June 8, 2012

Further thoughts on Karuk Tribe

By Damien M. Schiff Senior Attorney

Yesterday I wrote about Judge Smith’s stinging dissent in the Ninth Circuit’s most recent (en banc) decision concerning the Endangered Species Act.  In reviewing the decision more closely, I was struck by how both the majority and the dissent appear to make a fundamental error in their legal analysis.  Under the ESA’s regulations, a federal agency is required to engage in consultation with the appropriate wildlife agencies over the impacts of a proposed action on listed species , but only if the agency has some measure of “discretion” or “control” over the action.  The reason for this limitation is that consultation would be a waste of time if the agency had no authority to amend or tailor its actions to benefit listed species.

In Karuk Tribe, both the majority and the dissent appear to misconstrue the meaning of “discretion.”  In my view, an agency has “discretion” if it may legally choose to do X or not-X based on the same predicate facts.  For example, imagine a legal regime giving an agency “discretion” to purchase additional office furniture for its employees if the average cost of the furniture to be purchased does not exceed $50 per piece.  This, in my view, would be an authentic case of discretion, because once the factual predicate is present (i.e., the average cost is not greater than $50), then the agency may but need not consummate the purchase.

But such examples of true discretion are, not surprisingly, rare in adminstrative law.  In Karuk Tribe, the supposed “discretionary” act at issue was the Forest Service’s review of a miner’s notice of intent to proceed with mining operations on national forest land.  As I understand the Forest Service’s regulations, a miner must submit such a notice if the mining “might” cause a significant disturbance of surface resources.  If the Forest Service determines, based on the notice, that the contemplated mining will not have such an impact, then the miner may proceed without further authorization or permit.

Both the majority and dissenting opinions in Karuk Tribe conclude that this regime gives the Forest Service “discretion” to allow mining.  But if one compares this regime to my examples above, I think it clear that this is decidedly not a case of discretion.  For, the regulations give the Service no discretion to allow or disallow mining based upon the same factual predicate.  In other words, if the Service agrees with the miner that the proposed mining will not cause significant disturbance, then the Service must allow the mining to go forward.

At bottom, the error that the Karuk Tribe majority and dissent make is to equate “discretion” with “judgment.”  When it comes to scientific and technical questions, the conclusions to be drawn from these problems do indeed require some measure of professional judgment, i.e., an assessment of factors and variables, a weighing of the evidence pro and con, etc.  But simply because the analysis is complex does not mean that the decisionmaker has “discretion” to choose one course over the other.  Thus, in Karuk Tribe, the Forest Service surely must exercise some measure of judgment in determining whether a planned mining operation will significantly affect the environment.  But once that factual judgment is made, the Service has no discretion in its subsequent actions:  the Service must allow or disallow the mining, based upon its impacts.  Hence, I think that the dissent is correct in its conclusion, although a little misguided in the route it takes.

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