September 14, 2012

The high price of civility for the pervasively regulated

By Jonathan Wood Attorney

A petition for a writ of certiorari has been filed in the Supreme Court challenging the Ninth Circuit decision that the receipt of a notice of intent to mine from a private party is an “agency action” triggering a duty to consult with relevant federal agencies under the Endangered Species Act.  The Ninth Circuit decision got some attention for the stinging dissent.  The decision has also been previously discussed for its error in equating discretion and judgment.

Another troubling aspect of the Ninth Circuit opinion is its reliance on stray language in correspondence, between District Rangers at the Forest Service and private parties, to impose expensive and burdensome regulatory barriers.

From the petition:

“The Ninth Circuit relied significantly upon the fact that the district rangers involved departed from the regulatory design by providing advice and feedback to the miners on how to structure their activities to achieve regulatory insignificance.  The district rangers even purported, on occasion, to “approve” the notices of intent or “authorize” the mining involved.”

In particular, the court relied on letters from the District Rangers to private party’s informing the private party that, because its activities were not likely to cause significant disturbance of surface resources, they were not required to go through the expensive and burdensome formal regulatory procedure.  The court also looked to letters from the private parties that purported to accept that the Service had “approved” their activities.

The court’s willingness to find so much meaning in imprecise language in correspondence between the Service and private parties is troubling.  It seems to me to be eminently more plausible that the language contained in the correspondence is a product of civility rather than a carefully considered determination, by either the District Rangers or the private parties, of the effect of using terms like “approve” or “authorize”.  Based on the decision, it seems that the private parties, upon being informed that they were not going to have to go through a costly and burdensome regulatory process, erred by thankfully accepting the agency’s decision that they were not subject to regulation.  Instead they should have objected to any language in the letter that could possibly be given inappropriate weight in a later, and unforeseeable, court proceeding.  In effect, pervasive regulation doesn’t leave any room for civility.

Look for PLF’s brief supporting the petition in the next few weeks.

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