Karuk Tribe of Cal. v. U.S. Forest Serv.

• Citation: 74 ERC 1737,2012 Daily Journal D.A.R. 7267,681 F.3d 1006,12 Cal. Daily Op. Serv. 6007
• Decision Date: 01 June 2012
• Docket Number: No. 05–16801.,05–16801.
• Parties: KARUK TRIBE OF CALIFORNIA, Plaintiff–Appellant, v. UNITED STATES FOREST SERVICE; Margaret Boland, Defendants–Appellees, The New 49'ers, Inc.; Raymond W. Koons, Defendants–intervenors–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

681 F.3d 1006

74 ERC 1737

12 Cal. Daily Op. Serv. 6007

2012 Daily Journal D.A.R. 7267

KARUK TRIBE OF CALIFORNIA, Plaintiff–Appellant,

v. UNITED STATES FOREST SERVICE; Margaret Boland, Defendants–Appellees,The New 49'ers, Inc.; Raymond W. Koons, Defendants–intervenors–Appellees.

No. 05–16801.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 13, 2011.

Filed June 1, 2012.

Roger Flynn and Jeffrey Charles Parsons, Western Mining Action Project, Lyons, CO, Lynne Saxton, Environmental Law Foundation, Oakland, CA, James R. Wheaton, Public Interest Law Office, Oakland, CA, for the plaintiff-appellant.

Lane N. McFadden and Brian C. Toth, U.S. Department of Justice, Washington, D.C., Barclay T. Samford, U.S. Department of Justice, Denver, CO, Charles Michael O'Connor, Office of the United States Attorney, San Francisco, CA, for the defendants-appellees.

Jason Craig Rylander, Defenders of Wildlife, Washington, D.C., for the amicus curiae.

Appeal from the United States District Court for the Northern District of California, Saundra B. Armstrong, District Judge, Presiding. D.C. No. CV–04–04275–SBA.

Before: ALEX KOZINSKI, Chief Judge, BARRY G. SILVERMAN, SUSAN P. GRABER, KIM MCLANE WARDLAW, WILLIAM A. FLETCHER, RONALD M. GOULD, RICHARD A. PAEZ, MARSHA S. BERZON, MILAN D. SMITH, JR., SANDRA S. IKUTA, and MARY H. MURGUIA, Circuit Judges.

Opinion by Judge WILLIAM A. FLETCHER; Dissent by Judge MILAN D. SMITH, JR.

OPINION

W. FLETCHER, Circuit Judge:

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. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a). There are two substantive questions before us.

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. 36 C.F.R. §§ 228.4(a), 228.8(e). In this case, the Forest Service approved mining activities in and along the Klamath River, which is critical habitat for threatened coho salmon. The record shows that the mining activities approved under NOIs satisfy the “may affect” standard.

We therefore hold that the Forest Service violated the ESA by not consulting with the appropriate wildlife agencies ¹ before approving NOIs to conduct mining activities in coho salmon critical habitat within the Klamath National Forest.

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., 66 Cal. 138, 4 P. 1152 (1884) (affirming injunction against hydraulic gold mining because of impacts on downstream rivers); Green Versus Gold: Sources in California's Environmental History 101–40 (Carolyn Merchant ed., 1998) (describing environmental impacts of the California Gold Rush). However, small-scale recreational mining has continued. Some recreational miners “pan” for gold by hand, examining one pan of sand and gravel at a time. Some conduct “motorized sluicing” by pumping water onto streambanks to process excavated rocks, gravel, and sand in a sluice box. As the material flows through the box, a small amount of the heavier material, including gold, is slowed by “riffles” and is then captured in the bottom of the box. The remaining material runs through the box and is deposited in a tailings pile. Finally, some recreational miners conduct mechanical “suction dredging” within the streams themselves. These miners use gasoline-powered engines to suck streambed material up through flexible intake hoses that are typically four or five inches in diameter. The streambed material is deposited into a floating sluice box, and the excess is discharged in a tailings pile in or beside the stream. Dredging depths are usually about five feet, but can be as great as twelve feet.

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. 30 U.S.C. § 22. The Organic Administration Act of 1897 extended the Mining Law to the National Forest system but authorized the Secretary of Agriculture to regulate mining activities in the National Forests to protect the forest lands from destruction and depredation. 16 U.S.C. §§ 482, 551. The Act specified that prospectors and miners entering federal forest lands “must comply with the rules and regulations covering such national forests.” Id. § 478. We have repeatedly upheld the Forest Service's authority to impose reasonable environmental regulations on mining activities in National Forests, so long as they do not prohibit or impermissibly encroach on legitimate mining uses. See, e.g., United States v. Shumway, 199 F.3d 1093, 1106–07 (9th Cir.1999); Clouser v. Espy, 42 F.3d 1522, 1529–30 (9th Cir.1994); United States v. Weiss, 642 F.2d 296, 298–99 (9th Cir.1981).

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); 36 C.F.R. § 228.1 (2004). The regulations establish three different categories of mining, based on whether the proposed activities “will not cause,” “might cause,” or “will likely cause” significant disturbance of surface resources, which include fisheries and wildlife habitat. 36 C.F.R. §§ 228.4(a), 228.8(e). The first category, de minimis mining activities that “will not cause” significant disturbance of surface resources, may proceed without notifying the Forest Service or obtaining the agency's approval or authorization. Id. § 228.4(a)(1), (2)(ii). The third category, mining activities that “will likely cause” significant disturbance of surface resources, may not proceed until the Forest Service approves a Plan of Operations (“Plan”) submitted by the miner. Id. § 228.4(a). A Plan requires relatively detailed information, including “the approximate location and size of areas where surface resources will be disturbed” and “measures to be taken to meet the requirements for environmental protection.” Id. § 228.4(c). Within 30 days of receiving a Plan, or 90 days if necessary, the Forest Service must approve the proposed Plan or notify the miner of any additional environmental conditions necessary to meet the purpose of the regulations. Id.§ 228.5(a).

At issue in this appeal is the middle category of mining activities: those that “might cause” disturbance of surface resources. Id. § 228.4(a). Forest Service mining regulations require that any person proposing such activities must submit a Notice of Intent to operate, or NOI, to the appropriate District Ranger. Id. A NOI is less detailed than a Plan. It need only contain information “sufficient to identify the area involved, the nature of the proposed operations, the route of access to the area of operations and the method of transport.” Id. § 228.4(a)(2)(iii). Within 15 days of receiving a NOI, the District Ranger must notify the miner whether a Plan is required. Id. The Ranger will require a Plan if, in his discretion, he determines that the operation “will likely cause” significant disturbance of surface resources. Id. § 228.4(a).

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. 36 C.F.R. § 228.4(a)(1)(ii) (2011). The revised regulations also clarify that a NOI is...