March 14, 2013

Supremes to consider The New 49'ers tomorrow

By Damien M. Schiff Senior Attorney

In Karuk Tribe of California v. United States Forest Service, the Ninth Circuit Court of Appeals held that notices of intent to mine on national forest lands trigger the obligation for the Forest Service to consult with the United States Fish and Wildlife Service and National Marine Fisheries Service over the impacts of the proposed mining species protected under the Endangered Species Act.  By imposing the arduous and costly Section 7 consultation obligation on small mining operations (the only kind that can qualify for the regulatory streamlining of the “notice of intent” process), the decision effectively destroys most of the suction dredge mining industry (a point made by the Ninth Circuit dissenters).

The miners have sought review in the Supreme Court, and Pacific Legal Foundation, representing several mining groups, has supported the miners’ petition with an amicus brief.  The Supreme Court has not addressed an Endangered Species Act issue since 2007.  Given that length of time, plus that the Court ordered the Tribe to respond to the petition, plus the stinging dissent below, one has hope that the Court will agree to hear the case.

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