In a recent post [“When is a Wetland a Wetland — and How Do We Find Out?“] we described the significant uncertainties in ascertaining the reach of the Clean Water Act over wetlands, ponds, drainage ditches and other small aquatic features only remotely connected to navigable waterways such as rivers and lakes.
The Ninth Circuit is at center stage again in the debate over the interpretation and enforcement of federal environmental laws.
In a sharply divided 7-4 en banc decision, the Ninth Circuit ruled that the U.S. Forest Service violated the Endangered Species Act (ESA) by allowing recreational gold mining activities in the Klamath National Forest in Northern California without consulting with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service regarding the potential impacts to protected species such as the threatened Coho salmon. Karuk Tribe of California v. United States Forest Service.
The June 1 decision—noteworthy for its broad definition of “agency action” for purposes of the ESA’s consultation requirement—reversed an earlier decision by a three-judge panel of the Ninth Circuit. The panel decision followed a long line of prior court decisions in holding there was no duty to consult. The mining activities at issue were already authorized by federal law (the General Mining Law of 1872) and the applicants were required only to submit a Notice of Intent (NOI), which notifies the Forest Service of the proposed activities but does not trigger the need for any affirmative agency approval. The panel ruled that the Forest Service’s decision not to require a more detailed Plan of Operations—which is needed where the Service determines that significant environmental disturbance is likely—amounts to a decision not to act and is therefore not agency action that triggers consultation.
But after hearing the matter en banc, the Ninth Circuit reversed its earlier decision and concluded that consultation was required. According to the majority opinion, the Forest Service makes a discretionary, affirmative approval when it accepts an NOI, determines that no Plan of Operations is needed, and allows the proposed mining activities to proceed. …
Continue Reading To Consult or Not To Consult – That Is the Question for the Ninth Circuit