If a Tree Falls in the Woods and the Government Did Nothing to Cause It, Does It Still Invoke the Endangered Species Act (ESA)? Evaluating Karuk Tribe v. U.S. Forest Service and Its Impact on Agency Action Under the ESA

• Author: Commander David M. Sherry
• Pages: 316-343

316 MILITARY LAW REVIEW [Vol. 220

IF A TREE FALLS IN THE WOODS AND THE

GOVERNMENT DID NOTHING TO CAUSE IT, DOES IT STILL

INVOKE THE ENDANGERED SPECIES ACT? EVALUATING

KARUK TRIBE V. U.S. FOREST SERVICE AND ITS IMPACT ON

AGENCY ACTION UNDER THE ESA

COMMANDER DAVID M. SHERRY*

There is no reality except in action.1

I. Introduction

If one reflects on environmental law, existential philosophy is

probably not the first thought that comes to mind. Yet, with the

Endangered Species Act (ESA) as a backdrop, the 9th Circuit’s 2012

Karuk Tribe of California v. U.S. Forest Service (Karuk III)2 decision

raises exactly that subject. Similar to existentialism, where one’s acts

define the extent of their existence,3 the extent of federal agency

obligation under Section 7 of the ESA is determined by the level of

activity conducted by that agency.4 This is known as agency action, and,

when present, it requires the federal government to follow special

procedures, (including regulatory consultation), to ensure the protection

* Judge Advocate, U.S. Coast Guard. Presently assigned as Advanced Operational Law

Fellow, Center for Law and Military Operations, The Judge Advocate General’s School

(TJAGLCS), United States Army, Charlottesville, Virginia. LL.M., 2013, TJAGLCS,

Charlottesville, Virginia; J.D., 2005, Suffolk University Law School; B.S., 1997, U.S.

Coast Guard Academy. Previous assignments include Assistant Engineer Officer, U.S.

Coast Guard Cutter RELIANCE (WMEC-615) Portsmouth, New Hampshire (1997–

1999); U.S. Coast Guard Marine Safety Office Boston, Massachusetts (Facilities

Inspection Division Chief, 1999–2000; Waterways Management Division Chief, 2000–

2001; Environmental Response Division Chief, 2001; Maritime Security Operations

Division Chief, 2001–2002); Trial Attorney, Navy Region Legal Service Office East,

Norfolk, Virginia, 2005–2006; Operations Law Staff Attorney, U.S. Coast Guard

Maintenance and Logistics Command Atlantic, Portsmouth, Virginia, 2006–2008;

Deputy Staff Judge Advocate, U.S. Coast Guard Fifth District, Portsmouth, Virginia,

2008–2009; Incident Management Division Chief, U.S. Coast Guard Sector Northern

New England, Portland, Maine, 2009–2012. Member of the Bar of Massachusetts. This

article was submitted in partial completion of the Master of Laws requirements of the

61st Judge Advocate Officer Graduate Course, TJAGLCS, United States Army,

Charlottesville, Virginia.

1 JEAN-PAUL SARTRE, EXISTENTIALISM IS A HUMANISM 37 (2007).

2 Karuk Tribe of California v. U.S. Forest Serv. (Karuk III), 681 F.3d 1006 (9th Cir.

2012), cert. denied, 133 S. Ct. 1579 (2013).

3 See generally SARTRE, supra note 1.

4 See Karuk III, 681 F.3d at 1021–22.

2014] KARUK TRIBE AND THE ENDANGERED SPECIES ACT 317

of certain species.5 Karuk III troublingly lowered the threshold of

federal activity required to trigger this ESA consultation requirement in

the 9th Circuit. The Karuk III decision begs the question: What won’t

trigger ESA consultation?

This article explores Karuk III’s impact on the meaning of “agency

action” under the ESA. The majority opinion, which declared that the

use of the U.S. Forest Service’s mining Notice of Intent (NOI)6 system

was agency action, was overbroad and therefore incorrect. The majority

opinion gave the wrong interpretation to the specific interactions

between the U.S. Forest Service (Forest Service) and miners, treating

these interactions as evidence of agency action. It failed to properly

interpret the mining regulations involved. Finally, it failed to reconcile

its decision with contrary case law, both in and beyond the 9th Circuit,

that supports a finding in favor of the Forest Service. As a result, it

created an unwarranted expansion of ESA applicability by requiring ESA

consultation during the use of this NOI process.7 The decision will lead

to regulatory confusion, not only in the mining realm, but also with

respect to what other agency actions might trigger ESA consultation, and

it could facilitate unwarranted court challenges to other federal activity.8

This, in turn, will increase burdens on public activity via unnecessary

entanglement in the over-application of the ESA.9 The government

should look for opportunities to challenge this precedent in the future and

look to other avenues, such as regulatory clarifications, to minimize the

effects of the decision.

5 16 U.S.C. § 1536(a)(2) (LexisNexis 2014).

6 As explained in detail below, the Notice of Intent (NOI) regulations require miners to

provide notice to the Forest Service prior to commencing certain types of mining. See 36

C.F.R. § 228 (LexisNexis 2014).

7 See Karuk III, 681 F.3d at 1030 (Smith, J., dissenting).

8 See Ninth Circuit Expands “Agency Action” for Endangered Species Act Consultation,

PERKINS COIE (July 12, 2012), http://www.perkinscoie.com/ninth-circuit-expands-agency

-action-for-endangered-species-act-consultation-07-12-2012/. As discussed further infra,

these issues are not conjecture. The legal community has already recognized the case

will create distinct problems. See id.

9 See id.