*1 time, by to the issues covered addition jurisprudence at tion Clause Flournoy that probability appealability, not a reasonable there was the certificate objection would Clause a Confrontation of ineffec an uncertified claim also raises court or by the trial have been sustained failure of his based on the tive assistance appeal. court Califor- on state overturned evidence from a de trial counsel to offer admitting in favor of weighed nia law Slaughter, respond expert, fense Dr. testimony sustaining admission testimony. reports the crime lab We Geier, 41 People v. Cal.4th appeal. See appealabili a certificate of decline to issue 104, 140 161 P.3d Cal.Rptr.3d Dr. calling that issue. Not ty regarding (2007) report was that a “DNA (holding trial tactic—defense coun Slaughter was a purposes for the Craw- not testimonial consent, penetration not sel focused on ”). explicit- appeal court of state ford Flournoy cannot demonstrate identity —so that admission of ly rejected argument by counsel. performance deficient rights violated his un- Rogala’s testimony AFFIRMED. And, as Clause. der the Confrontation above, did not dictate discussed Crawford Flournoy’s Confrontation
a conclusion The failure rights were violated.
Clause objection that would have been
to make an performance. not deficient
overruled was
Second, objection if had been even court, trial there not sustained was CALIFORNIA, TRIBE KARUK OF that the result of probability a reasonable Plaintiff-Appellant, trial would have been different. argu- on the
Flournoy’s defense was based activity with L.M. ment that the sexual SERVICE; UNITED STATES FOREST Flournoy was consensual or that reason- Margaret Boland, Defendants- ably believed that it was consensual. The Appellees, Flournoy person as the identification of L.M.'—the who had sexual contact with 49’ers, Inc.; Raymond The New W. point made the DNA identification evi- Koons, Defendants-intervenors- disputed at trial. Flour- dence^—was Appellees. that, ques- the evidence in noy argues had No. 05-16801. excluded, might have tion been his counsel on lack of sexual pursued a defense based Appeals, United States Court of than of consent. penetration, rather belief Ninth Circuit. Even the argument unpersuasive. This left record with the contested evidence Argued and Dec. 2011. Submitted defense, penetration room for a lack of Filed June A lack counsel chose not to make. which penetration defense would not have particularly strengthened Rogala’s been
testimony regarding sperm Dutra
found had been excluded. Counsel’s deci- on consent was a
sion focus the defense
strategic Flournoy choice that did not di-
rectly challenge and that we cannot sec-
ond-guess here. *5 Jeffrey Par-
Roger Flynn and Charles sons, Project, Mining Western Action CO, Saxton, Lyons, Lynne Environmental Foundation, Oakland, CA, R. Law James Wheaton, Office, Public Interest Law Oak- land, CA, plaintiff-appellant. for Toth, Brian Lane N. McFadden and C. Justice, Department Washington, U.S. D.C., Samford, Barclay Depart- T. U.S. Justice, Denver, CO, ment of Charles Mi- O’Connor, chael Office of the United Francisco, CA, Attorney, States San for defendants-appellees. Craig Rylander, Jason Defenders of Wildlife, D.C., Washington, for the amicus curiae. KOZINSKI, ALEX
Before: Chief SILVERMAN, Judge, BARRY G. SUSAN GRABER, P. KIM MCLANE WARDLAW, FLETCHER, A. WILLIAM GOULD, A. RONALD M. RICHARD PAEZ, BERZON, MARSHA S. MILAN JR., IKUTA, SMITH, D. SANDRA S. MURGUIA, Judges. MARY H. Circuit A. critical habitat for threatened coho salmon. Judge WILLIAM Opinion FLETCHER; by Judge MILAN that the mining Dissent The record shows activi- SMITH, JR. approved satisfy “may D. ties under NOIs affect” standard. OPINION therefore hold that the Forest Ser- We FLETCHER, Judge: Circuit
W. not consulting vice violated ESA whether the U.S. consider We appropriate agencies1 with the wildlife be- appropriate with fed- must consult Service approving fore NOIs conduct 7 of agencies under Section eral wildlife in coho salmon critical habitat (“ESA”) be- Endangered Species Act Klamath National within the Forest. allowing mining proceed activities to fore (“NOI”) of Intent critical under a Notice Background I. re- species. The ESA habitat of listed The Karuk Tribe has inhabited what is consultation with the Fish quires now northern California since time imme- or the NOAA Fisheries Wildlife Service originates morial. The Klamath River “may any “agency action” Oregon, through runs north- southeastern or its critical habi- species affect” a listed California, empties into the Pacific ern 1536(a)(2); tat. 16 U.S.C. forty Ocean about miles south the Cali- 402.14(a). substantive There are two fornia-Oregon border. northern Cali- us. questions before fornia, Klamath passes through River the Forest Service’s The first is whether Klamath For- the Six Rivers and National *6 mining in four NOIs to conduct approval of system Klamath ests. The River is home “agency Klamath National Forest fish, species including to several of coho 7. meaning of Section action” within salmon in the Klamath Riv- salmon. Coho law, case there is our established Under un- system were listed as “threatened” er an action” whenever “agency 24,588 Fed.Reg. in 62 der the ESA 1997. affirmative, discretionary deci- makes 1997). 6, system The Klamath (May River whether, what condi- sion about or under adjacent riparian zones and streamside tions, activity proceed. to private to allow designated as critical habitat for coho were in case shows that Forest The record this 24,049 (May Fed.Reg. in 1999. 64 salmon affirmative, Rangers made 1999). 5, depends The Karuk Tribe on whether, discretionary and decisions about system in Klamath River coho salmon conditions, mining under what allow cultural, religious, and subsistence for proceed under the NOIs. uses. approved The second whether streams of the Klamath The rivers and “may spe- a listed mining activities affect” system gold. River also contain Commer- or its critical habitat. Forest Service cies in and around the rivers gold mining cial proposed for all regulations require a NOI long was halted and streams California cause” distur- mining “might activities due, environmen- ago part, in to extreme resources, which include bance of surface min- by large-scale placer tal harm caused and wildlife habitat. 36 C.F.R. fisheries Run 228.8(e). generally People v. Gold case, ing. See 228.4(a), In §§ Co., 138, 4 P. Mining Ditch & Cal. mining activities approved Forest Service (1884) River, injunction against (affirming in the Klamath which is along and deciding agencies. quired Without appear if consul- with both parties 1. to assume that The 7, question, assume. required re- we also will so under Section it is tation is system but authorized impacts the National Forest hydraulic gold because rivers); Agriculture regulate Green Versus Secretary on downstream Environmen- California’s Gold: Sources activities in the National Forests to ed., History (Carolyn tal 101-40 Merchant from destruction protect the forest lands 1998) impacts of (describing environmental 482, §§ 551. depredation. U.S.C. Rush). However, Gold the California specified prospeсtors Act The contin- recreational has small-scale entering forest lands “must miners federal “pan” recreational miners ued. Some cov- comply regulations with the rules and hand, examining pan one of sand gold ering such national forests.” Id. conduct “mo- gravel at a time. Some repeatedly upheld have the Forest We sluicing” by pumping water onto torized authority impose Service’s reasonable rocks, process streambanks to excavated regulations mining environmental on activ- As the gravel, and sand in a sluice box. Forests, long they ities in National so as box, through the a small material flows prohibit impermissibly do not encroach material, including amount of the heavier See, legitimate mining e.g., uses. Unit- gold, is slowed “riffles” and is then Shumway, ed v. 199 F.3d States captured in the bottom of the box. The (9th Cir.1999); Espy, 1106-07 Clouser remaining through material runs the box Cir.1994); 42 F.3d 1529-30 Final- deposited tailings pile. and is in a Weiss, United States v. 298- me- ly, some recreational miners conduct (9th Cir.1981). dredging” chanical “suction within the promulgated the Forest Service miners streams themselves. These use regulations to minimize the adverse envi- engines suck gasoline-powered impacts mining ronmental activities in- up through material flexible streambed 31,317 Fed.Reg. National Forests. typically take hoses that are four or five (2004). 28, 1974); (Aug. 228.1 mate- inches diameter. streambed regulations establish three different box, deposited floating rial is into a sluice categories mining, based on whether tailings in a discharged and the excess is cause,” “might “will not pile Dredging in or beside the stream. *7 cause,” likely significant or “will cause” feet, usually can depths are about five but resources, in- disturbance of surface which great twelve feet. be as as clude fisheries and wildlife habitat. 36 Karuk these The Tribe contends 228.8(e). 228.4(a), §§ C.F.R. The first cat- fish, adversely in- mining affect egory, mining de minimis activities that salmon, in cluding coho the Klamath River significant “will not cause” disturbance of system. challenges the Forest Tribe resources, may proceed surface without approval Service’s of four NOIs to conduct notifying obtaining the Forest Service or mining activities in coho salmon critical agency’s approval authorization. or Forest, habitat the Klamath National (2)(ii). 228.4(a)(1), § catego- Id. The third consulting without first with federal wild- ry, likely mining activities that “will cause” agencies pursuant life to Section of significant disturbance of surface re- ESA.
sources, may proceed until the Forest Regulations A. Mining approves Operations Service a Plan of (“Plan”) miner. submitted Id. Mining Under the General Law 228.4(a). § requires relatively A Plan de- private may public a citizen enter lands for information, including tailed “the approxi- purpose prospecting mining. mate location and size of areas where sur- Organic § 22. The U.S.C. Administration Mining Act of face resources will disturbed” and 1897 extended the Law be during of NOIs the 2004 require- approval Service’s taken to meet the to be “measures season, protection.” Id. our citations to subsections for environmental ments 228.4(c). receiving a days of § § Within 30 are to the 2004 version of 36 C.F.R. Plan, days necessary, regulations, or of the Forest Service unless Plan or approve must otherwise noted. any additional environ- the miner of notify necessary to meet the conditions
mental Mining B. 2004 Season 228.5(a). § Id. regulations. purpose the start of the 2004 sea- Before the middle appeal in this At issue son, representatives of the Karuk Tribe those that activities: category concern to the Forest Service expressed re- of surface cause” disturbance “might dredge mining of suction about the effects 228.4(a). § Forest Service Id. sources. system. in the Klamath River on fisheries any require person mining regulations Ranger Happy Camp The District for the a activities must submit such proposing Forest, of the Klamath National District NOI, or to the operate, of Intent to Notice Vandiver, by organizing responded Alan Id. A NOI is Ranger. appropriate leaders, min- meetings that included Tribal only Plan. It need than a less detailed ers, officials. also and district Vandiver identify information “sufficient contain biologists consulted with Forest Service involved, pro- nature of the the area Bill Bemis and Jon Grunbaum. Vandiver the route of access to the operations, posed following May memorandum on wrote the operations and the method area of 24, 2004: 228-4(a)(2)(iii). Id. Within transport.” meeting 20th a was held in April On NOI, the District days receiving possible fisheries is- Orleans to discuss notify the miner whether Ranger must relating dredging. A number of sues Ranger Id. The will required. Plan is opinions possible were shared on the discretion, if, Plan in his he require a effects.... likely operation “will determines that meeting I Following the Orleans of surface significant disturbance cause” biologists, Fisheries asked our District 228.4(a). resources. Id. Grunbaum, to Bill Bemis and Jon devel- regula- Forest Service revised its recommendations, my consider- op Plan clarify in 2005 to when NOI tions ation, upcoming dredging season. for the (June 32,713 Fed.Reg. required. See 70 agree- not able to come to They were 2005). provide regulations The revised a list of fisheries recommenda- ment on mining activi- examples of de minimis *8 widely varied on opinions Their tions. metal detect- gold panning, as ties—such dredge operations on fisher- the effect of “will not sampling mineral ing, and —that key three fisheries is- I identified ies. significant disturbance of surface cause” Happy Camp Dis- specific to sues a NOI require and thus neither resources in the refugia areas cold water trict[:] (2011). 228.4(a)(l)(ii) Plan. 36 C.F.R. or River, dredge intensity Klamath that a regulations clarify also The revised stability spawning activities and only proposed for required NOI is Elk portions in Creek. gravels some might “significant” cause activities that develop help I used to These issues Id. of surface resources. disturbance determining significant threshold 228.4(a) (2011). parties agree it I felt disturbance. level of surface materially affect revisions do not the 2005 effects from a cumulative However, important was on because appeal. the issues a threshold of to determine standpoint challenges the the Karuk Tribe streams, than dredge density on the as well them that there could be no more ten identify refugia River, the critical water dredges per as cold mile on the Klamath areas.... per than dredges and no more three mile Klamath length
... I with Bill on tributaries. discussed and Jon the effect [Grunbaum] [Bemis] 24, 2004, May On a week after their dredge activity on fisheries was Vandiver, meeting with the New 49’ers dispersed concentrated or over an eight-page, single-spaced submitted length of the river. Concentrated use in Happy NOI for in longer would result river stretches Camp during District the 2004 season. dredge activity and therefore without proposed dredge mining The NOI suction in possible impacts less to fisheries approximately in 35 miles of the Klamath longer stretches. Distributed use would River and its tributaries. The NOI also dispersed possible in effects over result sluicing motorized within the length the entire of the river.... Con- high adjacent mean water mark to the sidering dredge in operations the limited streams. In accordance with Vandiver’s refugia cold areas and water the limited instructions, specified that the NOI no access, I dredge developed threshold dredging specified would occur in cold wa- dredges per of 10 mile on the Klamath fall, refugia early ter in the summer and dredges per River and 3 mile on the in dredging holes would be filled coho My thinking Klamath tributaries. was Creek, spawning grounds salmon on Elk River, larger excluding Klamath dredge density and that would not exceed refugia, cold water could accommodate dredges ten per mile on the Klamath River dredge density impact more with less dredges per and three mile on its tributar- than the smaller tributaries. ies. challenged first of four NOIs May On Vandiver sent the New appeal was submitted the New approving 49’ers a letter their NOI. He 49’ers, a mining company. recreational may begin your mining oper- wrote: ‘You The New 49’ers own and lease numerous you ations when obtain all applicable State mining claims and around the Klamath permits. and Federal This authorization Rivers May and Six National Forests. On expires May December 2004.” On 17, 2004, Ranger Vandiver met Bemis sent a “Note to the File” stating: representatives with two of the New 49’ers (NOI) other parties. interested Based on his The Notice of Intent for the new earlier consultation with Bemis and Grun- year intensity ap- 49’ers this has an baum, Vandiver instructed the New 49’ers proximately 40 dredges over the 35 primary “three issues.” miles of the Klamath covered their They agreed claims. have a density
First, Vandiver instructed the New any of no more than 10 dredges one- habitat, 49’ers that areas of cold water anytime. mile at The new 49’ers have refugia,” “cold water must be maintained agreed to avoid the area around tribu- within twenty- 500 feet of the mouths of *9 taries to the Klamath Rivers. The club two named creeks feed into the Kla- agreed pull dredging tailings has to back Second, math River. he instructed them in a critical reach within Elk Creek. that tailings piles must be raked back into agreements These explained and others “dredge spawning holes in critical ar- in the timely impacts eas” of Elk Creek “in a NOI should reduce the to manner as operations proceed, but no than Happy later anadromous fisheries on the Third, end of the season.” Camp Ranger he instructed District. The Forest Service never consulted with challenged NOI was submit-
The second Johnson, an individual miner by Nida Fish and Wildlife Service or NOAA ted to mine thirteen claims. She planned approving who Fisheries Service before 2004, 29, May on not- the NOI submitted four NOIs. meeting at the “result of a
ing that it was specifically In addition to the four NOIs May 2004.” Camp U.S.F.S. Happy in in- challenged appeal, this the record use a planned that she The NOI stated cludes other NOIs for dredge. In an five-inch suction four- or during 2004 season in the Six Rivers attachment, “[d]redge tail- she wrote that and Klamath National Forests. These be Independence in will ings piles Cr[eek] important provide NOIs information about signed In a second attachment leveled.” practices respect the Forest Service’s with 4, 2004, she wrote: June mining pursuant to NOIs. Service, by the Forest As recommended First, 26, 2004, April on the New 49’ers dredging will be conducted on no another eight-page, single- submitted River within 500 feet above Klamath spaced dredg- NOI that suction Independence the mouth of Creek below in ing sluicing along and motorized 15th. June 15th and October between River in the Salmon Orleans District these distances totally disagree I with May Six Rivers National Forest. On dredging actually and believe Acting Supervisor William Metz re- survival, I am fish but will- beneficial to the NOI. Metz approve fused wrote: in these recommendations ing to follow important refugia cold water There is my mining opera- to continue with order Wooley at the mouth of Creek that was tions. April trip on the 2004 field discussed the NOI on June 14. approved Vandiver needing protection. as This was not by Robert The third NOI was submitted your Protection of mentioned NOI. Hamilton, planned an individual miner who refugia is critical to the survival of He submitted his to mine four claims. migrating anadromous fish. 2, 2004. The NOI stated NOI on June further: Metz wrote to use a four-inch suction planned that he anadromous fisheries in the Due to the during July. dredge for about two weeks stability River the lower Salmon “Precautions,” he heading Under spawning gravels [spawn- for fish redds density dredge that he would limit wrote major is a concern. Redds ing nests] mile, per “Mailings and that will to three tailing if erode piles can be lost loose dredge possible hole[s] be returned to away by eggs stream course action while spread large shallow areas or over area [a] present.... Any resubmitted are still approved the deep areas.” Vandiver Operation needs to ad- NOI or Plan of NOI June tailings piles need to flatten dress the by Ralph NOI was submitted The fourth large dislodged rocks on the rolling planned miner Easley, an individual who dredged holes into the edge of the back his single mine a claim. He submitted holes. 14. The NOI stated that he NOI on June May the New 49’ers submitted On dredge planned to use a four-inch suction in the Orleans revised NOI July the end of beginning from the McCracken, Man- Dave General District. “[d]redge that the September. He wrote 49’ers, wrote in a cover ager of the New dredge raked back into tailings will be NOI, “If this Notice does letter to approved the NOI on holes.” Vandiver *10 I your [then] address concerns adequately June 15. days) than 14 camping (longer an on-the- suggest arrange that we extended would possible members, at the earliest ground meeting they while are active- your for 29, May anticipating that Metz time.” On mining. approving in I am ly engaged NOI, the revised the approve would not operations 2004 under a your mining for it. McCracken New 49’ers withdrew following Operations Plan of with the to Metz: wrote conditions.... dialog amount of From the substantial in approved None of the conditions office, your have had with other Dis-
we refugia specific Plan related to cold water offices, office, Ka- Supervisor’s trict tailings piles. leaders, ruk Tribal active members of Restoration the Salmon River Council Background Procedural C. over and others within local communities in brought The Tribe suit federal district months, it has become past several alleging court that the Forest Service vio- increasingly clear that there are too ESA, lated the the National Environmen- many try for us to and sensitive issues (“NEPA”), Policy tal Act and the National mining activity along manage group (“NFMA”) Management Forest Act when River at this time. Salmon it min- approved the four NOIs to conduct 2004, Second, April on the New the Klamath in ing along River seven-page, single- 49’ers submitted a Happy Camp District. Karuk Tribe of spaced dredging NOI to conduct suction (“Karuk ”), I Cal. U.S. Serv. sluicing in the and motorized Scott River (N.D.Cal.2005). F.Supp.2d District of the Klamath National Forest. sought declaratory injunctive Tribe proposed an estimated fifteen NOI Raymond relief. The New 49’ers and streams, dredges along fifteen miles of Koons, an individual who leases several dredges per with of above five “[densities mining claims to the New 49’ers on the yards ... anticipated.” The NOI River, Klamath intervened as defendants general concerning made a commitment Miners”). refugia (collectively cold water at the mouths in the “the suit Id. tributaries, stating that the New 49’ers Initially, at 1077. the Tribe also chal- would work with the Forest Service to lenged Operations approved five Plans of identify adjust these areas and “to their during the Forest Service the 2004 operation prevent, disturbance season, but the Tribe dropped during stress to these fish critical time in April those claims 2005 after the periods.” for Unlike NOIs agreed in a stipulated settlement that it Districts, Happy and Orleans Camp ap- violated the ESA and NEPA when it the NOI for the Scott River District made words, proved the In Plans. other no provision raking tailings piles back Forest agreed duty that it had a dredge May into holes. On under the ESA to consult with the appro- Ray Ranger Haupt approve refused to priate agencies, wildlife and under NEPA NOI, protec- but for reasons unrelated to prepare additional environmental review tion of Haupt fisheries. wrote: documents, approving before the Plans. your I am unable allow min- July the district court denied ing operations for the [Scott River Dis- summary judgment the Tribe’s motion for your
trict] under NOI because of against and ruled the Tribe on all remain- campsite your bonded which allows club ing Briefing appeal claims. Id. at 1103. camp (occupancy) longer members to stayed by agreement parties than was day camping limit. Your Operations current Plan of involving allows for until we decided a case suction
1017 Siskiyou charged National the statutes it is dredge with administer Siskiyou Reg’l Oregon. Educ. ing, Dep’t Cal. Water Ener Res. v. Fed. of Serv., 565 v. U.S. Forest F.3d 545 Project Comm’n, 1029, gy Regulatory 489 F.3d (9th Cir.2009). resumed, briefing When (9th Cir.2007), agency’s 1035-36 an inter claim, pursued only the ESA the Tribe pretation a statute of outside its adminis that the Forest Service violated its arguing novo, tration is reviewed de Am. Fed’n of duty expert to consult with the wildlife Emps. Gov’t v. Fed. Labor Relations four agencies approving before NOIs. Auth., 1272, (9th 204 F.3d 1274-75 Cir. 2011, panel a of this April In divided 2000). court’s denial of
court affirmed
district
III. Discussion
holding that the For
summary judgment,
decision to allow
Service’s
est
A. Mootness
pursuant
to a
proceed
activities
matter,
a
we
preliminary
As
“agency
not constitute
action”
NOI did
must
whether
events
intervening
decide
v.
the ESA. Karuk Tribe U.S. For
under
have
the Karuk
claims
rendered
Tribe’s
(9th
(“Karuk
”),
II
along during Biodiversity Legal Badgley, the Klamath River the 2004 See Found. v. (9th Cir.2002) 1166, mining Pursuant to the Forest 309 1174 (finding season. F.3d NOIs, approving controversy repetition letters the four a capable Service where 31, they expired expectation all on December 2004. there is “a reasonable that [the issue”). However, parties] again litigate we conclude that the Tribe’s will the justiciable “capable claims are under the The the ar- Forest Service and Miners repetition, yet evading exception review” controversy that gue is moot because exception to the mootness doctrine. The legislature imposed the California has (1) applies when the duration of the chal- dredge statewide moratorium on suction lenged action is too short to allow full § mining. Cal. Fish & Game Code 5653.1 litigation expires, before it cеases or (2011). dredge mining may No suction (2) there expectation reasonable that occur in Klamath the Six Rivers or Nation- plaintiffs subjected will be the chal- temporary al Forests until the state ban Bomar, lenged again. action Feldman v. expires. The moratorium is a result of a (9th Cir.2008). 637, F.3d 644 state court lawsuit filed the Karuk repeatedly have against Department We held that similar Tribe the California (“CDFG”) lasting only years actions one or two evade Fish and in By Game 2005. its See, terms, e.g., review. Natural expire Res. Coun the moratorium will on June Def. cil, (9th Evans, 30, Inc. v. 316 F.3d when CDFG certifies that Cir.2003); specified Alaska Ctr. the Env’t v. five U.S. conditions have been satis- for Serv., fied, 5653.1(b). 189 F.3d Cir. whichever is earlier. Id. 1999); conditions, Among Alaska Fish & Fed’n & pro- other CDFG must Wildlife Council, Dunkle, Outdoor Inc. v. mulgate dredge new state suction (9th Cir.1987). 933, 939 Although regulations the For “fully mitigate that all identi- mining regulations spec est Service do not significant fied environmental impacts.” ify 5653.1(b)(4). expire NOIs must after a certain Id. period, the record in this case reveals that The moratorium does not moot ap- this allows seasonal mining activi peal First, for two reasons. the suction pursuant only year ties for NOIs one at dredge prohibit moratorium does not other Accordingly, a time. challenged NOI mining activities at issue in this case. approvals they evade review because are Throughout litigation, the Tribe has
too
plaintiff
short
duration for a
challenged the
approval
Forest Service’s
complete litigation
before the
activ
only
NOIs to conduct
dredge
suction
ities end.
River,
mining in the Klamath
but also
controversy
capable
repetition mining
activities outside the stream chan-
nel,
because the Tribe
See,
has shown “a reasonable
such
sluicing.
as motorized
e.g.,
expectation
I,
(“Plain-
the Forest
will
F.Supp.2d
Karuk
at 1085
engage in the challenged
again.”
conduct
tiffs Second Amended Complaint seeks
Envt.,
Alaska Ctr.
declaratory
injunctive
F.3d
arising
relief
During
pendency
appeal,
of this
allegedly
and as
from Defendants’
improper man-
recently
as December
agement
the Forest
of suction dredge and other min-
Service has сontinued to approve
ing operations waterways
NOIs
riparian
allowing mining activities in coho salmon areas within the Klamath National For-
added)).
critical
along
habitat
(emphasis
the Klamath River
est.”
Rangers
without consultation under
7 of
Section
the Klamath National Forest have con-
ESA. The Tribe has demonstrated a com
approve
allowing
tinued to
NOIs
these oth-
mitment
to challenging these approvals.
er
activities in coho salmon critical
regulatory landscape
state
Klamath
the federal and
the shores
along
habitat
company
submit-
might change
before
argues that
Forest Service
River.
But
in-
Plan to the Forest Service.
cognizable
ted a new
has not established
Tribe
*13
controversy was
activities. How-
held that the
from these
the Court
resulting
jury
review,
specifically
repetition yet evading
held
ever,
capable
court
the district
moot,
“dispute
on “suc-
would
standing
had
based
thus not
because
the Tribe
that
mining op-
mining and other
the state could en-
dredge
continue” over whether
tion
along the Kla-
occurring
578,
in and
Id. at
permit
erations
force future
conditions.
Id. at
tributaries.”
here,
math River and its
Similarly,
despite
Our
required
private-party
authorization is
First,
federal agency
we ask whether a
authorized, funded,
activities,
agency’s
proffer
informal
affirmatively
carried
Second,
activity.
we
underlying
private party
“agency
advice to the
out
agency had
whether the
some
requiring
determine
action”
Marbled
consultation.
change Babbitt,
to influence or
activi-
discretion
Murrelet v.
F.3d
1074-75
protected species.
for the benefit of a
ty
(9th Cir.1996); see also
Club v.
Sierra
Babbitt,
(9th Cir.1995)
1502, 1512
a. Affirmative Authorization
(Section
private
“only
applies
activity
*15
repeatedly held that the
We have
ESA’s
activity
dependent
to the extent the
is
term
action” is to be
“agency
use of the
authorization”).
federal
broadly.
Watersheds Pro
construed
W.
Here,
mining
the Forest Service’s
(9th
1099,
Matejko,
ject v.
468 F.3d
1108
regulations and actions demonstrate that
Island,
Cir.2006);
974;
Turtle
340 F.3d at
affirmatively
agency
private
the
authorized
Rivers,
Examples
30
at 1055.
of
Pac.
F.3d
it
mining
approved
activities when
the four
7
triggering
actions
Section consul
agency
challenged
By regulation,
NOIs.
the For
the
wa
existing
tation include
renewal
mining
est Service must authorize
activi
contracts, Natural Res.
Council v.
ter
Def.
they may proceed
a NOI.
ties before
under
(9th
Houston,
1118, 1125
146 F.3d
Cir.
regulations require
a miner sub
1998),
management
the creation of interim
a
proposed mining
mit
activities.
NOI
Soc’y
Lane
Audubon
v.
strategies,
Cnty.
228.4(a) (“[A]
(9th
§
36
notice of inten
C.F.R.
Jamison,
290,
958 F.2d
293-94
Cir.
required
any per
tion to
is
from
operate
1992),
ongoing
and the
construction and
dam,
proposing to conduct
which
Valley
operations
of a
Tenn.
son
operation
federal
173-74,
Auth.,
might
U.S. at
An
must consult under
C.F.R.
Forest
Service.
only
makes an
when it
“affirma
Section
(2)(ii).
228.4(a)(1),
§
a miner sub
When
Sportfish
or
Cal.
act
authorization.
tive”
NOI,
require
regulations
mits a
also
Energy Regula
v. Fed.
ing Prot. Alliance
miner
that the
Service inform the
Comm’n,
593, 595,
tory
may
mining
whether
days
within 15
Cir.2006); Matejko,
1023
gave,
advice that it
Sportfish
Cal.
to enforce the
here
this case from
distinguishes
597-98, Matejko,
468
472
at
indicates that
the Forest
ing,
F.3d
record
Service
1108-10,
held that there
at
where we
F.3d
can enforce the NOI conditions.
duty
consult
“agency action” or
no
The Forest Service
the Min
no
agency
takes
under
ESA
underlying
mining
ers contend that
also
Marbled Murrelet is
affirmative act.
by the
activities are authorized
General
the Forest Service does
inapposite because
Law,
Mining
rather
the agency’s
than
pro
advice” to a
“merely provide[]
not
private
of the NOIs. But
activi
approval
agency approves
miner when the
spective
can and do have
than one
ties
more
source
83
for
activities.
proposed
a NOI
authority, and more than one source of
F.3d at 1074.
that authority.
restrictions on
50
See
554, we
Siskiyou,
F.3d at
565
(agency
402.02
“action”
C.F.R.
under
approval
that
Forest
held
Service’s
private
includes all
activities author
ESA
dredge mining
suction
a NOI
conduct
“in
part” by
agency).
ized
federal
“final
action” under
constitutes
give
Mining
Organic
Law and the
Act
min
a NOI
holding confirms that
APA. This
statutory right,
privilege,”
“a
mere
ers
Rather,
advisory.
merely
approval is not
to enter the National Forests
“
it
consummation
‘mark[s]
31,317,
Fed.Reg.
39
but Con
purposes,
”
making process’ and
decision
agency’s
subjected
right
has
environ
gress
“
legal consequences
which
action ‘from
regulation.
”
mental
See 16 U.S.C.
v.
Pres. Council
Canyon
flow.’ Hells
will
(miners entering federal
forest
lands
Serv.,
F.3d
Forest
U.S.
comply
regula
“must
with the rules
Cir.2010)
Spear,
v.
(quoting Bennett
forests”);
covering such national
see
tions
177-78,
117 S.Ct.
U.S.
Locke,
also United States
U.S.
(1997)). Further
evidence
L.Ed.2d 281
104-05,
1785,
tion” NEPA standard under similar more “agency liberal action” standard Murrelet, ESA, under Marbled trigger To the ESA consulta *18 at F.3d the terms are not inter- requirement, discretionary tion the control changeable. Penfold, In 857 at F.2d 1313- by agency retained the federal also must 14, we held that BLM’s review of notice capacity have the to inure to the of benefit albeit, mines was a “federal a Island, protected species. a Turtle action”— 340 “marginal” “major” instead of a action. 974-75; at F.3d Ground Zero Ctr. for ESA, Under Section 7 of the a federal Dep’t Non-Violent Action v. U.S. the of agency “major” action need not be to trig- (9th Cir.2004) 383 Navy, F.3d 1092 the ger duty only to consult. It need be (no duty to Navy consult where lacked “agency Thus, an action.” cuts Penfold to operations discretion cease missile for against rather than favor of the protection species). the of listed If Service and the Miners. agency private activity cannot a influence sum, In duty the to benefit a listed there approval species, Forest Service’s of is no challenged the four NOIs to consult because a constituted “consultation would be agency Club, action Section 7 meaningless under of the ESA. exercise.” Sierra (no duty mining significant activities will cause to consult for dis- F.3d at 1508-09 where, pursuant resources, roads approval logging of turbance of which in- surface agreement, BLM prior right-of-way a to clude habitat. fisheries and wildlife Id. only speci- three retained discretion over 228.4(a), 228.8(e); §§ see Siskiyou, also criteria, pro- none which related fied of (“[T]his at regulation 565 F.3d ... species); Envtl. Prot. tecting listed Info. ranger vests discretion in the district Co., 255 F.3d Simpson Timber Ctr. mining operation determine “will (no (9th Cir.2001) duty to reiniti- 1081-82 likely significant of cause disturbance sur- per- for issued previously ate consultation ”). Thus, face resources.’ the Forest Ser- Fish and Wildlife Service mits where vice can exercise its discretion to benefit a protections to add for lacked discretion species disapproving listed approving ques- newly species). The relevant listed NOIs min- based whether the agency could influence tion whether the ing satisfy particular pro- activities habitat species, a activity benefit listed private a reject can agency tection criteria. The Island, it do so. Turtle not whether must require prospective NOI and that the min- at 977. Plan Operations, er instead submit a Here, mining the Forest Service’s impose under which Forest Service can that regulations and actions demonstrate protection additional habitat conditions. approve a NOI whether to decision 228.5(a)(3). 228.4(e), §§ discretionary through which determination record in this case at reveals least private mining can influence ways in three which Forest Service In species. to benefit listed Sis activities deciding discretion when exercised wheth- kiyou, F.3d at we held er, conditions, under to approve what mining “confers applicable regulation dis rangers” mining district for activities in the Klamath cretionary authority on NOIs may whether determine Rivers Forests. Six National that the proceed under NOI. We noted First, the Forest Service exercised dis- commentary to the 2005 Forest Service’s by formulating pro- criteria for cretion the discretion “emphasize[d] amendments of coho habitat. Those cri- tection salmon Id. at ary regulation.” elements approval or governed teria denial commentary, the Forest n. “ above, As in detail Dis- NOIs. described that it has ‘broad acknowledged Happy Camp Ranger trict Vandiver regulate the manner which discretion for the 2004 sea- prepared conducted on the na activities are ” meeting son with Forest Service biolo- 32,720 Fed.Reg. tional forest lands.’ 70 After gists Bemis Grunbaum. con- States, 6 (quoting Freese v. United Cl.Ct. them, formulated sulting with Vandiver mem., (1984), 1, 14 F.2d 177 aff'd (Fed.Cir.1985)). protecting salmon habitat criteria coho dredge mining from the effects of suction un- agency’s exercise discretion *19 specified to He pursuant conducted NOIs. may influ- mining regulations der the also by each of the to the name tributaries to a protect ence the activities list- provided River that cold water Klamath overriding species. purpose ed The the protected, speci- he refugia that should be regulations is “to minimize adverse [the] dredges per fied maximum number of the impacts” environmental tributaries, mile the and on its on river forest lands. 36 228.1. federal C.F.R. tailings be raked required and he discretion- agency’s The touchstone of the dredge into holes. ary is the likelihood that back determination oped applied very specific protective Once had exercised his discre- and Vandiver criteria, specific tion denying to formulate these granting criteria for or NOIs in they which any became conditions with Happy Camp pro- the District. Different submitting a in prospective miner NOI the developed tective for were criteria NOIs Happy comply. District to For Camp had in applied and the Scott River District. example, Nida Johnson amended her NOI in nothing There is the record to tell us a dredging to refrain from in cold water developed how in the criteria were refugia Independence near the mouth of it Scott River District. But is clear that Creek. But she made clear that she did so different, at those criteria were least in because, only absent with compliance their from those application, Happy Vandiver, imposed by condition she would Camp District. The New 49’ers submitted engage mining not be allowed to under a Ranger Haupt NOI to District in the Similarly, NOI. a week after Vandiver had Scott complied River District that in full communicated the criteria to the New with applied one of the criteria in the 49’ers, group eight-page, submitted Happy Camp District by specifying the mining in single-spaced Hap- NOI for dredges per maximum number of mile. py Camp complied District that with the complied, degree, NOI to some with a approved three criteria. Vandiver Camp by second Happy criterion commit- day. NOI the All four ap- next NOIs ting to with work the Forest Service to proved Happy in the Camp com- identify water But refugia. cold the NOI plied with specified criteria. Vandiver’s promise any did not particular observe Second, the Forest Service exercised refugia promise cold water not did by refusing approve discretion a de- stay specified any distance from creek by tailed submitted NOI the New 49’ers Finally, mouth. did comply the NOI not for activities in the Orleans District at all Happy Camp criterion, with the third of the Six Rivers National Forest. Acting for it raking tailings did not mention piles Supervisor Metz refused ap- dredge back into holes. Scott River Dis- prove because, view, the NOI in his it trict Ranger Haupt denied the NOI for provided protection insufficient of fisheries criteria, reasons unrelated to three these habitat: a water at refugia cold the mouth and he did include criteria in these particular of a creek was not mentioned in approved of Operations. Plan Discretion NOI, there mitiga- was insufficient “ power right ‘the defined as or to decide dangers posed tion of tailings loose or according act own judgment; one’s piles dredges. left The New 49’ers ” judgment freedom of or choice.’ Home NOI, submitted a new but then withdrew Builders, 551 U.S. S.Ct. 2518 days it five later. repre- 49’ers’ New (quoting Random Dictionary House despite sentative wrote that “substantial English Language (unabridged ... dialog,” protective the Forest Service’s ed.1967)). District Rangers Vandiver and conditions meant that are many “there too Haupt each judgment exercised their own sensitive for try manage issues us to by formulating and applying different cri- group mining activity along the Salmon teria deciding when to approve whether River at time.” deny NOIs in their districts. This is the Third, the Forest Service exercised dis- very definition discretion. it applied cretion when different criteria law, our protection habitat Under established case fisheries *20 different districts of the Klamath there is “agency trig National action” sufficient to Ranger Forest. ger duty Vandiver devel- the ESA consultation whenever
1027 “ (9th Cir.2009). affirmative, ‘Any possible effect, 1018 an discre- makes agency an whether, beneficial, under or of tionary benign, about whether adverse or decision ” conditions, activity private to character,’ allow triggers what an undetermined chal- to four As all NOIs proceed. (quoting Id. at 1018-19 51 requirement. Service apрeal, in this the Forest lenged (June 1986)) 19,949 19,926, Fed.Reg. affirmative, discretionary deci- an made (emphasis Lockyer). in The Secretaries mining allow activ- private sion whether of Commerce and the Interior have ex- habitat specified under proceed ities for plained “[t]he that threshold formal Accordingly, hold criteria. we protection sufficiently must be low to consultation set approval Service’s that Forest agencies satisfy allow Federal their ” discretionary ac- agency NOIs constituted that not duty to ‘insure’ their actions do of Section 7 of meaning tion within the jeopardize species adversely listed or mod- ESA. 19,949. ify Fed.Reg. critical at habitat. May Species Affect Listed mining ap activities Whether Habitat
or Critical Forest case proved Service “may critical of listed affect” habitat to con agency duty An has as species can almost be resolved a textual any the ESA for under Section of sult definition, mining By matter. activities “may that af discretionary agency action require “might a NOI cause” distur species designated critical that fect” listed or Island, at 974 habitat. Turtle 340 F.3d of bance surface resources. C.F.R. 402.14(a)). § An (citing 228.4(a). § include “Surface resources” requirement may avoid the consultation habitat. at underwater fisheries Id. will that its action only it determines 32,718 (“Fisher 228.8(e); at Fed.Reg. or species “no on a listed have effect” course, habitat, consist noth ies can Biological critical habitat. Sw. Ctr. for water, streambeds, other ing other than or Serv., Diversity 100 F.3d v. U.S. Forest lands.”). submerged Service (9th Cir.1996). an Once 1447-48 activi approved NOIs conduct that its action agency has determined along sys the Klamath River ties critical “may species a listed or affect” tem, designated which is critical habitat consult, habitat, agency must either at Fed.Reg. for listed coho salmon. formally informally, appropri with or 24,049. “might cause” dis phrase If the If the wildlife expert agency. ate wildlife given habitat is turbance of fisheries informal consul during agency determines auto ordinary meaning, it follows almost action is “not that tation ap matically to the pursuant adversely any species likely to affect listed “may affect” critical habitat proved NOIs habitat,” critical formal consultation or Indeed, the Forest of the coho salmon. required process not and the ends. dispute that the does 402.14(b)(1). Thus, actions C.F.R. system in the Klamath River any affecting species listed have chance its coho salmon and “may affect” the listed if it is deter critical habitat —even later critical habitat. likely” to are “not mined that the actions some require however, do least consultation Miners, that the contend so— under the ESA. any evidence” that record “devoid may affect coho salmon. mining activities “may previously explained that
We have arguments sup- make two The Miners “relatively low” threshold affect” is a argu- contention. Neither port of their ex rel. Lock consultation. Cal. triggering scrutiny. ment withstands Dep’t Agric., yer U.S.
First, argue the there salmon mean Miners that coho habitat does not that single is no “that a member evidence even “may the affect” standard was not met. any species listed would be ‘taken’ Indeed, that with Vandiver consulted For- the mining approved reason” of activities in attempt est to re- biologists in a particular the NOIs. “Take” has defi possible a on impact duce adverse coho ESA. nition under the 16 U.S.C. salmon exactly and their habitat suggests (“The 1532(19) § term ‘take’ to ha means opposite. approved After a the Vandiver rass, harm, hunt, wound, shoot, pursue, mining to conduct activities in NOI and kill, collect, trap, capture, attempt or to along the Klamath River for 2004 min- the conduct.”); engage any such also see season, biologist ing Forest Service Bemis (further defining 17.3 “harm” stating a “Note File” that sent to the the “harass”). and Whether compliance with speci- miners’ Vandiver’s a “taking” effectuate under 9 of Section criteria fied should “reduce”—not elimi- a inquiry the ESA is distinct from whether impacts nate —“the to anadromous fisher- they “may species affect” a or its critical Camp the Happy Ranger ies on District.” habitat under Section See Sweet Home The has nevеr that suggested Chapter, 515 U.S. at S.Ct. approved mining activities would have “no (“Section broad, 7 imposes a affirmative on effect” coho salmon or their critical duty to habitat avoid adverse modifications habitat. See Sw. Biological Ctr. Diver- for that replicate....”). 9 does not sity, F.3d at 1447. failing Miners also fault the Tribe identify single endangered “so much aas Moreover, appeal record in this in- injured egg fish or fish ever [min ample cludes evidence that the ac- where, ing] activity.” here, But plain as a approved tivities under the NOIs tiff a alleges procedural under violation Happy Camp “may affect” coho ESA, opposed Section 7 as to a salmon and critical their habitat. Coho substantive violation under Section salmon the Klamath system River were plaintiff prove spe need not that a listed listed as threatened in river injured. cies has in fact been See Thomas adjacent riparian designat- zones were Peterson, Cir. years ed critical as habitat two later. 1985) (“It is not responsibility salmon, listing the coho the Fisheries Ser- plaintiffs prove, nor function of the vice noted that the salmon was population judge, courts the effect 24,588. “very depressed.” 62 Fed.Reg. action on an endangered species when The Fisheries that Service concluded “hu- proper procedures have not been fol impacts,” man-induced such over-har- as lowed.”). show, plaintiff need only as vesting, practices, hatchery and habitat here, has Tribe done chal including mining, played modification had lenged “may action species affect” listed significant in the role decline and had or its critical habitat. “reduced the coho salmon populations’ re- Second, argue the Miners that Vandi- siliency” in challenges. the face of natural ver’s consultation with Forest Sérvice biol- 24,591. Id. at The Fisheries Service also ogists, the resulting protection habitat “existing regulatory concluded that mecha- criteria, “assured” that there would be “no are inadequate imple- nisms either or not impact whatsoever on listed speсies.” well enough mented the salm- conserve” argument This against, cuts rather than in 24,588. on. Id. at of, favor the Miners. The fact Dis- trict The record information Ranger Vandiver formulated criteria also includes to mitigate effects of suction dredging dredge about the suction effects of *22 on the Forest Service 3. Burden biologist Grunbaum Forest Service that April meeting. Grun- at an provided imposed by the The burden consultation of relatively few that studies wrote baum not requirement great. need be Consulta- performed, but had been dredging suction may ESA or tion under the be formal ... showed that suction majority “the 402.13, §§ informal. 402.14. habi- aquatic adversely affect dredging can requires preparation Formal consultation across varied and biota.” effects tats detailing the biological opinion a how of some, “dredging may harm in ecosystems; their agency species action affects listed or spe- viability of threatened population the habitat, but informal consultation critical specific po- summarized cies.” Grunbaum nothing more than discussions and need be “[ejntrain- First, adverse effects. tential correspondence appropriate with the wild- kill directly can dredge ment suction agency. Id. 402.02. If the wildlife life mortality fish—of indirectly and increase agrees during informal consultation agency and un-eyed eggs salmonid particularly likely that the action “is not Second, dis- stages.” early developmental adversely species affect listed or critical kill dredging suction can from turbance habitat,” re- formal consultation not fish larger that small invertebrates the process the Id. quired and ends. on, envi- 402.13(a). alter invertebrates’ Thus, feed or approval of a whereas scarce. they that become ronment so of activities Operations Plan —for “in- Third, can destabilized streambeds likely significant that “will cause distur- material,” on unstable spawn fish to duc[e] may of often bance surface resources” — and larvae can be “smoth- eggs and fish and prepara- formal consultation require Fourth, because biological ered buried.” a informal con- opinion, tion of already are at occupy of may approval streams the salmon often suffice for sultation “minor” temperatures,” even “near lethal a NOI. can in the summer harm disturbances fact, volun- Ranger Vandiver Fifth, be juvenile salmon could salmon. type informal consul- tarily initiated where optimal a less location “displaced to in with this case. He consulted tation also and odds are fitness survival overall and biologists Bemis Forest Service fac- Finally, long list other
less.” protec- formulating in detailed Grunbaum disturbance, turbidity, pollution, de- tors — that avoid the likeli- tive criteria would base, loss cover food and crease disturbance significant hood of habitat dredging with suction associated —could dredge mining in caused suction harm the combine to salmon. problem District. Happy Camp that conclude employees We consulted with that Vandiver in this Service, approved by rather than of the Forest “may affect” the listed coho salmon NOAA Fish- case Service or Fish Wildlife Indeed, a textu- Congress its critical habitat. as made conscious eries Service. matter, designated mining activities feder- require al ESA to decision approval under require wild- expert critical habitat consult with the agencies al trig- satisfy biologists low threshold likely merely a NOI with agencies, life ESA. ad- duty agencies, to consult under the about the gering the within their own 24,050 might have Fed.Reg. (“designation that their actions See verse effects had con- provides agencies Federal listed If Vandiver species. critical habitat the federal wild- employees to when consulta- with with a clear indication as sulted agencies agreed agencies, is re- life those section 7 of ESA tion under would protective criteria specified that the quired”). avoid the likelihood of on tionary adverse effects decisions to authorize activ- *23 habitat, coho specified salmon ities under protective consultation criteria. definition, By would requiring have sufficed under ESA. See those that “might NOI are cause” Any approved C.F.R. 402.13. distur- NOIs resources, bance surfacе including un- protective likely under such criteria would derwater fisheries habitat. The Forest required have no further consultation. dispute Service does not Indep. Royalty Tex. Producers & Cf. approved activities it “may in this case Agency, Owners Ass’n v. Envtl. Prot. critical affect” habitat coho (because salmon Cir.2005) F.3d the Klamath system. River The Forest EPA informally consulted issuing before duty Service therefore had a under Section “general permit” authorizing private oper 7 of the ESA to consult with the relevant discharge ators to according stormwater agencies approving wildlife before criteria, specified had no NOIs. duty to operators consult when submitted
individual indicating compli NOIs their We reverse the district court’s denial of ance general permit). with the summary judgment on the Karuk Tribe’s ESA claim and entry remand for of judg-
Conclusion ment in favor of the Tribe. “agency There is action” under Section 7 REVERSED and REMANDED. of the ESA an agency whenever makes an affirmative, discretionary decision about SMITH, Judge, M. Circuit with whom whether, conditions, what or under to al- KOZINSKI, joins, Judge, Chief and with private activity low proceed. approv- MURGUIA, whom IKUTA and Circuit ing case, challenged NOIs in this join VI, Judges, through as to I Parts affirmative, made dissenting: discre- *24 Project rise, process. W. Watersheds not able to sultation attempted I but was my I to lie on for, happened stir: as F.3d Cir. Matejko, back, legs were my I arms and 2006). flouts this majority now Yet the found to the on each side strongly fastened precedent, and common sense crystal-clear hair, long my which was ground; and agen holds that an for the first time and thick, man- down in the same tied forces it into not to act cy’s decision liga- I several slender ner. likeivise felt morass. bureaucratic arm-pits my body, my tures across from up- only I could look my thighs. one, view, such as this my decisions hot, wards; began groio the sun cases re- other environmental and some my eyes. light offended (see Part by our court cently handed down Swift, Gulliver’s —Jonathan Travels, law, and VII, the rule of infra), undermine Chapter 1. seem fortu- situation poor make Gulliver’s go again. Here we of those plight to the compared nate when that today, it was well-established Until of new rules ligatures in the entangled “ not ‘ac- agency’s ‘inaction’is regulatory by such decisions. of thin air created out ” Spe- Endangered triggers tion’ (ESA) con- interagency arduous cies Act’s Mining 1974) 31,317
I. (Aug. (emphasis national forests added). right to mine on national lands is by Mining established Act of regulatory II. The scheme § 21 seq.: U.S.C. et This case turns on whether Act, provisions Mining Under the of, Ranger’s Service District receipt con- may an individual explore enter and land of, response sideration to a miner’s public domain search of valu- notice of operate intention to Notice of deposits. able mineral After minerals —a Intent —is an action author- discovered, are may the claimant file a izes activities on national forests. “mining claim” with the Bureau of Land (BLM), Management This distinction is critical because the approved, which if ESA entitles the claimant right requires agencies to the of ex- federal to consult with possession claim, clusive long of that as the Fish and Wildlife Service or NOAA *25 requirements Mining as the of the Act “any Fisheries Service taking before action Although ownership are met. of a mining authorized, funded, or carried out such claim does confer fee title to the agency” might harm a species. listed claimant, the claimant does have the 1536(a)(2). § 16 U.S.C. right to extract all minerals from the The implementing regulations ESA’s claim paying royalties without to the (promulgated by the Secretaries of Com- United States. Interior) merce and the offer a list of Babbitt, Swanson v. (in action, examples of including Cir.1993). licenses, relevant part) granting “the of Mining permissive regime Act’s ex- contracts, leases, easements, rights-of-way, tends to national forests as well. The 1897 permits, grants-in-aid.” act that created the national forests and (2004). § 402.02 provided governing rules those forests’ In this appeal, Plaintiff-Appellant as- use, Act, Organic see Administration a single serts claim challenging the Dis- 473-78, §§ emphasized U.S.C. pro- that its Ranger’s trict failure to consult with the “prohibit visions do not any person from Fish and Wildlife Service or NOAA Fish- entering upon such national forests for all eries Service when deciding to allow cer- proper and lawful purposes, including that tain dredge mining suction proceed un- of prospecting, locating, developing and der Notice of rather than Intent a Plan the mineral per- resources thereof. Such Operations. of dispute here is nar- comply sons must with regu- the rules and row: specifically, does the IK Ser- covering lations such national forests.” 16 handling vice’s of Notices of Intent consti- § U.S.C. 478. tute an private “authorization” of When the U.S. Forest Service issued the activity under the ESA? mining regulations case, at issue in this question, To answer this one must have emphasized “that prospectors and understanding clear operative reg- statutory miners have a right, not mere recognition ulations. “statutory of the privilege, under the 1872 mining law and right, privilege” not mere to mine in na- 4,1897, the Act of June go upon and use forests, tional the Forest Service has care- open public domain lands of the Na- fully regulations tailored its to balance System tional Forest en- purposes for the exploration, goals mineral vironmental development unique pre- with miners’ pro- duction.” National existing rights Forests Surface to national Use access forests. Laws, 31,- Under U.S. Mining 39 Fed.Reg. Use, See National Forests Surface 39 Fed. 228.4(a)(1), (a)(2)(h), § 28,1974). activities. Id. 31,317 regula- These (Aug. Reg. (a)(2)(iii). mining activities on apply only to tions § 228.2 lands. 36 C.F.R.
Forest Service For more substantial (2004).1 “might” likely” or “will cause resource disturbance, must “be con- miners must file “notice of “operations” All Intent, feasible, as, operate” to minimize intention to Notice of where ducted so —a Id. appeal. on Nation- which is the focus impacts environmental adverse 228.4(a).2 § The Notice of Intent is a resources.” Id. al Forest surface 228.3(a) document, min- 228.8(e); (defining straightforward requiring § see also id. (1) name, address, of these ers to list: broadly purposes “operations” (2) operator; environmental-impact telephone number This regulations). (3) involved; pro- area the nature of the compliance with federal provision requires (4) standards, posed operations; as the route of access to quality as well air and water (5) area; practi- transport “all the method of things) the use of (among other Serv., protect to be used. U.S. Forest Notice to maintain and cable measures 2284(a)— may which be Intent Instructions: CFR wildlife habitat fisheries and Minerals, http://www.fs.usda. Locatable operations.” Id. 228.8. affected gov/Internet/FSE_DOCUMENTS/fsm9_ “periodically officials must Forest Service (last 4, 2012); 020952.pdf May visited see op- determine operations to inspect *26 228.4(a)(2)(iii)(2004). § also 36 regula- with C.F.R. complying the[se] erator is tions,” miners non-compliant and inform filed, “a notice of intent is the Once compli- their activities into bring how to will, Ranger days within 15 of § ance. Id. 228.7. thereof, notify operator the wheth- receipt plan operations required.” of generally applicable er
In addition these 228.4(a)(2)(iii)(2004). § A Plan of C.F.R. mining in the national for- limitations on required proposed if the ests, imposes Operations additional the Forest Service likely” signifi- ac- activities “will cause depending on the requirements disturbance. Id. impact. cant surface resource potential environmental tivities’ 228.4(a). contrast, if dis- “significant § require- of additional purposes For these likely,” then a Plan of ments, into turbance is not mining activities are divided not,” required.” Siskiyou Operations “is not activities that “will categories: three Serv., Project v. U.S. Forest “signifi- Reg’l Educ. “might,” likely” and “will lead (9th Cir.2009) (emphasis resources.” cant disturbance of surface (a)(l)(v). activity might 228.4(a), original). “[MJining §Id. resources, yet of cause disturbance surface significantly that “will not” For activities only a require[s] so ... likely to do [is] resources-including “occa- disturb surface under notice of intent samples mineral sionally remov[ing] small 228.4(a).” original). (emphasis § Id. “remov[ing] ... a rea- specimens,” or Plan of Ranger requests a for If the District deposit amount of mineral sonable Plan must contain freely Operations, “[infor- study” persons may analysis and — identify or mation sufficient to describe to conduct those enter the national forest dissent, purposes it is unneces- of this challenged of Intent de- 2. For 1. Because the Notice dredge min- sary whether suction to resolve upon rely I were made in cisions primary My ing “may Coho salmon. affect” regulation. version of the majority disagreement stems from its with the finding "action.” of type operations proposed they impose regulations of and how does not private conducted, type would be and standard Operations. conduct as does a Plan of existing proposed roads or access interprets Forest Service the Notice of routes, transportation the means of used an information-gathering Intent as tool ..., period during which the used to decide whether a miner file should activity place, will take and measures to be Operations: Plan of requirements taken to meet the for envi- requirement prior [T]he submission § protection ronmental 228.8.” 36 of a notice of intent to operate alerts the 228.4(c)(3) (2004). C.F.R. The District operator propos- Forest Service that an Ranger “complet[e] must ... an environ- es to mining operations conduct on [Na- analysis mental in connection with each tional Forest lands which the Service] 228.4(f), proposed operating plan,” id. operator might, believes but are not (or thirty days and within of submission to, likely significant cause disturbance of ninety days if necessary), “ap- either [National surface re- Service] prove[ plan” “[njotify operator ] gives sources and the Forest Service the in, any to, changes plan or additions opportunity to determine whether the operations necessary deemed to meet agency agrees with that assessment purpose regulations in this such that the Forest Service will not (3).3 part.” 228.5(a)(1), §Id.
exercise its regulate discretion to those interpretation III. Forest Service’s operations. regulations its Clarification as to When a Notice of Intent majority asserts that the Forest Operate To Plan Operation Is and/or require Service’s decision not to a Plan of Needed for Operations Locatable Mineral Action for activities described Lands, System on National Forest 70 Fed. in a Notice of Intеnt implic- constitutes an (June 2005) (em- 32,713, 32,720 Reg. *27 activities, it authorization of those added).4 phasis equating therefore the Forest Service’s The Forest Service adds that the Notice agency “decision” with an “authorization” of process designed Intent was to be “a under the ESA. ” simple procedure that would notification The Forest Service contemplated never prospectors “assist in determining such a result. The expla- Forest Service’s operations whether their would or would nation of its regulations establishes not require filing the of an operating that a Notice of Intent is used as an plan. Needless uncertainties and ex- tool, information-gathering applica- not an pense in money filing time and unnec- mining permit. tion for a Consistent with essary operating plans could be avoided the Forest Service’s interpretations, the thereby.... [The notice-and-com- Ranger’s response ato Notice of Intent is rulemaking] ment analogous itself, record makes it clear to the Notice of Intent provides merely and of that a notice intent to agency’s operate notice the was not of review decision. It permit, instrument; is not a regulatory intended to be a cases, 3. Ranger In some the District rely will in- I on the Forest Service’s 2005 clarifica- Operations form the miner tion of its that a Plan of rules because this document thorough 228.5(a)(2), contains the clearest and most ex- unnecessary, § require id. or the planation history application of the of filing of an environmental statement with the regulations. these The 2005 clarification did Quality, Council on Environmental id. materially change operative provi- 228.5(a)(5). 32,727-28. Fed.Reg. sions. 70 place; agency’s without the affirmative ac- given to be a notice meant simply it was (such license, issuing permit, tion as a or operator Forest Service to the contract), private to conduct could not operator’s plan describes which pertinent involving occur.5 In the cases operations [National conduct inaction, Further, may agency private record conduct take lands. Service] agency takes affirmative trigger place until the that the intended demonstrates law steps is rea- to intervene. relevant case operate of for a notice intent requires identify position: of the us to the default uncertainty part on the sonable can agency nothing, private of the if the does significance as to the operator activity If can opera- activity place? take potential proposed effects circumstance, early proceed regardless agency of whether the a tions. such actions, activity any to takes then the does by a notice intent provided alert li- agency’s “granting of not involve the advance the interests operate would censes, contracts, leases, easements, opera- and the the Forest Service both rights-of-way, permits, grants-in-aid” as ques- by facilitating tor resolution of tion, required “agency action” under the approval ‘Is submission Id. required regulations. before plan operations opera- commence operator can Project involved Western Watersheds ” tions?’ (or, regulation accurately, more the BLM’s added). 32,728 (emphasis Id. at diver- non-regulation) private parties’ pursuant sions of water that were done regulations, the Forest Service’s Under parties’ pre-existing rights-of-way. those its name exactly Intent is what a Notice of case, at 1103. Similar to this miner, not a a notice from the implies: nineteenth-century recognized laws federal agency. It issued permit or license 1103-04, rights-of-way, id. at but the notifica- those merely precautionary agency regulate diver- prelimi- power BLM retained which is at most procedure, tion “ being that were more than ‘substantial prior action sions nary step ” uses, prior from id. at 1109 deviation^]’ taken. (2004) 2803.2(b) (pro- (quoting 43 C.F.R. distinguishing “action” IV. Precedent 1986)). that the mulgated We assumed “inaction” from the diver- power regulate BLM had the the BLM’s dispute, and held that is a sions establishes that there precedent Our *28 power was not an failure to exercise this a dеcision significant difference between triggering ESA consulta- “agency authoriza- action” act and an not to affirmative ex- obligations. tion Id. at 1108-09. We distinguish between tion. These cases “ inaction,” not ‘ac- agency ‘inaction’ is “agency plained “agency action” and 7(a)(2) at purposes.” Id. reg- tion’ for section meaning operative illustrate the diver- “licenses,” BLM did not “permits,” “[T]he ulation’s reference to fund (2004). sions, permits, it did not § it did not issue like. 50 C.F.R. 402.02 and the dams, contracts, it not build nor “agency grant did pertinent involving cases (empha- Id. at 1109 action,” an did it divert streams.” agency takes affirmative Rather, BLM original). made conduct to take sis step private that allows permits engage in to obtain to Net- States vessels example, 5. For Turtle Island Restoration Service, high at fishing operations on the seas.Id. 340 work v. National Marine Fisheries words, added). (9th Cir.2003), (emphasis ab- agency’s In other an 973 F.3d 969 involved agency permit, could not permits fishing the vessels to vessels. The sent issuance of fishing operations. statutory regime "require[d] United undertake their operative (1986), § regulate, decision not to which was not the BLM uses a three-ti- “agency action” under the ESA. We ex approach ered to regulating placer mining plained duty trig that “the to consult is jurisdiction. on federal lands within its 1102; by gered affirmative actions.” Id. at mines, First are “casual” use for which no Babbitt, see also Marbled Murrelet v. 83 notice or approval required. is 857 F.2d at (9th Cir.1996) (“Protection F.3d mines, 1309. Second are “notice” for endangered species would not be en which no BLM approval required but for by require hanced a rule which would a which the miner must submit basic infor- agency perform federal to the burdensome mation to the BLM about the procedural tasks mandated section 7 operations days at prior least fifteen simply it because advised or consulted with commencing them. Id. BLM monitors private party.”); Sportfishing Cal. Pro mining operations “casual” and “notice” for FERC, tection Alliance v. compliance. “plan” Id. at 1310. Third are (9th Cir.2006) (holding that “the mines, which approved by must be agency[ propоsed no ] ha[d] affirmative act subjected BLM and to environmental as- trigger that would the consultation re may sessment before the operation pro- quirement” operations hydroelec of a ceed. Id. at 1309. tric plant that were authorized an earli “casual,” approach BLM’s “no- ongoing er and permit, though even tice,” “plan” mining operations follows agency empowered “unilaterally was in the same as the structure Forest Service’s proceedings stitute amend the license approach mining activities that “are not chose”). it Predictably, majority so to,” likely “might,” likely and “are to” relegates precedent discussion of this to a significant cause surface resource distur- brief entirely citation and fails to distin bance. See 36 C.F.R. This 228.4. similari- Moreover, guish it from this case. ty 78,906 was intentional. Fed.Reg. majority point does not to a single opinion (Nov. 1980) (explaining that regula- any in which court has held such designed tions were “to be as consistent as inaction triggers the ESA’s consultation possible with the Forest regula- requirements. tions”). Granted, Project Western Watersheds prongs
addressed both At the ESA’s issue was whether Penfold first, “agency requirement: action” wheth- approval BLM’s of Notice mines a “ma- agency er there is action as defined in jor finding Federal action.” Such would 402.02, second, C.F.R. whether that trigger the Policy National Environmental agency “discretionary,” action is (NEPA) requirement Act’s that the BLM Here, § 402.03. I only address the “action” file an impact environmental statement. requirement, because the has dis- held that the approval major We was not a cretion when deciding whether or not to Federal action. 857 F.2d 1314. Pen- *29 act. But regulations and case law say can be read to that the BLM’s fold show that these requirements two review of a “marginal” agency —action notice is a conjunctive, and discretion —are not dis- action, just “major” not a one. id. at See junctive. If agency has discretion to just 1313-14. But as actions must be “ma- act, act but decides not to then there is no jor” to trigger obligations, NEPA actions agency action under ESA. entirely by private parties carried out
An almost identical
must involve “affirmative”
regulatory
agency
scheme
federal
was at issue in
Penfold,
trigger
Sierra Club v.
857 authorization to
section 7’s consul-
(9th Cir.1988).
F.2d 1307
requirement.
Under 43 C.F.R.
tation
The mere fact that
Johanns,
Forest
v.
way is not See
Guardians
in some
is involved
agency
(9th Cir.2006).
457-58,
Thus,
the Tribe is F.3d
assuming
even
enough.
triggering
the threshold
correct that
here,
per-
But
Notices of Intent are not
the ESA
compliance under
environmental
contracts,
mits,
plans
by
issued
NEPA,
find
I nonetheless
than for
is lower
They
Forest Service.
are mere notifica-
that a similar
previous determination
our
Certainly,
tions about miners’ activities.
agency
the sort of
was not
notice scheme
the Forest Service retains discretion to
compli-
environmental
requires
that
action
a
require
Opera-
miners to submit Plan
authority
persuasive
additional
ance to be
appropriate
tions under
circumstances.
holding.
district court’s
support
in
of the
reached in a
That was the conclusion
re-
ques
the narrowness
emphasize
I
Procedures Act deci-
cent Administrative
us;
every
argue
I do not
tion before
sion,
Project
Siskiyou Regional Education
exempted
is
Service “decision”
Forest
“determining which
v. U.S. Forest Service:
The Forest Ser
consultation.
from ESA
likely
significant
are
to cause
operations
clearly distin
are
mining regulations
vice’s
of surface resources —and
disturbance
Service’s other
from the Forest
guishable
require
plan
operations—
a
therefore
example, the
For
regulatory activities.
discretionary
determination
requires
consult under
must
(em-
Forest Service
ranger.”
a district
565 F.3d
Land
implements
it
and
when
creates
ESA
omitted). But the Forest Service’s
phasis
Plans, which
Management
Resource
and
Opera-
a Plan of
require
decision not to
in each
“every
project”
individual
govern
not an “authorization” as
simply
tions is
Pac. Rivers Council
national forest.
regulations.
the statute and
defined
Cir.1994).
(9th
Thomas,
1050, 1053
30 F.3d
category of
majority’s proposed
new
addition,
negotia
Forest Service’s
implicit agency action—
agency conduct—
contracts,
timber-sale
and execution of
tion
statutes, regula-
support
little
finds
472a(a);
§ 223.1
§
36 C.F.R.
16 U.S.C.
tions, and case law.
(2011),
undoubtedly
“author-
is
opinion
court’s
this case
The district
ESA consultation.
requires
iz[ation]”
naturally from Western Watersheds
follows
(2004)
ac
(agency
402.02
See
majority character-
Project. Although the
contracts”);
...
“granting
include
tions
response to a
the Forest Service’s
izes
Council v. Pil
Nw. Forest Res.
see also
an “au-
“approval,”
Intent as an
Notice of
1161, Soc’y, chuck Audubon
thorization,”
“rejection,”
the relevant
Cir.1996)
(9th
that Forest Service
(noting
show that the Forest Service
regulations
and Wildlife Service
consulted with Fish
rejecting
authorizing, or
approving,
not
sales’ effect on marbled
regarding timber
receiving
analyzing
anything.
It
murrelets).
the For
The same is true for
information,
to take fur-
deciding
of roads
est Service’s construction
ther action.
Peterson, 753
Thomas v.
national forest.
Cir.1985).
Likewise,
F.2d
763-64
parties
Subjective views of the
V.
use on National
grazing
“all
and livestock
fact
heavily
relies
on the
majority
and on other lands
System
lands
miners in
Ranger and the
that the District
must be au
Forest Service control
under
Notice of Intent
understood the
this case
per
by grazing
or livestock use
thorized
to be an “authorization.”
(2011).
The For
222.3
mit.” 36 C.F.R.
*30
case-specific reason-
glance,
At first
this
oversight of such
grant and
est Service’s
all,
miners
enticing: after
ing may be
undeniably “agency action” sub
permits
and the
Ranger’s “approvfal]”
requirement.
sought
ject
ESA consultation
to the
why
Finally,
parties’
But
to understand
Ranger
their activities.
“authoriz[ed]”
control our
legal
full
conduct
this case cannot
path
reasoning
of
of
-obsta-
regulations,
cles,
application of the ESA and its
any
dispositive
one of which should be
implications
holding.
consider the
of such a
legal question
of the ultimate
under the
subject-
single
Ranger
A
District
would be
ESA.
process
ed to the ESA consultation
be-
First,
argument
a similar
was consid-
he
word “authorize” when
cause
used the
rejected
ered and
in Sierra Club v. Bab-
of Intent. Howev-
responding to Notice
(9th
bitt,
Cir.1995), where we
1039 By rendering impo- v. Bab- the Forest Service Marbled Murrelet action. agency Cir.1996). bitt, meaningfully impact Marbled tent to address low case, In that directly point. mining, majority effectively shuts Murrelet is For- joint dredge mining letter from U.S. the entire suction in- we held that down Department dustry jurisdiction. in est Service and California the states within our company and to a timber process of Fish Game The informal Notice of Intent al- that must conditions describing “specific to projects proceed lows within a few ... avoid ‘take’ of the iden- contrast, followed to interagency be weeks. In ESA con- “merely the ESA” species tified under was requires biological sultation formal as- trigger that did not providing] conferences, advice” delay and can sessment under the ESA. Id. section consultation years. projects Although months explained, “[protection As we at 1074. generally requires agencies the ESA enhanced endangered species would not be complete ninety days, consultations within a federal by require a rule which would 1536(b), agencies frequent- U.S.C. proce- perform the burdensome agency ly personnel miss their deadlines due to simply dural tasks mandated section shortages. study nearly One found that with a it advised or consulted because Wildlife percent of U.S. Fish and a rule would be a party. Such private untimely, ESA consultations were with such agency give for the disincentive taking years. or three some two Govern- or consultation.” Id. advice Office, Accountability ment More Federal Management Attention is Needed to Im- exactly step majority takes The Process, prove the March Consultation In that a miner’s submis- holding here. Moreover, 2004. formal consultation triggers section 7 consul- sion of NOI great private appli- comes at costs to the ESA, majority dis- under the tation cants, them to hire outside requiring often discussing their courages miners from experts backlogged. because the proposed activities with the Forest Ser- Most miners affected this decision impact their on Id. voluntarily vice to reduce environment, have neither the resources nor the encourages and rather will pursue a consultation with the patience to make their own determination miners EPA; likely they up, and curse simply give their activities are not will significant disturbance of surface Ninth “cause Circuit.
resources,”
228.4(a),
and thus
result,
people
As a
a number of
will lose
no NOI need be filed.
businesses that have
jobs
their
and the
equipment
in the
used
the rele-
invested
Brave New
VII.
World
much of
mining activities will lose
vant
ye
here.
hope,
Abandon all
who enter
In
their value.
California issued
Comedy, In-
Alighieri,
—Dante
3,500 permits
mining,
for such
about
The Divine
III
ferno Canto
miners received “a
percent
of those
portion of income” from the
significant
my
I cannot conclude
dissent without
Scheck,
dredging. See Justin
impact
majority’s
considering
California
Claims, The
Street Jour-
Gold
Wall
case,
it,
in this
and others like
decision-
Sifts
nal,
gold mining oper-
April
which,
view,
precedents
in my
flout our
case,
49’ers, orga-
ation
the New
doing
law.
and undermine the rule of
gold-mining
weekend
nizes recreational
so,
personal disrespect
I intend no
or of-
majority’s opinion effec-
My intent
excursions.
any my colleagues.
fense to
people
these
to await
tively forces
solely to illuminate the downside of our
pro-
costly ESA consultation
lengthy
actions
such environmental cases.
*32
1980s,
product
the wood
their
the 1970s and
they
pursue
cess if
wish to
activities,
simply ignore
process,
70,000
than
Ore-
industry employed more
peril.
their
more than the
gonians
paid
percent
and
Now,
industry
average wage.
state
Unfortunately,
not the first time
this is
25,000
employs
people
pays
and
the state
of
has broken from decades
our court
burdensome,
Lehner,
entan-
precedent
average wage.
and created
Josh
Historical
out of the
gling
regulations
environmental
Industry,
Oregon’s
Look at
Wood Product
In one of the most extreme recent
vapors.
Analysis,
Oregon Office of Economic
Jan.
that timber com-
examples, our court held
23, 2012,
http://oregonecono
available at
Protec-
panies must obtain Environmental
mieanalysis.wordpress.com/2012/01/23/
runoff
Agency permits
tion
for stormwater
historical-look-at-oregons-wood-product-
logging
from
roads into
primary
that flows
(last
2012).
industry/
May
visited
Re-
ditches, culverts,
channels.
systems of
and
quiring
per-
millions of burdensome new
Brown, 640
Nw. Envtl.
Ctr. v.
F.3d
Def.
only
mits
accelerate the decline.
will
(9th Cir.2011).
nearly
In
four
profoundly
Brown also
harms rural local
Act was
decades since the Clean Water
governments. Because counties receive
enacted,
government agency
no court or
twenty-five percent of the revenues from
imposed
requirement.
had ever
such a
In-
land,
timber harvests on federal
the de-
deed,
promulgated regulations
the EPA
logging
crease in
has caused
school
exempted logging
that
from this
shorter
explicitly
permitting requirement.
forces,
arduous
Id. at
days, smaller
police
closures
disregard
1073. Yet our court decided to
Moreover,
subjects
public libraries.
Brown
regulation
require
permits.
permit-
rural counties to the burdensome
ting requirement
if their roads are used
The result? The imminent decimation
logging.
Oregon
of what remains of the Northwest timber
The Association of
industry.
Loggers
The American
Council
Counties estimates
the decision will
decision,
implement-
that the
estimates
planning
Oregon
increase
costs to
counties
ed,
up
million more
will result
three
million.
$56
permit applications nationwide. The tim-
recently,
majority
a panel
More
of our
industry
only group
is not the
criticiz-
ber
court handed down
Rivers Council
Pacific
ing
Oregon’s leading
Brown. Three of
Service,
v. United States Forest
politicians quickly
ruling.
attacked the
(9th Cir.2012).
The Forest Service
Oregon
Wyden predict-
U.S. Senator Ron
spent years developing
manage-
a forest
opinion
ed that
“would shut down
plan
ment
for 11.5 million acres of national
forestry
private,
on
stаte and tribal lands
forest
land
the Sierra Nevada. We
same,
by subjecting
cycle
it to the
endless
plan, holding
overturned that
that the For-
litigation.” Oregon Congressman
Kurt
est
programmatic
Service’s
environmental
opinion
Schrader called the
“bad deci-
impact
“analyze
statement must
environ-
layer
sion” that
create
would
“another
mental consequences
proposed plan
of a
as
unnecessary bureaucracy.” Oregon Gov-
it
‘reasonably possible’
soon as
to do so.”
ernor
opinion
John Kitzhaber branded the
Id. at
“legally
long-
as
flawed.”
623. This conflicts with our
standing rule that “NEPA
a full
requires
Oregon political
good
leaders have
rea-
site-specific impacts only
evaluation of
impact
son to be concerned about the
when a ‘critical decision’ has been made to
rulings
logging.
our
Decades of court
development
i.e.,
act on site
when ‘the
injunctions already have battered the
—
agency proposes to make an irreversible
industry,
timber
once a
state’s
dominant
employer
paid
wages.
excellent
and irretrievable commitment of the avail-
ing
percent
at a
between 20
project
percent.
resources to
ability
[a]
*33
” Friends
Yosemite Val
particular site.’
Id.
(9th
Norton,
789,
v.
Cir.
ley
legislature
No
or regulatory agency
Block,
2003) (quoting
California
sweeping
would enact
rules that create
Cir.1982)).
Riv
F.2d
Pacific
chaos,
such economic
shutter entire indus-
facto reversal of well-
ers Council’s de
tries, and cause
people
thousands of
to lose
dramatically im
precedent
established
will
jobs.
legislative
their
That is because the
in the
pede any
logging
future
West. Be
directly
and executive branches are
ac-
agencies
cause environmental
will never be
elections,
countable to the people through
“reasonably
certain whether
the unclear
they
and its members know
would be re-
take
applies,
standard
it will
even
possible”
swiftly
moved
from
they
office were
to
longer
agencies
approve
for the
forest
contrast,
enact such
In
rules.
in order to
plans.
preserve
vitally important principle
Farmers,
too,
suffered, and will
have
judicial independence,
political-
we are not
suffer,
impact
from
continue to
sim
However,
ly accountable.
because of our
decisions.
ilarly extreme environmental
public accountability,
job
lack of
our
Project Improvement
Valley
The Central
constitutionally confined to interpreting
102-575,
Act, Pub.L. No.
106 Stat. 4600
laws,
creating
out of
(1992),
800,000
them
whole cloth.
requires that
acre feet of
Unfortunately, I
Valley
Central
Pro
believe the record is clear
water
California’s
ject
designated
primary pur
for “the
be
strayed
our court has
with lamentable
fish, wildlife,
pose
implementing
frequency
constitutionally
from its
limited
purposes
and
and habitat
restoration
(as
role
illustrated
it
supra) when
comes
Delta-Men
San Luis &
measures[.]”
environmental
construing
law. When
States,
Authority
dota Water
v. United
so,
we
I fear
public
do
that we undermine
(9th Cir.2012),
majority
lutely statutory in the text. The no basis
practical impact of this decision is that less, less, far perhaps
there will be water irrigation Joaquin Valley’s the San (M. industry. crop billion Id. 715-16
$20
Smith, J., dissenting).
region’s
farms
communities,
and the thousands of
NORDYKE;
Allen
Ann
Russell
Sallie
there, already
people employed
have suf
Nordyke,
Shows;
Trade
B.
dba TS
Jess
water,
fered because of the lack of
with
Guy;
Jones;
Darr;
250,000
Duane
William J.
approximately
acres of farmland
fallow,
lying
unemployment rang-
Daryl
David;
Westyschyn;
now
N.
Tasiana
‘‘[RJepeated
essentially
may
head-on con-
well erode if we do not exercise self-
power
frontations between the life-tenured branch
restraint
in the utilization of our
representative
govern-
negative the
branches.”
and the
branches of
actions of the other
run,
Richardson,
not,
long
ment will
in the
be beneficial to
United States v.
418 U.S.
(1974)
public