Ninth Circuit corrects itself on gold mining and the ESA

Image from High Country News
Cross-posted at CPRBlog.
The en banc 9th Circuit issued its opinion Friday in Karuk Tribe v. US Forest Service. This opinion brings a welcome reversal of a panel opinion from last April which had ruled in a split decision that the Forest Service did not have to consult with the wildlife agencies before authorizing suction dredging on the Klamath River. Judge Milan Smith wrote for the majority in the panel decision, with Judge William Fletcher in dissent. Those roles were reversed in the en banc opinion, with Judge Fletcher writing for the majority of the 11-judge en banc panel and Judge Smith writing a sharp dissent joined *CORRECTION — joined in part by 3 others, with only 1, Judge Kozinski, joining the over-the-top final section.

I want to make two points about this opinion. First, substantively, it is unquestionably correct. The panel’s decision badly misinterpreted the context, potentially allowing federal mission agencies to escape the review by wildlife agencies the ESA quite deliberately requires. Second, the extraordinary rhetoric of the dissent highlights the fact that tea-party tactics are not limited to political debates. Their increasing use by conservative judges is an unfortunate development that threatens to undermine the proper functioning of the judicial branch, not to mention its credibility.

First, the en banc opinion is substantively correct in its reading of the ESA. The Ninth Circuit was right to take this case en banc, because the panel’s decision was both wrong and important. The issue in this case was whether the Forest Service was required by section 7 of the ESA to consult with the National Marine Fisheries Service and U.S. Fish and Wildlife Service on the potential impacts of suction dredging and other recreational gold mining activities before allowing them to proceed. The panel said no, characterizing what the Forest Service did as inaction, simply allowing miners to go there merry way.

But that’s not what happened, as Judge Fletcher pointed out in his panel dissent and explained again in his opinion for the en banc majority.

To understand the context, you need to know something about both the mining regulations and the ESA. Gold mining on Forest Service lands is governed by three different levels of regulation. Activities that “will not cause” significant surface disturbance can go ahead without any further review. Those that “will likely cause” significant disturbance cannot proceed until the Forest Service approves a detailed plan of operations. For those in a middle group, those that “might cause” significant disturbance, the miner must submit a notice of intent describing the proposed operations for review by the Forest Service, which uses it to decide whether a plan of operations is required. The ESA, in turn, requires that action agencies consult with NMFS or USFWS (depending on the species) to “insure that any action authorized, funded, or carried out” by the action agency will not cause prohibited harm to listed species. The action agency must have some discretion; it is not required to consult where the consultation cannot affect its action. But any time a federal agency permits, provides money for, or takes an action it is not statutorily required to take, where it has any discretion, it must consult if the action may affect a listed species.

The question in this case was whether the Forest Service was required to consult before allowing mining activities that “might cause” significant surface disturbance to go ahead without a plan of operations. Rhetorically, there are two ways to look at those cases: either the Forest Service was simply staying out of the way of miners, or it was affirmatively authorizing proposed mining. But only the latter view comports with reality. As Judge Fletcher’s careful review of the factual background makes clear, the notice of intent procedure provided an opportunity for the Forest Service to negotiate with miners about their plans. Those negotiations turned on the environmental impacts, which were reviewed by Forest Service biologists. At the end of the review and discussions with the miners, the Forest Service sent written responses, approving, denying, or approving with conditions the proposed mining operations. The Forest Service was not a passive observer (or ignorer) of the mining operations; it was an active participant in determining where, when, and how mining would be carried out.

Requiring consultation in this context serves the (important) purpose of ESA section 7 without overstepping judicial boundaries. Section 7 implements a Congressional determination that action agencies, which may be deeply committed to their non-environmental missions, should not be the sole judges of what impacts their proposed actions will have on protected species. The ESA requires that federal agencies not jeopardize the continued existence of listed species. That substantive provision would have little effect, however, if action agencies could avoid recognizing the possible impacts of their actions. The consultation requirement, which brings in an agency with the mission of wildlife protection and puts that agency’s views on the record, is essential to giving the substantive standard real bite. Enforcing the consultation requirement, as the latest opinion does, prevents action agencies from evading Congress’s command that they look after listed species. That’s well within the courts’ proper (indeed essential) role.

Nor does the decision impose burdensome new requirements on the Forest Service. The dissent is right that courts are not generally empowered to review agency inaction. Judicial oversight of inaction would leave agencies perpetually uncertain where they might be vulnerable to lawsuits, and could interfere with their decisions about how to expend their (always) limited resources. If there truly was not agency action here, of course consultation would not be required. So, for example, if a tipster calls the Forest Service complaining that someone is mining on Forest Service land without permission, the district ranger need not consult with NMFS or FWS about whether or not to investigate the complaint. The ESA remedy, if there was one, would have to be a suit against the miner. But here the Forest Service, through its regulations and its implementation of those regulations, affirmatively injected its personnel into the determination of what mining would occur. Having given itself a role in those decisions, the Forest Service must accept that consultation comes with the territory.

With that, a brief word on Judge Smith’s over-the-top dissent. As I’ve explained, I think Judge Smith is wrong on the consultation question. But much more troubling is the way he approaches the opinion. The job of judges, I would have thought, is to engage in reasoned, judicious, discussion of the issues at hand. Of course they will disagree, and of course they will sometimes talk past one another because they see the issues so differently. Judge Smith starts with a quote from Gulliver’s Travels, including an accompanying illustration of Gulliver restrained by dozens of tiny ropes. With quotes from Ronald Reagan — “Here we go again” (although the source is not acknowledged) — and Dante — “Abandon hope all ye who enter here” — following, the meaning and tone are clear. Out of control judges are hogtying action agencies.

Although Judge Smith denies any intent to offend his colleagues, his opinion is intentionally provocative. He takes typical tea party rhetoric one step further. It’s common these days to see regulatory agencies accused of deliberately overstepping their boundaries to impose unnecessary regulations. Here, Judge Smith accuses the Ninth Circuit, in this case and others, of “[breaking] from decades of precedent and creat[ing] burdensome, entangling environmental regulations out of the vapors.” Judge Smith sees this brand of judicial activism as limited to environmental decisions. Its consequence, he says, is “decimat[ion]” of entire industries, including the northwest’s logging industry and California agriculture.

This case is a poor fit for this kind of rhetoric, not only because no precedents were ignored but because no industry is at stake. The mining operations at issue in this case were entirely recreational. And although recreational miners do buy some equipment, they can hardly be said to support an entire industry or thousands of jobs.

But more importantly, rhetoric of this sort is out of place in the judicial enterprise. Explaining to your colleagues why they are wrong on the law is fair game, even if the criticism is strongly phrased. Judge Smith acts entirely within his role as a judge when he presents his view that there was no agency action here. Readers can agree or disagree, based on the arguments put forward.

But invoking Gulliver and Dante, accusing colleagues of deliberately seeking to stifle industry, and using this dispute as an opportunity to blast a series of unrelated opinions, is out of line. Judges should be in the business of rational argument, of seeing and considering the nuances, and of doing their best to make sure that agencies are held to congressional mandates. They should not be aiming their opinions at Fox News, and seeking to shortcut debate with careless and unsupported allegations of judicial activism. Given the dysfunction of our political fora, we need the judiciary to provide a forum where issues are discussed at length, with carefully supported arguments rather than blistering attacks that are closely identified with a particular political position but not closely tied to the particular legal context. No matter what their politics, judges who care about the continued vitality of their institution should resist the temptation to descend to that level.

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Reader Comments

16 Replies to “Ninth Circuit corrects itself on gold mining and the ESA”

  1. Thanks for the heads-up on this. It may or may not be worth noting that Judges Ikuta and Murguia joined neither the introduction nor the last section, which you quote above.

  2. Thanks for the heads-up on this. It may or may not be worth noting that Judges Ikuta and Murguia joined neither the introduction nor the last section, which you quote above.

  3. I am grateful to the majority for writing such a clear and logical opinion. Not because it simplifies my briefing, but because the opinion’s thoroughness left Milan Smith with no option but to expose the extreme ideological underpinnings of his environmental jurisprudence.

    His dissent is so pregnant with hubris that he fails to notice his pot-calling-kettle problem. He suggests his colleagues are judicial activists for following precedents going back to TVA v. Hill, while simultaneously counseling them to ignore Congress’ prioritization of endangered species to advance Smith’s personal priority: insuring timber, agriculture, and mining industries can exploit public resources.

  4. I am grateful to the majority for writing such a clear and logical opinion. Not because it simplifies my briefing, but because the opinion’s thoroughness left Milan Smith with no option but to expose the extreme ideological underpinnings of his environmental jurisprudence.

    His dissent is so pregnant with hubris that he fails to notice his pot-calling-kettle problem. He suggests his colleagues are judicial activists for following precedents going back to TVA v. Hill, while simultaneously counseling them to ignore Congress’ prioritization of endangered species to advance Smith’s personal priority: insuring timber, agriculture, and mining industries can exploit public resources.

  5. Holly…

    I have to correct you on this issue that you have with suction dredges or what we like to call them, “Mineral Extraction Machines.”

    First and foremost, it doesn’t hurt fish habitats. If anything it is helping the fish because while we “vacuum,” as you say, we are cleaning up more mercury, lead, fishing line, and other debris from the waters. You can ask any person who operates a Mineral Extraction Machine about how much crap they find in the river and 10-1 they will tell you they usually pull more led than gold.

    Mineral extracting is more than just “vacuuming” a river bed. Besides, not all river beds are gold bearing and most of the time, we do more good than harm to the water environment. It is a difficult thing to explain to people who have no clue. I always say, don’t knock it until you try it!

    If you just make assumptions about something that you have no clue about and then report on it, that is one sided reporting. In this article here, not once did you mention something good about what these machines do for the waters. I assume it is because you don’t know what good it does. Did you know that each time we clean up the rivers, it creates new fish habitat and the new sediment that is brought up helps to feed fish.

    When you reported on this, you make it sound like earning cash and using natural resources to do so is a bad thing. Heaven forbid we live off the land! I mean how did the settlers ever do it? Environmentalists don’t want us in the water for the simple fact that they are paid by the government to lobby around its agencies (i.e. USFS, USFG, BLM…) and create havoc, all well knowing that we don’t hurt anything. We are just doing what we are free to do and what we like to do.

    Free? you ask? Yes, free to do it! What I mean is that all miners/prospectors are protected under the constitution. How? you ask? Yes, under the 1866 & 1872 mining laws, we prospectors are protected to do this. It doesn’t matter if we are panning, high-banking, sluicing or using our extraction machines, we are all prospectors/miners. What California is doing to it’s own economy with this moratorium is sickening. I mean really, is it that bad that we bring wealth out of the ground and put it into the economy? Oh that’s right, you believe we are destroying a little fishy’s habitat! That is the oldest line in the book. Everyone is trying to use that excuse to get us to stop extracting minerals and the underlying truth is that people are just ignorant to what we do.

    Here I will explain it to you this way, in as simple terms as I can. We dig for gold. Gold gets cashed into a local gold buyer. Miner now has cash in hand. The local gold buyer guy turns around and refines it and then sells it to people even higher up than him; he continues to run his business and all its costs. Miner who now has cash can put that money back into the Ca economy by paying bills, buying groceries, buying supplies, perhaps buy a home, make all of his/her payments on time… Support local businesses by buying more mining equipment. Do you see the ripple effect here? It isn’t all that bad and quite frankly, I see more good come out of what I do or what my friends do or even what any miner does.

    We are helping the economy; articles like this one and Gov. J. Brown are hurting the Ca economy and it is all because people aren’t educated on the constitutional mining laws. They are old, but they aren’t dead and once everyone starts realizing that, we will all be better off in the long run. After all, they are just targeting miners because we are a “small community of people.” Look what they did to the timber industry. These government agencies are ludicrous! They need to go!

    For everyone reading this, look at these video links. The proof is in the pudding that these agencies are just ruining the Western United States. And all of you anti-suction dredging people are helping them take your wealth away. California is the first to go, followed soon by more, but Idaho and Oregon have already begun their fight. They are taking their rights and their lands back! For heavens sake, you all should be helping to do the same and give back the constitutional rights to the people who actually want to exercise them!

    Take a look at these: They make sense. Rock on and keep mining people!
    http://youtu.be/Y39bJY-fpQw
    http://youtu.be/DGVFktJ123o

    http://youtu.be/MNS6E7jWvmI

    Thanks for your time!

  6. Holly…

    I have to correct you on this issue that you have with suction dredges or what we like to call them, “Mineral Extraction Machines.”

    First and foremost, it doesn’t hurt fish habitats. If anything it is helping the fish because while we “vacuum,” as you say, we are cleaning up more mercury, lead, fishing line, and other debris from the waters. You can ask any person who operates a Mineral Extraction Machine about how much crap they find in the river and 10-1 they will tell you they usually pull more led than gold.

    Mineral extracting is more than just “vacuuming” a river bed. Besides, not all river beds are gold bearing and most of the time, we do more good than harm to the water environment. It is a difficult thing to explain to people who have no clue. I always say, don’t knock it until you try it!

    If you just make assumptions about something that you have no clue about and then report on it, that is one sided reporting. In this article here, not once did you mention something good about what these machines do for the waters. I assume it is because you don’t know what good it does. Did you know that each time we clean up the rivers, it creates new fish habitat and the new sediment that is brought up helps to feed fish.

    When you reported on this, you make it sound like earning cash and using natural resources to do so is a bad thing. Heaven forbid we live off the land! I mean how did the settlers ever do it? Environmentalists don’t want us in the water for the simple fact that they are paid by the government to lobby around its agencies (i.e. USFS, USFG, BLM…) and create havoc, all well knowing that we don’t hurt anything. We are just doing what we are free to do and what we like to do.

    Free? you ask? Yes, free to do it! What I mean is that all miners/prospectors are protected under the constitution. How? you ask? Yes, under the 1866 & 1872 mining laws, we prospectors are protected to do this. It doesn’t matter if we are panning, high-banking, sluicing or using our extraction machines, we are all prospectors/miners. What California is doing to it’s own economy with this moratorium is sickening. I mean really, is it that bad that we bring wealth out of the ground and put it into the economy? Oh that’s right, you believe we are destroying a little fishy’s habitat! That is the oldest line in the book. Everyone is trying to use that excuse to get us to stop extracting minerals and the underlying truth is that people are just ignorant to what we do.

    Here I will explain it to you this way, in as simple terms as I can. We dig for gold. Gold gets cashed into a local gold buyer. Miner now has cash in hand. The local gold buyer guy turns around and refines it and then sells it to people even higher up than him; he continues to run his business and all its costs. Miner who now has cash can put that money back into the Ca economy by paying bills, buying groceries, buying supplies, perhaps buy a home, make all of his/her payments on time… Support local businesses by buying more mining equipment. Do you see the ripple effect here? It isn’t all that bad and quite frankly, I see more good come out of what I do or what my friends do or even what any miner does.

    We are helping the economy; articles like this one and Gov. J. Brown are hurting the Ca economy and it is all because people aren’t educated on the constitutional mining laws. They are old, but they aren’t dead and once everyone starts realizing that, we will all be better off in the long run. After all, they are just targeting miners because we are a “small community of people.” Look what they did to the timber industry. These government agencies are ludicrous! They need to go!

    For everyone reading this, look at these video links. The proof is in the pudding that these agencies are just ruining the Western United States. And all of you anti-suction dredging people are helping them take your wealth away. California is the first to go, followed soon by more, but Idaho and Oregon have already begun their fight. They are taking their rights and their lands back! For heavens sake, you all should be helping to do the same and give back the constitutional rights to the people who actually want to exercise them!

    Take a look at these: They make sense. Rock on and keep mining people!
    http://youtu.be/Y39bJY-fpQw
    http://youtu.be/DGVFktJ123o

    http://youtu.be/MNS6E7jWvmI

    Thanks for your time!

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About Holly

Holly Doremus

Holly Doremus is the James H. House and Hiram H. Hurd Professor of Environmental Regulation at UC Berkeley. Doremus brings a strong background in life sciences and a comm…

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