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Supreme Court: ESA Trumps 1872 Mining Act

Ruling Strikes Down U.S. Forest Service Approvals of Mining Projects Across the West


By: Karuk Tribe

WASHINGTON, D.C. March 18, 2013 - Today the Supreme Court let stand a decision from the En Banc panel of 11 judges of the federal Ninth Circuit Court of Appeals in San Francisco that essentially establishes that the Endangered Species Act (ESA) trumps the 1872 Mining Act. Recreational mining groups had filed a petition with the Supreme Court asking that they overturn the lower court decision, but the petition was denied.

"This decision is a great victory for the Karuk Tribe and everyone else who believes that federal agencies must act to protect our natural resources and fisheries," according to Buster Attebery, Chairman of the Karuk Tribe.

The Appeals Court ruling last June stemmed from a lawsuit filed by the Karuk Tribe in Northern California in 2004 alleging that the U.S. Forest Service had violated the federal Endangered Species Act (ESA) when the agency approved a slew of mining operations in ESA listed coho salmon habitat in and along the Klamath River in northern California.

The Tribe filed the lawsuit to protect salmon which are cornerstone of the Tribe's culture and traditional diet. Beginning in the early 1990s, a flood of smaller-scale recreational mining operations, primarily suction dredging operators, invaded the Klamath River system to search for gold in and along the banks of these rivers and streams. As described by the Appeals Court's decision, "These miners use gasoline-powered engines to suck streambed material up through flexible intake hoses that are typically four or five inches in diameter. The streambed material is deposited in a tailings pile in or beside the stream. Dredging depths are usually about five feet, but can be as great as twelve feet." The Appeals Court detailed the scientific studies that found that suction dredging in critical species habitat "can directly kill and indirectly increase mortality."

Beginning in 2003 and 2004, the Forest Service allowed suction dredging and related practices known as highbanking and power sluicing on more than 35 miles of the Klamath River and its tributaries, without conducting any public environmental reviews, without subjecting its actions to any public notice, and, importantly for this case, without any compliance with the ESA. The Tribe's lawsuit challenged the agency's failure to protect the salmon and its habitat, which have been determined by the National Oceanic and Atmospheric Administration (NOAA) to be threatened with extinction. The agency had approved all of the mining via its "Notice of Intent" (NOI) process, which the agency argued exempted itself from compliance with federal environmental and wildlife protection laws.

The Appeals Court rejected that claim, concluding that: "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."

"This decision sets a major precedent across the western states," said Roger Flynn, lead attorney representing the Tribe, and the Director and Managing Attorney of the Western Mining Action Project, a Colorado-based non-profit environmental law firm specializing in mining issues in the West. "The government and miners had argued that the archaic 1872 Mining Law, which is still on the books today, overrides environmental laws such as the Endangered Species Act. The Appeals Court flatly rejected that untenable position and today the Supreme Court refused to overturn that ruling." said Flynn.

Although focused on the mining in northern California, the Forest Service's practice of failing to consider the ESA when approving smaller-scale mining projects such as suction dredging occurs throughout the West. "Today's decision sets the proper balance between mining and the protection of clean water and wildlife habitat across the West," noted Flynn. "The law requires that the federal agencies ensure that mining is responsible and reasonable, and protects communities and the environment. The Court today re-affirmed this guiding principle of federal public land management." said Flynn.

A copy of the decision from the En Banc panel of the federal Ninth Circuit Court of Appeals can be found on the Court's website at: http://www.ca9.uscourts.gov/datastore/opinions/2012/06/01/05-16801.pdf


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