9th Circuit Validates Greens Mining Lawsuit

PORTLAND, Ore. (CN) - The Ninth Circuit ruled Monday that environmental groups properly challenged the U.S. Forest Service's decision to let gold miners use suction dredging in the Rogue River-Siskiyou National Forest.

Once separate forests, the Rogue River and Siskiyou National Forests were administratively combined in 2004.

The forest stretches across almost 1.8 million acres of southwestern Oregon and parts of northern California, from the Cascade Mountains almost to the Pacific Ocean.

Its expansive acreage and hundreds miles of wild and scenic rivers are home to several endangered species, including coho salmon and steelhead trout.

Recreational gold miners search for gold in the forest's streams and rivers. Suction dredge mining, which uses gas-powered machines to suck up streambed material through intake hoses, filter out the gold, and spew the sediment back into the water body, is popular with miners but controversial due to concerns that it could harm fish.

Under the General Mining Law of 1872 and the Organic Administration Act of 1897, mining operations that might disturb natural resources must submit notices of intent to operate the U.S. Forest Service.

The agency is required by the Endangered Species Act to consult with other wildlife agencies to determine the environmental impact of the proposed operation before mining can commence.

In 2012, the en banc Ninth Circuit found in Karuk Tribe of California v. U.S. Forest Service that the service's review of miners' notices of intent was subject to the consultation requirement.

Following that decision, Klamath-Siskiyou Wildlands Center, Cascadia Wildlands Project and Rogue Riverkeeper sent the service a notice of intent to sue over its approval of several suction dredge mining permits in the Rogue River-Siskiyou National Forest without first engaging in consultation with the National Marine Fisheries Service.

Among other things, the groups claimed that mining operations destroy fish critical habitat and spawning grounds, including those of the endangered coho salmon, and degrade water quality.

The service responded with a letter that claimed, in part, that the groups did not provide enough information about specific operations, that few suction dredging operations were taking place in fish critical habitat, and that each operation was a unique enterprise it had to review in light of the Karuk decision.

The groups sent another letter in early October 2014, identifying 31 operations in critical habitat for which the service did not consult. Later that month, they sued the agency in Federal Court.

The service moved to dismiss, arguing the groups' notice letter was insufficient.

The court sided with the government, finding that the groups did not include enough facts about the contested mining operations in their notice letter.

On Monday, the three-judge Ninth Circuit panel reversed that ruling.

In his opinion, U.S. Circuit Judge William Fletcher noted that the purpose of notices is to alert the government to an alleged violation of environmental regulations and give it a chance to correct the problem without resorting to litigation.

As such, a proper notice must include enough information that an agency can "identify and address the alleged violations," according to the ruling.

The plaintiffs in this case met that requirement because they did not generally accuse the service of violating the Endangered Species Act, but "alleged that the Forest Service approved [notice of intent to operate] to engage in suction dredge mining in the Rogue River-Siskiyou National Forest during a specified three-year period, and that the Forest Service had not consulted as required" under the Act, Fletcher wrote.

This letter, combined with the service's own data, gave the agency enough information to understand the groups' grievances, according to the ruling.

The service disagreed, arguing that the groups should have sought information on NOIs from the service itself because that information was "readily available" from the service.

The panel rejected this argument, pointing out that the service already had the information it claimed should have been included in the groups' notice letter.

Moreover, Fletcher wrote, that information "is available to the Forest Service directly, without first having to provide it to KS Wild which would, in turn, then provide it back to the Forest Service, the original source of the information."

The panel concluded the notice letter was sufficient under the ESA and remanded to district court the remaining issues in the matter.

U.S. Circuit Judge Andrew Hurwitz, and Senior U.S. District Judge Donald Walter, of Louisiana, who was sitting by designation, concurred.

John Mellgren with the Western Environmental Law Center represented the environmental groups. He did not immediately return requests for comment.

Justice attorneys Lane McFadden and Bridget McNeil represented the service. They also did not immediately respond to a request for comment.

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