You Gotta Tell Me What I Already Know

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The job of enforcing environmental laws rests primarily with the government. But, as regular readers know well, sometimes the government doesn’t do its job. That’s why Congress included “citizen suit” remedies in several key laws, such as the Endangered Species and Clean Water Acts. These provisions deputize citizens to enforce the law when the responsible government agency is behaving irresponsibly. Sixty days before bringing a citizen suit, the citizen has to tell the government, in writing, the how, what, when and where the law is being broken.

Yesterday, a Ninth Circuit panel lampooned the Forest Service’s defense that environmentalists hadn’t given the Forest Service sufficient written notice of its alleged lawbreaking associated with approving suction dredge mining in coho habitat. The Forest Service argued that it knew full well the details of its infractions, that environmentalists could have bolstered their written notice by asking the Forest Service for that information (e.g., through the Freedom of Information Act), and, as a result, environmentalists had not given sufficient notice to the Forest Service of its law-breaking.

Here’s the court’s scathing response: The Forest Service contends that KS Wild should have sought information from the Forest Service, either based on Forest Service public information regulations or on the Freedom of Information Act, and that KS Wild should then have provided that information, obtained from the Forest Service, to the Forest Service. The Forest Service writes in its brief, “Information about the Forest Service’s response to notices of intent to operate is readily available from the Forest Service itself.” If the relevant information is as readily available to KS Wild as the Forest Service claims it is, that same information is just as readily available to the Forest Service. And it is available to the Forest Service directly, without first having to provide it to KS Wild which would, in turn, then provide it back to the Forest Service, the original source of the information.

6 Comments

  1. Thanks for this, Andy. We posted it on our CCI Facebook Page with the link to the Youtube version of Rocky’s quote 🙂

    And thank you for your work in protecting both our national forests, the employees who work there, and the natural environment.

  2. Interesting, because dating back as far as to when I was FS Deputy Chief in 2000, Rob MacWhorter and I have discussed choices the FS has on mining issues. Seems to me the FS usually takes the pro-mining position and waits for env groups to contest. I argue that it would make more sense to take the environmentally safe position and require miners to seek relief from the courts to compel the FS to allow mining activity. In this case, deny suction dredging based on coho protection.

    Consider also Payette NF approval of Golden Hand exploration in Salmon River (Frank Church – – River of No Return Wilderness)… Truly surprising for its latitude in use of mechanized equipment and road construction.

    • “Seems to me the FS usually takes the pro-mining position and waits for env groups to contest.”

      To oversimplify, that may be because miners have the politicians and env groups have the laws. If the Forest Service were to say “no” to the miners, the miners would probably have no other recourse than political backlash (which most FS managers would prefer to avoid).

      (Of course an exception to this happened on the Allegheny where the forest supervisor attempted to regulate drilling and the oil and gas industry reversed her in court.)

  3. There is also a backlash against prospecting. I was told that goldpanning was OK, within the footprint of a local reservoir, as long as I didn’t use a shovel. (Do they know how ridiculous that sounds?!?) One observation I have noticed has been that since reservoirs are down so far, in California, that there is so much more erosion going on, due to the sediments in the reservoir being exposed to a running river again. When those sediments are covered by standing water, they are mostly stable. I choose to ignore the non-official comment that is banning shovels, not believing the off-duty reservoir employee. The sign near the reservoir states “No mineral extraction”. Of course, all other forms of prospecting are also off-limits, including sluice boxes, and I do observe those rules.

  4. Rob MacWhorter and most of the District rangers under him will be remembered as the invisible do nothing Supervisors. I can’t imagine him supporting mining, or much of anything really. I imagine he is just waiting to retire and trying not to make too many waves.
    KS Wild is no friend to forest management. Their desire is to basically to turn Southwestern Oregon and Northern California into a National Monument.

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