It’s been a good week courtside for mining reform. Reform advocates scored two important victories this week from our government’s judicial branch. On March 18, the United States Supreme Court let stand a decision from the 9th Circuit Court of Appeals declaring that the Endangered Species Act trumps the 1872 Mining Law. And in Arizona, a US District Court judge upheld the decision of Interior Secretary Ken Salazar to withdrawal 1 million acres of land near the Grand Canyon from mining. More on the latter in an upcoming post.
The first case, argued in San Francisco, is Karuk Tribe of California v. United States Forest Service and the New 49’ers. The New 49’ers are a recreational mining club looking for gold by performing suction dredge mining activities along rivers and streams of the Klamath River. Suction dredge mining involves gasoline-powered engines connected to intake hoses four or five inches in diameter. The hoses usually dredge to depths from 5-12 feet sucking along the streambed gathering whatever is down there. One of the dangers worrying the Karuk Tribe is the threat suction dredging brings to the critical habitat of the Coho salmon. The Endangered Species Act lists the salmon as “threatened”.
1872 v. ESA
The General Mining Law of 1872 allows any private citizen the right to mine on public lands. That right trumps all other uses for these lands declaring mining as their highest and best use. Congress extended the 1872 Mining Law to National Forest Lands in 1897 though they permitted the Secretary of Agriculture to issue reasonable environmental rules for mining. But they can’t say no. Or even “impermissibly encroach on legitimate mining issues” (at page 5). The Endangered Species Act (ESA) requires that all federal agencies- before they do anything that may affect a threatened species- consult with either the Fish and Wildlife Service (FWS) at the Department of Interior or the Fisheries Service within the National Oceanic and Atmospheric Administration (NOAA). According to the United States Supreme Court, ESA’s Section 7 consultation reflects “a conscious decision by Congress to give endangered species priority over the ‘primary missions’ of federal agencies.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 185 (1978).
So, is the 1872 Mining Law the highest use? Or does the ESA have priority?
The ESA applies only to discretionary agency actions. If the Forest Service has no discretion or if this does not count as an agency action, then no need for ESA consultation. I’ll spare you the court’s long discussion of what constitutes agency action. Basically, it means authorization not informal advice, government action not private action, and action is different from inaction. If this counts as agency action, then we ask whether the agency has any discretion. If 1872 requires the Forest Service to allow mining, then the New 49’ers win. If instead, 1872 does not tie the hands of the Forest Service and allows some authority that could benefit threatened species, then the Tribe and salmon win.
The New 49’ers submitted to the Forest Service a Notice of Intent (NOI) describing the suction dredging they wanted to conduct along the Klamath River. The Forest Service’s District Ranger responded that the New 49’ers may not have more then ten dredges per mile, they must fill in some of the dredge wholes in spawning areas, and they must maintain certain cold water habitats. The New 49’ers then modified their NOI to address the Ranger’s concerns. The Court decided that seems a lot like exercising discretion.
The District Ranger then sent a letter to the 49’ers saying in part, “You may begin your mining operations…This authorization expires December 31.” The Court decided that seems a lot like agency action.
The significance here is simply the holding that the Forest Service must comply with the Endangered Species Act even in the face of the 1872 Mining Law. The decision represents the first time that mining interests-previously the highest and best use of public lands- become subjugated to competing uses like endangered species protection.
According to the dissent, this decision “effectively shuts down the entire suction dredge mining industry within our jurisdiction” (at page 54). Were that the case. Instead, miners seeking to use this technique simply need to consult with the agencies in charge of endangered species protection. Ironically, that almost happened here. In reviewing the miners’ NOI, The Forest Service District Ranger conducted extensive consultations with biologists at the US Forest Service. Except, those are the wrong biologists. Unfortunately, the law does not view one biologist as good as any other biologist. Since the ESA specifies only FWS or NOAA biologists (because those are the agencies in charge of enforcing the ESA), Forest Service biologists cannot satisfy the consultation requirement. Ultimately, the law did not foil the New 49’ers plans, just the bureaucracy.