Karuk Tribe of Cal. v. U.S. Forest Service, C 04-4275 SBA.

• Citation: 379 F.Supp.2d 1071
• Decision Date: 01 July 2005
• Docket Number: No. C 04-4275 SBA.,C 04-4275 SBA.
• Parties: KARUK TRIBE OF CALIFORNIA, Plaintiff, v. UNITED STATES FOREST SERVICE, et al., Defendants.
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California

379 F.Supp.2d 1071

KARUK TRIBE OF CALIFORNIA, Plaintiff, v. UNITED STATES FOREST SERVICE, et al., Defendants.

No. C 04-4275 SBA.

United States District Court, N.D. California.

July 1, 2005.

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James Russell Wheaton, Iryna A. Kwasny, Joshua Borger, Roger Flynn, Oakland, CA, Jeffrey C. Parson, Boulder, CO, for Plaintiff.

Barclay Thomas Samford, U.S. Dept. of Justice, Environment & Natural Resources Division, Denver, CO, Brian C. Toth, US Dept of Justice, Env't & Natural Resources Div. General Litigation Section, Washington, DC, James L. Buchal, Portland, OR, Robert Dabney Eastham, Seiad Valley, CA, for Defendants.

ORDER

ARMSTRONG, District Judge.

This matter comes before the Court on Plaintiff's Motion for Summary Judgment [Docket No. 54], Defendants' Motion to Strike Portions of Plaintiff's Declaration of Toz Soto [Docket No. 59], and the Miners' Motion for Miscellaneous Relief Concerning the Record [Docket No. 65]. Having read and considered the arguments presented by the parties in the papers submitted to the Court, the Court finds this matter appropriate for resolution without a hearing. The Court hereby GRANTS Defendants' Motion to Strike Portions of Plaintiff's Declaration of Toz Soto, GRANTS IN PART and DENIES IN PART the Miners' Motion for Miscellaneous Relief Concerning the Record, and DENIES Plaintiff's Motion for Summary Judgment.

BACKGROUND

I. Factual and Regulatory Background.

A. The Parties.

Plaintiff Karuk Tribe of California ("Plaintiff" or the "Tribe") is a federally-recognized Indian Tribe located in Happy Camp, California. Second Amended Complaint ("SAC") ¶ 11. The Tribe has lived in northern California since time immemorial. Declaration of Leaf Hillman ("Hillman Decl.") at ¶ 3. The Tribe works to protect certain fish species and the water quality of the streams and rivers in the Klamath National Forest. Id. ¶ 12. A primary concern of the Tribe is the protection and restoration of native fish and wildlife species that the Tribe has depended upon for traditional, cultural, religious, and subsistence uses. Hillman Decl. ¶ 3. The center of the Karuk world is Katimin, where the Salmon River meets the Klamath River. Id.

Defendant United States Forest Service ("Forest Service") is an agency of the United States Department of Agriculture. Id. ¶ 16. Defendant Margaret Boland is the Supervisor for the Klamath National Forest. Id. The Forest Service is responsible for implementing all laws and regulations relating to the management of the Klamath National Forest. Id. ¶ 16.

Intervenor the New 49'ers, Inc. (the "New 49'ers") is a California corporation with a principal place of business in Happy Camp, California. Miners' Answer to Second Amended Complaint ("Miners' Answer") ¶ 3. The New 49'ers own or control numerous mining claims in a 60-mile area surrounding the Salmon, Klamath, and Scott Rivers. SAC ¶¶ 36-37. The New 49'ers also leases many of its mining claims located along these rivers to its members. Miners' Answer ¶ 3. Intervenor Raymond W. Koons ("Koons") is an individual who resides in Happy Camp. Id. He is also the owner of several unpatented mining claims located around the Klamath River. Id. Koons leases his mining claims to the 49'ers (the New 49'ers and Koons are collectively referred to herein as the "Miners"). Id.

B. The Applicable Mining Regulations.

Mining in national forests is governed by the General Mining Law of 1872 ("General Mining Law"), which confers a statutory right upon citizens to enter certain public lands for the purpose of prospecting. See 30 U.S.C. § 22, as amended by 30 U.S.C. § 612 (the "Surface Resources Act of 1955"). Pursuant to the General Mining Law, "Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States ... shall be free and open to exploration and purchase." Id.

The application of the General Mining Law to national forests was specifically affirmed by Congress in the Organic Act, 16 U.S.C. §§ 478 et seq., which makes the national forests "subject to entry under the existing mining law of the United States and the rules and regulations applying thereto." See 16 U.S.C. § 482; see Wilderness Society v. Dombeck, 168 F.3d 367, 374 (9th Cir.1999). The Organic Act allows the Secretary of Agriculture to make rules regulating the "occupancy and use [of national forest land] and to preserve the forests thereon from destruction." 16 U.S.C. § 551. However, the Organic Act also expressly states that it "shall [not] be construed as prohibiting ... any person from entering upon such national forests for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof." 16 U.S.C. § 478.

In 1974, pursuant to the Organic Act, the Forest Service promulgated regulations governing the use of surface resources in connection with the mining activities on national forests. See 39 Fed. Reg. 31317 (Aug. 28, 1974) (presently codified as amended at 36 C.F.R. Part 228, subpart A (referred to herein as the "Part 228 regulations")). Before the Forest Service issued the final regulations, the House Committee on Interior and Insular Affairs, Subcommittee on Public Lands (the "Subcommittee") held oversight hearings and heard testimony from the Chief of the Forest Service and representatives from both the mining and environmental communities. Id. Following these hearings, the Subcommittee chairman wrote the Chief of the Forest Service and stated that "the 1897 [Organic] Act clearly cannot be used as authority to prohibit prospecting, mining, and mineral processing" in national forests. See Letter from Rep. John Melcher to John McGuire, Forest Service Chief (June 20, 1974), reproduced in S. Dempsey, Forest Service Regulations Concerning the Effect of Mining Operations on Surface Resources, 8 Nat. Res. Law 481, 497-504 (1975). He further urged that the final regulations be reasonable and not "extend further than to require those things which preserve and protect the National Forests from needless damage by prospectors and miners." Id. The Subcommittee chairman also specifically expressed concerns regarding "the possibility of unreasonable enforcement of the regulations, with resulting cost increases that could make otherwise viable mineral operations prohibitively expensive." 39 Fed. Reg. 31317.

Due to the Subcommittee's concerns, the chairman ultimately recommended the adoption of a "simple notification procedure" that would enable the Forest Service to determine whether the miner would be required to submit a more comprehensive plan of operation ("PoO") before proceeding with mining operations. 8 Nat. Res. Law at 500. As the chairman explained:

An effort [should] be made to define more precisely what sort of prospecting would be excepted from the requirement to file operating plans. The National Wildlife Federal, the American Mining Congress, and the Idaho Mining Association[] all seem to agree that prior notification of proposed operations is a reasonable requirement. The Subcommittee therefore recommends that the Forest Service provide a simple notification procedure in any regulations it may issue. The objective in so doing would be to assist prospectors in determining whether their operations would or would not require the filing of an operating plan. Needless uncertainties and expense in time and money in filing unnecessary operating plans could be avoided thereby.

Id.

In response, the Forest Service stated that it "recognize[d] that prospectors and miners have a statutory right, not mere privilege, under the 1872 mining law and the Act of June 4, 1897, to go upon and use the open public domain lands of the National Forest System for the purposes of mineral exploration, development and production." 39 Fed. Reg. 31317. The Forest Service also acknowledged that "[e]xercise of that right may not be unreasonably restricted." Id. To address the Subcommittee's concerns, the Forest Service adopted a final rule that included a provision for notices of intent ("NOIs"). The Forest Service also noted that a "specific provision [was] made in the operating plan approval section of the regulations [that] charg[ed] Forest Service administrators with the responsibility to consider the economics of operations, along with the other factors, in determining the reasonableness of the requirements for surface resource protection." Id. In accordance with the National Environmental Policy Act, a Final Environmental Impact Statement was prepared and filed that discussed the environmental impact of the regulations. Id.

The regulations, as originally promulgated, provided that, with certain exceptions, "a notice of intention to operate [would be] required from any person proposing to conduct operations which might cause disturbance of surface resources." 39 Fed. Reg. 31317. They further provided that, "[i]f the District Ranger determines that such operations will likely cause significant disturbance of surface resources, the operator [would be required to] submit a proposed plan of operations to the District Ranger." Id. Additionally, the regulations provided that the "requirements to submit a plan of operations [would] not apply... to individuals desiring to search for and occasionally remove small mineral samples or specimens [or] to prospecting and sampling which will not cause significant surface resource disturbance" and that a "notice of intent need not be filed... for operations which will not involve the use of mechanized earthmoving equipment such as bulldozers or backhoes and will not involve cutting of trees." Id. at 36 C.F.R. § 252.4(a)(2).¹ All persons entering national forests for mining purposes were required to comply with the regulations after their promulgation. See 16 U.S.C. § 482.

C. The Northwest Forest Plan.

In 1994, the Secretaries of the Interior and Agriculture...