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US 9th circuit ruling could reach further than gold dredge miners

The 9th Circuit Court has ordered the Forest Service to consult with wildlife agencies prior to granting notices of intent to mining and exploration activities in critical wildlife, fishery habitat areas.
Author: Dorothy Kosich
Posted: Monday , 04 Jun 2012

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A Court of Appeals ruling ordering the U.S. Forest Service to consult with wildlife agencies prior to granting Notices of Intent to weekend hobbyists using suction dredges to mine for gold in the Coho Salmon critical habitat in northern California could eventually be bad news for all U.S. small miners and explorationists working on Forest Service lands with critical wildlife habitat.

In a news release distributed to the nation's news media Friday by the Karuk Tribe and the Western Mining Action Project ,the plaintiffs observed the court "made a historic decision in giving the Endangered Species Act precedent over the 1872 Mining Law when it decided in favor of the Karuk Tribe and endangered Coho Salmon in California and Oregon over recreational miners in the Klamath River area."

"This decision [Karuk Tribe of California v. USFS] sets a major precedent across the western states," declared long-time environmental attorney Roger Flynn, who represented the tribe and is director of the Western Mining Action Project in Colorado.

"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 Court today re-affirmed this guiding principle of federal public land management," he observed.

And, the 9th Circuit Court of Appeals judge who wrote the dissenting opinion in the 7-4 ruling, also believes the ruling has far-reaching ramifications well beyond the weekend hobbyist miners who dredge for gold along the Klamath River south of the California-Oregon Border.

In his dissenting opinion, Circuit Judge Milan Smith, Jr., wrote, "By rendering the Forest Service impotent to meaningfully address low impact mining, the majority effectively shuts down the entire suction dredge mining industry in the states within our jurisdiction."

Those states include the mining states of Alaska, Arizona, Idaho, Nevada, Montana, Oregon and Washington.

Prior to the aforementioned appellant court decision, informal Notices of Intent allowed low-impact mining projects to proceed within a few weeks. "In contrast ESA interagency consultation requires a formal biological assessment and conferences, and can delay projects for month or years," Smith noted.

"Most miners affected by this decision will have neither the resources nor the patience to pursue a consultation with the EDA; they will simply give up, and curse the Ninth Circuit," the judge warned. "As a result, a number of people will lose their jobs and the businesses that have invested in the equipment used in relevant mining activities will lose much of their value."

The judge noted that in 2008, California issued about 3,500 permits for suction dredge operations and about 18% of those miners received "a significant portion of income from dredging."

"The majority's opinion effectively forces these people to await the lengthy and costly ESA consultant process if they want to pursue their mining activities, or simply ignore the process, at their peril," Smith wrote. "Unfortunately, this is not the first time our court has broken from decades of precedent and created burdensome, entangling environmental regulations out of the vapors."

Chief Judge Alex Kozinski and Circuit Judges Sandra Segal Ikuta and Mary Murgia also dissented from the majority.

MAJORITY OPINION

Nevertheless, the en banc majority opinion of seven circuit judges requires the Forest Service to consult with fish and wildlife agencies before granting permits for notice level gold dredging operations along a 35-mile stretch of the Klamath River.

The 9th Circuit decision overturned rulings in 2005 by a district court and in 2011 when the appellant court's own three-judge appeals panel in a lawsuit originally filed by the Karuk Tribe.

The case was brought by the Karuk Tribe, which originally filed the lawsuit in 2004 in the federal court in Oakland, California, against the U.S. Forest Service. The new 49'ers, a group of weekend mining hobbyists with gold mining claims along the Klamath River, intervened as a defendant in the litigation. The tribe not only challenges suction dredge mining in the Klamath River, but also mining activities outside the stream channel, such as motorized sluicing.

Circuit Judge William A. Fletcher, writing for the majority, said the appellant court had to concern itself with whether the approved NOI mining activities ‘may affect" a listed species or its critical habitat. "The record shows that the mining activities approved under NOIs satisfy the ‘may affect' standard."

"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 the Coho Salmon Critical Habitat within the Klamath National Forest," said Fletcher. The Coho Salmon in the Klamath River system were listed as threatened under the ESA on May 6, 1997.

The Karuk Tribe says it depends on Coho Salmon in the Klamath River System for cultural, religious and subsistence uses.

Commercial gold mining in and around the rivers and streams of California "was halted long ago, due in part, to extreme environmental harm caused by large-scale placer mining," the judge observed, noting that miners who use gasoline-power engines to suck streambed material through flexible intake hoses dredge from about five feet to as much as 12 feet beneath streambeds.

The moratorium is the result of a state court lawsuit filed by the Karuk Tribe against the California Department of Fish and Game in 2005. The moratorium will expire on June 30, 2016.

The California Department of Fish and Game has published proposed new state suction mining regulations that "fully mitigate all identified significant environmental impacts." The Karuk Tribe, environmental NGOs, and recreational fishing groups have sued to block the regulations, as have The New 49ers and other holders of mining claims in California's rivers and streams.

Fletcher noted, "The Forest Service and Miners argue that the controversy is moot because the California Legislature has imposed a statewide moratorium on suction dredge mining. ...No suction dredge mining may occur in the Six Rivers or Klamath National Forests until the temporary state ban expires."

"The moratorium does not moot this appeal for two reasons," he insisted. "First, the suction dredge moratorium does not prohibit other mining activities at issue in this case.'

"Second, even if these other mining activities were not at issue, the state's moratorium on suction dredge mining is only temporary," he added. "Similarly, here, despite any changes to the state suction dredge regulations, ‘dispute would continue' over whether the Forest Service can approve NOIs allowing mining activities in critical habitat of a listed species without consultation under the ESA."

"Moreover, the record in this appeal includes ample evidence that the mining activities approved under the NOIs in the Happy Camp District ‘may affect' Coho Salon and their critical habitat," the judge concluded.

Voting in favor of the majority opinion were Circuit Judges Barry G. Silverman, Susan P. Graber, Kim McLane Wardlaw, Ronald M. Gould, Richard A. Paez, Marsha S. Berzon and Fletcher.

http://www.mineweb.co.za/mineweb/view/mineweb/en/page34?oid=152590&sn=Detail&pid=34

http://investorshub.advfn.com/Gold-Bullion-COMEX-GC-Z12-23105/