Lilliputian views 9th Circuit decision

The 9th Circuit handed down an en banc ruling on June 1, 2012, counter-posing placer mining on federal claims within the national forest along the Klamath River pursuant to a 36 CFR 228.4 Notice of Intent and Section 7 of the Endangered Species Act. Karuk Tribe of California v. U. S. Forest Service, No. 05-16801. Unsurprisingly, the majority ruled against the USFS and concomitantly against the miners on the single question of whether before consenting to a notice of intent, NOI, the Forest Service had to consult with the Fish and Wildlife Service about whether the activities contemplated in the NOI would adversely impact the "threatened" coho salmon habitat in the Klamath River system.

As an administrative appeal, the matter was dealt with solely on the record compiled by the agency; and, inferentially, there was no significant discussion in the opinion as to whether the contemplated mining operations actually would have any impact on the coho population. On the contrary, the question upon which the majority focused was whether the ESA required consultation in the case of a "no action" decision, or whether the USFS could rely on its own biologists in consenting to the NOI.

The regulations in place in 2004, when the NOI was approved (substantially the same as the current regulations), differentiated among three categories of mining: de minimis activities, such as panning and the collection of samples, that "will not cause" significant disturbance of surface resources; activities that "might cause" disturbance of surface resources which require the preparation of a NOI, that would put the USFS on notice of the proposed activities and allow the USFS to determine whether a more detailed Plan of Operations must be prepared; and activities that "will likely cause" significant disturbance and do require an approved Plan of Operations.

The first category requires no USFS action, the second requires the USFS to decide within 15 days whether a Plan of Operation is required and the third category gives the USFS 30 days (with extensions if necessary, up to 90 days) to approve the Plan of Operation and appropriate stipulations.

For small operators with little staff or resources to deal with bureaucratic delays, this reasonable timeline is functional and appropriate.

In the case of the challenged NOIs, the applicants apparently were cooperative with USFS concerns and made suitable modifications in their respective notices which resulted in timely approvals.

The Klamath Tribe, represented by the Western Mining Action Project (read Roger Flynn), on the other hand sought and succeeded in persuading seven of the 11 judges on the panel hearing the case, that consultation with the U.S. Fish and Wildlife Service was mandated under the ESA. The net result from the decision was to extend the application period for a maximum of 15 days to a minimum of 90 days.

For Alaska miners, this decision is not likely to have a huge impact, because there is very little NOI placer mining on-going in our two forests; however, as always, the precedent is disturbing. The Bureau of Land Management has analogous rules (43 CFR 3809) concerning operations on the public domain. Operations on anadromous fish streams which could be pursued on the basis of a NOI may now be at risk of falling into the bureaucratic abyss. Key holding of the court was that although these mining activities are of "marginal" impact for the purposes of NEPA, the review the standard for ESA consultation is even lower.

The opinion was not unanimous. Four judges on the panel signed on to a stinging dissent which focused on the costs and delays of the ESA's "arduous interagency consultation process." Referring to "Gulliver's Travels," the author of the dissent contended that "decisions such as this one, and some other environmental cases recently handed down by our court … undermine the rule of law, and make poor Gulliver's situation seem fortunate in the ligatures of new rules created out of thin air by such decisions."

The right to mine on the federal lands, subject to reasonable regulations, once again has taken a hit at the hands of the 9th Circuit.