Klamath-Siskiyou Wildlands Ctr v. Rob MacWhorter , 797 F.3d 645 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KLAMATH-SISKIYOU WILDLANDS No. 13-35453
CENTER; CASCADIA WILDLANDS
PROJECT; ROGUE RIVERKEEPER, D.C. No.
Plaintiffs-Appellants, 1:12-cv-01900-
PA
v.
ROB MACWHORTER, in his official OPINION
capacity; UNITED STATES FOREST
SERVICE,
Defendants-Appellees,
WALDO MINING DISTRICT; THOMAS
KITCHAR; DONALD YOUNG,
Intervenor-Defendants–Appellees.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Argued and Submitted
May 4, 2015—Portland, Oregon
Filed August 10, 2015
2 KS WILD V. MACWHORTER
Before: William A. Fletcher and Andrew D. Hurwitz,
Circuit Judges and Donald E. Walter,* Senior District
Judge.
Opinion by Judge W. Fletcher
SUMMARY**
Environmental Law
The panel reversed the district court’s dismissal for lack
of subject matter jurisdiction of an Endangered Species Act
claim brought by Klamath-Siskiyou Wildlands Center against
the U.S. Forest Service concerning its approval of suction
dredge mining projects in the Rogue River-Siskiyou National
Forest.
Under the citizen suit provision of the Endangered
Species Act, a private citizen may bring suit to remedy a
violation of the Act, provided that the private citizen gives
written notice of the alleged violation or violations upon
which the suit is based at least sixty days before suit is filed.
The panel held that the Klamath-Siskiyou Wildlands
Center’s June 2012 notice letter was sufficient notice under
the citizen suit notice provision of the Endangered Species
*
The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for the Western District of Louisiana, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
KS WILD V. MACWHORTER 3
Act. The panel also held that there was subject matter
jurisdiction in the district court over the Center’s suit to
enforce the Forest Service’s obligations under Section 7 of
the Endangered Species Act. The panel left other questions
in the suit to be addressed by the district court on remand.
COUNSEL
John R. Mellgren (argued), Peter M.K. Frost, Western
Environmental Law Center, Eugene, Oregon, for Plaintiffs-
Appellants.
Lane N. McFadden (argued) and Bridget Kennedy McNeil,
Attorneys, Environmental & Natural Resources Division,
United States Department of Justice, Washington, D.C., for
Defendant-Appellee.
James L. Buchal, Murphy & Buchal, LLP, Portland, Oregon,
for Intervenor-Defendants–Appellees.
4 KS WILD V. MACWHORTER
OPINION
W. FLETCHER, Circuit Judge:
In this appeal, the Klamath-Siskiyou Wildlands Center
(“KS Wild”) challenges the district court’s dismissal of its
claim against the U.S. Forest Service for lack of subject
matter jurisdiction. The district court concluded that KS
Wild’s notice of intent to sue under the Endangered Species
Act was deficient. For the reasons that follow, we disagree.
I. Background
Under the citizen suit provision of the Endangered
Species Act (“ESA”), a private citizen may bring suit to
remedy a violation of the Act, provided that it gives written
notice of the alleged violation or violations upon which the
suit is based at least sixty days before suit is filed. 16 U.S.C.
§ 1540(g)(2)(A)(i) (“No action may be commenced . . . prior
to sixty days after written notice of the violation has been
given to the Secretary, and to any alleged violator . . . .”).
The sixty-day notice requirement is jurisdictional. Sw. Ctr.
for Biological Diversity v. U.S. Bureau of Reclamation
(Southwest Center), 143 F.3d 515, 520 (9th Cir. 1998). “A
failure to strictly comply with the notice requirement acts as
an absolute bar to bringing suit under the ESA.” Id.
This suit arises in the context of recreational suction
dredge mining conducted under the General Mining Law of
1872 and the Organic Administration Act of 1897. 30 U.S.C.
§ 22; 16 U.S.C. § 482. Under these statutes, if a mining
operation “might cause significant disturbance of surface
resources,” the miner must submit to the Forest Service a
“notice of intent to operate” (“NOI”). 36 C.F.R. § 228.4(a)
KS WILD V. MACWHORTER 5
(emphasis added). After receiving the NOI, the Forest
Service has fifteen days to notify the miner if the planned
operation will “likely cause significant disturbance of surface
resources,” which would require the miner to submit a more
detailed “plan of operations.” Id. (emphasis added). A plan
of operations must be approved by the Forest Service before
mining may take place. Id. § 228.5(a).
In Karuk Tribe of California v. U.S. Forest Service,
681 F.3d 1006 (9th Cir. 2012) (en banc), recreational suction
dredge miners submitted NOIs to the Forest Service for
mining in the Klamath River. Under Section 7 of the ESA,
the Forest Service is required to engage in consultation with
the appropriate wildlife agency (either the Fish and Wildlife
Service, the National Marine Fisheries Service (“NMFS”), or
both) in order to “insure” that any contemplated federal
action “is not likely to jeopardize the continued existence of
any endangered species or threatened species or result in the
destruction or adverse modification of habitat of such species
which is determined to be . . . critical.” 16 U.S.C.
§ 1536(a)(2). We held in Karuk Tribe that the Forest
Service’s review of NOIs under § 228.4(a) constituted agency
action subject to the consultation requirement of Section 7 of
ESA. 681 F.3d at 1027.
On June 12, 2012, following our en banc decision in
Karuk Tribe, KS Wild sent the Forest Service a letter as a
notice of intent to sue under the ESA. The letter alleged that
the Forest Service had permitted suction dredge mining in the
Rogue River-Siskiyou National Forest (“the National
Forest”), which provides designated critical habitat for coho
salmon, without consulting with NMFS, in violation of
Section 7. See 50 C.F.R. § 226.210 (describing critical
habitat as all salmon-accessible river portions within the
6 KS WILD V. MACWHORTER
salmon’s historic range that can still be occupied and are not
impassable).
The letter alleged generally:
The Forest Service and its officials have
authorized, approved, or otherwise acquiesced
to suction dredge placer mining operations in
rivers, streams, and other waters on the forest
that provide habitat for fish listed under the
ESA, including coho salmon of the Oregon
Coast Evolutionarily Significant Unit (“ESU”)
and coho salmon of the southern
Oregon/northern California (“SONC”) [sic]
ESU.
The letter then described the ESA consultation requirement,
noted that NMFS has designated critical coho salmon habitat
within the National Forest, and described the effect of suction
dredge mining on coho salmon and their critical habitat. The
letter stated:
In 2010, 2011, and 2012, the Forest
Service received numerous notices of intent
from miners seeking to practice suction
dredge placer mining operations in rivers,
streams, and other waters on the Rogue River-
Siskiyou National Forest that provide habitat
for ESA-listed coho. On at least May 1,
2012; April 19, 2012; April 13, 2012; April 3,
2012; March 29, 2012; March 6, 2012; March
2, 2012; February 14, 2012; January 30, 2012;
January 19, 2012; October 13, 2011; August
23, 2011; August 17, 2011; July 20, 2011;
KS WILD V. MACWHORTER 7
July 1, 2011; June 1, 2011; April 8, 2011;
March 25, 2011; March 23, 2011; March 17,
2011; March 15, 2011; March 8, 2011;
February 23, 2011; February 3, 2011; January
29, 2011; and January 20, 2011, the Forest
Service notified miners that they would not be
required to submit a proposed plan of
operations for their proposed suction dredge
mining operations in rivers, streams, and other
waters on the Rogue River-Siskiyou National
Forest that provide habitat for ESA-listed
coho. These suction dredge placer mining
operations commenced and continue, and will
continue in the foreseeable future.
(Emphasis added.) The letter alleged that the Forest Service
had failed to consult with NMFS before approving suction
dredge mining pursuant to these “numerous notices of intent.”
Two days later, on June 14, 2012, KS Wild sent another
letter, amending the earlier letter to add Rogue Riverkeeper
as a “party” to the letter.
On August 8, 2012, Robert G. MacWhorter, the Forest
Supervisor for the Rogue River-Siskiyou National Forest,
responded to KS Wild’s notice letter. He noted that KS
Wild’s letter “did not provide specific information about
which mining operations are of concern, such as names of
miners or mining claims, locations, or dates of mining
operations.” However, he stated that he had “matched thirty
letters from District Rangers concerning mining on this
Forest to the dates in your letter.” He stated that only five of
those letters responded to NOIs that were within designated
critical habitat, and of those five, one responded to a request
8 KS WILD V. MACWHORTER
to mine using hand tools rather than suction dredging. He
then stated:
As you can tell from the above
information, each mining operation . . . is a
unique matter to be considered in light of . . .
[Karuk Tribe]. The Forest is working on
addressing the Karuk case by reviewing the
facts and legal holding against similar mining
activities on the Rogue River-Siskiyou
National Forest.
I am deeply concerned about this issue
and am interested in working with you on
notice-level suction dredge activity that has a
potential effect on listed Coho salmon. We
are evaluating the identified notice-level
mining claims and our authorities to proceed
with consultation.
On August 22, 2012, after receiving Forest Supervisor
MacWhorter’s letter, members of KS Wild and Rogue
Riverkeeper and an attorney employed by the Western
Environmental Law Center met with MacWhorter and Forest
Service staff members to discuss NOIs for suction dredge
mining and the requirements of the ESA. On October 3,
2012, KS Wild, along with the Cascadia Wildlands Project
and Rogue Riverkeeper, sent the Forest Service a letter with
an “updated list of 31 suction dredge placer mining projects
that adversely affect listed wild coho or its critical habitat on
the Rogue River-Siskiyou National Forest, for which [the
Forest Service] failed to consult with NMFS.” As to several
of the NOIs listed in the June notice letter, the October letter
asserted that MacWhorter was mistaken in his statement
KS WILD V. MACWHORTER 9
about the degree to which suction dredge mining was taking
place in ESA critical habitat. The October letter included an
appendix identifying by date and location the thirty-one
claims on the updated list. The list included twenty-four
mining operations that corresponded with fourteen dates
provided in the June 2012 notice letter; added claims
corresponding with seven additional dates that were not
provided in the notice letter; and omitted eleven of the
twenty-six dates provided in the June notice letter.
KS Wild filed a complaint in federal district court on
October 22, 2012, more than sixty days after its June letter
but less than sixty days after its October letter. KS Wild
bases its allegation of subject matter jurisdiction solely on the
notice provided in the June letter.
The complaint made only a general allegation, echoing
the language of the June notice letter, that “[o]n numerous
dates in 2010, 2011, and 2012, the Forest Service received
notices of intent from miners to conduct suction dredge placer
mining in critical habitat for wild SONC [sic] coho on the
Rogue River-Siskiyou National Forest.” KS Wild filed an
amended complaint on December 6, 2012. In the amended
complaint, KS Wild specifically identified a number of NOIs,
not limited to those corresponding to the dates in the June
notice letter, that the Forest Service had allegedly approved
without engaging in the consultation required under Section
7 of the ESA.
The Forest Service moved to dismiss the amended
complaint for want of subject matter jurisdiction, arguing that
KS Wild’s June notice letter was insufficient and that
Cascadia and Rogue Riverkeeper were not proper plaintiffs.
The district court concluded, without reaching any other
10 KS WILD V. MACWHORTER
question, that the June notice letter was insufficient. The
court wrote that
plaintiffs’ notice failed to fulfill [the statute’s]
purpose because the notice did not inform the
Forest Service of alleged violations plaintiffs
now assert in their amended complaint. The
notice only listed dates on which defendants
allegedly authorized mining operations in
coho habitat, forcing the Forest Service to
guess which mining authorizations plaintiffs
intended to challenge. Plaintiffs could have
provided sufficient information in the notice,
as shown by the specific allegations in the
amended complaint. Plaintiffs’ failure to
strictly comply with the notice requirement is
an absolute bar to this action.
KS Wild timely appealed.
II. Standard of Review
“We review the adequacy of a notice of intent to sue de
novo.” Conservation Cong. v. Finley, 774 F.3d 611, 617 (9th
Cir. 2014).
III. Discussion
As we noted above, the ESA requires that plaintiffs
provide notice of a violation at least sixty days prior to filing
suit. 16 U.S.C. § 1540(g)(2)(A)(i). The ESA notice
provision contains language similar to citizen suit notice
provisions in other environmental statutes, including the
Clean Water Act (“CWA”) and the Resource Conservation
KS WILD V. MACWHORTER 11
and Recovery Act (“RCRA”). See Hallstrom v. Tillamook
Cnty., 493 U.S. 20, 23 & n.1 (1989). We may look to
interpretations of the notice provisions of these statutes to
inform our interpretation of the notice provision here. See,
e.g., id. at 28–29. However, we note that the EPA has
promulgated implementing regulations for the notice
provision of the CWA, providing that a notice
shall include sufficient information to permit
the recipient to identify the specific standard,
limitation, or order alleged to have been
violated, the activity alleged to constitute a
violation, the person or persons responsible
for the alleged violation, the location of the
alleged violation, the date or dates of such
violation, and the full name, address, and
telephone number of the person giving notice.
40 C.F.R. § 135.3(a). Unlike the citizen suit statutory
provision in the CWA, the ESA’s notice provision has no
implementing regulation. Accordingly, to the degree that the
CWA implementing regulation might be thought to require
more specific notice than would be required under the statute,
standing alone, we are not bound to adopt that more
demanding requirement. See Glenbrook Homeowners Ass’n
v. Tahoe Reg’l Planning Agency, 425 F.3d 611, 615–16 (9th
Cir. 2005).
The notice requirement serves two purposes. First, it
“allows Government agencies to take responsibility for
enforcing environmental regulations, thus obviating the need
for citizen suits.” Hallstrom, 493 U.S. at 29. Second, it
“gives the alleged violator ‘an opportunity to bring itself into
complete compliance with the Act and thus likewise render
12 KS WILD V. MACWHORTER
unnecessary a citizen suit.’” Id. (quoting Gwaltney of
Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49,
60 (1987)). The Supreme Court has concluded that these
purposes are best fulfilled by requiring strict compliance with
the statute’s timeliness and party identification requirements.
Id.
To provide proper notice of an alleged violation, a would-
be plaintiff must “[a]t a minimum . . . provide sufficient
information . . . so that the [notified parties] could identify
and attempt to abate the violation.” Southwest Center,
143 F.3d at 522 (citing Pub. Interest Research Grp. of N.J.,
Inc. v. Hercules, Inc. (Hercules), 50 F.3d 1239, 1249 (3d Cir.
1995)). A citizen “‘is not required to list every specific
aspect or detail of every alleged violation. Nor is the citizen
required to describe every ramification of a violation.’”
Cmty. Ass’n for Restoration of the Env’t v. Henry Bosma
Dairy (Bosma Dairy), 305 F.3d 943, 951 (9th Cir. 2002)
(quoting Hercules, 50 F.3d at 1248). Rather, the analysis
turns on the “overall sufficiency” of the notice. Id.; see also
Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir.
1996) (examining “the letter as a whole” for sufficiency of
notice). A reviewing court may examine both the notice itself
and the behavior of its recipients to determine whether they
understood or reasonably should have understood the alleged
violations. See Natural Res. Def. Council v. Sw. Marine, Inc.
(Southwest Marine), 236 F.3d 985, 997 (9th Cir. 2000); see
also Atl. States Legal Found., Inc. v. Stroh Die Casting Co.,
116 F.3d 814, 820 (7th Cir. 1997).
In three citizen suit cases, we have allowed plaintiffs to
plead alleged violations that were not specifically detailed in
a notice letter. The key issue in all three cases was whether
the notice provided information that allowed the defendant to
KS WILD V. MACWHORTER 13
identify and address the alleged violations, considering the
defendant’s superior access to information about its own
activities. First, in Ecological Rights Foundation v. Pacific
Gas & Electric Co., 713 F.3d 502, 506–07 (9th Cir. 2013),
the plaintiff sent PG & E a notice letter alleging that it had
violated the CWA and RCRA by releasing toxic wood
preservative from its utility poles during periods of
substantial rainfall. The letter “included a non-exhaustive list
of utility poles in dispute and the dates of the alleged
violations.” Id. at 507. The notice letter stated that the
violation
pertains to each and every Pole located in San
Francisco, Alameda, Contra Costa, and Marin
counties, to the extent the Pole has been
treated with the above-referenced oil-
pentachlorophenol mixture. . . . PG & E
knows the location of each of these Poles.
These Poles include, but are not limited to, the
Poles identified in the attached Exhibits A and
B. The itemization of Poles in Exhibits A and
B are provided by way of example to illustrate
ERF’s concern with the Poles . . . .
Id. at 519.
PG & E argued that the letter provided insufficient notice
because it did not specify the location of each pole covered in
the complaint. Id. We disagreed. We wrote that
“as long as a notice letter is reasonably
specific as to the nature and time of the
alleged violations, the plaintiff has fulfilled
the notice requirement. The letter does not
14 KS WILD V. MACWHORTER
need to describe every detail of every
violation; it need only provide enough
information that the defendant can identify
and correct the problem.” San Francisco
BayKeeper, Inc. v. Tosco Corp., 309 F.3d
1153, 1155 (9th Cir. 2002); see also [Bosma
Dairy], 305 F.3d at 951 (“Neither the CWA
nor the EPA’s regulations require plaintiffs to
provide an exhaustive list of all violations.”).
ERF’s notice that preservative-treated utility
poles owned by PG & E and/or other entities
in four counties allegedly discharged
pollutants during days of significant
precipitation was sufficient to advise PG & E
of ERF’s claims, especially where ERF
identified representative poles and referenced
PG & E’s superior ability to ascertain the
locations of other poles that might be at issue.
Id. The key inquiry was whether the identifying information
in the notice letter provided PG & E with enough
information, when combined with PG & E’s knowledge of its
own activities, to allow PG & E to identify the additional
poles not specifically identified in the letter.
Second, in Bosma Dairy, the plaintiff sent a notice letter
listing twelve specific manure discharges by the Bosma Dairy
that allegedly violated the CWA. 305 F.3d at 948. Each of
the discharges was described and identified by particular
dates, ranging from January 1992 to June 1997. Id. at 951.
The plaintiff’s complaint alleged, in addition to the twelve
discharges identified in its letter, thirty-two additional
discharges, described and identified by particular dates,
ranging from April 1992 to September 1997. Id. We held
 KS WILD V. MACWHORTER 15
that the notice was sufficient not only for the twelve
violations specified in the notice letter, but also for the thirty-
two additional unspecified violations. Id. at 953. We held
that requiring the plaintiff to list each specific violation in the
notice was not necessary:
The purpose of the 60 day notice is to provide
the agencies and the defendant with
information on the cause and type of
environmental laws or orders the defendant is
allegedly violating so that the agencies can
step in, investigate, and bring the defendant
into compliance. . . . Congress did not intend
to unduly burden citizens by requiring them to
basically carry out the job of the agency.
Based on the fact that the violations originated
from the same source, were of the same
nature, and were easily identifiable, we find
that [the plaintiff’s] notice was adequate.
Id.
Third, in San Francisco BayKeeper v. Tosco Corp., the
plaintiff sent a notice letter alleging that Tosco had violated
the CWA by spilling petroleum coke into San Francisco Bay
waters during ship loading, and by allowing the wind to blow
coke into the water from uncovered piles. 309 F.3d at 1158.
The letter alleged spilling violations on fourteen specified
dates when, based on Coast Guard records, ships were
moored at Tosco’s dock, as well as additional possible
violations on unspecified dates. Id. The letter alleged wind-
blown violations without listing any specific dates, saying
only that the violations occurred “on each day when the wind
16 KS WILD V. MACWHORTER
has been sufficiently strong to blow coke from the piles into
the slough.” Id.
We held that sufficient notice had been provided for both
kinds of violations. With respect to the additional spilling
violations not specifically identified in the notice, we wrote:
Tosco is obviously in a better position than
BayKeeper to identify the exact dates, or
additional dates, of its own ship loading. The
notice regulation does not require BayKeeper
in such a situation to provide the exact dates
of alleged violations; rather, it requires only
that BayKeeper provide “sufficient
information to permit the recipients to identify
. . . the date or dates.”
Id. at 1158–59 (emphasis omitted) (quoting 40 C.F.R.
§ 135.3(a)). With respect to the wind-blown violations, we
wrote that the letter’s general allegations regarding the
mechanism for the violation were sufficient because the
notice “‘inform[ed] [Tosco] about what it [was] doing
wrong’” and gave it “an ‘opportunity to correct the problem’
by enclosing or covering the coke piles.” Id. at 1159 (quoting
Southwest Marine, 236 F.3d at 996 (second alteration in
original); Bosma Dairy, 305 F.3d at 952).
Our decisions in Ecological Rights Foundation, Bosma
Dairy, and San Francisco BayKeeper, in which sufficient
notice was provided, contrast with our decision in Southwest
Center, in which such notice was not provided. Plaintiff
Southwest sent three letters to the Department of the Interior
and the Bureau of Reclamation notifying them “[a]t most”
that “Southwest (1) desired consultation over Reclamation’s
KS WILD V. MACWHORTER 17
operations in the Lower Colorado River and (2) felt that the
[Memorandum of Agreement for Development of a Lower
Colorado River Species Conservation Program] contravened
the policies and dictates of the ESA.” Southwest Center,
143 F.3d at 521. Southwest then filed suit under the ESA
seeking an order that would protect the Southwestern Willow
Flycatcher by requiring a lower water level of Lake Mead, the
Colorado River reservoir behind Hoover Dam. Id. at 519.
We held that the notice letters were inadequate because “none
of [them] informed the [federal defendants] that Southwest
had a grievance about the Flycatcher habitat at the Lake Mead
delta.” Id. at 521.
The Forest Service relies on Southwest Center to support
its contention that KS Wild’s notice letter was deficient. We
disagree. The notice in this case is much more akin to the
notice in Ecological Rights Foundation, Bosma Dairy, and
San Francisco BayKeeper. KS Wild did not in its notice
letter merely generally allege violations of the ESA, as the
plaintiff did in Southwest Center. Rather, it specifically
alleged a geographically and temporally limited violation of
the ESA. It alleged that the Forest Service approved NOIs to
engage in suction dredge mining in the Rogue River-Siskyou
National Forest during a specified three-year period, and that
the Forest Service had not consulted as required under
Section 7 of the ESA for NOIs proposing mining in critical
coho habitat.
When it combined the information provided in KS Wild’s
notice letter with the information to which it had ready
access, the Forest Service had all the information necessary
to determine whether, and in what instances, it had approved
NOIs for which consultation was required under Section 7.
The Forest Service knew, much better than KS Wild, what
18 KS WILD V. MACWHORTER
NOIs it had approved in the National Forest; and it knew or
was in a position to know, much better than KS Wild, what
waters within the National Forest provided critical coho
salmon habitat. Similar to the defendants in Ecological
Rights Foundation, Bosma Dairy, and San Francisco
BayKeeper, the Forest Service did not need more specific
information from KS Wild in order to identify the NOIs for
which there was, or might be, an ESA violation—for either
the NOIs listed in the June notice letter, or for NOIs
referenced but not listed in the letter.
The Forest Service disagrees. 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.
Conclusion
For the foregoing reasons, we conclude that KS Wild’s
June notice letter was sufficient notice under the citizen suit
notice provision of the ESA, and that there is subject matter
jurisdiction in the district court over KS Wild’s suit to
enforce the Forest Service’s obligations under Section 7. We
KS WILD V. MACWHORTER 19
do not reach other questions in the suit, leaving them to be
addressed by the district court on remand in the first instance.
REVERSED and REMANDED.