KARUK TRIBE OF CALIFORNIA v. US Forest Service

Before: WILLIAM A. FLETCHER and MILAN D. SMITH, JR., Circuit Judges, and JAMES D. TODD, Senior District Judge. [*]

Opinion by Judge MILAN D. SMITH, JR., Dissent by Judge WILLIAM A. FLETCHER.

M. SMITH, Circuit Judge:

Section 7 of the Endangered Species Act (ESA), 16 U.S.C. § 1536 (a)(2), requires interagency consultation for any federal agency action that may affect a listed species. In this opinion, we determine whether a United States Forest Service (USFS) District Ranger's (Ranger) decision that a proposed mining operation may proceed according to the miner's Notice of Intent (NOI) and will not require a Plan of Operations (Plan) is an "agency action" for purposes of triggering the ESA's interagency consulting obligations.

We hold that the NOI process does not constitute an "agency action," as that term is defined under the ESA. The Ranger's receipt of an NOI and resulting decision not to require a Plan is most accurately described as an agency decision not to act. Because "`inaction' is not `action' for section 7(a)(2) purposes," W. Watersheds Project v. Matejko, 468 F.3d 1099, 1108 (9th Cir.2006), we affirm the district court's denial of summary judgment on the Tribe's ESA…