Ninth Circuit – Page 81

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.

Ninth Circuit Affirms Wapato Heritage v. Evans (2-1)

April 1, 2011March 31, 2011Matthew L.M. Fletcher

Here is the unpublished opinion.

Judge Tallman in dissent objected to federal subject matter jurisdiction over the claims.

Ninth Circuit Affirms Injunction against Caballero in Trademark Claim

March 28, 2011Matthew L.M. Fletcher3 Comments

Here is the unpublished order in Shingle Springs Miwok v. Caballero: CA9 Memorandum.

The materials are here.

Ninth Circuit Briefing in Shingle Springs Miwok v. Caballero

March 28, 2011March 26, 2011Matthew L.M. Fletcher1 Comment

Here:

Caballero Opening Brief

Shingle Springs Answer Brief

Caballero Reply Brief

Here is the issue, according to the tribe’s brief:

Appellee Shingle Springs Band of Miwok Indians (hereinafter, “Tribe”) has operated its federally recognized tribal government under the name “Shingle Springs Band of Miwok Indians” (the “Mark” or the “Tribe’s Mark”)^[FN1] for over thirty years. During this time the Tribe provided governmental and educational services to its members and the public and its Mark became well known. Appellant Cesar Caballero is not a member of the Tribe, but identifies himself as a person of “Miwok” ancestry. In 2008, after he learned the Tribe planned to open a casino, he began to do business under the Tribe’s Mark and represent to third parties, through local and federal government filings, that he was the “Chief” and “Tribal Historian” of the “Shingle Springs Band of Miwok Indians.” These representations were false.