Turtle Talk

… over Judge W. Fletcher’s “emphatic[]” dissent.

Here is the opinion in Karuk Tribe v. USFS.

An excerpt from the majority opinion:

The mining laws provide miners like The New 49’erswith the  “right, not the mere privilege” to prospect for goldin the Klamath River and its tributaries. We therefore find itis most accurate to say that the mining laws, not the USFS,authorize the mining activities at issue here. The USFS hasadopted a simple review process to sort between those miningactivities it will regulate in order to conserve forest resources,and those activities it will not regulate because such regulation would be unnecessary and unduly interfere with miningrights. The USFS’s limited and internal review of an NOI forthe purpose of confirming that the miner does not need to submit a Plan for approval (because the activities are unlikely tocause any significant disturbance of the forest or river) is anagency decision not to regulate legal private conduct. In otherwords, the USFS’s decision at issue results in agency inaction, not agency action.

And from Judge Fletcher’s dissent:

The Forest Service had several available choices. It couldhave consulted under Section 7 when it promulgated the regulation for dredge mining under NOIs. That is, it could haveconsulted when it set the threshold criterion for an NOI asmining that  “might cause significant disturbance of surfaceresources” including fisheries habitat. Or it could have consulted under Section 7 when it formulated habitat-protectivecriteria for approving NOIs. That is, it could have consultedwhen District Ranger Vandiver formulated his criteria forapproving the NOIs for the Happy Camp District. Or, finally, in the absence of criteria such as those formulated for theHappy Camp District, it could have consulted under Section7 with respect to each individual NOI.

The one choice that was not available to the Forest Servicewas never to consult. Yet that is the choice the Forest Servicemade. In making that choice, the Forest Service violated Section 7 of the ESA.

I respectfully but emphatically dissent from the conclusionof the majority to the contrary.