Baker v. US DEPT. OF AGR.

Citation928 F. Supp. 1513
Decision Date26 January 1996
Docket NumberCiv. No. 94-0160-E.
PartiesDouglas L. BAKER, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, an agency of the United States, et al., Defendants.
CourtUnited States District Courts. 9th Circuit. District of Idaho

Barry L. Marcus, Marcus Merrick & Montgomery, Boise, ID, for Douglas L. Baker, plaintiff.

Warren S. Derbidge, Asst. U.S. Atty., U.S. Attorney's Office, Boise, ID, for Department of Agriculture, Jim Lyons, Jack Ward Thomas, Robert C. Joslin, Charles Wildes, C. Gregory Johnson.

MEMORANDUM DECISION AND ORDER

WINMILL, District Judge.

I. INTRODUCTION

The Court has before it Motions for Summary Judgment filed by both parties. The Court heard oral argument on January 2, 1996, and the Motions are now at issue. The Court will resolve the Motions after reviewing the background of this litigation.

II. BACKGROUND

In November and December of 1992, the Plaintiff Douglas L. Baker acquired mining claims known as the Crazy Lumberjack Claims. These Claims are located on Adair Creek in the Challis National Forest. See, Affidavit of Baker at ¶ 3, pp. 2-3 (Docket No. 8). Adair Creek is a tributary of the Yankee Fork of the Salmon River.

On January 9, 1993, Baker submitted to the Forest Service a proposed Plan of Operations that contemplated removing placer deposits from the Crazy Lumberjack Claims, and hauling the material to an adjacent claim, known as the Honey Girl Claim, for processing. See, AR at 128.1 To accommodate this hauling of placer material, the Plan also proposed the building of 600 feet of access road between the Crazy Lumberjack Claims and the Honey Girl Claim. Id.

In February, 1993, the Forest Service published a Legal Notice in the Challis Messenger newspaper requesting comments on the Plan. See, AR at 121. The Idaho Fish and Game Department filed a comment by letter dated February 11, 1993. See, AR at 120. That letter, directed to the Forest Service, stated that the project was not "in the best public interest considering the potential to seriously impact valuable fishery resources." Id. The letter pointed out that the Yankee Fork supports runs of summer steelhead and chinook salmon — at that time listed as "threatened species" — that could be harmed if the mining project caused sedimentation of the river. Id.

On March 2, 1993, the Fish and Wildlife Service of the Department of the Interior filed a comment by way of letter, suggesting that the Forest Service contact the "National Marine Fisheries Service ... to initiate consultation for chinook salmon." See, AR at 117. Because of this potential for harm to a "threatened species" under the Endangered Species Act, the Forest Service prepared a Biological Assessment (BA) that was completed on August 29, 1993. See, AR at 92. In that BA, the Forest Service concluded that Baker's Plan may affect, but is not likely to adversely affect Snake River spring/summer chinook salmon and proposed critical habitat. In order to be in compliance with the ESA Endangered Species Act and meet the Forest Service's responsibilities as outlined in the June 22, 1992 Guide for Section 7 Consultation with the National Marine Fisheries Service, all of the following criteria must be met in order to receive this "Not Likely to Adversely Affect" opinion:

a.) Mr. Baker must have ALL fisheries resource protection mitigation measures correctly in place prior to implementation of the project.
b.) Mr. Baker must implement and continue to use Best Management Practices (BMP's) as designed for the protection of water quality and fisheries resource.
c.) Continue with compliance and implementation of all site specific mitigation measures on the Honey Girl Claim. Continue to reseed and revegetate with willows on the reclaimed areas of the Honey Girl Claim and the Deep Yellow Claim until advised by the Forest Service staff that revegetation/reclamation efforts are successful and satisfactory.

See, AR at 92, p. 199. (emphasis in original).

The BA goes on to state that once all the mitigation measures are in place, "no further degradation of critical fish habitat is expected to occur." Id. But if the mitigation measures are not implemented, the BA concludes that the opinion of "`Not Likely to Adversely Affect' the listed species of fish will need to be re-evaluated and consultation with NMFS National Marine Fisheries Service may be required." Id at p. 200.2

The Forest Service then prepared an Environmental Assessment (EA), which was issued on October 21, 1993. The EA concluded that "there will be no affect on viability of any threatened, endangered, or Forest Service sensitive species," and that "fish habitat and water quality within the Yankee Fork River and Adair Creek will be maintained to Forest Plan Standards by adopting mitigation measures...." See, AR at 41, p. 88.

On the same day that the EA was issued, October 21, 1993, the Forest Service published a Legal Notice in the Challis Messenger newspaper stating that Baker's Plan had been approved. See, Exhibit B to Complaint (Docket No. 1). Two days later, on October 23, 1993, Baker started construction of the road between the Crazy Lumberjack Claims and the Honey Girl Claim.

On October 29, 1993, Forest Service District Ranger Gregory Johnson filed a Notice of Non-Compliance against Baker, claiming that the road was not constructed according to the Plan, and complaining that the construction occurred "without my official notification to you that your Plan had been approved." See, AR at 83. Johnson requested that Forest Service Special Agent Pat Green investigate whether criminal charges should be filed against Baker for his construction of the road. Green did investigate and concluded that no charges should be filed. See, AR at 69. Green found that although Johnson had not "officially told" Baker that the Plan was approved, the Forest Service did publish a Legal Notice in the Challis Messenger newspaper on October 21, 1993 stating that the Plan had been approved, and the road construction did not begin until two days after that Notice of Approval was published.

Thereafter the parties reached an agreement on the road. District Ranger Johnson sent a letter dated November 4, 1993 to Baker stating that "this letter is notice of approval of your Plan of Operation for the Crazy Lumberjack Mining proposal ... which you submitted on January 9, 1993...." See, Exhibit C to Complaint (Docket No. 1). The letter also stated that a reclamation bond for $6,077.00 "must be posted prior to any initiation of activity under this Plan." Id. The last paragraph of the letter stated as follows: "If you are in agreement with the above items, please indicate with your signature and they will be incorporated into your Plan of Operation." Id. The letter then had a signature line for Baker's signature. Baker signed the letter on November 11, 1993. Id. He sent the letter back to the Forest Service where it was received December 13, 1993. See, AR at 22.

Meanwhile, the Forest Service was receiving comments from other agencies. On November 22, 1993, the Idaho Department of Fish and Game sent a letter repeating concerns made earlier (in their February 11, 1993 letter discussed above) about the potential harm to salmon, steelhead, and bull trout from sediment released into the river by the mining activity. See, AR at 62. The National Marine Fisheries Service also wrote on November 23, 1993, expressing concerns that Baker's mining activity may harm the chinook salmon. See, AR at 61. The letter indicated that a NMFS staff member observed on October 15, 1993, that Baker had left large mounds of soil near the Yankee Fork. The staff member feared that erosion would pull much of this soil into the stream, threatening the salmon. The letter concluded that the Forest Service

should initiate and conclude emergency consultation ... on immediate mitigation measures that will be taken in the near term to reduce adverse risks to listed salmon. This emergency consultation must then be followed by a formal consultation to fully satisfy ESA section 7(a)(2).... Pending completion of these consultations, the USFS should make no irreversible or irretrievable commitment of resources with respect to the subject actions.

Id. at p. 3.

Baker called District Ranger Johnson on December 6, 1993, and was informed that the approval of the plan had been withdrawn. See, Affidavit of Baker at p. 10 (Docket No. 8). District Ranger Johnson confirmed the withdrawal of the approval in a letter dated December 8, 1993. That letter states in pertinent part as follows:

The basis for withdrawing this decision is to follow the consultation process with National Marine Fisheries Service (NMFS) concerning the threatened chinook salmon as outlined in Section 7 of the Endangered Species Act (ESA). We will also have the opportunity to review and clarify the analysis of the proposal under new regulations pertaining to the National Environmental Policy Act (NEPA).

See, Exhibit D to Complaint (Docket No. 1).

Baker appealed this decision to the Forest Supervisor of the Challis National Forest, Charles C. Wildes. Wildes dismissed the appeal, concluding as follows:

The Yankee Fork Ranger District had not received the executed copy of their November 4, 1993 letter from you, prior to informing you (on December 8, 1993) that the November 4, 1993 letter was no longer applicable. Based on this, I find that the District Ranger voided his letter of November 4, 1993 prior to there being an approved Plan in existence. This being the case, there was no approved Plan of Operations in existence to be "withdrawn".... Your Notice of Appeal is hereby dismissed and the record is closed without a decision on the merits....

See, AR at 34.

Baker then appealed to the Regional Forester. That appeal was denied without comment except to indicate that the denial was "the final administrative determination of the Department of Agriculture." See, AR at 28.

Baker responded by filing a complaint in this Court...

To continue reading

Request your trial
5 cases
  • Siskiyou Regional Education Project v. Rose
    • United States
    • U.S. District Court — District of Oregon
    • December 13, 1999
    ...plan and prohibit mining activity until it has evaluated the plan and imposed mitigation measures. Baker v. U.S. Dept. Of Agriculture, 928 F.Supp. 1513, 1518 (D.Idaho 1996). In Weiss, the court found that where mining activities disturb the national forest lands, Forest Service regulation i......
  • Douglas Timber Operators Inc. v. Salazar
    • United States
    • U.S. District Court — District of Columbia
    • March 31, 2011
    ...to be equivalent to a plan modification that must proceed through traditional regulatory procedures. See Baker v. U.S. Dep't of Agriculture, 928 F.Supp. 1513, 1524 (D.Idaho 1996) (ruling that agency's authority to modify a plan of operation—by withdrawing its prior approval—was specifically......
  • Park Lake Resources Ltd. Co. v. US. Dept., 98-1020
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • November 19, 1999
    ...of mining operations on forest land causing unwarranted surface destruction under 30 U.S.C. § 612); Baker v. United States Dep't of Agriculture, 928 F. Supp. 1513, 1515 (D. Idaho 1996) (Forest Service required restrictions on mining operations plan citing requirements of Endangered Species ......
  • Center for Biological Diversity v. Dept. of Inter., CV 01-1758-PHX-ROS.
    • United States
    • U.S. District Court — District of Arizona
    • March 31, 2003
    ...has not done so. So long this regulation remains in force the Executive Branch is bound by it ...."); Baker v. United States Dep't of Agriculture, 928 F.Supp. 1513, 1524 (D.Idaho 1996) ("It is a well-established rule that an agency is bound to follow the regulations it issues. Those under t......
  • Request a trial to view additional results
3 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT