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.
Karuk Tribe of California v. USFS
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.
Turtle Talk 