Karuk Tribe v. United States Forest Service

dissenting:

I respectfully but emphatically dissent.

The issue in this case is whether the Endangered Species Act (“ESA”) requires the U.S. Forest Service to consult with appropriate agencies of the federal government before approving a Notice of Intent (“NOI”) to conduct suction dredge mining in the Klamath National Forest. Section 7(a)(2) of the ESA requires that a federal agency consult with one or both of the Fish and Wildlife Service and the National Marine Fisheries Service to ensure that any “agency action” is “not likely to jeopardize the continued existence” of any endangered or threatened species or “to result in the destruction or adverse modification of habitat of such species.” 16 U.S.C. § 1536 (a)(2). Consultation is required under Section 7(a)(2) whenever agency action “may affect listed species or critical habitat.” 50 C.F.R. § 402.14 (a).

An NOI is required when suction dredge mining “might cause significant disturbance of surface resources.” 36 C.F.R. § 228.4 (a). Mining is not allowed unless the NOI is approved by the Forest Service. “Surface resources” include underwater fisheries habitat. Id. at § 228.8(e). The Klamath River system is “critical habitat” for…

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

OPINION

Section 7 of the Endangered Species Act (ESA), 16 U.S.C. § 1536 (a)(2), requires interagency consultation for any federal agency action that may affect a listed species. In this opinion, we determine whether a United States Forest Service (USFS) District Ranger’s (Ranger) decision that a proposed mining operation may proceed according to the miner’s Notice of Intent (NOI) and will not require a Plan of Operations (Plan) is an “agency action” for purposes of triggering the ESA’s inter-agency consulting obligations.

We hold that the NOI process does not constitute an “agency action,” as that term is defined under the ESA. The Ranger’s receipt of an NOI and resulting decision not to require a Plan is most accurately described as an agency decision not to act. Because “ ‘inaction’ is not ‘action’ for section 7(a)(2) purposes,” W. Watersheds Project v. Matejko, 468 F.3d 1099 , 1108 (9th Cir.2006), we affirm the district court’s denial of summary judgment on the Tribe’s ESA challenge to the NOI process.

FACTUAL AND PROCEDURAL BACKGROUND

I. Gold and Silver Salmon

The Klamath River (River) runs from…