Eight months ago, a three-judge panel of the federal appeals court agreed that the Forest Service had not taken any agency action that would trigger a review under the Endangered Species Act (ESA).

     After receiving miners' notice of intent (NOI), a district ranger for the U.S. Forest Service had decided that the suction-dredge mining could move forward without a formal plan, but that decision was a "nonaction," immune from ESA compliance, according to the panel majority.

     In an "emphatic" dissenting opinion, Judge William Fletcher cited precedent and the record to state that agency discretion, such as the Forest Service's oversight of mining operations, would in fact trigger ESA.

     As the Forest Service "does not dispute" that suction dredge mining "may affect" critical habitat of Coho salmon, it has an obligation to review the process under the ESA, Fletcher said.

     Pressed to hear the matter again before a full panel, the 9th Circuit set aside its decision in September.

     At the full court's hearing on Tuesday, the judges noted that California has issued a moratorium on suction-dredge mining until June 30, 2016, pending new environmental regulations.

     Chief Judge Alex Kozinski said there was no live controversy and called the case "hypothetical"

     Roger Flynn, arguing Tuesday on behalf of the Karuk, disagreed that the case was moot.

 

     It is capable of repetition

     "Both the Forest Service decisions never to consult on it when it reviews and approves NOIs, and miners submitting NOIs up on the Klamath River system - I think both of those things will happen again once the moratorium is lifted," Flynn said.

     Judge Marsha Berzon wanted to know why the tribe didn't challenge the whole NOI process as being too lenient.

     "What the record actually shows is that you brought the wrong case here," she said.
     Noting that the original regulations were written in the 1970s, Flynn responded that the tribe was "in a way" challenging the decision to allow mining under the NOIs.

     Forest Service attorney Lane McFadden maintained that it was not an "agency action," as defined under the ESA, even if the district ranger had used discretion in allowing the NOIs to go forward.

     Berzon was skeptical, however, recounting how the ranger first set a number of conditions for the NOIs and then made sure they were in the final notice.

     "Clearly there was an agency action," she said.

     McFadden replied that, when it was "phrased that way," it might seem like the ranger misused his regulatory authority.

     "But it's exactly what he did," Berzon shot back.

     McFadden said the ranger just imposed criteria as to whether the mining was "likely to cause a significant disturbance."