Usfs

I. Background

The Karuk Tribe has inhabited what is now northern Cali- fornia since time immemorial. The Klamath River originates in southeastern Oregon, runs through northern California, and empties into the Pacific Ocean about forty miles south of the California-Oregon border. In northern California, the Klamath River passes through the Six Rivers and Klamath National Forests. The Klamath River system is home to several species of fish, including coho salmon. Coho salmon in the Klamath River system were listed as “threatened” under the ESA in 1997. 62 Fed. Reg. 24,588 (May 6, 1997). The Klamath River system and adjacent streamside riparian zones were desig- nated as critical habitat for coho salmon in 1999. 64 Fed. Reg. 24,049 (May 5, 1999). The Karuk Tribe depends on coho salmon in the Klamath River system for cultural, religious, and subsistence uses.

The rivers and streams of the Klamath River system also contain gold. Commercial gold mining in and around the riv- ers and streams of California was halted long ago due, in part, to extreme environmental harm caused by large-scale placer mining. See generally People v. Gold Run Ditch & Mining Co., 4 P. 1152 (Cal. 1884)…

*1011 Opinion by Judge WILLIAM A. FLETCHER; Dissent by Judge MILAN D. SMITH, JR.

OPINION

We consider whether the U.S. Forest Service must consult with appropriate federal wildlife agencies under Section 7 of the Endangered Species Act (“ESA”) before allowing mining activities to proceed under a Notice of Intent (“NOI”) in critical habitat of a listed species. The ESA requires consultation with the Fish and Wildlife Service or the NOAA Fisheries Service for any “agency action” that “may affect” a listed species or its critical habitat. 16 U.S.C. § 1536 (a)(2); 50 C.F.R. § 402.14 (a). There are two substantive questions before us.

The first is whether the Forest Service’s approval of four NOIs to conduct mining in the Klamath National Forest is “agency action” within the meaning of Section 7. Under our established case law, there is “agency action” whenever an agency makes an affirmative, discretionary decision about whether, or under what conditions, to allow private activity to proceed. The record in this case shows that Forest Service District Rangers made affirmative, discretionary decisions about whether, and under what conditions, to allow mining to proceed under the…

join as to Parts I through VI, dissenting:

*1031 [[Image here]]

—Jonathan Swift, Gulliver’s Travels, Chapter 1.

Here we go again.

Until today, it was well-established that a regulatory agency’s “ ‘inaction’ is not ‘action’ ” that triggers the Endangered Species Act’s (ESA) arduous interagency consultation process. W. Watersheds Project v. Matejko, 468 F.3d 1099 , 1108 (9th Cir.2006). Yet the majority now flouts this crystal-clear and common sense precedent, and for the first time holds that an agency’s decision not to act forces it into a bureaucratic morass.

In my view, decisions such as this one, and some other environmental cases recently handed down by our court (see Part VII, infra), undermine the rule of law, and make poor Gulliver’s situation seem fortunate when compared to the plight of those entangled in the ligatures of new rules created out of thin air by such decisions.

*1032 I. Mining in national forests

The right to mine on national lands is established by the Mining Act of 1872, 30 U.S.C. § 21 et seq.:

Swanson v. Babbitt, 3 F.3d 1348, 1350 (9th Cir.1993).

The Mining Act’s permissive regime extends to national forests as well. The 1897 act that created the…