indication as to when consultation under section 7 of the ESA is required”).
3. Burden on the Forest Service
The burden imposed by the consultation requirement need not be great. Consultation under the ESA may be formal or informal.
In fact, District Ranger Vandiver voluntarily initiated a type of informal consultation in this case. He consulted with Forest Service biologists Bemis and Grunbaum in formulating detailed protective criteria that would avoid the likelihood of significant habitat disturbance caused by suction dredge mining in the Happy Camp District. The problem is that Vandiver consulted with employees of the Forest Service, rather than the Fish and Wildlife Service or NOAA Fisheries Service. Congress made a conscious decision in the ESA to require that federal agencies consult with the expert wildlife agencies, not merely with biologists within their own agencies, about the adverse effects that their actions might have on listed species. If Vandiver had consulted with employees of the federal wildlife agencies, and those agencies agreed that the specified protective criteria would
Conclusion
There is “agency action” under Section 7 of the ESA whenever an agency makes an affirmative, discretionary decision about whether, or under what conditions, to allow private activity to proceed. In approving the NOIs challenged in this case, the Forest Service made affirmative, discretionary decisions to authorize mining activities under specified protective criteria. By definition, mining activities requiring a NOI are those that “might cause” disturbance of surface resources, including underwater fisheries habitat. The Forest Service does not dispute that the mining activities it approved in this case “may affect” critical habitat of coho salmon in the Klamath River system. The Forest Service therefore had a duty under Section 7 of the ESA to consult with the relevant wildlife agencies before approving the NOIs.
We reverse the district court’s denial of summary judgment on the Karuk Tribe’s ESA claim and remand for entry of judgment in favor of the Tribe.
REVERSED and REMANDED.
Notes
. The parties appear to assume that if consultation is required under Section 7, it is required with both agencies. Without deciding the question, we also will so assume.
Dissenting Opinion
join as to Parts I through VI, dissenting:
I attempted to rise, but was not able to stir: for, as I happened to lie on my back, I found my arms and legs were strongly fastened on each side to the ground; and my hair, which was long and thick, tied down in the same manner. I likeivise felt several slender ligatures across my body, from my arm-pits to my thighs. I could only look upwards; the sun began to groio hot, and the light offended my eyes.
—Jonathan Swift, Gulliver’s Travels, Chapter 1.
Here we go again.
Until today, it was well-established that a regulatory agency’s “ ‘inaction’ is not ‘action’ ” that triggers the Endangered Species Act’s (ESA) arduous interagency consultation process. W. Watersheds Project v. Matejko,
In my view, decisions such as this one, and some other environmental cases recently handed down by our court (see Part VII, infra), undermine the rule of law, and make poor Gulliver’s situation seem fortunate when compared to the plight of those entangled in the ligatures of new rules created out of thin air by such decisions.
The right to mine on national lands is established by the Mining Act of 1872,
Under the provisions of the Mining Act, an individual may enter and explore land in the public domain in search of valuable mineral deposits. After minerals are discovered, the claimant may file a “mining claim” with the Bureau of Land Management (BLM), which if approved, entitles the claimant to the right of exclusive possession of that claim, as long as the requirements of the Mining Act are met. Although ownership of a mining claim does not confer fee title to the claimant, the claimant does have the right to extract all minerals from the claim without paying royalties to the United States.
Swanson v. Babbitt,
The Mining Act’s permissive regime extends to national forests as well. The 1897 act that created the national forests and provided rules governing those forests’ use, see Organic Administration Act,
When the U.S. Forest Service issued the mining regulations at issue in this case, the Service emphasized “that prospectors and miners have a statutory right, not mere privilege, under the 1872 mining law and the Act of June 4,1897, to go upon and use the open public domain lands of the National Forest System for the purposes of mineral exploration, development and production.” National Forests Surface Use Under U.S. Mining Laws, 39 Fed.Reg. 31,-317, at 31,317 (Aug. 28, 1974) (emphasis added).
II. The regulatory scheme
This case turns on whether a Forest Service District Ranger’s receipt of, consideration of, and response to a miner’s notice of intention to operate — a Notice of Intent — is an agency action that authorizes mining activities on national forests. This distinction is critical because the ESA requires federal agencies to consult with the Fish and Wildlife Service or NOAA Fisheries Service before taking “any action authorized, funded, or carried out by such agency” that might harm a listed species.
The ESA’s implementing regulations (promulgated by the Secretaries of Commerce and the Interior) offer a list of examples of agency action, including (in relevant part) “the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid.”
In this appeal, Plaintiff-Appellant asserts a single claim challenging the District Ranger’s failure to consult with the Fish and Wildlife Service or NOAA Fisheries Service when deciding to allow certain suction dredge mining to proceed under a Notice of Intent rather than a Plan of Operations. The dispute here is narrow: specifically, does the Forest IK Service’s handling of Notices of Intent constitute an “authorization” of private mining activity under the ESA?
To answer this question, one must have a clear understanding of the operative regulations. In recognition of the “statutory right, not mere privilege” to mine in national forests, the Forest Service has carefully tailored its regulations to balance environmental goals with miners’ unique preexisting rights of access to national forests. See National Forests Surface Use, 39 Fed.
All mining “operations” must “be conducted so as, where feasible, to minimize adverse environmental impacts on National Forest surface resources.”
In addition to these generally applicable limitations on mining in the national forests, the Forest Service imposes additional requirements depending on the mining activities’ potential environmental impact. For purposes of these additional requirements, mining activities are divided into three categories: activities that “will not,” “might,” and “will likely” lead to “significant disturbance of surface resources.”
For activities that “will not” significantly disturb surface resources-including “occasionally remov[ing] small mineral samples or specimens,” and “remov[ing] ... a reasonable amount of mineral deposit for analysis and study” — persons may freely enter the national forest to conduct those activities.
For more substantial mining activities that “might” or “will likely” cause resource disturbance, miners must file a “notice of intention to operate” — a Notice of Intent, which is the focus of this appeal.
Once “a notice of intent is filed, the District Ranger will, within 15 days of receipt thereof, notify the operator whether a plan of operations is required.”
If the District Ranger requests a Plan of Operations, the Plan must contain “[information sufficient to describe or identify the
III. Forest Service’s interpretation of its regulations
The majority asserts that the Forest Service’s decision not to require a Plan of Action for the mining activities described in a Notice of Intent constitutes an implicit authorization of those mining activities, therefore equating the Forest Service’s “decision” with an agency “authorization” under the ESA.
The Forest Service never contemplated such a result. The Forest Service’s explanation of its mining regulations establishes that a Notice of Intent is used as an information-gathering tool, not an application for a mining permit. Consistent with the Forest Service’s interpretations, the Ranger’s response to a Notice of Intent is analogous to the Notice of Intent itself, and provides merely notice of the agency’s review decision. It is not a permit, and does not impose regulations on private conduct as does a Plan of Operations. The Forest Service interprets the Notice of Intent as an information-gathering tool used to decide whether a miner should file a Plan of Operations:
[T]he requirement for prior submission of a notice of intent to operate alerts the Forest Service that an operator proposes to conduct mining operations on [National Forest Service] lands which the operator believes might, but are not likely to, cause significant disturbance of [National Forest Service] surface resourcеs and gives the Forest Service the opportunity to determine whether the agency agrees with that assessment such that the Forest Service will not exercise its discretion to regulate those operations.
Clarification as to When a Notice of Intent To Operate and/or Plan of Operation Is Needed for Locatable Mineral Operations on National Forest System Lands, 70 Fed. Reg. 32,713, at 32,720 (June 6, 2005) (emphasis added).
The Forest Service adds that the Notice of Intent 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. Needless uncertainties and expense in time and money in filing unnecessary operating plans could be avoided thereby.... [The 1974 notice-and-comment rulemaking] record makes it clear that a notice of intent to operate was not intended to be a regulatory instrument;it simply was meant to be a notice given to the Forest Service by an operator which describes the operator’s plan to conduct operations on [National Forest Service] lands. Further, this record demonstrates that the intended trigger for a notice of intent to operate is reasonable uncertainty on the part of the operator as to the significance of the potential effects of the proposed operations. In such a circumstance, the early alert provided by a notice of intent to operate would advance the interests of both the Forest Service and the operator by facilitating resolution of the question, ‘Is submission and approval of a plan of operations required before the operator can commence proposed operations?’ ”
Id. at 32,728 (emphasis added).
Under the Forest Service’s regulations, a Notice of Intent is exactly what its name implies: a notice from the miner, not a permit or license issued by the agency. It is merely a precautionary agency notification procedure, which is at most a preliminary step prior to agency action being taken.
IV. Precedent distinguishing “action” from “inaction”
Our precedent establishes that there is a significant difference between a decision not to act and an affirmative authorization. These cases distinguish between “agency action” and “agency inaction,” and illustrate the meaning of the operative regulation’s reference to “licenses,” “permits,” and the like.
Western Watersheds Project involved the BLM’s regulation (or, more accurately, non-regulation) of private parties’ diversions of water that were done pursuant to those parties’ pre-existing rights-of-way.
Granted, Western Watersheds Project addressed both prongs of the ESA’s “agency action” requirement: first, whether there is agency action as defined in
An almost identical regulatory scheme was at issue in Sierra Club v. Penfold,
The BLM’s approach to “casual,” “notice,” and “plan” mining operations fоllows the same structure as the Forest Service’s approach to mining activities that “are not likely to,” “might,” and “are likely to” cause significant surface resource disturbance. See
At issue in Penfold was whether the BLM’s approval of Notice mines is a “major Federal action.” Such a finding would trigger the National Environmental Policy Act’s (NEPA) requirement that the BLM file an environmental impact statement. We held that the approval was not a major Federal action.
I emphasize the narrowness of the question before us; I do not argue that every Forest Service “decision” is exempted from ESA consultation. The Forest Service’s mining regulations are clearly distinguishable from the Forest Service’s other regulatory activities. For example, the Forest Service must consult under the ESA when it creates and implements Land and Resource Management Plans, which govern “every individual project” in each national forest. Pac. Rivers Council v. Thomas,
But here, Notices of Intent are not permits, contracts, or plans issued by the Forest Service. They are mere notifications about miners’ activities. Certainly, the Forest Service retains discretion to require miners to submit a Plan of Operations under appropriate circumstances. That was the conclusion reached in a recent Administrative Procedures Act decision, Siskiyou Regional Education Project v. U.S. Forest Service: “determining which operations are likely to cause significant disturbance of surface resources — and therefore require a plan of operations— requires a discretionary determination by a district ranger.”
The district court’s opinion in this case follows naturally from Western Watersheds Project. Although the majority characterizes the Forest Service’s response to a Notice of Intent as an “approval,” an “authorization,” and a “rejection,” the relevant regulations show that the Forest Service is not approving, authorizing, or rejecting anything. It is receiving and analyzing information, and deciding not to take further action.
V. Subjective views of the parties
The majority relies heavily on the fact that the District Ranger and the miners in this case understood the Notice of Intent to be an “authorization.”
At first glance, this case-specific reasoning may be enticing: after all, the miners sought the Ranger’s “approvfal]” and the
First, a similar argument was considered and rejected in Sierra Club v. Babbitt,
Second, we are not bound by litigants’ concessions of law (even assuming that the miners’ and Ranger’s letters can be deemed “concessions”). E.g., United States v. Ogles,
Third, the District Ranger has no authority to interpret the ESA or its implementing regulations, so his use of the term “authorization” cannot reasonably be read as an interpretation of the ESA regulations,
Fourth — as even the Plaintiffs-Appellants recognize — the question of whether an agency’s course of conduct constitutes an “agency action” under the ESA is a legal question, not a factual one. Nat’l Wildlife Fed’n v. Brownlee,
Finally, to understand why the parties’ conduct in this case cannot control our application of the ESA and its regulations, consider the implications of such a holding. A single District Ranger would be subjected to the ESA consultation process because he used the word “authorize” when responding to a Notice of Intent. However, no other District Ranger in the country would be subjected to the ESA under similar circumstances, even though those District Rangers operate under the same Forest Service regulations governing Notices of Intent. It goes without saying that this result makes little, if any, sense as an application of our national environmental protection laws.
VI. Discussions between miners and district rangers
The majority also relies on the fact that informal discussions take place between miners and district rangers regarding how the miners can modify their proposed activities to avoid triggering the obligation to prepare a Plan of Operations. For instance, a ranger may advise miners how to change their plans in a way that will avoid causing significant surface resource disturbances. If the miners do so, and describe their appropriately modified activities in Notices of Intent, the regulations do not require anything further; the miners are authorized to proceed with their mining activities under the General Mining Law.
The majority mistakenly attempts to characterize such informal discussions as the Forest Service’s exercise of discretion to approve or deny an NOI. But we have long held that these sorts of informal, voluntary discussions do not constitute an
The majority takes exactly that step here. In holding that a miner’s submission of an NOI triggers section 7 consultation under the ESA, the majority discourages miners from discussing their proposed activities with the Forest Service to voluntarily reduce their impact on the environment, and rather encourages miners to make their own determination that their activities are not likely to “cause significant disturbance of surface resources,”
VII. Brave New World
Abandon all hope, ye who enter here.
—Dante Alighieri, The Divine Comedy, Inferno Canto III
I cannot conclude my dissent without considering the impact of the majority’s decision- in this case, and others like it, which, in my view, flout our precedents and undermine the rule of law. In doing so, I intend no personal disrespect or offense to any of my colleagues. My intent is solely to illuminate the downside of our actions in such environmental cases.
By rendering the Forest Service impotent to meaningfully address low impact mining, the majority effectively shuts down the entire suction dredge mining industry in the states within our jurisdiction. The informal Notice of Intent process allows projects to proceed within a few weeks. In contrast, ESA interagency consultation requires a formal biological assessment and conferences, and can delay projects for months or years. Although the ESA generally requires agencies to complete consultations within ninety days,
As a result, a number of people will lose their jobs and the businesses that have invested in the equipment used in the relevant mining activities will lose much of their value. In 2008, California issued about 3,500 permits for such mining, and 18 percent of those miners received “a significant portion of income” from the dredging. See Justin Scheck, California Sifts Gold Claims, The Wall Street Journal, April 29, 2012. The gold mining operation in this case, the New 49’ers, organizes recreational weekend gold-mining excursions. The majority’s opinion effectively forces these people to await the lengthy and costly ESA consultation pro
Unfortunately, this is not the first time our court has broken from decades of precedent and created burdensome, entangling environmental regulations out of the vapors. In one of the most extreme recent examples, our court held that timber companies must obtain Environmental Protection Agency permits for stormwater runoff that flows from primary logging roads into systems of ditches, culverts, and channels. Nw. Envtl. Def. Ctr. v. Brown,
The result? The imminent decimation of what remains of the Northwest timber industry. The American Loggers Council estimates that the decision, if implemented, will result in up to three million more permit applications nationwide. The timber industry is not the only group criticizing Brown. Three of Oregon’s leading politicians quickly attacked the ruling. Oregon U.S. Senator Ron Wyden predicted that this opinion “would shut down forestry on private, state and tribal lands by subjecting it to the same, endless cycle of litigation.” Oregon Congressman Kurt Schrader called the opinion a “bad decision” that would create “another layer of unnecessary bureaucracy.” Oregon Governor John Kitzhaber branded the opinion as “legally flawed.”
Oregon political leaders have good reason to be concerned about the impact of our rulings on logging. Decades of court injunctions already have battered the state’s timber industry, once a dominant employer that paid excellent wages. In the 1970s and 1980s, the wood product industry employed more than 70,000 Oregonians and paid 30 percent more than the state average wage. Now, the industry employs 25,000 people and pays the state average wage. Josh Lehner, Historical Look at Oregon’s Wood Product Industry, Oregon Office of Economic Analysis, Jan. 23, 2012, available at http://oregonecono mieanalysis.wordpress.com/2012/01/23/ historical-look-at-oregons-wood-product-industry/ (last visited May 4, 2012). Requiring millions of burdensome new permits will only accelerate the decline.
Brown also profoundly harms rural local governments. Because counties receive twenty-five percent of the revenues from timber harvests on federal land, the decrease in logging has caused shorter school days, smaller police forces, and closures of public libraries. Moreover, Brown subjects rural counties to the burdensome permitting requirement if their roads are used for logging. The Association of Oregon Counties estimates that the decision will increase planning costs to Oregon counties by $56 million.
More recently, a panel majority of our court handed down Pacific Rivers Council v. United States Forest Service,
Farmers, too, have suffered, and will continue to suffer, from the impact of similarly extreme envirоnmental decisions. The Central Valley Project Improvement Act, Pub.L. No. 102-575, 106 Stat. 4600 (1992), requires that 800,000 acre feet of water in California’s Central Valley Project be designated for “the primary purpose of implementing the fish, wildlife, and habitat restoration purposes and measures[.]” In San Luis & Delta-Mendota Water Authority v. United States,
No legislature or regulatory agency would enact sweeping rules that create such economic chaos, shutter entire industries, and cause thousands of people to lose their jobs. That is because the legislative and executive branches are directly accountable to the people through elections, and its members know they would be removed swiftly from office were they to enact such rules. In contrast, in order to preserve the vitally important principle of judicial independence, we are not politically accountable. However, because of our lack of public accountability, our job is constitutionally confined to interpreting laws, not creating them out of whole cloth. Unfortunately, I believe the record is clear that our court has strayed with lamentable frequency from its constitutionally limited role (as illustrated supra) when it comes to construing environmental law. When we do so, I fear that we undermine public support for the independence of the judiciary, and cause many to despair of the promise of the rule of law.
I respectfully dissent.
. Because the challenged Notice of Intent decisions were made in 2004, I rely upon the 2004 version of the regulation.
. For purposes of this dissent, it is unnecessary to resolve whether suction dredge mining “may affect” Coho salmon. My primary disagreement with the majority stems from its finding of an agency "action.”
. In some cases, the District Ranger will inform the miner that a Plan of Operations is unnecessary, id. § 228.5(a)(2), or require the filing of an environmental statement with the Council on Environmental Quality, id. § 228.5(a)(5).
. I rely on the Forest Service’s 2005 clarification of its mining rules because this document contains the clearest and most thorough explanation of the history and application of these regulations. The 2005 clarification did not materially change the operative provisions. 70 Fed.Reg. at 32,727-28.
. For example, Turtle Island Restoration Network v. National Marine Fisheries Service,
. Regulatory authority under the ESA is delegated to the Departments of Interior and Commerce, see Nat'l Ass’n of Home Builders v. Defenders of Wildlife,
. ‘‘[RJepeated and essentially head-on confrontations between the life-tenured branch and the representative branches of government will not, in the long run, be beneficial to either. The public confidence essential to the former and the vitality critical to the latter may well erode if we do not exercise self-restraint in the utilization of our power to negative the actions of the other branches.” United States v. Richardson,