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Court Says Forest Service Must Consult Before Allowing Small-Scale Mining In ESA Salmon Streams
Posted on Friday, June 08, 2012 (PST)

Salmon and gold played key roles in a judgment issued late last week in which a split federal appeals court said the U.S. Department of Agriculture’s Forest Service must take input from other federal agencies before making decisions on small-scale mining in fish critical habitat.


The U.S. Court of Appeals for the Ninth Circuit June 1 decision, by a 6-5 vote, said the Forest Service violated the Endangered Species Act by not consulting with the appropriate wildlife agencies before approving four “notices of intent” allowing mining activities in coho salmon critical habitat within the Klamath National Forest of southern Oregon and northern California.


The Forest Service decisions involved three individuals with mining claims and a recreational mining company.


The majority opinion said the ruling hinged on two factors.


“ESA requires consultation with the Fish and Wildlife Service or the NOAA Fisheries Service for any ‘agency action’ that ‘may affect’ a listed species or its critical habitat,” the opinion says.


“In approving the NOIs challenged in this case, the Forest Service made affirmative, discretionary decisions to authorize mining activities under specified protective criteria.” That satisfies the agency action criteria, according to the majority opinion written by Judge William A. Fletcher.


On the other question, Fletcher wrote, “The Forest Service does not dispute that the mining activities it approved in this case ‘may affect’ critical habitat of coho salmon in the Klamath River system. The Forest Service therefore had a duty under Section 7 of the ESA to consult with the relevant wildlife agencies before approving the NOIs.”


The dissenting opinion, written by Circuit Judge Milan D. Smith Jr., says that the NOI approvals are not final agency actions as defined by the ESA.


“Under the Forest Service’s regulations, a Notice of Intent is exactly what its name implies: a notice from the miner, not a permit or license issued by the agency. It is merely a precautionary agency notification procedure, which is at most a preliminary step prior to agency action being taken,” Smith wrote.


“By rendering the Forest Service impotent to meaningfully address low impact mining, the majority effectively shuts down the entire suction dredge mining industry in the states within our jurisdiction,” the dissenting opinion says.


“The informal Notice of Intent process allows projects to proceed within a few weeks. In contrast, ESA interagency consultation requires a formal biological assessment and conferences, and can delay projects for months or years.


“Most miners affected by this decision will have neither the resources nor the patience to pursue a consultation with the EPA; they will simply give up, and curse the Ninth Circuit.


“As a result, a number of people will lose their jobs and the businesses that have invested in the equipment used in the relevant mining activities will lose much of their value.”


Smith said the new Ninth Circuit is yet another example of the court stepping too far.


“… our job is constitutionally confined to interpreting laws not creating them out of whole cloth. Unfortunately, I believe the record is clear that our court has strayed with lamentable frequency from its constitutionally limited role (as illustrated supra) when it comes to construing environmental law,” Smith wrote. “When we do so, I fear that we undermine public support for the independence of the judiciary, and cause many to despair of the promise of the rule of law.”


The lawsuit was originally filed in 2004 by the Karuk Tribe, which contends that mining activities adversely affect fish, including coho salmon, in the Klamath River system. Coho there were listed as “threatened” under the ESA in 1997. The Karuk Tribe depends on coho salmon in the Klamath River system for cultural, religious, and subsistence uses.


The rivers and streams of the Klamath River system also contain gold. Commercial gold mining in and around the rivers and streams of California was halted long ago due, in part, to extreme environmental harm caused by large-scale placer mining, according to background information included in the June 1 opinion.


But, small-scale recreational mining has continued. Some recreational miners “pan” for gold by hand, examining one pan of sand and gravel at a time. Some conduct “motorized sluicing” by pumping water onto streambanks to process excavated rocks, gravel, and sand in a sluice box for sifting.


Some recreational miners conduct mechanical “suction dredging” within the streams themselves. These miners use gasoline-powered engines to suck streambed material up through flexible intake hoses. The streambed material is deposited into a floating sluice box, and the excess is discharged in a tailings pile in or beside the stream.


En banc means “by the full court” or “full bench.” U.S. courts of appeals usually sit in panels of three judges, but may expand to a larger number in certain cases. They are then said to be sitting en banc.


In this case a divided three member panel in April 2011 affirmed the district court’s denial of summary judgment, holding that the Forest Service’s decision to allow proposed mining activities to proceed pursuant to a NOI did not constitute “agency action.” The Ninth Circuit later agreed to rehear the case en banc.


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