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.