Babbitt

Opinion by Judge Trott; Dissent by Judge Pregerson.

OVERVIEW

Sierra Club and other environmental organizations filed suit against the Secretary of the Interior Bruce Babbitt (“Secretary”) seeking to enjoin Seneca Sawmill Company’s (“Seneca”) construction of a logging road on right-of-way crossing Bureau of Land Management (“BLM”) forestland. Sierra Club alleged the BLM failed to comply with the procedural commandments of the National Environmental Protection Act of 1969 (“NEPA”), 42 U.S.C. § 4321 et seq. and the Endangered Species Act of 1973 (“ESA”), 16 U.S.C. § 1531 et seq. before allowing Seneca to begin its road construction project. On cross-motions for summary judgment, the district court ruled in favor of the BLM and Seneca on Sierra Club’s NEPA claim, but granted Sierra Club’s motion on the ESA claim. The district court enjoined further right-of-away construction until either the BLM or Seneca complied with the ESA’s requirements. All parties timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm in part, reverse in part, and remand.

BACKGROUND

A. The Statutory Framework

1. The Endangered Species Act

In an effort to prevent the extinction…

dissenting:

The issue we must resolve in this case is whether the Bureau of Land Management (“BLM”) had discretion to control — for the benefit of the threatened spotted owl — Seneca Sawmill’s construction of a road on BLM land. If the BLM had such discretion, then before approving Seneca’s road construction the BLM was obligated under section 7 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1536 , to consult with the Fish and Wildlife Service (“FWS”) before authorizing any “action” that “may affect” the threatened spotted owl. Under the regulations promulgated by the Secretary of the Interior, the section 7 consultation requirement applies “to all actions in which there is discretionary Federal involvement or control.” 50 C.F.R. § 402.03 (emphasis added).

The majority opinion defers to the conclusion reached by the Regional Solicitor of the Department of the Interior who reviewed this very question. The Regional Solicitor concluded that the BLM did not retain discretion under the right-of-way agreements to influence — for the benefit of the spotted owl — the construction of roads on BLM land. The Regional Solicitor also concluded that the addition of the environmental…