Matejko

ORDER

The opinion filed on July 24, 2006, slip opinion at 8183 [ 456 F.3d 922 ] and published at 456 F.3d 922 (9th Cir.2006) is amended as follows:

Page 8188 of the slip opinion [456 F.3d at 924], fourth line of the first full paragraph:

Page 8188 of the slip opinion [456 F.3d at 924], footnote one:

Pages 8196-97 [456 F.3d at 928-929], footnote five:

With these amendments, the panel has voted to deny the petition for rehearing.

No further petitions for rehearing or rehearing en banc may be filed.

OPINION

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…