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9th Circuit says Forest Service need not consult on suction mining in Klamath River because no "agency action" allowed the mining activity

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Karuk Tribe of California v. U.S. Forest Service, 640 F.3d 979 (9th Cir. 2011).

FACTUAL BACKGROUND: 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 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 (pictured below from Klamath Riverkeeper). 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).  

ISSUE: 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. In this appeal, the Tribe challenges the USFS’s decision to “accept” four NOIs without consulting with other agencies about the biological effects of the miners’ conduct. Further parsing the issue, the Ninth Circuit considered whether a U.S. Forest Service (USFS) District Ranger’s decision that a proposed mining operation may proceed (in accordance with the miner’s notice of intent, and even without requiring a plan of operations) is an “agency action” for purposes of triggering the ESA’s interagency consultation obligations.  The District Court had entered final judgment in favor of the USFS and denied the Tribe’s request for summary judgment.

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SUMMARY: The Ninth Circuit held that a miner’s notice of intent is not “agency action,” and activities described in a miner’s notice of intent are neither funded nor carried out by the USFS.  Thus, the Tribe bore the burden of showing that the activities described in a notice of intent are “authorized” by the USFS.  The Court stated that resolution depends on the proper characterization of what the USFS does with respect to an NOI and the activities described therein.  The USFS argued that it has no power to “authorize” mining activities described in a notice of intent because the miners already possess the right to mine under the mining laws, and that the permits to engage in such mining are granted by other state and federal bodies.  While the USFS has some power to require miners to seek its approval and submit to reasonable USFS regulation, such power only materializes once the USFS determines that the activity is likely to cause significant disturbance of surface resources.  The USFS conceded that ESA consultation is required before it can approve a Plan, but argued that the Ranger’s decision not to require a Plan for the proposed activities is essentially a decision not to act and a recognition of its lack of discretionary authority over the proposed activities.  Therefore, the USFS would have no remaining discretionary involvement with or control over mining operations that it could exercise for the benefit of listed species.  The Court relied on prior case law and concluded that the notice of intent process was designed to be a notification procedure and that it is not “authorization” of private activities when those activities are already authorized by other law.  There is also nothing the USFS can do to enforce the conditions it sets forth in an NOI response, short of its authority to require a Plan.  The notice of intent is a precautionary agency notification procedure which is at most a preliminary step prior to agency action being taken.  

EXCERPT:  In short, we find Western Watersheds, 468 F.3d 1099, and Sierra Club v. Babbitt, 65 F.3d 1502, particularly applicable because, in both of those cases as well as this one, prior law (or contract) endowed the private parties with the “right, not mere privilege” . . . to engage in the activities at issue.  Where the agency is not the authority that empowers or enables the activity, because a preexisting law or contract grants the right to engage in the activity subject only to regulation, the agency’s decision not to regulate (be it based on a discretionary decision not to regulate or a legal bar to regulation) is not an agency action for ESA purposes...  The mining laws provide miners like The New 49’ers with the “right, not the mere privilege” to prospect for gold in the Klamath River and its tributaries. We therefore find it is most accurate to say that the mining laws, not the USFS, authorize the mining activities at issue here. The USFS has adopted a simple review process to sort between those mining activities it will regulate in order to conserve forest resources, and those activities it will not regulate because such regulation would be unnecessary and unduly interfere with mining rights. The USFS’s limited and internal review of an NOI for the purpose of confirming that the miner does not need to submit a Plan for approval (because the activities are unlikely to cause any significant disturbance of the forest or river) is an agency decision not to regulate legal private conduct. In other words, the USFS’s decision at issue results in agency inaction, not agency action.

DISSENT (W. FLETCHER, Circuit Judge): By definition, suction dredge mining pursuant to an NOI is mining that “might cause” ”significant disturbance of surface resources,” including the surface resource of  fisheries habitat.” The Forest Service does not dispute that such mining “may affect” critical habitat of coho salmon in the Klamath River system within the meaning of Section 7 of the ESA. The Forest Service therefore has an obligation under Section 7 to consult with the relevant agencies at some point in the process of allowing such mining. The Forest Service had several available choices. It could have consulted under Section 7 when it promulgated the regulation for dredge mining under NOIs. That is, it could have consulted when it set the threshold criterion for an NOI as mining that “might cause significant disturbance of surface resources” including fisheries habitat. Or it could have consulted under Section 7 when it formulated habitat-protective criteria for approving NOIs. That is, it could have consulted when District Ranger Vandiver formulated his criteria for approving the NOIs for the Happy Camp District. Or, finally, in the absence of criteria such as those formulated for the Happy Camp District, it could have consulted under Section 7 with respect to each individual NOI. The one choice that was not available to the Forest Service was never to consult. Yet that is the choice the Forest Service made. In making that choice, the Forest Service violated Section 7 of the ESA. I respectfully but emphatically dissent from the conclusion of the majority to the contrary.