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Jim_Alaska
14:42:54 Fri
Apr 8 2011

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We defeated the Karuk's Appeal in the 9th Circuit!

It is nice to win on the big things!

This case was a continuation of the Karuk's earlier challenge of the U.S. Forest Service (USFS) regulation which allows prospecting or mining under a Notice of Intent (NOI) when the activity does not create a substantial disturbance of surface resources.

The 9th Circuit overruled the Karuk's argument that a USFS Ranger's decision to allow mining under a NOI amounted to an action that required additional consultation with other federal agencies, which would have created substantial delays before the prospecting or mining activity could proceed.

I asked our attorney James Buchal, who was the only council present that was arguing on behalf of the mining industry, to write a short summary. Here it is:

On April 7, 2011, the United States Court of Appeals for the Ninth Circuit affirmed a California district court’s rejection of the Karuk Tribe’s attempt to snarl any and all suction dredge mining in cumbersome interagency consultation processes under the federal Endangered Species Act. The case concerned the legal significance of miners sending notices of intent to the U.S. Forest Service under the Forest Service’s 36 C.F.R. Part 228 regulations. The Forest Service had reviewed notices of intent from The New 49’ers and others, and advised those giving notice that no plan of operations would be required. The Karuk Tribe contended that the district rangers’ review of such notices made the mining “agency action” that required consultation with the National Marine Fisheries Service and/or U.S. Fish and Wildlife Service pursuant to section 7 of the Endangered Species Act.

Two of the three Ninth Circuit judges (Milan Smith, the brother of former Oregon Senator Gordon Smith and James Todd, a senior district court judge from Tennessee) determined that the Forest Service’s review of such notices did not make the mining “agency action” subject to the consultation requirement. Simply put, the majority determined that the Forest Service’s decision not to require a plan of operations was “inaction”, not “agency action”. The majority also reaffirmed limitations on the authority of the Forest Service to regulate mining (regulatory authority will “materialize only when mining is likely to cause significant disturbance of surface resources”), and agreed that it was the mining laws, not the Forest Service, that authorized the mining at issue.

The dissenting judge, William A. Fletcher, wrote at great length, attempting to find “agency action” in the process by which rangers reviewed the submitted notices, and based upon the erroneous view that no miner could commence mining under a notice of intent unless and until the notice was approved by the Forest Service, thereby, in his view, “authorizing” the action.
______________________________
James Foley
Property and Mining Rights Advocate
Klamath River, California
jfoley@sisqtel.net
530-465-2211

  
Coeur_D_Alene
15:15:11 Fri
Apr 8 2011

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Re: We defeated the Karuk's Appeal in the 9th Circuit!

Jim, Bravo! its a good start. Glad to see things are getting better not worse. "V"

  
baub
19:54:32 Fri
Apr 8 2011

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Re: We defeated the Karuk's Appeal in the 9th Circuit!

Wow ! I'm stunned. Great job all !!!!

b

  
dredger
20:12:30 Fri
Apr 8 2011

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Re: We defeated the Karuk's Appeal in the 9th Circuit!

:clap: :clap:

  
JOE_S_INDY
02:42:57 Sat
Apr 9 2011

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Re: We defeated the Karuk's Appeal in the 9th Circuit!

Excellent news!

So now it looks as though everything has gone full circle, with a reafirmation from the Fed 9th Circuit.

And so, if a miner expects, in good faith, that he will not make a significant surface disturbance then a NOI is not needed?

If the miner suspects (or knows) that a signifigent surface disturbance could or will occur, he submits a NOI and the District Ranger decides if a POO is needed, or not. If not needed "Go for It" and if a POO is needed submit it to the District Ranger. After the POO is accepted "Go for It" in conformance with your POO.

Am I right?:confused:

Joe




---
Wiser Mining Through Endless Personal Mistakes
 
 
Muley
13:51:12 Sat
Apr 9 2011

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Re: We defeated the Karuk's Appeal in the 9th Circuit!

This is great news. Now I can tell the wife that I may be needing my dredge sluice back and she will have to find somewhere else to plant her flowers this year. :smile: :smile:

  
dickb
15:23:55 Sat
Apr 9 2011

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Re: We defeated the Karuk's Appeal in the 9th Circuit!

As I see it, "Somebody" still needs to define what a significant disturbance is.

It is a gray area that has been written into these regulations that allows enforcement to self define if the term has been violated, Then the miner must reverse the decision in court at his/her expense to be allowed to continue mining.

If an enforcement official has a bad day or an axe to grind with miners, then the miner is guilty without the burden of proof.

This is a significant burden on the mining community and needs to be resolved.

Just my thinking.:confused:

Dickb


  
kurt_Blumberg
04:31:21 Sun
Apr 10 2011

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Re: We defeated the Karuk's Appeal in the 9th Circuit!

Excellent!
Interesting that the regulations for my local forest service district here in Boulder, CO leave out the word "significant", which allows basically nothing can be disturbed. Hoping they never come out to inspect my claim! Tell you what, though, the brookies sure do appreciate the nice pond I've given them.

  
dickb
16:50:57 Sun
Apr 10 2011

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Re: We defeated the Karuk's Appeal in the 9th Circuit!

Hi Kurt:

There are a couple of prospectors that have a claim in Co right now, that are fighting that very subject with the FS. It's on CP's forum and they are trying to tell him that he has to post a bond and reclaim each time he leaves the site. Just take a look if your curious.

http://www.coloradoprospector.com/forums/index.php?showtopic=3143

Dickb:gonetoofar:
[2 edits; Last edit by dickb at 17:12:30 Sun Apr 10 2011]

  
Jim_Alaska
22:54:23 Sun
Apr 10 2011

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Re: We defeated the Karuk's Appeal in the 9th Circuit!

Dick B, the term "siginifcant disturbance has already been defined by the original court. The legal definition is, "using heavy equipment and / or cutting trees."

  

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