(CN) – The U.S. Forest Service violated federal environmental regulations when it failed to consult wildlife experts before allowing recreational miners to dredge and sluice for gold along Northern California’s Klamath River, a full panel of the 9th Circuit ruled.
The Endangered Species Act (ESA) requires the service to consult with wildlife agencies before allowing mining under a Notice of Intent (NOI) in the habitat of listed species, in this case the coho salmon, according to the federal appeals court in San Francisco.
The decision, published Friday, reversed rulings by the Oakland District Court and a previous, three-judge panel of the 9th Circuit, handing Northern California’s Karuk Tribe a significant victory in its efforts to protect a fish and a river system that are culturally important to its members.
The tribe sued the Forest Service in 2004 after the agency approved several NOIs submitted by recreational miners. The miners wanted to use motorized sluicing and suction dreading to coax gold out of the river in the Klamath National Forest. The tribe argued that the Forest Service had approved the mining without finding out from wildlife experts if such methods would harm the coho salmon, a threatened species. The miners and the Forest Service contended that the 1872 Mining Law allows the activity, and that approval of a NOI is “merely a decision not to regulate the proposed mining activities,” according to the ruling.
But a divided en banc panel of 9th Circuit judges found otherwise, ruling that, since the approval of a NOI is an “agency action”, the service had a clear duty to consult.
“By definition, mining activities requiring a NOI are those that ‘might cause’ disturbance of surface resources, including underwater fisheries habitat,” wrote Judge William Fletcher for the court. “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 Forest Service and miners also argued unsuccessfully on appeal that the case was moot, as the California legislature in 2011 approved a statewide moratorium on suction dredge mining in the Six Rivers or Klamath National Forests until 2016.
“Today, the Court vindicated our long struggle to protect the salmon and our people, which have been linked together since time immemorial,” said Leaf Hillman, Director of the Karuk Tribe’s Natural Resource Department, in a statement. “The Forest Service’s decision to place the search for miniscule flakes of gold above the needs of people who rely on clean water, and especially wild salmon, was unconscionable. We had no choice but to challenge the agency’s illegal mining approvals.”
In a scathing dissent peppered with quotes from Gulliver’s Travels and Dante, Judge Milan Smith said that the ruling would “undermine the rule of law”. Smith was joined in rejecting the majority’s take on the issue by Chief Judge Alex Kozinski, and Judges Sandra Ikuta and Mary Murguia.
“Until today, it was well-established that a regulatory agency’s ‘inaction’ is not ‘action’ that triggers the Endangered Species Act’s arduous interagency consultation process,” Judge Smith wrote.
“In my view, 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 when compared to the plight of those entangled in the ligatures of new rules created out of thin air by such decisions,” Smith added.
What is supposed to be an “informal” process will now become bogged down in red tape, according to Smith — a reality that goes against the intent of the 1872 mining law, which gives miners a “statutory right, not mere privilege” to use the public lands for mineral exploration.
“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,” Smith wrote. “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. Although the ESA generally requires agencies to complete consultations within ninety days… the agencies frequently miss their deadlines due to personnel shortages. One study found that nearly 40 percent of U.S. Fish and Wildlife Service ESA consultations were untimely, with some taking two or three years.”