Douglas County Prospectors Association

Tel: (303)473-9618 Fax: (303) 786-8054 wmap@igc.org

SISKIYOU REGIONAL EDUCATION PROJECT Plaintiff

Civ No. 03-3013-CO

SCOTT CONROY, Forest Supervisor Siskiyou

National Forest;

Defendants.

1. This is an action for declaratory and injunctive relief arising from defendants' improper management of suction dredge mining operations in waterways within the Siskiyou National Forest in southern Oregon. Specifically, this suit challenges the United States Forest Service's failure to comply with mandatory Northwest Forest Plan and Siskiyou National Forest Plan standards and guidelines governing mining in riparian areas. Defendants have also failed to fulfill mandatory Endangered Species Act consultation obligations with the National Marine Fisheries Service (also known as NOAA Fisheries) regarding the effects of suction dredge mining on two species of threatened coho salmon.

2. This suit arises under and alleges violations of the National Forest Management Act ("NFMA"). 16 U.S.C. §§ 1600-1614; the Endangered Species Act ("ESA"). 16 U.S.C. § 1536(a); the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 501-706; and the implementing regulations of these laws. The Forest Service's actions are subject to judicial review under 5 U.S.C. §§ 702 and 706(2)(A), and the citizen suit provision of the ESA, 16 U.S.C. § 1540(g).

3. In compliance with 16 U.S.C. § 1540(g), on April 9, 2002, and July 3, 2002, Plaintiff gave notice of the ESA violations specified in this complaint and of its intent to file suit to defendants. Copies of the letters are attached hereto as Exhibits A and B. Sixty days or more have elapsed since the notices were properly served. The violations complained of in the notice letters are continuing, and have not been remedied. Defendants remain in violation of the ESA.

4. Jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1346(a)(2) (civil action against the United States). The citizen suit provision of the ESA also establishes jurisdiction. 16 U.S.C. § 1540(g). The relief sought is authorized pursuant to 28 U.S.C. § 2202 (injunctive relief) and 28 U.S.C. § 2201 (declaratory relief). Mandamus is authorized pursuant to 28 U.S.C. § 1361.

5. Venue is proper in the District of Oregon pursuant to 28 U.S.C. §1391(e). The headquarters for the Siskiyou National Forest is located in Medford, Oregon. Medford is the appropriate place of filing pursuant to Local Rule 3.4(a)(3).

6. The Siskiyou Regional Education Project ("Siskiyou Project") is a local non-profit, tax-exempt, public interest organization with members in Oregon and northern California. The Siskiyou Project seeks to preserve, protect, and restore the wildlands, wild rivers, wild fish and wildlife of the Siskiyou Mountain Bioregion. Members, staff, and board members of the Siskiyou Project use and enjoy the Siskiyou National Forest and the creeks where suction dredge mining occurs, and will occur, for fishing, camping, kayaking, nature study, scientific study, photography, hiking, and other recreational, educational, and aesthetic purposes. The Siskiyou Project is working to protect the wild salmon and steelhead and water quality of the streams and rivers on the Siskiyou National Forest. Members, staff, and board members of the Siskiyou Project have been involved in the Siskiyou National Forest's planning process and have regularly submitted comments to, and otherwise corresponded with, the Forest Service regarding suction dredge mining operations on the Forest.

7. Siskiyou Project brings this action on its own behalf and on behalf of its members, staff and board members who are adversely affected by the actions of the Forest Service. The suction dredge mining operations in Riparian Reserves cause permanent and/or long-lasting impacts to wildlife, fisheries, water quality, recreation, and visual resources, as well as an adverse impact on plaintiffs and its members' ability to enjoy the recreational, wildlife, and aesthetic qualities of the areas surrounding the mining operations. The Forest Service's failure to properly regulate suction dredge mining operations directly and adversely harms plaintiff and its members by, among other things, causing direct injury to and death of anadromous fish, degrading habitat of anadromous fish. and degrading the water quality of the streams and rivers on the Siskiyou National Forest.

8. Plaintiff and its members, staff, and board members are also harmed by the Forest Service's failure to follow its regulations requiring it to abide by the Siskiyou National Forest Land and Resource Management Plan ("Siskiyou Forest Plan") and Northwest Forest Plan.

9. Defendant Scott Conroy is the Supervisor for the Siskiyou National Forest, and is sued in his official capacity.

10. Defendant United States Forest Service is an agency of the United States Department of Agriculture. The Forest Service is responsible for implementing all laws and regulations relating to the management of the Siskiyou National Forest.

STATEMENT OF FACTS

11. Many streams and rivers in the Siskiyou National Forest support populations of, and provide habitat for, wild salmon species. These species include Southern Oregon/Northern California coho salmon (Oncorhynchus kisutch), Oregon Coast coho salmon (Oncorhynchus kisutch), Oregon Coast steelhead trout {Oncorhynchus mykiss), fall chinook salmon [Oncorhynchus tshawytscha), and coastal cutthroat trout [Oncorhynchus clarki clarki).

12. Southern Oregon/Northern California and Oregon Coast coho salmon are listed as "threatened" under the Endangered Species Act. 62 Fed. Reg. 24,588 (1997); 62 Fed. Reg. 42,587 (1998).

13. Waterways within the Siskiyou National Forest that support and provide habitat for wild salmon are popular areas for suction dredge mining. Most of the 800 placer mining claims on the forest are worked using suction dredges.

14. Suction dredging is an instream mining technique where streambed material is drawn up through a hose and passed over a sluice to separate out gold. The waste material ("tailings") consisting of rocks, gravel, silt. and biota, is then discharged back into the stream in a different area from which it was removed.

15. Suction dredges are high-pressure water pumps driven by gasoline-powered motors that create suction in a flexible intake pipe commonly three to twelve inches in diameter.

16. Suction dredging disturbs stream channels and topography. Rocks, gravel, and silt are scoured away and then deposited in a different location within a stream, often in previously undisturbed areas. Large boulders, stumps, and rootwads in the stream may be moved before a site is excavated, which reduces stream stability.

17. Fine sediment dispersed by suction dredging operations can infiltrate the gravelly areas where salmon construct their nests (redds). The sediment suffocates the eggs and prevents young salmon from emerging. Sediment also reduces water clarity and affects the ability of young salmon to see their food.

18. Sediment from suction dredging operations absorbs solar radiation and causes water temperature to increase.

19. The suction dredge operations can be seen and/or heard on and around the streams and rivers where they are being operated.

20. Suction dredge operations in the streams and rivers of the Siskiyou National Forest cause significant disturbance of surface resources, direct injury to Southern Oregon/Northern California and Oregon Coast coho salmon, winter steelhead, fall chinook salmon, and coastal cutthroat trout, and degrade their habitat, and cause or contribute to degradation of water quality Regulators Background—Northwest Forest Plan

21. On April 20. 1994, the Secretaries of Agriculture and Interior issued a Record of Decision on Management of Habitat for Late-Successional and Old Growth Forest Related Species Within Federal Lands Within the Range of the Northern Spotted Owl ("Northwest Forest Plan").

22. The Northwest Forest Plan amended each Land and Resource Management Plan ("Forest Plan") for national forests within the range of the northern spotted owl, including the Siskiyou National Forest Plan.

23. The Northwest Forest Plan established an "Aquatic Conservation Strategy"(ACS) to restore and maintain the ecological health of watersheds and aquatic ecosystems within forests on federal lands, including the riparian environment, fish habitat, and riparian vegetation.

24. Components of the ACS include Riparian Reserves, Key Watersheds, and Late-Successional Reserves.

25. Key Watersheds were designated by the Northwest Forest Plan to serve as refugia crucial for maintaining and recovering habitat for at-risk anadromous salmonids and resident fish species. Key Watersheds in good condition serve as anchors for potential recovery of depressed Fish stocks.

26. Suction dredge mining takes place in waterways that are within Key Watersheds, including Dunn, Sucker. Silver, Taylor, and Johnson/Sucker creeks, and the South Fork Coquille River.

27. Riparian Reserves are "ecologically critical areas" and have been designated under the Northwest Forest Plan to protect the habitat, fish, and wildlife along each stream, lake, and wetland area. Activities in Riparian Reserves that retard or prevent attainment of ACS objectives are either regulated or prohibited by the Northwest Forest Plan.

28. All of the streams and rivers in the Siskiyou National Forest where suction dredge mining takes place are designated as Riparian Reserves under the Northwest Forest Plan.

29. The Northwest Forest Plan. and the Siskiyou National Forest Plan, contain standards and guidelines for mineral operations in Riparian Reserves. Standard and Guideline MM-1 requires "a reclamation plan, approved Plan of Operations, and reclamation bond for all minerals operations that include Riparian Reserves." (emphasis added).

30. In April 1996, the Siskiyou National Forest attempted to change standard and guideline MM-1 to limit its application to those operations that the Forest Service determined would likely cause "significant surface resource disturbance" and would significantly retard or prevent attainment of the ACS.

31. Plaintiff challenged the Forest Service's decision to limit the scope of MM-1, seeking judicial review of, among other things, the adequacy of the environmental assessment that the Forest Service prepared to assess the impacts of changing MM-1.

32. On the parties' motions for summary judgment, this Court struck down the environmental assessment because the "Forest Service's conclusions in the EA and [finding of no significant impact] are not supported by study or supporting documentation, and are insufficient to satisfy the agency's NEPA obligations," and because the EA did not "analyze mitigation measures in detail and explain how effective these measures would be, and the mitigation measures are not supported by any analytical data." Siskiyou Regional Education Project v. Rose. 87 F. Supp. 2d 1074 (D. Or. 1999).

33. Following this Court's decision, the Forest Service did not again attempt to amend MM-1 or fix the deficiencies in the EA. Therefore, standard and guideline MM-1 still remains in full force and effect, and applies to all mining operations in Riparian Reserves, including suction dredge operations.

34. In the meantime, the Forest Service has continued to ignore standard and guideline MM-1 and allows suction dredge mining activities to take place in Riparian Reserves without reclamation plans, reclamation bonds, and approved plans of operations.

35. On April 4, 2002 and October 4, 2002. the Siskiyou Project sent Freedom of Information Act (FOIA) requests to the Siskiyou National Forest requesting Notices of Intent (NOIs) and Plans of Operation (POOs) that had been submitted to the Siskiyou National Forest for the 2002 suction dredge mining season, as well as responses from the Forest Service.

36. According to the documents plaintiff received in response to their FOIA requests, the Forest Service received notices from at least 22 miners intending to conduct suction dredging in streams during the 2002 suction dredge mining season (May 1,2002 through September 30, 2002). The Forest Service did not provide plaintiff with any POOs for these mining operations.

37. In at least five instances where mining would occur in Riparian Reserves, the Forest Service informed the mine operators that they would not need to submit plans of operations even though Forest Plan standard and guideline MM-1 requires approved plans of operations for all mining activities in Riparian Reserves.

38. Furthermore, the Forest Service allowed suction dredge mining to proceed without approved plans of operations even though the agency determined that at least five proposed mining operations could adversely affect pre-emergent larval salmon, juvenile salmon and/or that early spawning salmon would be attracted to suction dredge tailings to construct their nests. Regulatory Background-Endangered Species Act

39. Section 7(a)(2) of the ESA requires federal agencies, including the Forest Service, to insure that any action authorized, funded, or carried out by the agency is not likely to jeopardize the continued existence of any listed species or result in the adverse modification of the critical habitat of such species. 16 U.S.C. § 1536(a)(2): 50 C.F.R. Part 402. Subpart B. To ensure against causing jeopardy to listed species, section 7 requires agencies to complete consultation with the National Marine Fisheries Service (also known as NOAA Fisheries) or the Fish and Wildlife Service (hereinafter "the Services") before proceeding with any action that may adversely affect or jeopardize a listed species.

40. After formal consultation is completed, the relevant Service must provide the action agency with a "biological opinion" explaining how the proposed action will affect the listed species or habitat. 16 U.S.C. § 1536(b); 50 C.F.R. § 402.14. If the biological opinion concludes that the proposed action will not result in jeopardy to listed species, the Service must provide an "incidental take statement" specifying the impact of such incidental taking on the species, any "reasonable and prudent measures" that the Service considers necessary to minimize such impact, and setting forth the "terms and conditions" that must be complied with by the agency to implement those measures. 16 U.S.C. § 1536(b)(4).

41. The ESA-listed species at issue in this lawsuit are Northern California/Southern Oregon coho salmon and Oregon Coast coho salmon, which are both listed as "threatened." 62 Fed. Reg. 24,588 (1997); 62 Fed. Reg. 42,587 (1998). .

42. In January 1997, the Forest Service and Bureau of Land Management initiated consultation with the National Marine Fisheries Service regarding activities on public lands (including the Siskiyou National Forest) within the range of several listed and non-listed (i.e. species proposed for listing or candidate species) fish species in southern Oregon.

43. The scope of consultation included three categories of activities: 1) continued implementation of Land and Resource Management Plans (Forest Plans) and Resource Management Plans; 2) certain types of programmatic activities determined by the Forest Service and Bureau of Land Management to "not likely to adversely affect" listed fish species; and 3) certain types of programmatic activities determined by the Forest Service and Bureau of Land Management to "likely to adversely affect" listed fish species.

44. The third category includes activities considered "beneficial" to fish species, such as instream habitat enhancement and restoration, and activities considered "non-beneficial" to the species, including road construction, grazing, mining, and riparian rock quarry operations. Suction dredge mining is included in this group of "non-beneficial" activities.

45. The Service issued a biological opinion on March 18,1997 ("1997 Opinion"). In the Opinion, the Service concluded, among other things, that it was unable to complete formal consultation for the third category of programmatic activities that included suction dredge mining. Instead, the Service identified specific terms and conditions in the 1997 Opinion "to further streamline and expedite" section 7 consultations for these activities in the future. For the fish species not yet listed under the ESA, including Oregon Coast coho, the biological opinion served as a "conference" opinion, and no further consultation would be necessary unless and until those species were listed.

46. The Service explained that "streamlined" consultation would involve use of the 1997 Opinion, a "matrix and checklist," and interagency discussions to ultimately satisfy consultation requirements. In the event this process determined that there would be no need for additional mitigation measures beyond those identified in the 1997 Opinion, the Service would "tier section 7 compliance to [the 1997] Opinion via memoranda to the file and action agencies." If the streamlined process determined that there would be a need for additional mitigation measures. the Service would prepare a separate biological opinion for those activities.

47. The 1997 Opinion specifically warns that it does not authorize "take" of listed fish species caused by any specific road construction, livestock grazing, mining, or rock quarry activities in Riparian Reserves.

48. On August 15, 1997, and in accordance with the streamlined consultation procedure, the Service issued a letter opinion and incidental take statement for programmatic activities, including instream suction dredge mining, to be implemented during fiscal year 1997. The letter specifically tiers to the 1997 Opinion and authorizes "minimal incidental take [of listed fish] provided the Forest Service, Bureau of Land Management and their applicants comply with [the reasonable and prudent measures and terms of conditions of the 1997 Opinion.]" This opinion applied only to the Northern California/Southern Oregon coho salmon because the Oregon Coast coho salmon had not yet been listed as threatened.

49. Through documents obtained by plaintiff from the Forest Service pursuant to a Freedom of Information Act request, it appears that the Forest Service did not conduct any further consultation regarding impacts of instream suction dredge mining on Southern Oregon/Northern California coho salmon following fiscal year 1997.

50. After the Oregon Coast coho salmon was listed as threatened in August 1998, the Service adopted the 1997 Opinion as the biological opinion for Oregon Coast coho on September 29, 1998.

51. With respect to the Oregon Coast coho salmon, the Service issued a biological opinion and incidental take statement to the Forest Service on June 4. 1999 for several activities, including instream suction dredge mining. This opinion was valid for one year.

52. Just before the June 1999 opinion and incidental take statement for Oregon Coast coho salmon expired, the Service issued a one-year extension on June 2. 2000 at the request of the Forest Service.

53. The Forest .Service sought a second extension of the June 1999 opinion and incidental take statement, which was denied by the Service on or around July 9, 2001. Thus, the biological opinion and incidental take statement addressing the impacts instream suction dredge mining on Oregon Coast coho salmon expired on June 2, 2001.

54. On April 13, 2001, the Forest Service, Bureau of Land Management, and Coquille Indian tribe initiated formal consultation with the Service by submitting a biological assessment analyzing the impacts of eighteen "program activity categories" that would occur in the range of several fish species, including both species of threatened coho salmon.

55. One of the categories listed for consultation was "instream mining," described by the Forest Service and Bureau of Land Management as "small scale placer mining activities within perennial stream channels" and including motorized suction dredges with intake hoses not greater than six inches in diameter.

56. Five activity categories (not including instream mining) were resolved by informal consultation on July 2, 2001. The Service issued a biological opinion and incidental take statement on July 12, 2001 for the remaining programmatic activities except instream mining. The Service stated that it had removed the category of instream mining from the biological opinion at the request of the action agencies. The Forest Service's request is set forth in a letter to the Service dated June 29, 2001.

57. The July 12, 2001 biological opinion was subsequently amended and clarified by the Service on August 8, 2001. The amended biological opinion, however, does not address suction dredge mining.

58. On October 18, 2002, the Service issued a revised biological opinion and incidental take statement following reinitiation of consultation on the August 2001 biological opinion. This revision, however, does not include or discuss instream suction dredging activities.

59. The Forest Service has not completed consultation regarding the impacts of instream mining activities on Oregon Coast coho salmon subsequent to the expiration of the June 1999 biological opinion and incidental take statement on June 2, 2001. The withdrawal of the instream mining category from the consultation process also confirms that the Siskiyou National Forest failed to complete consultation for Northern California/Southern Oregon coho salmon for at least fiscal years 2001 and 2002.

60. Not only has the Forest Service failed to complete consultation with the Service regarding instream mining, but circumstances arising since the issuance of the 1997 Opinion also require the Forest Service to reinitiate consultation with the Service regarding implementation of programmatic actions, specifically mining, authorized by the Siskiyou National Forest Plan.

61. Once a biological opinion is issued, the ESA requires agencies to reinitiate consultation if (1) the amount or extent of take in an incidental take statement is exceeded, (2) new information reveals effects of the action on a species in a manner or to an extent not previously considered, (3) the action is modified in a manner that causes an effect not considered in the biological opinion, or (4) a new species is listed or critical habitat is designated. 50 C.F.R. § 402.16 (a-d).

62. In the 1997 Opinion, the Service acknowledged that actions such as mining in Riparian Reserves could cause "more than a negligible likelihood of take. even when designed and implemented in accordance with all relevant [Forest Plan] direction." For that reason, the Service identified terms and conditions to minimize the likelihood of incidental take.

63. For mining activities where the Forest Service has discretion to require plans of operations, the 1997 Opinion requires the Forest Service to "document compliance of each action with all applicable minerals management standards and guidelines for riparian reserves."

64. Northwest Forest Plan standard and guideline MM-1 is applicable to all mineral operations in riparian reserves.

65. With respect to instream mining in Riparian Reserves, and as described above in paragraphs 34 - 38, the Forest Service is allowing mining to proceed without approved plans of operations, reclamation plans, and reclamation bonds in violation of Northwest Forest Plan standard and guideline MM-1.

66. The Forest Service's failure to fully implement a key standard and guideline to regulate mining activities in riparian reserves constitutes new information and/or a modification of the activity that may affect threatened coho salmon in a way not previously considered by the Service and, pursuant to 50 C.F.R. § 402.16, is a circumstance that requires the Forest Service to reinitiate consultation with the Service regarding the mining activities contemplated in the 1997 Opinion.

67. Plaintiffs reallege paragraphs 1 through 66.

68. The National Forest Management Act (NFMA) requires that all Forest Service projects and activities "shall be consistent with the land management plans." 16 U.S.C. § 1604(i). The Forest Service must follow the Standards and Guidelines set forth in the Siskiyou and Northwest Forest Plans at the project-decision level.

69. Standard and Guideline MM-1 of the Northwest Forest Plan and the Siskiyou National Forest Plan requires that all mining operations in Riparian Reserves must have an approved plan of operations.

70. The Forest Service has allowed suction dredge mining operations to proceed in Riparian Reserves without approved plans of operation.

71. The Forest Service's actions were taken not in accordance with the law, without observance of procedures required by law, and are arbitrary and capricious within the meaning of the APA. 5 U.S.C. §§ 702, 706(2).

72. Plaintiffs reallege paragraphs 1 through 71.

73. Section 7(a)(2) of the ESA prohibits agency actions that jeopardize the survival of listed species or that destroy or adversely modify their critical habitat. 16 U.S.C. § 1536(a)(2). To assist in complying with this duty, federal agencies, like the Forest Service, must consult with the Service whenever they take an action that "may affect" a listed salmonid species or the species' critical habitat. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a).

74. Under ESA implementing regulations. "Section 7 [applies] to all actions in which there is discretionary Federal involvement or control." 50 C.F.R. § 402.02. The Northwest Forest Plan authorizes the Forest Service to require approved plans of operations for all mining operations in riparian reserves.

75. The Forest Service is violating § 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2), and its implementing regulations, 50 C.F.R. Part 402, by failing to consult with the Service regarding the effects of suction dredge mining operations in Riparian Reserves that "may affect" threatened salmon and /or their critical habitat.

76. The Forest Service's failure to consult with the Service and failure to ensure that its actions do not jeopardize the continued existence of listed species violate § 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2), and its implementing regulations, 50 C.F.R. Part 401. Such violations are subject to judicial review under 16 U.S.C. § 1540(g).

77. The Forest Service's failure to consult with the Service and failure to ensure that its actions do not jeopardize the continued existence or listed species also is arbitrary, capricious, and not in accordance with law, in violation of the APA, 5 U.S.C. § 706, and is subject to judicial review under 5 U.S.C. §701 et seq.

78. Plaintiffs reallege paragraphs 1 through 77.

79. Once a biological opinion and incidental take statement has been issued, consultation with the Service must be reinitiated if (l) the amount or extent of take in an incidental take statement is exceeded. (2) new information reveals effects of the action on a species in a manner or to an extent not previously considered, (3) the action is modified in a manner that causes an effect not considered in the biological opinion, or (4) a new species is listed or critical habitat designated. 50 C.F.R. § 402.16(a-d).

80. Defendants' failure to fully implement Northwest Forest Plan standard and guideline MM-1 is new information and/or a modification of instream mining activities that triggers the agency's duty to reinitiate consultation with the Service regarding the 1997 Opinion.

81. After consultation is reinitiated, Defendants are prohibited from making any irreversible or irretrievable commitment of resources, which has the effect of foreclosing the formulation or implementation of reasonable or prudent alternatives. 16 U.S.C. § 1536(d); 50 C.F.R. § 402.09. The prohibition remains in force until the consultation process is complete. Id.

82. The Forest Service's failure to reinitiate consultation with the Service and failure to ensure that its actions do not jeopardize the continued existence of listed species violate § 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2), and its implementing regulations, 50 C.F.R. Part 401. Such violations are subject to judicial review under 16 U.S.C. § 1540(g).

83. The Forest Service's failure to reinitiate consultation with the Service and failure to ensure that its actions do not jeopardize the continued existence of listed species also is arbitrary, capricious, and not in accordance with law, in violation of the APA, 5 U.S.C. § 706, and is subject to judicial review under 5 U.S.C. § 701 et seq.

84. For the foregoing reasons, plaintiffs respectfully request that this court:

85. Declare that the Forest Service's failure to implement Northwest Forest Plan and Siskiyou National Forest Plan Standard and Guideline MM-1 violates the National Forest Management Act:

86. Declare that the Forest Service has violated the Endangered Species Act by failing to consult and to reinitiate consultation with the National Marine Fisheries Service regarding the impacts of instream mining.

87. Enjoin the Forest Service from authorizing or approving mineral operations in riparian reserves until the Forest Service has completed ESA consultation and has complied with the Northwest Forest Plan and Siskiyou National Forest Plan, as well as this Court's decision in Siskiyou Regional Education Project v. Rose. 87 F. Supp. 2d 1074 (D. Or. 1999);

88. Award plaintiffs their reasonable fees, costs, expenses, and disbursements, including attorneys' fees;

89. Grant such additional relief as this court deems equitable and just.

Date: February 5, 2003

Respectfully submitted:

 

Elizabeth Mitchell (OSB # 95482)

Western Environmental Law Center

P.O. Box 982 Ketchum.ID 83340 (mailing)

15 West Bullion St. Hailey, ID 83333

Tel: (208) 788-4398

Fax:(208) 788-7618

mitchell@westernlaw.ora

Roger Flynn (Colo. Bar # 21078)*
Jeffrey C. Parsons (Colo. Bar # 30210)*
Western Mining Action Project
2260 Baseline Rd., Suite 101A
Boulder. CO 80302
Tel: (303) 473-9618
Fax:(303) 786-8054
wmap@igc.org

*Application for admission pro hac vice to be submitted.

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P.O. Box 220 Cave Junction, Oregon 97523 (541) 592-4459, fax: (541) 592-2653

April 9, 2002
Certified - Return Receipt Requested

Dear Ms. Veneman, Mr. Bosworth, Mr. Forsgren, and Mr. Reilly:

The Siskiyou Regional Education Project requests that you take action to remedy ongoing violations of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536, by the U.S. Forest Service. At issue is mining activity in the Siskiyou National Forest watersheds which are inhabited by the Southern Oregon/Northern California Coho salmon and Oregon Coast Coho which contain coho critical habitat. These watersheds include, but are not limited to. Sucker Creek, Althouse Creek, Briggs Creek, Josephine Creek, Silver Creek, and the Sixes and Coquille Rivers.

a. Violation of ESA 5 7: The Forest Service is violating ESA § 7 by allowing mining activities that may jeopardize coho, protected as threatened under the ESA. in various watersheds on the Siskiyou National Forest without complying fully with the Northwest Forest Plan (NFP) and completing adequate consultation with the National Marine Fisheries Service. The Forest Service has not obtained a biological opinion for mining activities within Riparian Reserves on the Siskiyou National Forest, therefore violating the ESA.

The Forest Service has failed to adequately analyze the effects of mining in Riparian Reserves on threatened coho. Mining activities in Riparian Reserves are adversely affecting coho salmon, both directly and cumulatively.

The Forest Service has failed to provide documentation of significant impacts caused by mining in Riparian Reserves, has set arbitrary thresholds for categorizing impacts, and ignored the cumulative effect of multiple impacts spread out over time and location.

The Forest Service relies on questionable assumptions and ignored critical factors in evaluating the effects of mining on watersheds that contain coho and coho critical habitat. The Forest Service also ignored short-term and localized degradations caused by mining in Riparian Reserves. Moreover, the Forest Service failed to consider the cumulative impact of these localized degradations caused by multiple mining activities which will occur in these watersheds.

Finally, the Forest Service has not determined whether mining activities will result in the destruction or adverse modification of designated critical habitat for coho. Mining activities harm stream functions necessary for coho survival. These functions include sediment delivery, and streambank and substrate stability.

In sum, the Forest Service's failure to consult with the National Marine Fisheries Service about the impacts of mining activities in the watersheds which are inhabited by coho and which contain coho critical habitat violates the ESA. The Forest Service has evidence that mining activities in Riparian Reserves will jeopardize coho. Mining has contributed significantly to the decline of the coho. The cumulative impact of land management practices, including mining watersheds on the Siskiyou National Forest continues to pose threats to coho. The Forest Service may not proceed with activities that may affect the coho until it has completed a legally valid consultation that properly addresses these impacts. Because the consultation process has yet to be properly concluded, the Forest Service may not proceed with any activities that may affect these species,

b. Violation of National Forest Management Act CNEMA) and Administrative Procedure Act (APA1 In 1994, the Forest Service amended regional forest plans by superimposing on them the Northwest Forest Plan (NFP). The NFP contains the Aquatic Conservation Strategy (ACS) which is designed to protect aquatic habitat affected by activities on public forest land. The ACS includes standards, guidelines, and objectives that require management of forests to "maintain and restore" properly functioning aquatic habitat.

According to the NFP "[m]anagement actions that do not maintain the existing condition or lead to improved conditions in the long term would not "meet" the intent of the Aquatic Conservation Strategy and thus. should not be implemented." Scientific evidence indicates that mining activities will not "maintain and restore" aquatic habitat, and in many cases, will actively hinder restoration of the watersheds which are already highly degraded.

Riparian Reserves are a key component of the ACS. One of the Standards and Guidelines for mining in Riparian Reserves is MM-1. MM-1 requires a reclamation plan, approved Plan of Operations, and reclamation bond for all minerals operations that include Riparian Reserves. Standards and Guidelines for Management of Habitat for Late-Successional and Old-Growth Forest Related Species Within the Range of the Northern Spotted Owl at Page C-34.

The Forest Service is violating MM-1. and therefore the NFP and ACS, by allowing mining to occur in Riparian Reserves without requiring an approved Plan of Operations, reclamation plan and reclamation bond. In addition, the Forest Service is violating the intent of the ACS by permitting activities, often described as "recreational" suction dredging, that degrade and do not restore conditions in Riparian Reserves.

By failing to comply with and implement MM-1 and meet the intent of the ACS, the Forest Service has failed to ensure that its resource plans are based on and consistent with NFP, in violation of NFMA, 16 U.S.C, § 1604(i). The Forest Service has therefore acted arbitrarily, capriciously, and contrary to law in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). Unlike the ESA claims above, no 60 day notice is required for plaintiffs to raise these claims.

This letter provides notice of our intent to sue the Forest Service to remedy the violations detailed herein, as required under the ESA, 16 U.S.C. § 1540(g).

Sincerely,

Lori J. Cooper

Staff Attorney

Siskiyou Regional Education Project

9335 Takilma Road

Cave Junction, Oregon 97523

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July 3,2000

Anne Veneman

Secretary of Agriculture

Jamie L. Whitten Federal Building, Room 200A

14th Street & Independence Ave., S.W.

Washington, D.C. 20250

Dale Bosworth
Chief, U.S. Forest Service
Auditors Building, 4th Floor
201 14th Street, S.W.
Washington D.C. 20090

Harv Forsgren
Regional Forester, R6
333 S.W 1st Ave.
P.O. Box 3623
Portland, OR 97208

Tom Reilly, Acting Supervisor
Siskiyou National Forest
P.O. Box 520
Medford, Oregon 97501

Re: Supplemental Notice of Intent to Sue Under the Endangered Species Act

Dear Ms. Veneman, Mr. Bosworth, Mr. Forsgren, and Mr. Reilly:

The Siskiyou Regional Education Project ("Siskiyou Project") gives notice that it intends to file suit, pursuant to the citizen suit provision of the Endangered Species Act (AESA@), 16 U.S.C. 1540(g), to challenge the agency's failure to reinitiate consultation with the National Marine Fisheries Service (ANMFS@) for continuing implementation of the Siskiyou National Forest Land and Resource Management Plan ("Forest Plan"), including programmatic activities that are implemented pursuant to the Plan. This notice supplements the Notice of Intent to Sue dated April 9, 2002, submitted to you by the Siskiyou Project concerning separate violations of the Endangered Species Act.

On March 17, 1997, NMFS issued a biological opinion for, among other things, continued implementation of the Siskiyou National Forest Land and Resource Management Plan ("Forest Plan") and certain programmatic actions that are implemented pursuant to the Forest Plan. Mining is included in these "programmatic" actions.

The NMFS did not conclude formal consultation, but identified "terms and conditions' that would form the basis for "streamlined" section 7 consultation for programmatic actions. For mining activities where the Forest Service has authority to require a Plan of Operations, the agency must "document compliance with all applicable minerals management standards and guidelines for riparian reserves." The terms and conditions also require the Forest Service to monitor the effects of mining operations at selected mining sites and to provide reports to the NFMS on an annual basis.

The Forest Service has an ongoing duty to consult pursuant to ESA section 7. Consultation must be reinitiated if the extent of taking in an incidental take statement is exceeded, if new information reveals effects of an action on a species or in a manner or to an extent not previously considered, if the action is modified in a manner that causes an effect not considered in the biological opinion, or if a new species is listed or critical habitat designated. 50 C.F.R. '402,16. After, consultation is reinitiated, the Forest Service is prohibited from making an irreversible or irretrievable commitment of resources. 50 C.F.R. ' 402.09.

In this instance, the Forest Service's duty to reinitiate consultation for mining activities covered by the 1997 Opinion has been triggered because the Forest Service cannot ensure that mining activities in Riparian Reserves are consistent with the Northwest Forest Plan, in particular standard and guideline MM-1. Standard and guideline MM-1 requires an approved plan of operations, reclamation plan, and reclamation bond for all mining activities in Riparian Reserves. The 1997 Opinion rests on the assumption that Forest Plan standards and guidelines will be "fully applied at the four spatial scales of implementation," including the site or project level. Because the Forest Service is failing to comply with MM-1, as required by the terms and conditions listed in the 1997 Opinion, mining activities have, in effect, been modified in a manner that causes an effect not considered in the Opinion. Therefore, the Forest Service must reinitiate consultation with the NMFS.

For the above stated reasons, the Department of Agriculture and the Forest Service have violated and remain in ongoing violation of Section 7 of the ESA. If these violations of law are not cured within sixty days, the Siskiyou Project intends to file suit for declaratory and injunctive relief, as well as attorney and expert witness fees and costs. During the notice period, the Siskiyou Project is available and willing to discuss any remedies or actions that are necessary to ensure that the Forest Service will fully comply with its mandatory duties under the ESA.

Sincerely,

Lori J. Cooper

Staff Attorney