Babbitt

The appellants are private corporations engaged in the lumber business. We refer to them collectively as “the Lumber Companies.” They wanted to cut and remove dead, dying and decayed trees in California. The United States Fish & Wildlife Service (USFWS) consulted with them and provided them with information as to what they would have to do to avoid a “take” of endangered species under the Endangered Species Act (ESA).

In an effort to stop the intended tree cutting and removal, the plaintiffs filed an action for declaratory relief. They contended that the USFWS had gone beyond providing advice to the Lumber Companies, had assumed authority and control over the intended salvage operation, and as a result had engaged in federal “agency action.” Federal agencies engaging in “agency action” are required by section 7 of the ESA, 16 U.S.C. § 1536 , to undertake certain procedures, including preparation of a biological assessment and a biological opinion. The USFWS did not do this.

The plaintiffs applied for a preliminary injunction, and the district court granted it. The court determined that the balance of hardships tipped' sharply in favor of the plaintiffs and that serious questions…