by Perry Pendley
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.”
Issues of concern to people who live in the west: property rights, water rights, endangered species, livestock grazing, energy production, wilderness and western agriculture. Plus a few items on western history, western literature and the sport of rodeo... Frank DuBois served as the NM Secretary of Agriculture from 1988 to 2003. DuBois is a former legislative assistant to a U.S. Senator, a Deputy Assistant Secretary of Interior, and is the founder of the DuBois Rodeo Scholarship.
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