Karuk Tribe of Cal. v. United States Forest Serv.

• Decision Date: 07 April 2011
• Docket Number: No. 05–16801.,05–16801.
• Citation: 72 ERC 1513,640 F.3d 979,11 Cal. Daily Op. Serv. 4186,2011 Daily Journal D.A.R. 5063
• 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: U.S. Court of Appeals — Ninth Circuit

640 F.3d 979

72 ERC 1513

11 Cal. Daily Op. Serv. 4186

2011 Daily Journal D.A.R. 5063

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 July 13, 2010.Filed April 7, 2011.

Roger Flynn (argued) and Jeffrey C. Parsons, Western Mining Action Project, Lyons, CO, for plaintiff-appellant Karuk Tribe of California.John C. Cruden, Acting Assistant Attorney General, Washington, D.C.; Andrew C. Mergen, David C. Shilton, and Lane N. McFadden (argued), Environmental & Natural Resources Division, United States Department of Justice, Washington, D.C.; Andrew R. Varcoe and Rose Miksovsky, Office of the General Counsel, United States Department of Agriculture, Washington, D.C., for defendants-appellees United States Forest Service, et al.James L. Buchal, Murphy & Buchal LLP, Portland, OR, for defendants-intervenors-appellees The New 49'ers, et al.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: WILLIAM A. FLETCHER and MILAN D. SMITH, JR., Circuit Judges, and JAMES D. TODD, Senior District Judge.^*Opinion by Judge MILAN D. SMITH, JR.; Dissent by Judge WILLIAM A. FLETCHER.

OPINION

M. SMITH, Circuit Judge:

Section 7 of the Endangered Species Act (ESA), 16 U.S.C. § 1536(a)(2), requires interagency consultation for any federal agency action that may affect a listed species. In this opinion, we determine whether a United States Forest Service (USFS) District Ranger's (Ranger) decision that a proposed mining operation may proceed according to the miner's Notice of Intent (NOI) and will not require a Plan of Operations (Plan) is an “agency action” for purposes of triggering the ESA's interagency consulting obligations.

We hold that the NOI process does not constitute an “agency action,” as that term is defined under the ESA. The Ranger's receipt of an NOI and resulting decision not to require a Plan is most accurately described as an agency decision not to act. Because “ ‘inaction’ is not ‘action’ for section 7(a)(2) purposes,” W. Watersheds Project v. Matejko, 468 F.3d 1099, 1108 (9th Cir.2006), we affirm the district court's denial of summary judgment on the Tribe's ESA challenge to the NOI process.

FACTUAL AND PROCEDURAL BACKGROUND

I. Gold and Silver Salmon

The Klamath River (River) runs from Oregon, through California, to the Pacific Ocean. As it winds through Northern California, it crosses through the lands that have been home to the Plaintiff–Appellant Karuk Tribe of California (the Tribe) since time immemorial. The River is a designated critical habitat of the Coho, or silver, salmon ¹ and various other fish species, and is a source of cultural and religious significance to the Tribe, who depend upon it for the fish and other subsistence uses.

The River also contains gold deposits. As erosion and other natural processes loosen gold from hard rock in and around the River, the gold travels downstream and settles at the bottom, underneath the lighter sediments but above the bedrock. One method of retrieving this gold is by using a suction dredger, a machine that vacuums a small area of the riverbed and extracts the gold from the other sediments. Because the precise mechanics of suction dredging are not relevant to our disposition and are ably described in Siskiyou Regional Education Project v. Rose, 87 F.Supp.2d 1074, 1081–82 (D.Or.1999), and other decisions cited herein, we do not repeat them here. Suffice it to say that suction dredgers are mechanical equipment, and accordingly, may not be used on federal forest lands without formally notifying the USFS, see 36 C.F.R. § 228.4(a) (2004).² The suction dredge mining activity conducted by the individual gold miners represented in this suit by the Defendants–Intervenors The New 49'ers is best described as small-scale suction dredge gold mining (a few cubic inches at a time) performed for recreational purposes.

The Tribe contends that even small-scale suction dredge mining, especially when conducted by sufficient numbers of people with sufficient frequency, significantly disturbs surface resources and destroys aquatic habitat. In particular, the Tribe offers expert evidence that suction dredging kills salmonid and other fish eggs, kills fish food sources, destabilizes riverbed areas used for spawning, and otherwise disturbs the fish and their reproductive activities. The New 49'ers disagree, and contend that there is no evidence that the very small-scale suction dredging at issue in this case causes any harm to the Coho salmon.³ Because the standard for ESA consultation is only whether the conduct “may affect” a listed species, see Pac. Rivers Council v. Thomas, 30 F.3d 1050, 1055 (9th Cir.1994), the district court did not resolve this factual dispute, and neither must we. We assume the Tribe has established that suction dredge mining may affect the Coho salmon. See Siskiyou Reg'l Educ. Project v. U.S. Forest Serv., 565 F.3d 545, 550 & n. 2 (9th Cir.2009). In fact, the Tribe, the USFS, and The New 49'ers met for the purpose of discussing what criteria the USFS should consider when deciding whether a Plan will be required for a proposed suction dredge operation. Most of the discussion at that meeting centered on what those miners who do not want to have to submit a Plan should do to avoid disturbing fish and aquatic habitat, suggesting that the USFS would admit that at least some suction dredging activities “may affect” the Coho salmon.

II. Statutory and Regulatory Background

The Organic Administration Act, 16 U.S.C. §§ 473–78 (1897) (the Organic Act), provides that federal forest lands are subject to the United States mining laws, including the General Mining Law of 1872, 30 U.S.C. § 22, as amended by 30 U.S.C. § 612. Under the mining laws, citizens are entitled to enter public lands for the purpose of prospecting and removing mineral deposits. The Organic Act further provides that prospectors and miners entering federal forest lands “must comply with the rules and regulations covering such national forests.” 16 U.S.C. § 478. The government's regulatory authority (vested in the Secretary of Agriculture and, derivatively, the USFS), however, does not go so far as to permit it to “ prohibit 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.” Id. (emphasis added). Indeed, “[e]xercise of th[e] right [to enter federal lands for prospecting] may not be unreasonably restricted.” National Forests Surface Use Under U.S. Mining Laws, 39 Fed.Reg. 31,317 (Aug. 28, 1974) (hereinafter Forests Use Under Mining Laws) (emphasis added).

The Organic Act thus creates a regulatory scheme whereby the USFS may regulate mining activity on federal forest lands “to preserve the forests thereon from destruction,” 16 U.S.C. § 551, but may not otherwise interfere with or prohibit the activities permitted under the mining laws. See Siskiyou, 565 F.3d at 557–58. To achieve an appropriate balance between mining rights and environmental preservation, the USFS promulgated regulations, which are the source of the present controversy.

The relevant regulations, set forth as 36 C.F.R. § 228.4(a), outline a three-tiered approach to regulating mining in the national forests. The regulatory scheme is based on the touchstone “disturbance of surface resources.” 36 C.F.R. § 228.4(a).⁴ The regulations first describe certain de minimis activities, such as gold panning, that citizens may conduct without involving the USFS. See id. § 228.4(a)(1) (listing activities that require no notice to the USFS, including use of existing roads, mineral sampling, marking out a mining claim, and other activities that “will not cause significant surface resource disturbance”). Second are activities that “might cause disturbance of surface resources.” Id. § 228.4(a). The person intending to engage in such an activity must submit a “notice of intent to operate” to the Ranger—an NOI. Third are activities that are “likely [to] cause significant disturbance of surface resources.” Id. These activities require a Plan, which may include, among other things, specific conditions requiring the proposed operator to ensure environmental preservation. Operations requiring a Plan cannot be conducted until the Ranger approves the Plan. See id. § 228.5.

Upon receipt of an NOI, the Ranger decides, within his discretion, whether the activities described in the NOI are likely to significantly disturb surface resources and will consequently require a Plan to be submitted for the USFS's approval. 36 C.F.R. § 228.4(a); Siskiyou, 565 F.3d at 551. When the USFS clarified its regulations in 2005, it explained that:

The requirement for prior submission of a notice of intent to operate alerts the Forest Service that an operator proposes to conduct mining operations on [National Forest Service (NFS) ] lands which the operator believes might, but are not likely to, cause significant disturbance of NFS surface resources and gives the Forest Service the opportunity to determine whether the agency agrees with that assessment such that the Forest Service will not exercise its discretion to regulate those operations.

Clarification as to When a Notice of Intent To Operate and/or Plan of Operation Is Needed for Locatable Mineral Operations on National Forest System Lands, 70 Fed.Reg. 32,713, 32,720 (June 6, 2005) (hereinafter NOI Clarification). In other words, the purpose of submitting an NOI is “to provide the Forest Service District Ranger with sufficient information to determine if the level of disturbance will require a Plan and a detailed environmental analysis.” U.S. Forest Serv., Notice of Intent...