Klamath-Siskiyou Wildlands Center v. Robert MacWhorter

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 wouldbe

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 oilpentachlorophenol

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 thirtytwo

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 windblown

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.