On March 19, 2013, U.S. Supreme Court declined to hear an appeal of the ruling in Karuk Tribe of California v. U.S. Forest Service, a Ninth Circuit en banc decision broadly construing the scope of the Endangered Species Act (ESA) consultation requirements.

By denying the petition for certiorari brought by recreational miners and other interests, the Supreme Court lets stand the Ninth Circuit's ruling, which broadens the scope of when consultation is required under Section 7 of the ESA to include instances where an agency makes a decision not to regulate an activity.

For the mining industry and other operations on U.S. Forest Service lands, the Supreme Court's action makes clear that low-impact mining operations that could previously operate pursuant to notices to the Forest Service now are confronted with the likely need to undergo lengthy and expensive consultation under the ESA. For the regulated community in general, the implications are broader, because reach of the ESA's consultation requirement is effectively expanded to apply to instances of agency "inaction."

The Supreme Court's Decision

On March 19, 2013, the U.S. Supreme Court denied a petition for certiorari brought by the New 49'ers and other interests challenging the Ninth Circuit Court of Appeals June 1, 2012 en banc ruling in Karuk Tribe of California v. U.S. Forest Service. With its decision, the Supreme Court lets stand the Ninth Circuit's ruling, which effectively shut down the suction dredge mining industry in the states within the Ninth Circuit's jurisdiction. The Ninth Circuit ruling also:

  1. Broadens the scope of when consultation is required under the ESA by expanding the definition of "agency action" under Section 7 of the act to include decisions by an agency not to regulate an activity; and
  2. Establishes a low threshold for when an activity "may affect" a listed species under the ESA.

In the underlying decision, the Ninth Circuit en banc panel held that the Forest Service erred in failing to consult with the U.S. Fish and Wildlife Service (FWS) and/or National Marine Fisheries Service (NMFS) under Section 7 of the ESA before approving Notices of Intent (NOIs) to conduct mining activities in critical habitat for the federally-listed coho salmon. Under the Forest Service's regulations, mining activities allowed under NOIs are not subject to Forest Service regulation. Nonetheless, the majority reasoned that the Forest Service's approval of the NOIs still amounted to "agency action" requiring consultation.

Background

The initial case was brought by the Karuk Tribe in 2004 challenging NOIs allowing suction dredge mining in the Klamath River, as well as other mining activities outside the river, such as motorized sluicing. The New 49′ers, a group of weekend mining hobbyists with gold mining claims along the Klamath River, intervened as a defendant in the litigation.

Under the Forest Service regulations regulating mining activities, a NOI is required for activities that "might cause" significant disturbance of surface resources. For activities that "will not cause" surface disturbance (i.e., "de minimis activities"), the miner may proceed with the activity without notifying the Forest Service. For activities that "will likely cause" significant disturbance of surface resources (including fisheries and wildlife habitat), a detailed "Plan of Operations" must be submitted by the miner to, and approved by, the Forest Service.

NOIs thus present the "middle ground" of mining activities on Forest Service lands, requiring a miner proposing such activities to submit a NOI to the District Ranger that identifies the area involved, the nature of proposed operations, the route of access, and the method of transportation. The District Ranger then has 15 days from receipt of the NOI to inform the miner whether a Plan of Operations is required, or if the proposed activity may proceed without further Forest Service regulation.

At Issue in the Case: (1) What amounts to "agency action" and (2) When an activity "may affect" a listed species or its habitat

Prior to the Ninth Circuit en banc panel's ruling in 2012, the U.S. District Court ruled against the tribe in 2005, and a split 3-judge Court of Appeals panel upheld that decision in 2011. The en banc panel focused on two main questions:

  1. The first question was whether the Forest Service's approval of four NOIs to conduct mining activities in the Klamath National Forest constituted "agency action" within the meaning of Section 7 of the ESA. The panel concluded that under established case law, "agency action" exists any time an agency makes an affirmative, discretionary decision regarding whether -- and under what conditions -- a private activity may proceed. The panel found that the record in the case demonstrated that the Forest Service's District Rangers made such affirmative, discretionary decisions in allowing mining to proceed under the NOIs, and that "In approving the NOIs ... the Forest Service made affirmative, discretionary decisions to authorize mining activities under specified protective criteria." The majority focused on the Forest Service's discretion to approve or deny a NOI: "the Forest Service can exercise its discretion to benefit a listed species by approving or disapproving NOIs based on whether the proposed mining activities satisfy particular habitat protection criteria."
  2. The second question was whether the mining activities "may affect" a listed species or its critical habitat. The Forest Service regulations require a NOI for all proposed mining activities that "might cause" disturbance of surface resources, which include fisheries and wildlife habitat. (36 C.F.R. §§ 228.4(a), 228.8(e).) On this issue, the panel found a "de facto" potential that the activities "may affect" coho salmon, noting that in this case, the Forest Service approved mining activities in and along the Klamath River, which is critical habitat for threatened coho salmon. The record shows that the mining activities approved under NOIs satisfy the "may affect" standard. In addressing the second question, the majority set a low threshold, noting that "'Any possible effect, whether beneficial, benign, adverse or of an undetermined character; triggers the requirement" for Section 7 consultation. The majority concluded that the issue "can almost be resolved as a textual matter" because, "[b]y definition, mining activities that require a NOI 'might cause' disturbance of surface resources" (which included fisheries habitat under the regulations), and thus "it follows almost automatically that mining pursuant to the approved NOIs 'may affect' critical habitat of the coho salmon."

Moving Forward

The Ninth Circuit panel's ruling is now controlling law within that court's jurisdiction, and carries persuasive force in the other courts. Until the en banc ruling, the ESA's consultation requirements only were triggered where an agency undertook action. The Ninth Circuit's ruling, however, expanded the reach of the ESA, directing that an agency's decision not to act still may trigger consultation requirements under the ESA. For the mining industry, the Supreme Court's decision now makes clear that low-level mining operations that could previously operated under NOIs must endure months or years of ESA analysis and consultation (and accompanying costs), or simply choose not to operate. For the regulated community in general, the decision potentially paves the way for increased reach of the ESA's consultation requirements.