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

people online in the last 1 minutes - 0 members, 0 anon and 0 guests. (Most ever was 34 at 15:22:43 Fri Sep 10 2021)

Offline
145 posts
Administrator

We defeated the Karuk's Appeal in the 9th Circuit! ( 07:11:48 FriApr 8 2011 )

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.

colo_nuggets

Offline
453 posts
Reply

Re: We defeated the Karuk's Appeal in the 9th Circuit! ( 09:18:30 FriApr 8 2011 )

Very nice!
Will this help on the current proposed regulations as well?
Scott

ratled

Offline
462 posts
Reply

Re: We defeated the Karuk's Appeal in the 9th Circuit! ( 11:56:55 FriApr 8 2011 )

YEA BABY!!! I know its going to be nice for "us" to this behind us.

I'm sure there are a few outstanding bills left from this one, so in light of the BIG WIN, and this is a BIG WIN, I would like to issue a $10 challenge to the current legal fund raiser. This is why we give... any takers?

ratled

Dave_Mack

Offline
145 posts
Administrator

Re: We defeated the Karuk's Appeal in the 9th Circuit! ( 13:40:40 FriApr 8 2011 )

I'll give $100! Also going to sip some good red wine tonight!

Colo; this won't impact the California regulations, because it was a federal case. On that note, look for my comments in the next few days; whew big jo

beammaker

Offline
161 posts
Reply

Re: We defeated the Karuk's Appeal in the 9th Circuit! ( 16:04:47 FriApr 8 2011 )

Dave Mack, Colo Nuggets and Ratled:

YAHOO!!!!!!

This might make CDFG at least listen more to our statements and concerns though. EVERY WIN COUNTS!!!

I will contact the office at the end of this month and add another $50 to the pot.

Beammaker

ochawk

Offline
46 posts
Reply

Re: We defeated the Karuk's Appeal in the 9th Circuit! ( 17:26:44 FriApr 8 2011 )

Hey Ratled, I accept your challenge and I will go in to see Montine today and give at least $10 to the legal fund to help cover the costs. I would give more if I had it......
This is a good win but lets not lose sight of the other battles going on. Congrats are in order big time to all who helped win this case. THANK YOU VERY MUCH!!!!!

Big Mike :thankyou: :whoohoo:

lt309

Offline
17 posts
Reply

Re: We defeated the Karuk's Appeal in the 9th Circuit! ( 20:31:14 FriApr 8 2011 )

Hey Ratled

I matched Dave's contribution this morning at the office.

Rich

ratled

Offline
462 posts
Reply

Re: We defeated the Karuk's Appeal in the 9th Circuit! ( 03:31:09 SatApr 9 2011 )

Thanks guys !!!:thankyou:

You are the best!!! Every dollar and flake of gold helps, it really does.... and this win is one of the many benefits!!! We still have more ahead of us

ratled

Jim_Alaska

Offline
1928 posts
Administrator

Re: We defeated the Karuk's Appeal in the 9th Circuit! ( 16:07:44 SatApr 9 2011 )

This is a significant win folks. It gives us the case law we needed to affirm that the mining law; 1866 - 1872 as an act of congress, stands as the law of the land on mining issues that affect us.

Reading the court's decision will give you a real understanding of the provisions in the mining law.

The court's opinion is severly flawed in some respects, but very favorable in others. This simply means that although we won on this appeal, we still have a ways to go to overcome this courts flaws on certain issues such as, prying the court's grip from applying NEPA, or Part 228. The court did a poor job showing how the ESA was actually applicable.

The positive parts of this case are revealed where our attorney, James Buchal, mentions the court knows the authority for what we do resides in the mining law, or, an "other authority". Just as FLPMA recognizes also, an other authorization shall prevail, 43 USC 1732 (c), for reference. This points directly to the mining law.

Anyway, I am no attorney, but just thought I would point out a couple of the obvious flaws and good points.

Having said that, I also see the need to keep our defences up. Even though this is behind us for now, it doesn't preclude our adversaries from probing our defences to look for weak points. This always costs more and more money to defend. It's lucrative for them to keep the argument going, good for their business. Our opposition knows this all too well and this is one of the reasons it costs so much to see these court cases through to the end, they try to win using time and money against us. They know we have limited monetary resources, so it is their best interest to keep the pressure on as long as possible.

Although we never know what is coming up next, it is in our best interest to keep our legal fund well stocked. We still owe our attorneys some funds for this win. If we prepare now for whatever the opposition chooses to throw at us next, we will be in a much better position to fight back and be effective in the future.

A great big :thankyou: to each and every one for your contributions to this fight without your help we would not have won and would still owe big bucks to our legal staff.

Below is the whole court decision in this case.

The Court's Decision

__________________________
James Foley
Administrator
New 49'ers Message Forums
http://frost.bbboy.net/thenew49ers
jfoley@sisqtel.net

UncleMark

Offline
531 posts
Reply

Re: We defeated the Karuk's Appeal in the 9th Circuit! ( 13:49:03 MonApr 11 2011 )

Yeah!!!!!!!!!!!!:doublethumbsup::whoohoo:

:thankyou:

Total Members: 4903

Can't start a new thread. (Admins Only)

Can't start a new poll. (Admins Only)

Can't add a reply. (Admins Only)

Can't edit your posts.(Everyone Registered)