- - Sunday, December 9, 2012


On Friday, the U.S. Supreme Court considered a petition by miners to review a ruling from the U.S. Court of Appeals for the Ninth Circuit that the Forest Service must consult with the Fish & Wildlife Service (FWS) when miners notify the Forest Service that they plan to engage in suction drilling on their claims in the Klamath National Forest. The Karuk Tribe of California, which brought the suit, claims the Forest Service’s mere receipt and review of notices from miners constitutes “agency action,” which triggers an Endangered Species Act (ESA) requirement that it consult with the FWS. That consultation in turn requires the FWS to determine whether ESA species might be affected. Even if the FWS determines there is no impact, that finding will lead to litigation. In short, the miners will never be able to use their claims, which are their private property.

In October 2004, the Karuk Tribe sued the Forest Service in California federal district court, claiming it must consult FWS when miners notified them of intent to work on their mining claims. The miners whose notices of intent were challenged intervened in the case.

In July 2005, the district court ruled that merely receiving a notice is not “agency action.” The Karuk appealed. In April 2011, a divided three-judge panel of the Ninth Circuit agreed with the 2005 ruling; however, in June 2012, an en banc panel ruled that the Forest Service’s receipt of a notice—even when the Forest Service may not stop the mining—is “agency action” and forces ESA review. The Ninth Circuit panel issued its ruling over a scathing dissent.

Specifically, the dissent criticized the majority for issuing a ruling that departed from Ninth Circuit precedent and for the disastrous impact the ruling will have on miners: “Most miners affected by this decision will have neither the resources nor the patience to pursue a consultation [regarding the ESA]; 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.” Unfortunately, decried the dissent, “this is not the first time our court has broken from decades of precedent and created burdensome, entangling environmental regulations out of the vapors.”

The dissent then discussed three recent rulings and described their impacts. One decision “decimat[es] what remains of the Northwest timber industry.” Another “dramatically impede[s] any future logging in the West.” Yet another decrees “less, perhaps far less water for irrigation in the San Joaquin Valley’s $20 billion crop industry.”

In August 2012, the miners sought Supreme Court review. In October 2012, hours before the court was to conference on the miners’ petition, the Northwest Mining Association, a 117-year-old non-profit, non-partisan trade association with thousands of members, urged the court to hear the case. The association argued in its amicus curiae brief that the Ninth Circuit failed to recognize the statutory right of miners to mine, failed to apply U.S. Forest Service’s regulations, and issued a ruling that both conflicts with the Supreme Court’s interpretation of “discretionary agency action” and arbitrarily expands the definition of “agency action” to include agency inaction. The Supreme Court cancelled its conference to permit more briefing.

Subsequently, on behalf of the Forest Service, President Obama’s Solicitor General told the court not to grant the petition; the ruling will have “limited impact.” The miners filed a reply brief advising the court to the contrary: Environmental groups are already using the Ninth Circuit’s ruling to kill mining in Oregon.

If the Supreme Court does not reverse this ruling, the ability of miners—and others to whom it will be extended — in the West to earn a living will not be the only adverse impact of the Ninth Circuit’s view of statutory interpretation. In the words of the dissent, the ruling will “undermine public support for the independence of the judiciary, and cause many to despair of the promise of the rule of law.”

William Perry Pendley is president of Mountain States Legal Foundation in Denver.

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