Use of Endangered Species Act to prevent mining operation requires input early in the NOI review process

Use of Endangered Species Act to prevent mining operation requires input early in the NOI review process

The Endangered Species Act ("ESA") is becoming a popular tool used by public interest groups to stop projects that they view as adverse to environmental quality.  However, a recent attempt to use the ESA against a mining project failed when the procedural posture was deemed an inaction for purposes of ESA consultation requirements.  Karuk Tribe of California. v. U.S. Forest Service, 2011 U.S. App. LEXIS 7058 (9th Cir.: 4/7/11). 

Plaintiff Karuk Tribe ("KT") sued the Forest Service ("FS") in the Northern District of California and alleged that the FS violated 16 U.S.C. § 1536(a)(2) of the ESA in connection with notices of intent to operate ("NOI's") filed by gold miners.  The district court entered judgment for the FS, and KT appealed.

The miners submitted the NOI's under 36 C.F.R. § 228.4(a) concerning small-scale gold mining activities to be conducted on Federal forest lands for recreational purposes.  The FS district ranger determined that none of the proposed operations required a plan of operations.  KT, however, claimed that the mining would affect protected salmon and argued that FS was required under § 1536(a)(2) to engage in interagency consultation.

The 9th Cir. held that the ranger's decision that the mining operations could proceed according to the NOI's did not constitute "agency action" for purposes of triggering the ESA consulting obligations.  The activities described in the NO'Is were not "authorized" by the FS; the mining activities were already authorized by other law, and the NOI process was a notification procedure that facilitated the determination of whether a plan of operations was required.  The FS was limited in terms of its assessment of the project by the interrelationship of these laws.  Only activities that are likely to cause significant disturbance of surface resources can be required to provide an acceptable plan of operation.

The Court concluded that a decision that a plan was not required was deemed an agency decision to not act -- thus, an inaction, not an "action" for purposes of § 1536(a)(2).  While this may be a stretch, the fundamental problem from plaintiff's perspective was that the proposed activity did not appear to reach the point in which a plan of operation could be required by the FS.  Further, there are limited circumstances in which extra-judicial material may be presented to a court to show that an agency action was incorrect. 

The bottom line would appear to be that KT, and others like it, need to monitor the filing of NOI's, and to present information to the FS while the NOI is before the ranger so that any data on the impact of the proposed activity can be considered.  The party opposing the activity needs to show that the proposed activity will cause significant impacts as defined in 36 C.F.R. § 228.4.  Although it is difficult to overrule an agency determination that is well reasoned, at least that permits the courts to consider such evidence in the course of review proceedings.