Interesting developments in The New 49'ers v. Karuk Tribe

December 13, 2012 | By DAMIEN SCHIFF

In The New 49’ers v. Karuk Tribe, the petitioner gold miners seek United States Supreme Court review of a 7-4 en banc decision of the Ninth Circuit holding that the Forest Service must conduct consultation under the Endangered Species Act when determining whether small-impact mining can proceed on the national forests.  Pacific Legal Foundation filed an amicus brief on behalf of mining groups to support the petition.  Our brief argues that the Ninth Circuit’s decision will significantly expand the scope of Endangered Species Act consultation, and in so doing will add tremendously to the permitting burden of many small and low-impact activities that involve the discharge of dredged or fill material or stormwater.

Originally, the Karuk Tribe had waived its right to respond to the petition, but rather than conference on the petition, the Court gave the Solicitor General an opportunity to opine.  The SG’s brief argues against Supreme Court review (while disagreeing with the decision).  The Court was set to conference on the petition last week, but then pushed the conference back again in directing the Tribe to respond to the petition.  So much attention to the petition strikes me as a good sign that the Court is inclined to take up the case, which would be its first Endangered Species Act controversy since the 2007 decision in National Association of Home Builders v. Defenders of Wildlife.  The Tribe has until early January to respond.