Siskiyou Regional Educ. v. U.S. Forest Service

Decision Date07 May 2009
Docket NumberNo. 06-35332.,No. 06-35381.,No. 06-35373.,06-35332.,06-35373.,06-35381.
Citation565 F.3d 545
PartiesSISKIYOU REGIONAL EDUCATION PROJECT, Plaintiff-Appellant, v. UNITED STATES FOREST SERVICE; Scott Conroy, Forest Supervisor Siskiyou National Forest; Lisa Barton; Robert Barton; Gerald Hobbs, Defendants-Appellees. Siskiyou Regional Education Project, Plaintiff-Appellee, v. United States Forest Service; Scott Conroy, Forest Supervisor Siskiyou National Forest; Gerald Hobbs, Defendants, and Lisa Barton; Robert Barton; Lisa Barton; Robert Barton, Waldo Mining District, Defendants-Appellants. Siskiyou Regional Education Project, Plaintiff-Appellee, v. United States Forest Service; Scott Conroy, Forest Supervisor Siskiyou National Forest; Lisa Barton; Robert Barton, Defendants, Waldo Mining District, Defendant, and Gerald Hobbs, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Peter M.K. Frost, Western Environmental Law Center, Eugene, OR; Roger Flynn, Jeffrey C. Parsons, Western Mining Action Project, Lyons, CO, for plaintiff-appellant Siskiyou Regional Education Project.

Sue Ellen Woolridge, Lane M. McFadden, Lisa Jones, Brian C. Toth, attorneys, Environmental & Natural Resources Division, Department of Justice, Washington, DC, for defendant-appellee United States Forest Service.

James L. Buchal, Murphy & Buchal LLP, Portland, OR, for Robert Barton.

David Young, Law Offices of David Young, Los Angeles, CA; Christopher L. Cauble, Cauble, Dole & Sorenson, Grants Pass, OR, for Gerald Hobbs.

Appeal from the United States District Court for the District of Oregon, Michael R. Hogan, District Judge, Presiding. D.C. Nos. CV-03-03013-JPC, CV-03-03013-HO.

Before PAMELA ANN RYMER, THOMAS G. NELSON and RICHARD A. PAEZ, Circuit Judges.

OPINION

PAEZ, Circuit Judge:

Siskiyou Regional Education Project ("SREP") and intervenor miners Robert Barton ("Barton") and Gerald Hobbs ("Hobbs") appeal the district court's rulings in favor of the United States Forest Service ("Forest Service") on claims brought in connection with the Forest Service's interpretation of Mineral Management Standard and Guideline MM-1 ("MM-1"), a mining-related directive contained in the Forest Service's Northwest Forest Plan ("NFP").

The NFP provides that Standards and Guidelines do not apply when contrary to existing law or regulation. Although 36 C.F.R. § 228.4(a) (2002), a Forest Service mining regulation, was in force when MM-1 was adopted, MM-1 and § 228.4(a) conflict in the extent of regulatory oversight of small mining operations in riparian reserves. Specifically, § 228.4(a) confers discretionary authority on district rangers to determine whether mining activity will result in significant disturbance to surface resources and therefore require a plan of operations. MM-1 appears to conflict with § 228.4(a) because it directs the district ranger to require a plan of operations for all mining activity within riparian reserves. To resolve this apparent conflict, in February 2002 the Forest Service interpreted MM-1 to impose the same threshold standard for a plan of operations as § 228.4(a). The Forest Service's interpretation of MM-1 lies at the heart of this dispute.

The district court rejected SREP's challenge to the Forest Service's interpretation of MM-1, and granted summary judgment to the Forest Service. The district court also limited intervention by Barton and Hobbs to the remedial phase of the litigation, if necessary. The court dismissed as moot Barton's separate action that had been consolidated with SREP's suit. The court also struck Hobbs's Answer to SREP's First Amended Complaint on the ground that it raised claims that exceeded Hobbs's limited role in the litigation.

On appeal, SREP challenges the district court's grant of summary judgment in favor of the Forest Service. SREP maintains that the Forest Service's interpretation of MM-1 as "contrary to" § 228.4(a), and thus without force insofar as it imposes additional restrictions on mining activity in riparian reserves, was arbitrary and capricious. Barton appeals the district court's denial of his motion to intervene at the merits phase of SREP's suit against the Forest Service, which would have permitted him to assert that the Forest Service lacks the authority to regulate mining under the NFMA. He also challenges dismissal of his separate action as moot. Barton argues that because the National Forest Management Act of 1976 ("NFMA") does not grant the Forest Service authority to regulate mining, its attempt to do so in the NFP is unenforceable.1 Barton further argues that even if the Forest Service is vested with this authority, its interpretation of MM-1 was reasonable and entitled to deference. Last, Hobbs argues that the counterclaims and affirmative defenses he raised in his Answer to SREP's First Amended Complaint were improperly stricken.

At the outset, we conclude that, contrary to the Forest Service's objections, we have jurisdiction over final agency action pursuant to 28 U.S.C. § 1291. We affirm both the district court's grant of summary judgment in favor of the Forest Service, and the court's rulings regarding Barton and Hobbs.

I. FACTUAL AND PROCEDURAL HISTORY Streams and Mining in the Siskiyou National Forest

The Siskiyou National Forest contains streams and rivers that provide habitat for several fish species, including coho and chinook salmon and steelhead trout. Several of these species, including coho salmon, have been listed as threatened or at risk under the Endangered Species Act. See, e.g., 70 Fed.Reg. 37160, 3170-71 (June 28, 2005). Many of these same waterways have also been subject to gold mining claims since the mid-1800s. Currently, gold miners work the streams and rivers within the forest with "suction dredges," machines that separate gold from streambed material using a gasoline-powered motor that draws streambed material up through a flexible, two-to-four-inch intake hose and then discharges the material back into the stream bed. The co-existence of protected fish species and mining operations in streams and rivers raises concern because suction dredges are a popular method of mining the waterways within the forest, yet may cause harm to endangered fish.2

Regulatory History

A complex, interlocking web of statutes and regulations sets forth the Forest Service's authority to regulate mining operations in the streams and rivers within the Siskiyou National Forest. Historically, mining operations on public lands were subject to little regulation. See generally Laura S. Ziemer, The 1872 Mining Law and the 20th Century Collide: A Rediscovery of Limits on Mining Rights in Wilderness Areas and National Forests, 28 Envt'l L. 145, 146-47 (1998). The General Mining Act of 1872 (codified as amended in scattered sections of 30 U.S.C.), and the National Park Service Organic Act of 1897 ("Organic Act") (codified as amended in scattered sections of 16 U.S.C.) granted the Forest Service the authority to promulgate regulations for mining in national forests. See United States v. Shumway, 199 F.3d 1093, 1106-07 (9th Cir.1999) (quoting 16 U.S.C. §§ 478 and 551). Pursuant to its authority under the Organic Act, the Forest Service first adopted mining regulations in 1974. See 39 Fed.Reg. 31317 (Aug. 28, 1974). When the Forest Service issued its February 2002 interpretation of MM-1 that SREP challenges here, 36 C.F.R. § 228.4(a) (2002)3 provided in pertinent part:

(a) Except as provided in paragraph (a)(2) of this section, a notice of intention to operate is required from any person proposing to conduct operations which might cause disturbance of surface resources. Such notice of intention shall be submitted to the District Ranger having jurisdiction over the area in which the operations will be conducted. If the District Ranger determines that such operations will likely cause significant disturbance of surface resources, the operator shall submit a proposed plan of operations to the District Ranger.4

36 C.F.R. § 228.4(a) (2002); see 36 C.F.R. § 228.4(a)(4) (2005). Although this regulation requires a notice of intent in certain circumstances, it vests discretion in the district ranger to determine if the mining operation "will likely cause significant disturbance of surface resources." Id. In the event of such a determination, the mining operator must submit a proposed plan of operations.

Section 228.4(a) contained five exceptions to the plan of operations requirement, including an exception for individuals desiring to search for and occasionally remove small mineral samples or specimens, and an exception for prospecting and sampling that does not cause significant surface resource disturbance or involve removal of more than a reasonable amount of mineral deposit for analysis and study. Id. at § 228.4(a)(1)(i)-(iv). Further, § 228.4(a) provided that "[a] notice of intent need not be filed: (i) Where a plan of operations is submitted for approval in lieu thereof, (ii) For operations excepted [by the provisions in § 228.4(a)(1)(i)-(v)]," and in certain other circumstances. Id. at § 228.4(a)(2).

Additionally, the NFMA requires the Forest Service to prepare for each forest a management plan that contains standards and guidelines specifying how the forest shall be managed. 16 U.S.C. §§ 1604(a), (e); Lands Council v. Powell, 395 F.3d 1019, 1032 (9th Cir.2005) ("[The] NFMA requires the Forest Service to create a comprehensive Forest Plan for each national forest." (citations omitted)). Pursuant to this requirement, the Forest Service first adopted a plan for the Siskiyou National Forest in 1989. That plan was amended in 1994, in response to President Clinton's call for management reform of federal lands and waters within the range of the northern spotted owl. See Record of Decision for Amendments to Forest Service and Bureau of Land Management Planning Documents Within the Range of the Northern Spotted Owl, Summary, April 13, 1994, ...

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