The 9TH Circuit Court... Humpty Dumpty Reigns

The Karuk Tribe of California is a federally-recognized Indian Tribe that engages in environmental litigation involving streams and rivers in the Klamath National Forest. In October 2004, the Karuk filed a lawsuit in California federal district court charging that the manner in which the Forest Service reviews Notices of Intent (NOIs) by miners to use suction drilling to mine their claims is “agency action” under Section 7 of the Endangered Species Act (ESA) and triggers the agency’s duty to consult with the U.S. Fish and Wildlife Service. The miners whose NOIs were challenged intervened.

In July 2005, the district court rejected the Karuk’s contention that the Forest Service’s receipt and review of a NOI triggered the ESA’s consultation requirement; the Karuk appealed. In April 2011, a divided panel of the Ninth Circuit affirmed the district court’s decision. After granting the Karuk’s petition for rehearing, an en banc panel held 7-2, in June 2012, that the Forest Service’s NOI process, even when it results in a determination that a plan of operations is not warranted, constitutes “agency action,” and thus requires consultation. In so ruling, the majority relied primarily on evidence in the record that Forest Service employees and the miners characterized the NOI process to be an “authorization” of mining operations. The Ninth Circuit panel issued its ruling over a scathing dissent.

Specifically, the dissent criticized the majority for issuing a ruling that departed from Ninth Circuit precedent and for the disastrous impact the ruling will have on miners: “Most miners affected by this decision will have neither the resources nor the patience to pursue a consultation [regarding the ESA]; they will simply give up, and curse the Ninth Circuit. As a result, a number of people will lose their jobs and the businesses that have invested in the equipment used in the relevant mining activities will lose much of their value.” Unfortunately, decried the dissent, “this is not the first time our court has broken from decades of precedent and created burdensome, entangling environmental regulations out of the vapors.” The dissent then discussed three recent rulings and described their impacts: one decision “decimat[es] what remains of the Northwest timber industry;” another “dramatically impede[s] any future logging in the West;” and, yet another decrees “less, perhaps far less water for irrigation in the San Joaquin Valley’s $20 billion crop industry.”

In August 2012, the miners sought Supreme Court review. In October 2012, hours before the Court was to conference on the miners’ petition, the Northwest Mining Association, a 117-year-old nonprofit, non-partisan trade association with thousands of members urged the Court to hear the case. The association argued in its amicus curiae brief that the Ninth Circuit failed to recognize the statutory right of miners to mine, failed to apply U.S. Forest Service’s regulations, and issued a ruling that both conflicts with the Supreme Court’s interpretation of “discretionary agency action” and arbitrarily expands the definition of “agency action” to include agency inaction. The Supreme Court cancelled its conference to permit more briefing.

Subsequently, on behalf of the Forest Service, the Solicitor General advised the Court not to grant the petition because the ruling would have a “limited impact.” The miners filed a reply brief advising the Court to the contrary; indeed, environmental groups are already attempting to use the Ninth Circuit’s ruling to kill mining in Oregon.

If the Supreme Court does not reverse this ruling, the ability of miners—and others to whom it will be extended—in the West to earn a living will not be the only adverse impact of the Ninth Circuit’s Humpty Dumpty ("When I use a word[,] it means just what I choose it to mean—neither more nor less.") view of statutory interpretation. In the words of the dissent, the ruling will “undermine public support for the independence of the judiciary, and cause many to despair of the promise of the rule of law.”

Mr. Pendley, a Wyoming ­attor­ney, is President and Chief Legal ­Officer of Mountain States Legal Foundation and a regular ­c­olum­nist in ­Loggers World.