Matejko

Section 7(a)(2) of the Endangered Species Act (ESA), codified at 16 U.S.C. § 1536 (a)(2), requires consultation with the Secretary of the Interior or Secretary of Commerce if there is “any action authorized, funded, or carried out by” a federal agency (here, the Bureau of Land Management (BLM)) that could jeopardize any endangered or threatened species, or destroy or adversely modify habitat of such species. This appeal presents the question of whether the BLM’s failure to regulate certain vested rights-of-way held by private landowners to divert water for irrigation uses constitutes “action authorized, funded, or carried out” by the BLM so as to require consultation. The district court required the BLM to consult; it found the BLM had discretion to regulate the diversions and that its failure to exercise such discretion constituted “action.” We conclude that the duty to consult is triggered by affirmative actions; because there was no such “action” here, there was no corresponding duty to consult. Accordingly, we reverse.

BACKGROUND

I.

Western Watersheds Project and Committee for Idaho’s High Desert (collectively, Western Watersheds) filed this action in 2001 against the BLM…