Western Group: U.S. Supreme Court Must Hear Mining Case

By William Perry Pendley

DENVER - A 117-year-old nonprofit, non-partisan mining trade association with thousands of members on Oct. 5 urged the Supreme Court of the United States to hear a ruling by a badly fractured en banc panel of the U.S. Court of Appeals for the Ninth Circuit. Northwest Mining Association (NWMA) of Spokane, Washington argued in its friend of the court 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 conflicts with the Supreme Court's interpretation of "discretionary agency action" and arbitrarily expands the definition of "agency action" so as to include agency inaction. The Ninth Circuit panel issued its ruling over a scathing dissent-by four judges-that charged the panel, specifically, with issuing a ruling that departed from Ninth Circuit precedents and charged the Ninth Circuit, generally, with disregarding the rule of law in environmental regulation cases. The NWMA's brief was filed in support of The New 49'ers, Inc. and Raymond M. Koons who sought Supreme Court review.

"The ruling at issue shows why the Ninth Circuit is the most reviewed and reversed federal circuit in the country," said William Perry Pendley of Mountain States Legal Foundation (MSLF); MSLF represents NWMA.

The Karuk Tribe of California is a federally-recognized Indian Tribe that pursues environmental litigation opportunities involving streams and rivers in the Klamath National Forest.

In October 2004, the Karuk filed a lawsuit in California federal district court charging that the process used by the Forest Service to review Notices of Intent (NOIs) by miners to use suction drilling to mine their own claims is "agency action" under Section 7 of the Endangered Species Act (ESA) and triggers the Forest Service's duty to engage in interagency consultation. The miners whose NOIs were challenged intervened in the lawsuit.

In July 2005, the district court rejected the Karuk's contention that the Forest Service's receipt and review of a NOI triggered the ESA's consultation requirement; the Karuk appealed. In April 2011, a divided panel of the Ninth Circuit affirmed the district court's decision. After granting the petition for rehearing filed by the Karuk, a divided en banc panel held that the Forest Service's NOI process, even when it results in a determination that a plan of operations is not warranted, constitutes "agency action" under the ESA, and thus requires consultation under the ESA. In so ruling, the majority relied primarily on evidence in the record that Forest Service employees and the miners characterized the NOI process to be an "authorization" of mining operations. In August 2012, the miners sought Supreme Court review.

Mountain States Legal Foundation, created in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system. Its offices are in suburban Denver. 

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