Here is the order list for today.
And the briefs are here.
Supreme Court Denies Cert in New 49ers v. Karuk Tribe
Here is the order list for today.
And the briefs are here.
Gold Mining
Cert Stage Briefing Complete in New 49er’s v. Karuk Tribe
Here, from SCOTUSblog. The case is set for Conference on March 15, 2013.
Lower court materials here (case formerly captioned as Karuk Tribe of California v. USFS). Previous post here.
Cert Petition in Klamath National Forest Endangered Species Act Case
Here is the petition in New 49’ers Inc. v. Karuk Tribe of Indians:
Questions presented:
- Whether a federal official’s receipt and review of notice of private action, his exercise of discretion as to whether to invoke agency regulatory powers over such private action, and his decision not to invoke such powers, constitute “agency action” for purposes of § 7(a)(2) of the Endangered Species Act.
- Whether the federal courts lack jurisdiction over the action in light of changed circumstances.
Lower court materials here (case formerly captioned as Karuk Tribe of California v. USFS).
I don’t know the merits of this petition, but it probably should be denied because of the cheese ball (if not downright tacky) caption here.
En Banc Ninth Circuit Holds Forest Service Violated the Endangered Species Act in Approving Mining at Klamath Nat’l Forest
Here is today’s opinion in Karuk Tribe of California v. USFS.
Audio and video of the en banc argument here. Briefs here.
An excerpt:
There are two substantive questions before us.
The first is whether the Forest Service’s approval of four NOIs to conduct mining in the Klamath National Forest is “agency action” within the meaning of Section 7. Under our established case law, there is “agency action” whenever an agency makes an affirmative, discretionary decision about whether, or under what conditions, to allow private activity to proceed. The record in this case shows that Forest Service District Rangers made affirmative, discretionary decisions about whether, and under what conditions, to allow mining to proceed under the NOIs.
The second is whether the approved mining activities “may affect” a listed species or its critical habitat. Forest Service regulations require a NOI for all proposed mining activities that “might cause” disturbance of surface resources, which include fisheries and wildlife habitat. 36 C.F.R. §§ 228.4(a), 228.8(e). In this case, the Forest Service approved mining activities in and along the Klamath River, which is critical habitat for threatened coho salmon. The record shows that the mining activities approved under NOIs satisfy the “may affect” standard.
We therefore hold that the Forest Service violated the ESA by not consulting with the appropriate wildlife agencies before approving NOIs to conduct mining activities in coho salmon critical habitat within the Klamath National Forest.
Karuk Tribe Files Lawsuit to Challenge Suction Dredges
Ninth Circuit Oral Argument Audio and Video in Karuk Tribe v. USFS (En Banc)
Ninth Circuit Grants Rehearing En Banc in Karuk Tribe v. USFS
Here is the order.
Here are the materials “en” the en banc petition stage:
Pacific Coast Federation Amicus Brief
And the panel materials are here.
Ninth Circuit Affirms USFS Decision to Conduct “Suction Dredge” in Klamath
… 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.
Gold Mining in the UP?
From the Lansing State Journal:
STEPHENSON – Deb Skubal looks out her window and sees a pristine forest and the Menominee River meandering through the woods.
Geologist Tom Quigley looks at the same scene and envisions the riches beneath the ground: gold, silver and zinc, trapped in rock nearly 2 billion years old.
Their viewpoints appear to be on a collision course that illustrates a conflict between the needs of an increasingly global economy and the environmental disruption that may result from meeting those needs.
Quigley is president of Aquila Resources Inc., a Canadian mining exploration company that’s searching for precious metals in Michigan’s Upper Peninsula a stone’s throw from the Menominee River and the Wisconsin state line. Skubal, on the Wisconsin side, is among a group of residents – on both banks – opposed to sulfide mining, in which metals are removed from sulfide rock dug from huge open pits.
Turtle Talk 