Home » Case Summaries » 2015 » Klamath-Siskiyou Wildlands Center v. MacWhorter, 797 F.3d 645 (9th Cir. 2015).

 
 

Klamath-Siskiyou Wildlands Center v. MacWhorter, 797 F.3d 645 (9th Cir. 2015).

 

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In this case, the Klamath-Siskiyou Wildlands Center and other organizations[1] (collectively, KS Wild) appealed the dismissal of its claim against the United States Forest Service (USFS).[2] KS Wild is an organization concerned with the impact of suction dredge mining on the Coho salmon’s critical habitat located in Rogue River-Siskiyou National Forest (the National Forest). KS Wild argued that its letter to USFS providing notice of its intent to file suit was sufficient to state a claim under the Endangered Species Act (ESA).[3] USFS asserted that KS Wild failed to strictly comply with the ESA notice provisions and, therefore, the district court lacked subject matter jurisdiction. The district court agreed with USFS. The Ninth Circuit reversed and remanded the district court’s judgment.

Under the General Mining Law of 1872[4] and the Organic Administration Act of 1897,[5] a miner must submit to USFS a “notice of intent to operate” (NOI) if mining “might cause significant disturbance of surface resources.”[6] After receiving the NOI, USFS must notify the miner if the operation will “likely cause significant disturbance of surface resources.”[7] If so, the miner must submit a more detailed “plan of operations” for approval by USFS before mining can proceed.[8]

Under section 7 of the ESA, USFS must consult with the appropriate wildlife agency to ensure that any potential federal action is unlikely to “jeopardize the continued existence of any [listed] species or result in the . . . adverse modification of habitat of such species.”[9] In Karuk Tribe of California v. U.S. Forest Service (Karuk Tribe),[10] the Ninth Circuit held that USFS’s review of NOIs is an “agency action” and therefore is subject to the consultation requirement of section 7 of the ESA.[11] A private citizen may bring suit to remedy a violation of the ESA, provided that written notice of the alleged violation was given at least sixty days before suit was filed.[12]

On June 12, 2012, shortly after the decision in Karuk Tribe, KS Wild sent USFS a letter as notice of its intent to file suit under the ESA. The letter stated that the National Marine Fisheries Service (NMFS) had designated critical Coho salmon habitat within the National Forest. The letter alleged that USFS approved numerous NOIs from miners, but failed to consult with NMFS before approving suction dredge mining in the National Forest. The letter claimed that USFS notified miners on several occasions that it would be unnecessary to submit a proposed plan of operations. On August 8, 2012, USFS responded that KS Wild’s letter “did not provide specific information about which mining operations [were] of concern, such as names of miners or mining claims, locations, or dates of mining operations.”[13] On October 3, 2012, KS Wild sent USFS a letter with an updated list of thirty-one suction dredge mining projects with an appendix identifying all the claims on the list by date and location.

On October 22, 2012, more than sixty days after its June letter but fewer than sixty days after its October letter, KS Wild filed a complaint in federal district court. KS Wild amended its complaint and specifically identified a number of NOIs that it alleged were approved without consultation, including some that did not match with those in the June notice letter. USFS moved to dismiss the amended complaint, arguing that KS Wild’s June notice letter was insufficient notice. The district court concluded that KS Wild’s notice to USFS was deficient and dismissed the claims. KS Wild timely appealed. The Ninth Circuit, reviewing the claims de novo, reversed and remanded.

USFS contended that KS Wild’s June notice letter was deficient and relied on Southwest Center for Biological Diversity v. U.S. Bureau of Reclamation (Southwest Center)[14] to support its contention. In that case, the Ninth Circuit held that the plaintiff’s notice letters were inadequate because the letters only made general assertions of violations of the ESA. However, the Ninth Circuit disagreed with USFS’s comparison to Southwest Center because KS Wild specifically alleged a geographically and temporally limited violation of the ESA. In this case, the Ninth Circuit concluded that KS Wild had provided USFS with all the necessary information to put USFS on notice of the alleged violations of the ESA, and that USFS did not need more specific information to know which NOIs might require consultation.

In sum, the Ninth Circuit held that KS Wild’s June notice letter adequately notified the Forest Service of their alleged violations of the ESA. Therefore, the claim should not have been dismissed. The Ninth Circuit remanded all other questions in the suit to be addressed by the district court.

Footnotes    (↵ returns to text)

  1. Plaintiff-appellants included Cascadia Wildlands Project and Rogue Riverkeeper.
  2. The United States Forest Service was a defendant-appellee. Intervenor-defendant-appellees included Waldo Mining District, Thomas Kitchar, and Donald Young.
  3. Endangered Species Act of 1973, 16 U.S.C §§ 1531–1544 (2012).
  4. Ch. 152, 17 Stat. 91 (codified as amended in scattered sections of 30 U.S.C. (2012)).
  5. Ch. 2, § 1, 30 Stat. 11, 36 (codified at 16 U.S.C. § 482 (2012)).
  6. 30 U.S.C. § 22 (2012); 16 U.S.C. § 482 (2012); 36 C.F.R. § 228.4(a) (2015).
  7. 36 C.F.R. § 228.4(a) (2015).
  8. Id. § 228.5(a).
  9. 16 U.S.C. § 1536(a)(2) (2012).
  10. 681 F.3d 1006 (9th Cir. 2012).
  11. Id. at 1027.
  12. 16 U.S.C. § 1540(g)(2)(A)(l) (2012).
  13. Klamath-Siskiyou Wildlands Ctr. v. MacWhorter, 797 F.3d 645, 648–649 (9th Cir. 2015).
  14. 143 F.3d 515 (9th Cir. 1998).
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