FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KARUK TRIBE OF CALIFORNIA,
Plaintiff-Appellant,
v. No. 05-16801
UNITED STATES FOREST SERVICE;
MARGARET BOLAND, D.C. No.
CV-04-04275-SBA
Defendants-Appellees,
OPINION
THE NEW 49’ERS, INC.; RAYMOND
W. KOONS,
Defendants-Intervenors-Appellees.
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Argued and Submitted
July 13, 2010—San Francisco, California
Filed April 7, 2011
Before: William A. Fletcher and Milan D. Smith, Jr.,
Circuit Judges, and James D. Todd, Senior District Judge.*
Opinion by Judge Milan D. Smith, Jr.;
Dissent by Judge William A. Fletcher
*Senior United States District Judge for the Western District of Tennes-
see, sitting by designation.
4643
4646 KARUK TRIBE v. USFS
COUNSEL
Roger Flynn (argued) and Jeffrey C. Parsons, Western Mining
Action Project, Lyons, Colorado, for plaintiff-appellant Karuk
Tribe of California.
John C. Cruden (argued), Acting Assistant Attorney General,
Washington, D.C.; Andrew C. Mergen, David C. Shilton, and
Lane N. McFadden, Environmental & Natural Resources
Division, United States Department of Justice, Washington,
D.C.; Andrew R. Varcoe and Rose Miksovsky, Office of the
General Counsel, United States Department of Agriculture,
Washington, D.C., for defendants-appellees United States
Forest Service, et al.
James L. Buchal, Murphy & Buchal LLP, Portland, Oregon,
for defendants-intervenors-appellees The New 49’ers, et al.
OPINION
M. SMITH, Circuit Judge:
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
interagency consulting obligations.
KARUK TRIBE v. USFS 4647
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 deci-
sion 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 Oregon, through Cal-
ifornia, to the Pacific Ocean. As it winds through Northern
California, it crosses through the lands that have been home
to the Plaintiff-Appellant Karuk Tribe of California (the
Tribe) since time immemorial. The River is a designated criti-
cal habitat of the Coho, or silver, salmon1 and various other
fish species, and is a source of cultural and religious signifi-
cance to the Tribe, who depend upon it for the fish and other
subsistence uses.
1
The Coho salmon was listed as “threatened” in 1997, 62 Fed. Reg.
24,588 (May 6, 1997), and the River was designated as critical habitat for
the Coho salmon in 1999, 64 Fed. Reg. 24,049 (May 5, 1999). The New
49’ers assert that the district court improperly ignored the fact that the list-
ing was invalid. The New 49’ers base this argument on the transcript of
proceedings taken in California States Grange v. Department of Com-
merce, No. 02-CV-6044-HO (D. Or. Jan. 11, 2005), in which a district
court declared the Coho salmon listing unlawfully promulgated under the
Administrative Procedure Act (APA), in light of another district court
decision, Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 1154, 1163 (D.
Or. 2001). However, despite its concerns, the district court left the listing
in place because doing so was consistent with the purpose of the ESA.
There is nothing in section 7 requiring that a listing be unassailable in
order for consultation to be required as to a listed species.
4648 KARUK TRIBE v. USFS
The River also contains gold deposits. As erosion and other
natural processes loosen gold from hard rock in and around
the River, the gold travels downstream and settles at the bot-
tom, underneath the lighter sediments but above the bedrock.
One method of retrieving this gold is by using a suction
dredger, a machine that vacuums a small area of the riverbed
and extracts the gold from the other sediments. Because the
precise mechanics of suction dredging are not relevant to our
disposition and are ably described in Siskiyou Regional Edu-
cation Project v. Rose, 87 F. Supp. 2d 1074, 1081-82 (D. Or.
1999), and other decisions cited herein, we do not repeat them
here. Suffice it to say that suction dredgers are mechanical
equipment, and accordingly, may not be used on federal forest
lands without formally notifying the USFS, see 36 C.F.R.
§ 228.4(a) (2004).2 The suction dredge mining activity con-
ducted by the individual gold miners represented in this suit
by the Defendants-Intervenors The New 49’ers is best
described as small-scale suction dredge gold mining (a few
cubic inches at a time) performed for recreational purposes.
The Tribe contends that even small-scale suction dredge
mining, especially when conducted by sufficient numbers of
people with sufficient frequency, significantly disturbs sur-
face resources and destroys aquatic habitat. In particular, the
Tribe offers expert evidence that suction dredging kills sal-
monid and other fish eggs, kills fish food sources, destabilizes
riverbed areas used for spawning, and otherwise disturbs the
fish and their reproductive activities. The New 49’ers dis-
agree, and contend that there is no evidence that the very
small-scale suction dredging at issue in this case causes any
harm to the Coho salmon.3 Because the standard for ESA con-
2
Because the challenged NOI decisions were made in 2004, we rely
upon the 2004 version of the regulation.
3
The New 49’ers argue that the district court improperly excluded cer-
tain extra-record evidence that shows that small-scale suction dredge min-
ing is not harmful to fish. “This circuit has only allowed extra-record
materials: (1) if necessary to determine ‘whether the agency has consid-
KARUK TRIBE v. USFS 4649
sultation is only whether the conduct “may affect” a listed
species, see Pac. Rivers Council v. Thomas, 30 F.3d 1050,
1055 (9th Cir. 1994), the district court did not resolve this fac-
tual dispute, and neither must we. We assume the Tribe has
established that suction dredge mining may affect the Coho
salmon. See Siskiyou Reg’l Educ. Project v. U.S. Forest Serv.,
565 F.3d 545, 550 & n.2 (9th Cir. 2009). In fact, the Tribe,
the USFS, and The New 49’ers met for the purpose of dis-
cussing what criteria the USFS should consider when decid-
ing whether a Plan will be required for a proposed suction
dredge operation. Most of the discussion at that meeting cen-
tered on what those miners who do not want to have to submit
a Plan should do to avoid disturbing fish and aquatic habitat,
suggesting that the USFS would admit that at least some suc-
tion dredging activities “may affect” the Coho salmon.
II. Statutory and Regulatory Background
The Organic Administration Act, 16 U.S.C. §§ 473-78
(1897) (the Organic Act), provides that federal forest lands
ered all relevant factors and has explained its decision,’ (2) ‘when the
agency has relied on documents not in the record,’ or (3) ‘when supple-
menting the record is necessary to explain technical terms or complex sub-
ject matter.’ ” Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100
F.3d 1443,1450 (9th Cir. 1996) (quoting Inland Empire Pub. Lands Coun-
cil v. Glickman, 88 F.3d 697, 703-04 (9th Cir. 1996)). It is usually inap-
propriate for a district court to consider extra-record evidence offered
merely to rebut the merits of an agency’s findings. See Asarco, Inc. v.
EPA, 616 F.2d 1153, 1160 (9th Cir. 1980) (“Consideration of the evidence
to determine the correctness or wisdom of the agency’s decision is not per-
mitted[.] . . . If the court determines that the agency’s course of inquiry
was insufficient or inadequate, it should remand the matter to the agency
for further consideration and not compensate for the agency’s dereliction
by undertaking its own inquiry into the merits.”). Here, not only were the
disputed documents offered merely to rebut the merits of the USFS’s deci-
sion concerning the risks to species from suction dredging, the merits of
that decision are not even relevant to the purely legal question at issue
here. Accordingly, the district court did not abuse its discretion in striking
The New 49’ers’ proffered materials.
4650 KARUK TRIBE v. USFS
are subject to the United States mining laws, including the
General Mining Law of 1872, 30 U.S.C. § 22, as amended by
30 U.S.C. § 612. Under the mining laws, citizens are entitled
to enter public lands for the purpose of prospecting and
removing mineral deposits. The Organic Act further provides
that prospectors and miners entering federal forest lands
“must comply with the rules and regulations covering such
national forests.” 16 U.S.C. § 478. The government’s regula-
tory authority (vested in the Secretary of Agriculture and,
derivatively, the USFS), however, does not go so far as to per-
mit it to “prohibit any person from entering upon such
national forests for all proper and lawful purposes including
that of prospecting, locating, and developing the mineral
resources thereof.” Id. (emphasis added). Indeed, “[e]xercise
of th[e] right [to enter federal lands for prospecting] may not
be unreasonably restricted.” National Forests Surface Use
Under U.S. Mining Laws, 39 Fed. Reg. 31,317 (Aug. 28,
1974) (hereinafter Forests Use Under Mining Laws) (empha-
sis added).
The Organic Act thus creates a regulatory scheme whereby
the USFS may regulate mining activity on federal forest lands
“to preserve the forests thereon from destruction,” 16 U.S.C.
§ 551, but may not otherwise interfere with or prohibit the
activities permitted under the mining laws. See Siskiyou, 565
F.3d at 557-58. To achieve an appropriate balance between
mining rights and environmental preservation, the USFS pro-
mulgated regulations, which are the source of the present con-
troversy.
The relevant regulations, set forth as 36 C.F.R. § 228.4(a),
outline a three-tiered approach to regulating mining in the
national forests. The regulatory scheme is based on the touch-
stone “disturbance of surface resources.” 36 C.F.R. § 228.4(a).4
4
The current version is slightly different in that it adds that the distur-
bance must be “significant” in order to require an NOI to be filed. See 36
C.F.R. § 228.4(a) (2010). This difference is immaterial for our purposes.
See Siskiyou, 565 F.3d at 550 n.3 (“The revised regulations retain the basic
requirements of the earlier version, and do not materially affect suction-
dredge mining.”).
KARUK TRIBE v. USFS 4651
The regulations first describe certain de minimis activities,
such as gold panning, that citizens may conduct without
involving the USFS. See id. § 228.4(a)(1) (listing activities
that require no notice to the USFS, including use of existing
roads, mineral sampling, marking out a mining claim, and
other activities that “will not cause significant surface
resource disturbance”). Second are activities that “might
cause disturbance of surface resources.” Id. § 228.4(a). The
person intending to engage in such an activity must submit a
“notice of intent to operate” to the Ranger—an NOI. Third are
activities that are “likely [to] cause significant disturbance of
surface resources.” Id. These activities require a Plan, which
may include, among other things, specific conditions requir-
ing the proposed operator to ensure environmental preserva-
tion. Operations requiring a Plan cannot be conducted until
the Ranger approves the Plan. See id. § 228.5.
Upon receipt of an NOI, the Ranger decides, within his dis-
cretion, whether the activities described in the NOI are likely
to significantly disturb surface resources and will conse-
quently require a Plan to be submitted for the USFS’s
approval. 36 C.F.R. § 228.4(a); Siskiyou, 565 F.3d at 551.
When the USFS clarified its regulations in 2005, it explained
that:
The requirement for prior submission of a notice of
intent to operate alerts the Forest Service that an
operator proposes to conduct mining operations on
[National Forest Service (NFS)] lands which the
operator believes might, but are not likely to, cause
significant disturbance of NFS surface resources and
gives the Forest Service the opportunity to determine
whether the agency agrees with that assessment such
that the Forest Service will not exercise its discretion
to regulate those operations.
Clarification as to When a Notice of Intent To Operate and/or
Plan of Operation Is Needed for Locatable Mineral Opera-
4652 KARUK TRIBE v. USFS
tions on National Forest System Lands, 70 Fed. Reg. 32,713,
32,720 (June 6, 2005) (hereinafter NOI Clarification). In other
words, the purpose of submitting an NOI is “to provide the
Forest Service District Ranger with sufficient information to
determine if the level of disturbance will require a Plan and
a detailed environmental analysis.” U.S. Forest Serv., Notice
of Intent Instructions: 36 CFR 228.4(a) — Locatable Miner-
als, http://www.fs.fed.us/geology/noi_instructions.doc (last
visited Mar. 31, 2011). The NOI need include only (1) the
name, address, and telephone number of the operator; (2) the
area involved; (3) the nature of the proposed operations; (4)
the route of access to the area; and (5) the method of transport
to be used. Id.; see also 36 C.F.R. § 228.4(a)(2). There is no
requirement that an NOI include any statement of planned
environmental protection measures.5
If the Ranger concludes that the NOI describes an activity
likely to cause significant disturbance of surface resources,
the Ranger must “notify the operator if approval of a plan of
operations is required before the operations may begin.” 36
C.F.R. § 228.4(a)(2). The Ranger’s notice must be given
within fifteen days of receiving the NOI. Id. If the Ranger
does not request a Plan, then the mining operations may pro-
ceed. See id.
III. The NOIs at Issue in this Appeal
In this appeal, the Tribe challenges the USFS’s decision to
“accept” four NOIs without consulting with other agencies
about the biological effects of the miners’ conduct. Impor-
tantly, the Tribe does not argue that the Ranger abused his
5
Given that the Ranger considers the environmental impact of the pro-
posed mining operation in deciding if significant surface resource distur-
bance is likely, however, some of the longer NOIs do include details about
certain environmental factors (such as location and season) that the opera-
tor plans to account for in order to avoid significantly disturbing surface
resources.
KARUK TRIBE v. USFS 4653
discretion in deciding that the activities described in these
NOIs did not require a Plan, or that the USFS breached its
ESA consultation obligations by adopting the regulatory
scheme described supra.6
The first NOI at issue is a May 24, 2004 NOI submitted by
Dave McCracken, General Manager for The New 49’ers. This
NOI notified the USFS of multiple small-scale suction dredge
mining operations members of The New 49’ers planned to
conduct over a 35-mile river and stream area. Each dredge
was estimated to affect about one quarter of a cubic yard of
the river, limited to no more than ten dredges per mile in the
River proper and three dredges per mile in its tributaries. The
NOI specifically mentioned that the miners would avoid a
handful of places along the River to guard against disturbing
certain cold water refugia used by fish in the warmer summer
months. After receiving and reviewing McCracken’s NOI, on
May 25, 2004, the Ranger sent a letter to McCracken explain-
ing that he had “determined that [McCracken and The New
49’ers’] proposed operations would not require a Plan of
Operations.” The “authorization” was set to expire on Decem-
ber 31, 2004.
The second challenged NOI was submitted to the USFS on
May 29, 2004 by Nida Jo Lawson Johnson. Johnson’s NOI
described her activities as using a six-to-eight inch dredger to
6
The Dissent concludes in part that the USFS’s “actions” included “for-
mulating criteria” that “governed the approval or denial of NOIs for suc-
tion dredge mining.” Dissent at 4693. However, the Tribe does not
contend on appeal that the Ranger’s creation of an informal (albeit
detailed) document constitutes a challenged “action” during which the
USFS should have engaged in ESA consultations. The Dissent’s analysis
therefore violates the well-established tenet that “[w]e review only issues
which are argued specifically and distinctly in a party’s opening brief. . .
We will not manufacture arguments for an appellant, and a bare assertion
does not preserve a claim, particularly when, as here, a host of other issues
are presented for review.” Birdsong v. Apple, Inc., 590 F.3d 955, 959 (9th
Cir. 2009) (internal quotation marks omitted).
4654 KARUK TRIBE v. USFS
make four-to-five inch dredges. She also indicated that she
would not conduct dredging activities near the mouths of cer-
tain tributaries. The Ranger responded that the described min-
ing operations “would not require a Plan of Operations.” The
Ranger stated that the NOI would “expire” on December 21,
2004.
Third, the Tribe challenges Robert Hamilton’s June 2, 2004
NOI. Hamilton sought to use a four-inch suction dredger,
restricted to a two-and-a-half inch opening, to mine for gold
in up to twenty cubic yards of riverbed, between July 12 and
July 23, 2004. The Ranger’s June 15 response was nearly
identical to his response to Johnson’s NOI.
Finally, the last challenged NOI was submitted on June 14,
2004 by Ralph Easley. Easley proposed to use a four-inch
dredge for recreational purposes between July 1, 2004 and
September 30, 2004. The Ranger responded with the same
form letter sent to Johnson and Hamilton, explaining that no
Plan was required for Easley’s planned operations, and that
the NOI would expire on December 31, 2004.
IV. The Summary Judgment Motion
The Tribe filed suit against the USFS for various claims
alleging violations of the National Forest Management Act,
the National Environmental Policy Act (NEPA), and the ESA.
Karuk Tribe of Cal. v. U.S. Forest Serv., 379 F. Supp. 2d
1071 (N.D. Cal. 2005). The district court denied summary
judgment on all grounds. The Tribe appeals only the ESA
claim.
The district court rejected the Tribe’s argument that the
USFS’s review of an NOI constitutes an “authorization” of
mining activity. Id. at 1101. Given that the miners, not the
USFS, conduct the mining activities, that the NOI process is
more like a review than an authorization, and that the mining
laws confer a statutory right on the miners to prospect, subject
KARUK TRIBE v. USFS 4655
only to limited agency interference, the district court found
that the Tribe failed to meet its burden to show that the NOI
process is equivalent to the sort of affirmative agency action
required to trigger ESA consulting obligations. Id. The district
court subsequently entered its final judgment in favor of the
USFS.
JURISDICTION AND STANDARD OF REVIEW
Summary judgment is appropriate when there are no dis-
puted issues of material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a); Sierra
Club v. Bosworth, 510 F.3d 1016, 1022 (9th Cir. 2007).
Although denial of summary judgment is ordinarily not
appealable, we have jurisdiction under 28 U.S.C. § 1291, as
the district court’s order denying summary judgment fully
resolved all of the legal issues in the case and resulted in the
district court’s entry of final judgment in favor of the USFS.
See Regula v. Delta Family-Care Disability Survivorship
Plan, 266 F.3d 1130, 1138 (9th Cir. 2001), cert. granted and
opinion vacated on other grounds, 539 U.S. 901 (2003). We
review the district court’s denial of summary judgment de
novo. Id. at 1136-37. We also review questions of statutory
interpretation de novo. Idaho Farm Bureau Fed. v. Babbitt,
58 F.3d 1392, 1399 (9th Cir. 1995).
DISCUSSION
[1] Section 7 of the ESA provides, in pertinent part:
Each Federal agency shall, in consultation with and
with the assistance of [U.S. Fish and Wildlife Ser-
vice (USFWS) or other relevant agency], insure that
any action authorized, funded, or carried out by such
agency (hereinafter in this section referred to as an
“agency action”) is not likely to jeopardize the con-
tinued existence of any endangered species or threat-
4656 KARUK TRIBE v. USFS
ened species or result in the destruction or adverse
modification of habitat of such species . . . .
16 U.S.C. § 1536(a)(2). Consultation is designed “to allow
[USFWS, in this case,] to determine whether [a] federal
action is likely to jeopardize the survival of a protected spe-
cies or result in the destruction of its critical habitat, and if so,
to identify reasonable and prudent alternatives that will avoid
the action’s unfavorable impacts.” Turtle Island Restoration
Network v. Nat’l Marine Fisheries Serv., 340 F.3d 969, 974
(9th Cir. 2003) (citing 16 U.S.C. § 1536(b)(3)(A)). When con-
sultation is required, the agency begins by preparing a “bio-
logical assessment” or engaging in an “informal
consultation.” 50 C.F.R. § 402.14(b)(1).7 The agency uses the
biological assessment or materials gathered during informal
consultation to determine whether its action is “likely to
adversely affect” a listed species. Turtle Island, 340 F.3d at
974 n.9 (citing 50 C.F.R. § 402.12(a)). The likelihood of
adverse effects, as determined by the biological assessment,
dictates whether further consultation with USFWS must
occur. Id. (citing 50 C.F.R. § 402.13(a)).
[2] To trigger the consultation duty, there must be a quali-
fying federal agency action. “Agency action” for ESA pur-
poses is defined by regulations promulgated by the Secretaries
of Commerce and the Interior:
Action means all activities or programs of any kind
authorized, funded, or carried out, in whole or in
part, by Federal agencies in the United States or
upon the high seas. Examples include, but are not
limited to: (a) actions intended to conserve listed
species or their habitat; (b) the promulgation of regu-
7
The New 49’ers contend that interagency consultation did occur. How-
ever, “[b]ecause these arguments were not raised before the district court,
they are waived.” O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1063
n.3 (9th Cir. 2007).
KARUK TRIBE v. USFS 4657
lations; (c) the granting of licenses, contracts, leases,
easements, rights-of-way, permits, or grants-in-aid;
or (d) actions directly or indirectly causing modifica-
tions to the land, water, or air.
50 C.F.R. § 402.02 (emphases added).8 Although “agency
action” is construed broadly, it does not encompass every-
thing an agency does related to planned private activity. As
we explained in Sierra Club v. Babbitt, 65 F.3d 1502, 1510
(9th Cir. 1995), “Congress specifically limited the application
of section 7(a)(2) to cases where the federal agency retained
some measure of control over the private activity.” Congress
intended that the “discrete burdens [of the ESA] properly fall
on a private entity only to the extent the activity is dependent
on federal authorization.” Id. at 1512 (emphasis added).9
8
Further, interagency consultation is required only for “actions in which
there is discretionary Federal involvement or control.” 50 C.F.R. § 402.03
(emphasis added): see also Nat’l Ass’n of Home Builders v. Defenders of
Wildlife, 551 U.S. 644, 664-65 (2007). Our case law may not be a model
of clarity when it comes to separating our inquiries into whether an action
is a qualifying “agency action,” 50 C.F.R. § 402.02, as well as one in
which the agency has “discretionary Federal involvement or control,” 50
C.F.R. § 402.03. Often, when an agency is empowered to authorize an
activity, it will have discretion over that decision, making the inquiries
necessarily overlap and showing that the section 7 duty obviously applies.
See, e.g., Turtle Island, 340 F.3d 969.
In this case, we agree with the Dissent that the USFS exercises “discre-
tion” in deciding whether to request a Plan on a case-by-case basis. See
Dissent at 4675-77, 4695 (citing NOI Clarification, 70 Fed. Reg. at
32,728); see also Siskiyou, 565 F.3d at 551. However, 50 C.F.R. § 402.03
makes clear that the ESA consultation obligation is only triggered if a dis-
cretionary “action” is involved. 50 C.F.R. § 402.03 (emphasis added). As
described in greater detail infra, absent an “agency action” as defined by
50 C.F.R. § 402.02, the consultation obligation is not triggered.
9
At oral argument, it was suggested that the USFS’s decision with
respect to an NOI is an “agency action” for purposes of the ESA because
in Siskiyou, 565 F.3d at 554, we concluded that such a decision is a “final
agency action” for purposes of the APA, 5 U.S.C. § 704. However, the
standard for “agency action” under the ESA (articulated supra) is distinct
4658 KARUK TRIBE v. USFS
[3] Here, the activities described in an NOI are neither
funded by the USFS nor carried out by the USFS. They are
carried out by private parties, such as the individual members
of The New 49’ers. The Tribe thus bears the burden of show-
ing that the activities described in an NOI are “authorized” by
the USFS.
The Tribe contends that filing an NOI is a legal prerequisite
to conducting the mining activities described therein, and that
accordingly, the Ranger’s decision to allow the suction dredg-
ing activities described in the NOI is an agency authorization
of the activities. See Turtle Island, 340 F.3d at 977 (finding
agency action under ESA where NMFS issued permits pursu-
ant to the High Seas Fishing Compliance Act and had “sub-
stantial discretion to condition permits to inure to the benefit
of listed species”); see also Mayaguezanos por la Salud y el
Ambiente v. United States, 198 F.3d 297, 302 (1st Cir. 1999)
(collecting cases in which various circuits have held that there
is an agency action for NEPA purposes when the private
activity cannot go forward without federal approval and the
federal agency has some discretionary authority over the out-
come). The Tribe also points to the USFS’s response to
McCracken’s NOI, in which the USFS notified McCracken of
its “authorization” of his NOI. In addition, the Tribe relies on
evidence showing that the Ranger can monitor suction dredge
mining conducted pursuant to an NOI much the same as he
monitors activities conducted pursuant to a Plan. This, the
Tribe contends, shows that the Ranger has discretionary
involvement or control over the mining operations. The Tribe
also emphasizes that the Ranger is able to influence proposed
activities for the benefit of species even under an NOI by
from the standard under the APA; under the APA, “[t]he core question is
whether the agency has completed its decisionmaking process, and
whether the result of that process is one that will directly affect the par-
ties.” Or. Natural Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 982
(9th Cir. 2006) (internal quotation marks omitted).
KARUK TRIBE v. USFS 4659
demanding changes to an NOI to ensure there is no significant
disturbance of surface resources.
The USFS responds that it has no power to “authorize”
mining activities described in an NOI because the miners
already possess the right to mine under the mining laws, and
that the permits to engage in such mining are granted by other
state and federal bodies.10 While the USFS has some power to
require miners to seek its approval and submit to reasonable
USFS regulation, such power only materializes once the
USFS determines that the activity is likely to cause significant
disturbance of surface resources. The USFS concedes that
ESA consultation is required before it can approve a Plan, but
argues that the Ranger’s decision not to require a Plan for the
proposed activities is essentially a decision not to act and a
recognition of its lack of discretionary authority over the pro-
10
The New 49’ers direct our attention to California Senate Bill No. 670
(Aug. 5, 2009), which amends California Fish and Game Code § 5653.
The new section, Cal. Fish & Game Code § 5653.1, requires an environ-
mental impact report to be prepared prior to issuance of any suction dredg-
ing permits. This statutory section was added pursuant to a court order and
consent judgment entered in a state court action brought by the Tribe
against the California Department of Fish and Game. The New 49’ers con-
tend that, because the state statutory amendment effectively prohibits suc-
tion dredge mining in California without completion of an environmental
impact report, the Tribe’s concerns about the USFS failing to conduct
environmental consultation about such mining activities are moot. We dis-
agree. “The basic question in determining mootness is whether there is a
present controversy as to which effective relief can be granted.” Nw. Envtl.
Def. Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir. 1988). Although the
particular suction dredge mining operations the Tribe objects to are tempo-
rarily suspended under California law pending environmental assessment,
the Tribe and the USFS nonetheless have a live controversy over whether
the NOI process is being conducted in violation of ESA consulting
requirements. Whether or not California issues permits is an entirely dis-
tinct legal issue from whether the USFS is obliged to consult with USFWS
about the activity authorized by the state permit, so a final declaration of
the legal status of the NOI review process under the ESA would give the
parties the primary relief they are seeking. Thus, the New 49’ers have not
shown that the case is moot.
4660 KARUK TRIBE v. USFS
posed activities. The USFS further argues that its decision not
to require a Plan leaves it with no remaining discretionary
involvement with or control over the mining operations that
it could exercise for the benefit of listed species.
[4] Our resolution of these competing positions depends on
the proper characterization of what the USFS does with
respect to an NOI and the activities described therein. If the
Tribe’s description was accurate—that the NOI is a decision
to authorize the operations described in the NOI—a holding
in the Tribe’s favor would necessarily follow. However, we
conclude that the Tribe does not accurately describe the NOI
process. Rather, the NOI process was designed to be “a sim-
ple notification procedure” that would
assist prospectors in determining whether their oper-
ations would or would not require the filing of an
operating plan. Needless uncertainties and expense
in time and money in filing unnecessary operating
plans could be avoided thereby. . . . Th[e notice-and-
comment rulemaking] record makes it clear that a
notice of intent to operate was not intended to be a
regulatory instrument; it simply was meant to be a
notice given to the Forest Service by an operator
which describes the operator’s plan to conduct oper-
ations on [National Forest Service] lands. Further,
this record demonstrates that the intended trigger for
a notice of intent to operate is reasonable uncertainty
on the part of the operator as to the significance of
the potential effects of the proposed operations. In
such a circumstance, the early alert provided by a
notice of intent to operate would advance the inter-
ests of both the Forest Service and the operator by
facilitating resolution of the question, “Is submission
and approval of a plan of operations required before
the operator can commence proposed operations?”
NOI Clarification, 70 Fed. Reg. at 32,728 (emphases added).
Following the tenor of our precedents discussed below,
KARUK TRIBE v. USFS 4661
including Western Watersheds, 468 F.3d 1099, Sierra Club v.
Babbitt, 65 F.3d 1502, California Sportfishing Protection
Alliance v. FERC, 472 F.3d 593 (9th Cir. 2006), Marbled
Murrelet v. Babbitt, 83 F.3d 1068 (9th Cir. 1996), and Sierra
Club v. Penfold, 857 F.2d 1307 (9th Cir. 1988), we hold that
the NOI process is not “authorization” of private activities
when those activities are already authorized by other law.
Rather, it is merely a precautionary agency notification proce-
dure, which is at most a preliminary step prior to agency
action being taken. The USFS acts in the sense claimed by the
Tribe only in approving a Plan. The Tribe’s statement that the
“Ranger determines whether mining should be regulated
under a[n] NOI or [Plan],” is inaccurate. Mining is not “regu-
lated” under an NOI because an NOI is not a regulatory docu-
ment. The Ranger’s response to an NOI—which is not even
required by statute or regulation—is analogous to the NOI
itself, a notice of the agency’s review decision. It is not a per-
mit, and does not impose regulations on the private conduct
as does a Plan.
In Western Watersheds, we explained that “the duty to con-
sult is triggered by affirmative actions.” 468 F.3d at 1102. In
other words, “authorization” under the ESA and its imple-
menting regulations means affirmative authorization of the
activity, in the manner of granting a license or permit, as
opposed to merely acquiescing in the private activity. Thus,
in that case we held that the Bureau of Land Management’s
(BLM) “acquiescence” in private parties’ diversions of water
was not an agency action under the ESA. Id. at 1103, 1108.
In addition and of particular interest here, in Western
Watersheds, the BLM asserted authority to regulate diversions
of vested rights-of-way (which were protected by nineteenth-
century statutes) only after deciding that a given diversion
was a “substantial deviation” from the original use. The
BLM’s failure to regulate diversions of vested rights-of-way
that fell below that threshold was merely an agency decision
not to exercise discretionary involvement with or control over
4662 KARUK TRIBE v. USFS
the activities, and accordingly did not require ESA consulta-
tion. This was true even if the BLM could have asserted regu-
latory authority over the diversions, but simply chose, as a
matter of internal agency discretion, not to do so. See id. at
1108 (“[E]ven assuming the BLM could have had some type
of discretion here to regulate the diversions (beyond a ‘sub-
stantial deviation’), the existence of such discretion without
more is not an ‘action’ triggering a consultation duty.”).
Just as the BLM’s internal decision not to regulate diver-
sions less than “substantial” could not be construed as “autho-
rizing” the diversions permitted under prior law, here, the
USFS’s internal decision not to require a Plan for a mining
operation unlikely to cause significant disturbance of surface
resources does not “authorize” the mining already permitted
under the mining laws. See also Cal. Sportfishing, 472 F.3d
at 595, 598 (holding that “the agency[ ] ha[d] proposed no
affirmative act that would trigger the consultation require-
ment” for operations of a hydroelectric plant that were autho-
rized by an earlier and ongoing permit, even though the
agency was empowered to “unilaterally institute proceedings
to amend the license if it so chose”). It is merely an internal
decision not to regulate miners’ exercise of their pre-existing
rights to prospect in national forests. Importantly, the USFS
is not compelled to respond to NOIs; rather the USFS need
only respond “if approval of a plan of operations is required
before the operations may begin.” 36 C.F.R. § 228.4(a)(2)
(emphasis added). Absent the USFS’s request for a Plan, min-
ers may simply proceed with their operations. In other words,
to allow mining to take place under an NOI, the USFS does
nothing. See W. Watersheds, 468 F.3d at 1108 (“ ‘inaction’ is
not ‘action’ for section 7(a)(2) purposes”).11
11
The USFS’s use of the word “authorization” in one of its NOI
response letters does not resolve the matter. The USFS is not empowered
to make any authoritative interpretation of whether its decision constitutes
an “authorization” under the regulations implementing the ESA, see Home
Builders, 551 U.S. at 651-52, nor is there any suggestion that the Ranger
KARUK TRIBE v. USFS 4663
Sierra Club v. Babbitt is also instructive. In that case, we
held that the BLM’s issuance of an “approval” letter to a pri-
vate party concerning the private party’s planned construction
of a right-of-way was not an agency authorization of private
activity triggering the ESA consultation duty. 65 F.3d at 1511.
Although the agency might have been acting in some way by
issuing the letter, such was not an agency action for section
7 purposes because the private party had a contractual right to
develop the right-of-way. Id. In other words, the private
action was already authorized in the relevant sense. We
explained:
the right-of-way was granted prior to the enactment
of the ESA and there is no further action relevant to
the threatened [species] that the BLM c[ould] take
prior to [the private party’s] exercise of [its] contrac-
tual rights. In light of the [ESA’s] plain language,
the agency’s regulations, and the case law construing
the scope of “agency action,” we conclude that
where, as here, the federal agency lacks the discre-
tion to influence the private action, consultation
would be a meaningless exercise; the agency simply
does not possess the ability to implement measures
that inure to the benefit of the protected species.
intended to do so by means of his letter to McCracken. In any event, as
the Tribe recognizes in its reply brief, “the permitting agency’s position
regarding whether its action was an ‘agency action’ under the ESA is a
‘legal question,’ and ‘not a factual question.’ ” (Quoting Nat’l Wildlife
Fed’n v. Brownlee, 402 F. Supp. 2d 1, 11 (D.D.C. 2005)).
The Dissent also relies on the USFS’s statement to the miners that
“[they] may begin [their] mining operations when [they] obtain all appli-
cable state and federal permits.” Dissent at 4677. But rather than providing
“authorization” or “approval” for the mining activities to begin, the
USFS’s statements simply pointed out the obvious: miners must obtain
relevant permits before they begin mining.
In short, the record does not support the Dissent’s view that the USFS’s
correspondence with miners affirmatively “approved” the NOIs.
4664 KARUK TRIBE v. USFS
Id. at 1509. We have reiterated this reasoning many times. See
Envtl. Prot. Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073,
1080 (9th Cir. 2001); Natural Res. Def. Council v. Houston,
146 F.3d 1118, 1125-26 (9th Cir. 1998); Turtle Island, 340
F.3d at 975.
Here, just as the contract in Sierra Club v. Babbitt gave the
private party a right to construct the right-of-way, and the
BLM was constrained from imposing conditions for the bene-
fit of species, the relevant regulations provide USFS no
authority to “approve” NOI activities related to the exercise
of pre-existing mining rights unless the activities are likely to
significantly disturb surface resources. Indeed, for those min-
ing activities authorized under the mining laws and not sub-
ject to the Plan requirement, the USFS can impose no
conditions whatsoever.12
[5] In short, we find Western Watersheds and Sierra Club
v. Babbitt particularly applicable because, in both those cases
as well as this one, prior law (or contract) endowed the private
parties with the “right, not mere privilege,” Forests Use Under
Mining Laws, 39 Fed. Reg. at 31,317, to engage in the activi-
ties at issue. Where the agency is not the authority that
empowers or enables the activity, because a preexisting law
or contract grants the right to engage in the activity subject
12
While the Ranger may be able to alter the way he applies the standard
“likely to cause significant disturbance of surface resources” to the benefit
of species (resulting in more NOIs requiring a Plan, in connection with
which the Ranger can demand changes in the intended private conduct),
his adoption and carrying out of the standard is not at issue here. Cf. 50
C.F.R. § 402.02 (listing as “agency action” the promulgation of regula-
tions and the carrying out of programs “intended to conserve listed species
or their habitat”). If it were, the holding in this case might be very differ-
ent. Rather, the Tribe seeks to force interagency consultation for NOIs
that, we must assume, are properly deemed not Plan-worthy under the
governing standard. Cf. Tex. Indep. Producers & Royalty Owners Ass’n v.
EPA, 410 F.3d 964, 979 (7th Cir. 2005) (holding section 7 consultation not
required for ministerial acceptance of NOIs filed to take advantage of a
previously-authorized general permit).
KARUK TRIBE v. USFS 4665
only to regulation, the agency’s decision not to regulate (be
it based on a discretionary decision not to regulate or a legal
bar to regulation) is not an agency action for ESA purposes.
This case, like Western Watersheds and Sierra Club v. Bab-
bitt, is thus distinct from Turtle Island Restoration Network,
340 F.3d at 976, in which permission to engage in the activity
(fishing in that case) depends upon the federal agency’s own
discretionary authority to grant permits, which it has the
power to condition for the benefit of listed species.
In a slightly modified argument, the Tribe argues that the
Ranger’s discretionary authority over the NOI/Plan decision
enables the USFS to tell miners how to alter their activities in
order to avoid significantly disturbing surface resources, and
such power to direct activities could be employed for the ben-
efit of species. See Turtle Island, 340 F.3d at 977 (holding
that USFWS had discretion over permits because it “could
condition permits to benefit listed species”). When the Ranger
responds to an NOI by expressing concerns that the NOI is
unclear or that a Plan would probably be required, however,
we again do not see how the Ranger “authorizes” anything at
that stage. Rather, the Ranger is merely providing advice
about what additional information is needed for him to evalu-
ate the NOI, and how the proposed miner can alter his opera-
tions to avoid filing a Plan.
Marbled Murrelet provides insight on this point. In Mar-
bled Murrelet, we considered whether section 7 consultation
was required when USFWS “consulted with [a private timber
company] and provided them with information as to what
they would have to do to avoid a ‘take’ of endangered species
under the [ESA].” 83 F.3d at 1070. Environmental groups
challenged this informal, voluntary consultation between the
timber company and USFWS under section 7, claiming that
the consultation was an agency action. We rejected the envi-
ronmental groups’ argument. The environmental groups’ best
evidence of discretionary federal agency action was a joint
letter from USFWS and the California Department of Fish
4666 KARUK TRIBE v. USFS
and Game describing “specific conditions that must be fol-
lowed to . . . avoid ‘take’ of the identified species under the
ESA.” Id. at 1074. We characterized this as “merely provid[-
ing] advice” because “there [was] no evidence that the
USFWS had any power to enforce those conditions other than
its authority under section 9 of the ESA, and this is not
enough to trigger ‘federal action’ under section 7.” Id. We
explained,
Protection of endangered species would not be
enhanced by a rule which would require a federal
agency to perform the burdensome procedural tasks
mandated by section 7 simply because it advised or
consulted with a private party. Such a rule would be
a disincentive for the agency to give such advice or
consultation. Moreover, private parties who wanted
advice on how to comply with the ESA would be
loath to contact the USFWS for fear of triggering
burdensome bureaucratic procedures.
Id.
Although Marbled Murrelet involved a private party’s vol-
untary decision to consult (whereas the Ranger in this case
appears to have adopted a blanket, informal policy of using
the NOI process to consult with miners), its facts are analo-
gous and its reasoning is compelling. There is nothing the
USFS can do to enforce the conditions it sets forth in an NOI
response, short of its authority to require a Plan. The NOI pro-
cess is a “simple notification procedure” that facilitates deter-
mination of whether a Plan, and its attendant regulatory
oversight, is required; it is not a regulatory action in and of
itself.13 The communications between the private party and
13
We particularly note that the USFS will “notify the operator if
approval of a plan of operations is required” within fifteen days of receiv-
ing an NOI. 36 C.F.R. § 228.4(a)(2). In contrast, the Ranger is entitled to
spend 30 days, plus another 60 when necessary, considering the terms of
KARUK TRIBE v. USFS 4667
the agency at the NOI stage occur for the limited purpose of
categorizing the private activity, not for the purpose of obtain-
ing the agency’s affirmative permission to act or setting forth
an enforceable regulatory regime.
As we explained in Marbled Murrelet, environmental com-
pliance is enhanced by encouraging private party-agency
communications about the environmental impact of the
intended private activities. Importantly, as described supra,
the Organic Act and Mining Law combine to give the USFS
only limited regulatory authority over mining. The USFS has
interpreted its authority to materialize only when mining is
likely to cause significant disturbance of surface resources.
Without the NOI process, then, either the miners would be the
ones making the decision about whether their activities meet
the regulatory threshold, or all mining activities would require
a Plan. We have already disapproved of the latter option in
light of legislative intent. See Siskiyou, 565 F.3d at 557-58.
Specifically, the USFS adopted the NOI process in response
to a suggestion from the House Committee on Interior and
Insular Affairs, Subcommittee on Public Lands, which recom-
mended that the USFS use a notice procedure in order to
avoid the unreasonable restrictions on small-scale mining
rights, and the unnecessary burdens on federal agencies, that
are associated with the costs of preparing and submitting
detailed Plans for operations that do not need them. See For-
ests Use Under Mining Laws, 39 Fed. Reg. at 31,317; see also
supra at 4660-61. On the other hand, the former option would
result in too little deserved regulation. Here, giving the USFS
the final say over whether an activity is likely to significantly
disturb surface resources results in greater environmental pro-
a proposed Plan. 36 C.F.R. § 228.5(a). Preparation of a biological assess-
ment and consultation would take considerably longer than the short time
the Ranger has to review and acknowledge an NOI, strongly evidencing
that the NOI process, unlike the process for submission and approval of
a Plan, is merely ministerial.
4668 KARUK TRIBE v. USFS
tection than would result from leaving that decision up to the
miners themselves, who have little incentive to voluntarily
subject themselves to perhaps costly regulation. See Marbled
Murrelet, 83 F.3d at 1074.
[6] In sum, the NOI process was not intended necessarily
to trigger more environmental compliance; it was designed to
make environmental compliance better and more efficient. It
would undermine the goals of the entire scheme to require
consultation for an NOI, the procedural device designed to
avoid burdensome compliance obligations and focus the
USFS’s energies on those activities that are likely to cause
significant disturbance. The NOI process is a careful balanc-
ing act, designed to facilitate resolution of the question of
whether a Plan should be filed. Given such considerations, we
conclude that the NOI process is analogous to the advice-
seeking process at issue in Marbled Murrelet for which sec-
tion 7 consultation is not required.
An almost identical regulatory scheme was at issue in
Sierra Club v. Penfold, 857 F.2d 1307. Under 43 C.F.R.
§ 3809 (1986), the BLM uses a three-tiered approach to regu-
lating placer mining on federal lands within its jurisdiction.
First are “casual” use mines, for which no notice or approval
is required. Id. at 1309. The BLM nonetheless monitors casual
uses to ensure no “undue degradation” of the lands occurs. Id.
Second are “notice” mines, for which no BLM approval is
required but for which the miner must submit basic informa-
tion to the BLM about the proposed operations at least fifteen
days prior to commencing them. Id. The notice must include
a statement that “reclamation of disturbed areas will be com-
pleted and that reasonable measures will be taken to prevent
unnecessary or undue degradation of the lands during opera-
tions.” Id. BLM monitors “notice” mining operations for com-
pliance, as well. Id. at 1310. Third are “plan” mines, which
must be approved by the BLM and subjected to environmen-
tal assessment before the operation may proceed. Id. at 1309.
KARUK TRIBE v. USFS 4669
It is clear that the BLM’s approach to “casual,” “notice,”
and “plan” mining operations follows the same structure as
the USFS’s approach to mining activities that “are not likely
to,” “might,” and “are likely to” cause significant surface
resource disturbance, see 36 C.F.R. § 228.4. This similarity
was intentional. 45 Fed. Reg. 78,906 (Nov. 26, 1980)
(explaining that the regulations were designed “to be as con-
sistent as possible with the Forest USFS regulations”).
In Penfold, we determined that the “BLM’s approval of
Notice mines without an [environmental assessment] does not
constitute major federal action within the scope of NEPA.”
857 F.2d at 1314 (emphasis added). Penfold can be read to
say that the BLM’s review of a notice is a “marginal” agency
action, just not a “major” one. See id. at 1313-14. But, just as
actions must be “major” to trigger NEPA obligations, actions
carried out entirely by private parties must involve “affirma-
tive” federal agency authorization to trigger section 7. The
mere fact that the agency is involved in some way is not
enough. Thus, even assuming the Tribe is correct that the
threshold for triggering environmental compliance under the
ESA is lower than for NEPA,14 we nonetheless find our previ-
14
We have previously explained that “[t]he standards for ‘major federal
action’ under NEPA and ‘agency action’ under the ESA are much the
same[,]” although the ESA standard is arguably more liberal because it
does not contain the “major” requirement. Marbled Murrelet, 83 F.3d at
1075. We note, however, that agency action under the ESA is specifically
defined as those actions “authorized, funded, or carried out” by a federal
agency. 50 C.F.R. § 402.02. Under NEPA, agency action is defined as an
activity “entirely or partly financed, assisted, conducted, regulated, or
approved by federal agencies.” 40 C.F.R. § 1508.18(a). Thus, although the
ESA may be more liberal in the sense of the size of the federal undertak-
ing that triggers the statute, NEPA may be broader in a different sense
because it covers a broader array of activities than the ESA. The distinc-
tions may thus cut both ways, further convincing us that while the NEPA
and ESA analysis is certainly not interchangeable, in determining whether
the federal activity is a qualifying “agency action,” our analysis in Penfold
of the BLM’s equivalent of the NOI process under NEPA is highly persua-
sive as to the ESA question.
4670 KARUK TRIBE v. USFS
ous determination that a similar notice scheme was not the
sort of agency action that requires environmental compliance
to be additional persuasive authority in support of our holding.15
In sum, our conclusion is amply supported by the reasoning
and holdings of our prior case law. Importantly, our conclu-
sion is consistent with common sense as well. The operative
words in the ESA and implementing regulations are “action”
and “authorize,” which inherently require affirmative con-
duct: “action” is “[t]he process of doing something; conduct
or behavior,” and to “authorize” is “[t]o give legal authority[,]
to empower[,]. . . [t]o formally approve[, or] to sanction.”
Black’s Law Dictionary 32, 153 (9th ed. 2009). Our conclu-
sion is also eminently logical. Nothing in the ESA or the rele-
vant rule-making history suggests that the ESA imposes a
duty on federal agencies to affirmatively engage in regulatory
actions to protect the environment. As the Supreme Court
noted in National Association of Home Builders, the ESA
requires agencies to “insure”—that is, “ ‘to make certain, to
secure, to guarantee’ ”—that “listed species or their habitats”
are not “jeopardize[d].” 551 U.S. at 666-67 (alterations omit-
ted) (quoting Defenders of Wildlife v. EPA, 420 F.3d 946, 963
(9th Cir. 2005)). If agencies were forced to conform their
inaction to the ESA’s requirements, then the ESA would
operate as a blanket mandate requiring federal agencies to
take affirmative steps to guarantee that listed species are not
harmed. That is, of course, not the law.
15
We are additionally persuaded by analogy to Penfold that the NOI
process is hardly an agency “action” (let alone an “authorization” of the
mining activities) because the notice review process in Penfold was signif-
icantly more substantive than the review the USFS does here. If the
detailed regulatory review of a notice in Penfold was merely a “marginal”
agency action, the much less rigorous and involved review of an NOI by
the USFS under 36 C.F.R. § 228.4 is not the sort of affirmative authoriza-
tion we require for ESA consultation.
KARUK TRIBE v. USFS 4671
CONCLUSION
[7] The mining laws provide miners like The New 49’ers
with the “right, not the mere privilege” to prospect for gold
in the Klamath River and its tributaries. We therefore find it
is most accurate to say that the mining laws, not the USFS,
authorize the mining activities at issue here. The USFS has
adopted a simple review process to sort between those mining
activities it will regulate in order to conserve forest resources,
and those activities it will not regulate because such regula-
tion would be unnecessary and unduly interfere with mining
rights. The USFS’s limited and internal review of an NOI for
the purpose of confirming that the miner does not need to sub-
mit a Plan for approval (because the activities are unlikely to
cause any significant disturbance of the forest or river) is an
agency decision not to regulate legal private conduct. In other
words, the USFS’s decision at issue results in agency inac-
tion, not agency action.
The decision of the district court is
AFFIRMED.
W. FLETCHER, Circuit Judge, 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 endan-
4672 KARUK TRIBE v. USFS
gered 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 coho salmon, a listed species.
There are two questions before us.
The first is whether Forest Service approval of NOIs to
conduct suction dredge mining in the Klamath National Forest
is “agency action” within the meaning of Section 7(a)(2).
Under our established case law, there is “agency action”
whenever an agency makes a discretionary decision about
whether, or under what conditions, to allow private activity to
proceed. The record in this case shows that District Rangers
in the Klamath National Forest made discretionary decisions
about whether, and under what conditions, to allow suction
dredge mining to proceed under NOIs.
The second is whether suction dredge mining under NOIs
(which, by definition, is mining that “might cause significant
disturbance” to fisheries habitat) “may affect” critical habitat
of the listed coho salmon. The record in this case shows such
mining satisfies the “may affect” standard.
I would therefore hold that the Forest Service must consult
with the Fish and Wildlife Service and the National Marine
Fisheries Service1 before allowing suction dredge mining to
proceed under NOIs in the Klamath National Forest.
1
The parties appear to assume that if consultation is required under Sec-
tion 7(a)(2), it is required with both agencies. Without deciding the ques-
tion, I will also so assume.
KARUK TRIBE v. USFS 4673
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. As it runs through northern Cali-
fornia, the Klamath River passes though the Klamath National
Forest. 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. 24588 (May 6, 1997). The Klamath River
system was designated a “critical habitat” for coho salmon in
1999. 64 Fed. Reg. 24049 (May 5, 1999).
The rivers and streams of the Klamath River system con-
tain gold. Commercial gold mining in and around the rivers
and streams of California was halted long ago due to the
extreme harm to the environment caused by large-scale placer
mining. See generally Charles N. Alpers et al., Mercury Con-
tamination from Historical Gold Mining in California, U.S.
GEOLOGICAL SURVEY FACT SHEET 2005-3014 (Oct. 2005);
GREEN VERSUS GOLD: SOURCES IN CALIFORNIA’S ENVIRONMENTAL
HISTORY (Carolyn Merchant ed., 1998); Scott Fields, Tarnish-
ing the Earth, ENVIRONMENTAL HEALTH PERSPECTIVES 109:10
(Oct. 2001). However, small-scale recreational mining has
continued. Some recreational miners “pan” for gold by hand,
examining one pan of sand and gravel at a time. Others use
mechanical suction dredging devices.
Suction dredge miners use gasoline-powered engines and
hoses to suck rock, gravel and sand from streambeds. The
material sucked from the streambed is discharged into a sluice
box. As the material flows through the box, a small amount
of the heavier material, including gold, is slowed by “riffles”
and is then captured in the bottom of the box. The remaining
material runs through the box and is deposited in a tailings
pile in or beside the stream. The suction dredges at issue typi-
4674 KARUK TRIBE v. USFS
cally have intake hoses four or five inches in diameter. Dredg-
ing depths are usually about five feet, but can be as great as
twelve feet.
The majority attempts to minimize the impact of suction
dredge mining, stating it is “best described” as moving “a few
cubic inches at a time” and “affect[ing] about one quarter of
a cubic yard of the river.” Maj. Op. at 4648, 4653. A typical
suction dredge picks up from the bottom of the stream and
deposits in a tailings pile about one-quarter of a cubic yard of
material per day. A cubic yard contains 11,664 cubic inches.
Many square yards of stream bottom are scoured in order to
obtain one-quarter of a cubic yard of movable material per
day, but the record does not tell us how many.
The Karuk Tribe contends that suction dredge mining
adversely affects fish, including coho salmon, in the Klamath
River system. The Tribe brought suit in federal district court
in 2004 seeking to limit suction dredge mining in the Klamath
National Forest under the National Forest Management Act
(“NFMA”), the National Environmental Policy Act
(“NEPA”), and the ESA. The Tribe alleged that the Forest
Service defendants violated these statutes when they allowed
suction dredge mining under Notices of Intent (“NOIs”) and
Plans of Operation (“PoOs”). The district court granted judg-
ment in 2005, but briefing on appeal was stayed by agreement
of the parties until we decided a case involving suction dredge
mining in the Siskyou National Forest in Oregon. Siskiyou
Regional Educ. Project v. U.S. Forest Service, 565 F.3d 545
(9th Cir. 2009).
The Tribe prevailed in the district court in this case in its
challenge to the Forest Service’s approval of large-scale suc-
tion dredge mining under PoOs. By stipulation filed in the
district court in April 2005, the Forest Service defendants
agreed that “each of the challenged PoOs were approved
without compliance with the ESA, NEPA, and their imple-
menting regulations.” That is, the Forest Service agreed that
KARUK TRIBE v. USFS 4675
it had to prepare appropriate documents under NEPA and to
consult with the appropriate federal agencies under the ESA
before approving any PoO.
However, the district court agreed with the Forest Service
that compliance with NEPA and the ESA was not required for
suction dredge mining allowed under approved NOIs. On
appeal, the Tribe does not contend that the Forest Service
must comply with NEPA before approving an NOI. But it
does contend that the Forest Service must consult with appro-
priate federal agencies under Section 7(a)(2) of the ESA
before approving an NOI. For the reasons that follow, I
strongly agree with the Tribe.
II. Regulation of Suction Dredge Mining
An approved NOI is required for any suction dredge min-
ing that “might cause significant disturbance of surface
resources.” 36 C.F.R. § 228.4(a) (emphasis added). An
approved PoO is required for suction dredge mining that “will
likely cause significant disturbance of surface resources.” Id.
§ 228.4(a)(3) (emphasis added). That is, an approved NOI is
required for all suction dredge mining for which the likeli-
hood of a “significant disturbance of surface resources” falls
between “might cause” and “will likely cause.”
The Department of Agriculture defines “surface resources”
as including underwater “fisheries . . . habitat.” Id. § 228.8(e).
See 70 Fed. Reg. at 32718 (“Section 228.8 characterizes fish-
eries habitat as a ‘National Forest surface resource[.]’ . . .
Fisheries habitat, of course, can consist of nothing other than
water, streambeds, or other submerged lands.”).
The Department recognizes that the effects of suction
dredge mining vary substantially from one site to another. It
wrote in a 2005 commentary:
The environmental impacts of operating suction
dredges, even small ones, are highly site-specific
4676 KARUK TRIBE v. USFS
depending on the circumstances and resource condi-
tions . . . . Given this variability, the Department
believes that, insofar as suction dredge operations
are concerned, the need for the prior submission of
a notice of intent to operate or for the prior submis-
sion and approval of a proposed plan of operations
must be evaluated on a site-specific basis.
70 Fed. Reg. at 32720.
The Department has made clear, in a response to a com-
ment directed to 36 C.F.R. § 228.4(a), that an NOI for suction
dredge mining is not a “regulatory instrument,” but rather
“simply . . . a notice given to the Forest Service by an opera-
tor which describes the operator’s plan to conduct operations
on NFS lands.” Id. at 32728; 36 C.F.R. § 228.4(a)(2) (“The
District Ranger will, within 15 days of a notice of intent to
operate, notify the operator if approval of a plan of operations
is required before the operations may begin.”). However, in
that same response, the Department also made clear that
requirements for NOIs vary substantially depending on the
site:
[T]here can be no definitive answer to the question
of what level of activity requires the submission of
a notice of intent to conduct operations. As previ-
ously mentioned . . . , given the variability of the
lands within the NFS subject to the United States
mining laws, identical operations could have vastly
different effects depending upon the conditions of
the lands and other surface resources which would
be affected by those mining operations. . . . [I]n
many cases the need for the submission of a notice
of intent to operate must be determined based upon
a case-by-case evaluation of the proposed opera-
tions and the kinds of lands and other surface
resources involved.
KARUK TRIBE v. USFS 4677
70 Fed. Reg. at 32728 (emphasis added).
The majority writes that the Forest Service decision to
allow mining to proceed under an NOI is “most accurately
described as a decision not to act.” This is a critical point, and
the majority is wrong. The Forest Service makes an actual
decision whether to allow suction dredging to proceed pursu-
ant to an NOI. As I will describe in detail below, there are
seven NOIs in the record in this case. One was withdrawn. Of
the remaining six, the Forest Service acted affirmatively to
approve four and to deny two. There is no non-withdrawn
NOI in the record that the Forest Service did not act affirma-
tively to approve or deny. The miners whose NOIs were
approved each received a letter from the Forest Service Dis-
trict Ranger stating that “You may begin your mining opera-
tions when you obtain all applicable state and federal permits”
(emphasis added). No miner was allowed to engage in suction
dredge mining under an NOI unless that NOI had been explic-
itly approved by the Forest Service.
III. Notices of Intent
The term “Notice of Intent” is not specific to mining laws.
It is a generic term used in a number of different statutory
regimes. The discretion available to an agency in approving
or denying an NOI varies depending on the statute and the
implementing regulations under which the NOI is submitted.
We described one such regime in Environmental Defense
Center, Inc. v. Environmental Protection Agency, 344 F.3d
832, 853-54 (9th Cir. 2003). We explained in our opinion that
the EPA regulated stormwater discharges under the Clean
Water Act. Some types of discharges were governed by a
“general permit” that allowed applicants to submit short NOIs
certifying that they would comply with the terms of the gen-
eral permit. Id.; see also Texas Indep. Prod. & Royalty Own-
ers Ass’n v. EPA, 410 F.3d 968, 979 (7th Cir. 2005). The EPA
provided applicants with a simple form NOI for that purpose.2
2
The current general permit and form NOI are available at
http://www.epa.gov/npdes/pubs/cgp2008_finalpermit.pdf. The NOI form
and instructions are found at Appendix E.
4678 KARUK TRIBE v. USFS
Envtl. Def. Ctr., 344 F.3d at 853. We wrote that “because
th[is] NOI represents no more than a formal acceptance of
terms elaborated elsewhere,” the operator could begin dis-
charges after submitting an NOI without waiting for a
response from the EPA. Id.
But not all NOIs for stormwater discharges are ministerial
and non-discretionary. Plaintiffs in Environmental Defense
Center challenged a different sort of NOI from the one just
described. The challenged NOI allowed discharges from small
municipal storm systems. Each operator of these small sys-
tems was required to submit an NOI that included an “individ-
ualized pollution control program” addressing six criteria.
Because the information required in this NOI was quite
detailed, we held that this NOI was functionally identical to
a permit application. Id. This NOI “crosse[d] the threshold
from being an item of procedural correspondence to being a
substantive component of a regulatory regime.” Id. at 855.
As is evident from Environmental Defense Center, the
mere label “Notice of Intent” does not allow us to determine
how much agency discretion is involved in allowing an opera-
tor to proceed under an NOI. To make that determination, we
must examine the actual practice of the agency with respect
to the particular NOI at issue.
IV. Consultation under the Endangered Species Act
Section 7(a)(2) of the ESA requires consultation prior to
any “agency action” that “may affect” a listed species or its
habitat:
Each Federal agency shall, in consultation with and
with the assistance of the Secretary, insure that any
action authorized, funded, or carried out by such
agency (hereinafter in this section referred to as an
“agency action”) is not likely to jeopardize the con-
tinued existence of any endangered species or threat-
KARUK TRIBE v. USFS 4679
ened species or result in the destruction or adverse
modification of habitat of such species which is
determined by the Secretary, after consultation as
appropriate with affected States, to be critical[.]
16 U.S.C. § 1536(a)(2) (emphasis added).
Regulations implementing Section 7 provide:
Each Federal agency shall review its actions at the
earliest possible time to determine whether any
action may affect listed species or critical habitat. If
such a determination is made, formal consultation is
required[.]
50 C.F.R. § 402.14(a) (emphasis added).
I discuss the “agency action” and “may affect” require-
ments in turn.
A. “Agency Action”
Congress intended the term “agency action” to have a
broad definition. “[T]here is little doubt that Congress
intended to enact a broad definition of agency action in the
ESA[.] . . . Following the Supreme Court’s lead in [Tennessee
Valley Authority v. Hill, 437 U.S. 153 (1978)], we have also
construed ‘agency action’ broadly.” Pacific Rivers Council v.
Thomas, 30 F.3d 1050, 1054, 1055 (9th Cir. 1994) (statutory
citations omitted); see also Western Watersheds Project v.
Matejko, 468 F.3d 1099, 1108 (9th Cir. 2006) (“[T]he term
‘agency action’ is to be construed broadly[.]”); Natural Res.
Def. Council v. Houston, 146 F.3d 1118, 1125 (9th Cir. 1998).
The regulations defining “agency action” make clear the
breadth of the term:
Action means all activities or programs of any kind
authorized, funded, or carried out, in whole or in
4680 KARUK TRIBE v. USFS
part, by Federal agencies in the United States or on
the high seas. Examples include, but are not limited
to:
(a) actions intended to conserve listed spe-
cies or their habitat;
(b) the promulgation of regulations:
(c) the granting of licenses, contracts,
leases, easements, rights-of-way, permits,
or grants-in-aid; or
(d) actions directly or indirectly causing
modifications to the land, water, or air.
50 C.F.R. § 402.02 (emphases added). “Section 7 and the
requirements of this part apply to all actions in which there is
discretionary Federal involvement or control.” Id. at § 402.03
(emphasis added). The question before us is whether Forest
Service approval of the NOIs at issue was an “action[ ] in
which there is discretionary Federal involvement or control,”
such that the Forest Service’s approval was “agency action”
within the meaning of Section 7.
This circuit has a well-established body of law on discre-
tion and agency action under Section 7 of the ESA. In Turtle
Island v. National Marine Fisheries Service, 340 F.3d 969
(9th Cir. 2003), we held that Section 7 required the Fisheries
Service to consult within its own agency when issuing fishing
permits under the High Seas Fishing Compliance Act (“the
Compliance Act”). Because the Fisheries Service had discre-
tion whether to issue the permits, the issuance of the permits
was agency action. The Service was therefore required to con-
sult under Section 7. We wrote, “Whether the Fisheries Ser-
vice must condition permits to benefit listed species is not the
question before this court, rather, the question before us is
whether the statutory language of the Compliance Act confers
KARUK TRIBE v. USFS 4681
sufficient discretion to the Fisheries Service so that the
agency could condition permits to benefit listed species. We
hold that the statute confers such discretion.” Id. at 977
(emphasis in original).
In National Wildlife Federation v. National Marine Fish-
eries Service, 524 F.3d 917 (9th Cir. 2008), we reviewed a
biological opinion prepared as part of the consultation process
under Section 7. We wrote, “When an agency, acting in fur-
therance of a broad Congressional mandate, chooses a course
of action which is not specifically mandated by Congress and
which is not specifically necessitated by the broad mandate,
that action is, by definition, discretionary and is thus subject
to Section 7 consultation.” Id. at 929. In Washington Toxics
Coalition v. Environmental Protection Agency, 413 F.3d 1024
(9th Cir. 2005), we held that the EPA had to consult with the
National Marine Fisheries Service under Section 7 before
approving pesticides under the Federal Insecticide, Fungicide,
and Rodenticide Act (“FIFRA”). We wrote, “EPA retains dis-
cretion to alter the registration of pesticides for reasons that
include environmental concerns. Therefore, EPA’s regulatory
discretion is not limited by FIFRA in any way that would bar
an injunction to enforce the ESA.” Id. at 1033 (statutory cita-
tion omitted).
In Natural Resources Defense Council v. Houston, 146
F.3d 1118 (9th Cir. 1998), we held that the Bureau of Recla-
mation had to consult with the National Marine Fisheries Ser-
vice under Section 7 before renewing contracts with farmers
for water from the federal Central Valley Project because
“there was some discretion available to the Bureau during the
negotiation process” leading up to the renewals. Id. at 1126.
Finally, in Pacific Rivers Council v. Thomas, 30 F.3d 1050
(9th Cir. 1994), we held that the Forest Service was required
to consult under Section 7 before allowing projects under the
Land and Resource Management Plans for particular national
forests.
4682 KARUK TRIBE v. USFS
If an agency performs an act that does not involve the exer-
cise of discretion, that act is not “agency action” within the
meaning of Section 7. For example, in National Association
of Home Builders v. Defenders of Wildlife, 551 U.S. 644
(2007), the Supreme Court held that the EPA was required
only to find that nine statutory criteria specified in the Clean
Water Act (“CWA”) had been satisfied before transferring
regulatory authority to a state. Under the CWA, the EPA had
no discretion, once these criteria were satisfied, to take any
action that would benefit or protect any listed species under
the ESA. The Court wrote, “[T]he ESA’s requirements would
come into play only when an action results from the exercise
of agency discretion. This interpretation [of the CWA and the
ESA] harmonizes the statutes by giving effect to the ESA’s
no-jeopardy mandate whenever an agency has discretion to do
so, but not when the agency is forbidden from considering
such extrastatutory factors.” Id. at 665.
If an agency only has discretion that is unrelated to protect-
ing a listed species, an act by that agency is not “agency
action” within the meaning of Section 7. For example, in
Sierra Club v. Babbitt, 65 F.3d 1502 (9th Cir. 1995), the
Bureau of Land Management (“BLM”) had entered into an
agreement granting a logging company the right to build new
logging roads on BLM land subject to BLM approval under
specified criteria. None of the criteria was relevant to the pro-
tection of protected species under the ESA. Therefore, there
was no “agency action” under Section 7: “[W]e conclude that
where, as here, the federal agency lacks the discretion to
influence the private action, consultation would be a meaning-
less exercise; the agency simply does not possess the ability
to implement measures that inure to the benefit of the pro-
tected species.” Id. at 1509; see also Envtl. Prot. Info. Ctr. v.
Simpson Timber Co., 255 F.3d 1073, 1081 (9th Cir. 2001)
(“[N]owhere in the various permit documents did the FWS
retain discretionary control to make new requirements to pro-
tect species that subsequently might be listed as endangered
or threatened.”).
KARUK TRIBE v. USFS 4683
Sometimes an earlier act dictates later agency actions such
that a later act involves no discretion and therefore does not
require consultation. For example, in Western Watersheds
Projects v. Matejko, 468 F.3d 1099 (9th Cir. 2006), private
parties had been granted vested rights to divert water for irri-
gation long before the passage of the ESA. The Bureau of
Land Management (“BLM”) announced that it would not
interfere with those previously vested rights. We held that so
long as the private parties limited their activities to those con-
sistent with their vested rights they did not have to notify the
BLM of their activities, and the BLM did not have the ability
to regulate their activities. Under these circumstances, we
concluded that the BLM had not undertaken any discretionary
“agency action” that would have required it to consult under
Section 7. Id. at 1107-08.
An out-of-circuit example is Texas Independent Producers
and Royalty Owners Ass’n v. EPA, 410 F.3d 964 (7th Cir.
2005), in which the EPA consulted under the ESA before
exercising its discretion to grant a “general permit” authoriz-
ing private operators to discharge stormwater under the Clean
Water Act. Id. at 979. The operators then filed individual
NOIs to discharge in accordance with the conditions of the
general permit. Id. at 968. The Seventh Circuit held that the
EPA did not have to consult on the individual NOIs because
it had already consulted under the ESA before granting the
general permit. The terms of the general permit dictated the
manner in which stormwater would be discharged, thereby
eliminating any discretion by the EPA in approving or deny-
ing an individual NOI.
B. “May Affect”
An agency is required to consult when its action “may
affect” listed species or designated critical habitat. 50 C.F.R.
§ 402.14(a). An agency can avoid the obligation to consult
only if it determines that its action will have “no effect” on
listed species or designated critical habitat. Thomas, 30 F.3d
4684 KARUK TRIBE v. USFS
at 1054 n.8. Once an agency has determined that its action
“may affect” listed species or critical habitat, the agency may
proceed with formal consultation or may choose instead to
consult informally with the appropriate agency. If the consult-
ing agency determines during informal consultation that the
proposed action is “not likely to adversely affect any listed
species or critical habitat,” formal consultation is not required
and the process ends. 50 C.F.R. § 402.14(b)(1). Thus, actions
that have any chance of affecting listed species or critical hab-
itat — even if it is later determined that the actions are “not
likely” to do so — require an agency at least to consult infor-
mally.
We have previously explained that “may affect” is a “rela-
tively low . . . threshold” for triggering consultation. Califor-
nia ex rel. Lockyer v. U.S. Dep’t of Agric., 575 F.3d 999, 1018
(9th Cir. 2009). “ ‘Any possible effect, whether beneficial,
benign, adverse or of an undetermined character, triggers the
formal consultation[.]’ ” Id. at 1019 (quoting 51 Fed. Reg.
19926, 19949 (June 3, 1986)) (emphasis in Lockyer). The
Secretaries of Interior and Commerce have explained that “the
threshold for formal consultation must be set sufficiently low
to allow Federal agencies to satisfy their duty to ‘insure’ ”
that their actions do not jeopardize listed species or critical
habitat under section 7(a)(2). 51 Fed. Reg. at 19949.
In response to concerns that the “may affect” standard is
too burdensome, the Secretaries explained that the availability
of informal consultations mitigates any burden on the affected
agencies. Id. at 19950. The Secretaries therefore rejected the
suggestion that the consultation requirement should be trig-
gered on a higher showing than the low “may affect” thresh-
old. Id. at 19949.
V. Discussion
A. Challenged Notices of Intent
Four NOIs are challenged in this appeal. All four are for
suction dredge mining in the Happy Camp District of the
KARUK TRIBE v. USFS 4685
Klamath National Forest. As noted above, an approved NOI
is required for all suction dredge mining for which the likeli-
hood of a “significant disturbance of surface resources” falls
between “might cause” and “will likely cause.” 36 C.F.R.
§ 228.4(a). “Surface resources” includes “fisheries habitat.”
Id. § 228.8(e). The Klamath River system is critical habitat
for the listed coho salmon.
Before the 2004 dredging season, the Forest Service had
issued a two-page generic handout requiring information from
operators who sought to engage in suction dredge mining pur-
suant to an NOI:
Describe what you plan to do. Include when and how
you will be operating, the proposed start-up date, and
the expected duration of the activities. List other
details such as the number of people involved in the
operation, equipment you intend to use (sizes, capac-
ity, frequency of use), depth of proposed suction
dredging or excavation, how waste material will be
handled, what vegetation will be removed, the size
of area to be disturbed, quantity of material to be
removed, housing or camping facilities to be used,
and the method for sewage and waste disposal.
In preparation for the 2004 season, Happy Camp District
Ranger Alan Vandiver decided that he needed more informa-
tion than required by the handout. He was particularly con-
cerned with the effect of suction dredge mining on the critical
habitat of listed coho salmon. Vandiver consulted with biolo-
gists Bill Bemis and Jon Grunbaum, who are employees of
the Forest Service, not the Fish and Wildlife Service or the
National Marine Fisheries Service.
Vandiver wrote the following memorandum on May 24,
2004:
On April 20th a meeting was held in Orleans to
discuss possible fisheries issues relating to dredging.
4686 KARUK TRIBE v. USFS
A number of opinions were shared on the possible
effects. . . .
Following the Orleans meeting I asked our Dis-
trict Fisheries biologists, Bill Bemis and Jon Grun-
baum, to develop recommendations, for my
consideration, for the upcoming dredging season.
They were not able to come to agreement on a list
of fisheries recommendations. Their opinions varied
widely on the effect of dredge operations on fish-
eries. I identified three key fisheries issues specific
to the Happy Camp District[:] cold water refugia
areas in the Klamath River, the intensity of dredge
activities and the stability of spawning gravels in
some portions of Elk Creek. These issues I used to
help develop a threshold for determining a signifi-
cant level of surface disturbance. I felt it was impor-
tant from a cumulative effects standpoint to
determine a threshold of dredge density on the
streams, as well as identify the critical cold water
refugia areas. . . .
. . . I discussed at length with Bill [Bemis] and Jon
[Grunbaum] the effect on fisheries if the dredge
activity was concentrated or dispersed over the
length of the river. Concentrated use would result in
longer river stretches without dredge activity and
therefore less possible impacts to fisheries in the lon-
ger stretches. Distributed use would result in dis-
persed possible effects over the entire length of the
river. . . . Considering the limited dredge operations
in cold water refugia areas and the limited dredge
access, I developed a threshold of 10 dredges per
mile on the Klamath River and 3 dredges per mile on
the Klamath tributaries. My thinking was the larger
Klamath River, excluding the cold water refugia,
could accommodate more dredge density with less
impact than the smaller tributaries. . . .
KARUK TRIBE v. USFS 4687
On May 17, 2004 I met with members of the New
49’ers, the Karuk Tribe and our District fisheries
biologists to discuss the upcoming dredge season.
We discussed the key issues with respect to fisheries
including cold water refugia areas in the Klamath
River, the intensity of dredge activities and the sta-
bility of spawning gravels in the portion of Elk
Creek from the East Fork of Elk Creek to Cougar
Creek. See notes for May 17th for more detail.
The first of the NOIs challenged in this appeal was submit-
ted by a recreational mining group called the “New 49’ers.”
The New 49’ers own numerous mining claims in the Happy
Camp District. On May 17, 2004, District Ranger Vandiver
met with two representatives of the New 49’ers. Based on his
earlier consultation with Bemis and Grunbaum, Vandiver
instructed the New 49’ers on “three primary issues.”
First, Vandiver instructed the New 49’ers that cold water
refugias must be maintained within 500 feet of the mouths of
twenty-two named creeks that fed into the Klamath River.
Second, he instructed them that tailings piles must be raked
back into the “dredge holes in critical spawning areas” of Elk
Creek “in a timely manner as operations proceed, but no later
than the end of the season.” Third, he instructed them that
there could be no more than ten dredges per mile on the
Klamath River, and no more than three dredges per miles on
Klamath tributaries.
On May 24, 2004, a week after their meeting with Van-
diver, the New 49’ers submitted a detailed eight-page single-
spaced NOI for suction dredge mining in the Happy Camp
District during the 2004 season. The NOI proposed mining on
approximately 35 miles of the Klamath River and its tribu-
taries. The NOI estimated that each dredge would move an
average of one quarter of a cubic yard of material per day. In
accordance with Vandiver’s instructions, the NOI specified
that no dredging would occur in specified cold water refugia
4688 KARUK TRIBE v. USFS
in the summer and early fall, that dredging holes would be
filled in coho salmon spawning grounds on Elk Creek, and
that dredge density would not exceed ten dredges per mile on
the Klamath River and three dredges per mile on its tribu-
taries.
On May 25, Vandiver sent the New 49’ers a letter approv-
ing their NOI. On May 26, Bemis sent a “Note to the File”
stating:
The Notice of Intent (NOI) for the new 49’ers this
year has an intensity of approximately 40 dredges
over the 35 miles of the Klamath covered by their
claims. They have agreed to a density of no more
than 10 dredges in any one-mile at anytime. The new
49’ers have agreed to avoid the area around tribu-
taries to the Klamath Rivers. The club has agreed to
pull back dredging tailings in a critical reach within
Elk Creek. These agreements and others explained in
the NOI should reduce the impacts to anadromous
fisheries on the Happy Camp Ranger District.
The second NOI was submitted by Nida Johnson, an indi-
vidual miner who planned to mine thirteen claims. She sub-
mitted the NOI on May 29, 2004, noting that it was the “result
of a meeting at the Happy Camp U.S.F.S. May 25, 2004.” She
explained that she was processing ore with dredges with four
and five inch intake pipes. She wrote that “[d]redge tailings
piles in Independence Cr[eek] will be leveled.” In an attach-
ment, she wrote:
As recommended by the Forest Service, no dredging
will be conducted on the Klamath River within 500
feet above and below the mouth of Independence
Creek between June 15th and October 15th. I totally
disagree with these distances and believe that dredg-
ing is actually beneficial to fish survival, but I am
KARUK TRIBE v. USFS 4689
willing to follow these recommendations in order to
continue with my mining operations.
Vandiver approved the NOI on June 14.
The third NOI was submitted by Robert Hamilton, an indi-
vidual miner who planned to mine on four claims. He submit-
ted his NOI on May 11, 2004. He stated that he planned to use
a four-inch suction dredge for about two weeks during July.
Under the heading “precautions,” he wrote that he would limit
dredge density to three per mile, and that “[t]ailings will be
returned to dredge hole if possible in shallow areas or spread
over large area in deep areas.” Vandiver approved the NOI on
June 15.
The fourth NOI was submitted by Ralph Easley, an individ-
ual miner who planned to mine on a single claim. He submit-
ted his NOI on June 14. He stated that he planned to use a
four inch suction dredge from the beginning of July to the end
of September. He stated that the “[d]redge tailings will be
raked back into dredge holes.” Vandiver approved the NOI on
June 15.
In addition to the four NOIs specifically at issue in this
appeal, the record contains information about NOIs for suc-
tion dredging in two other districts of the Klamath National
Forest—the Orleans and the Scott River Districts. Examina-
tion of these two NOIs provides important information about
the Forest Service’s practices with respect to section dredge
mining pursuant to NOIs.
First, on April 26, 2004, the New 49’ers submitted a
detailed eight-page single-spaced NOI for suction dredge
mining in the Orleans District. On May 13, Acting Forest
Supervisor William Metz refused to approve the NOI. Metz
wrote:
There is an important cold water refugia at the
mouth of Wooley Creek that was discussed on the
4690 KARUK TRIBE v. USFS
April 23, 2004 field trip as needing protection. This
was not mentioned in your NOI. Protection of this
refugia is critical to the survival of migrating anadro-
mous fish.
Metz wrote further:
Due to the anadromous fisheries in the lower Salmon
River the stability of spawning gravels for fish redds
[spawning nests] is a major concern. Redds can be
lost if loose tailings piles erode away by stream
course action while eggs are still present. Your NOI
and the California Fish and Game Suction Dredge
regulations fall short of addressing mitigations for
this issue.
On May 24, the New 49’ers submitted a revised NOI for
mining in the Orleans District. Dave McCracken, General
Manager of the New 49’ers, wrote in a cover letter to the
NOI, “If this Notice does not adequately address your con-
cerns than [sic] I would suggest that we arrange an on-the-
ground meeting at the earliest possible time.” Then, anticipat-
ing that Metz would still not approve the NOI, the New 49’ers
withdrew the revised NOI on May 29. McCracken wrote to
Metz:
From the substantial amount of dialog we have had
with your office, other District offices, the Supervi-
sor’s office, Karuk Tribal leaders, active members of
the Salmon River Restoration Council and others
within local communities over the past several
months, it has become increasingly clear that there
are too many sensitive issues for us to try and man-
age a group mining activity along the Salmon River
at this time.
Second, on April 28, 2004, the New 49’ers submitted a
detailed seven-page single-spaced NOI for suction dredge
KARUK TRIBE v. USFS 4691
mining in the Scott River District. The NOI proposed an esti-
mated fifteen dredges along fifteen miles of “stream course,”
with “[d]ensities of above five dredges per 100 yards . . . not
anticipated.” The NOI for the Scott River District made a gen-
eral commitment concerning mining in cold water refugias at
the mouths of tributaries. After giving an example of a
refugia, the NOI stated, “The 49’ers are committed to work-
ing with the Forest Service and [Department of Fish and
Game] to identify these areas . . . and to adjust their operation
to prevent disturbance and stress to these fish during critical
time periods.” Unlike the NOIs for mining in the Happy
Camp and Orleans Districts, the NOI for the Scott River Dis-
trict made no provision for raking tailings piles back into
dredge holes. On May 10, District Ranger Ray Haupt refused
to approve the NOI, but for reasons unrelated to protection of
fisheries. Haupt wrote,
I am unable to allow your proposed mining opera-
tions for the SRRD [Scott River Ranger District]
under a NOI because of your bonded campsite which
allows your club members to camp (occupancy) lon-
ger than the 14 day camping limit. Your current Plan
of Operations allows for extended camping (longer
than 14 days) for your members, while they are
actively engaged in mining. I am approving your
mining operations for 2004 under a Plan of Opera-
tions with the following conditions . . . .
None of the conditions in the Plan of Operations related to
specific cold water refugia or tailings piles.
In total, there are seven NOIs in the record. Four of them
are for suction dredge mining in the Happy Camp District. All
four of these NOIs were approved by the Forest Service
because they complied with the criteria formulated by District
Ranger Vandiver for the protection of the critical habitat of
the listed coho salmon. A fifth NOI was submitted for suction
dredge mining in the Orleans District. That NOI was denied
4692 KARUK TRIBE v. USFS
by the Forest Service because it did not comply with criteria
for the protection of critical fisheries habitat. A revised NOI
was then submitted, but it was withdrawn in anticipation of its
being denied. Finally, a seventh NOI was submitted for suc-
tion dredge mining in the Scott River District. That NOI was
denied by the Forest Service for reasons unrelated to fisheries
habitat.
The Forest Service took affirmative action on all of the six
NOIs that were not withdrawn. The Forest Service approved
four of them and denied two of them. In no case did the Forest
Service take “no action,” as the majority opinion erroneously
contends.
B. Consultation under Section 7(a)(2)
As noted above, two criteria must be met before consulta-
tion is required under Section 7(a)(2) of the ESA. Those
criteria are: (1) there must be a proposed “agency action,” and
(2) the proposed agency action “may affect” a listed species
or its habitat. I conclude that each of these criteria have been
satisfied.
1. Agency Action
The Forest Service takes “agency action” under Section
7(a)(2) of the ESA in deciding whether to approve or deny
NOIs for suction dredge mining if it exercises discretion in
making that decision. 16 U.S.C. § 1536(a)(2); 50 C.F.R.
§ 402.03 (Section 7 “appl[ies] to all actions in which there is
discretionary Federal involvement or control”).
I conclude that the Forest Service exercised discretion in
three ways in approving or denying NOIs for suction dredge
mining in the Klamath National Forest. Because the Forest
Service exercised discretion in approving or denying these
NOIs, it took “agency action” within the meaning of Section
7(a)(2).
KARUK TRIBE v. USFS 4693
First, the Forest Service exercised discretion in formulating
criteria for the protection of critical habitat of listed coho
salmon. Those criteria governed the approval or denial of
NOIs for suction dredge mining. As described in detail above,
District Ranger Vandiver of the Happy Camp District pre-
pared for the 2004 mining season by meeting with Forest Ser-
vice biologists Bemis and Grunbaum. After consulting with
them, Vandiver formulated criteria for protecting critical habi-
tat from the effects of suction dredge mining conducted pur-
suant to NOIs. He specified by name each of the tributaries
to the Klamath River that provided cold-water refugias that
should be protected; he specified the maximum number of
dredges per mile on the river and on its tributaries; and he
required that tailings be raked back into dredge holes.
Once Vandiver had exercised his discretion to formulate
these specific criteria, they became conditions with which any
would-be miner submitting an NOI in the Happy Camp Dis-
trict had to comply. For example, Nida Johnson’s NOI indi-
cated that she would respect a cold-water refugia by
refraining from dredging within 500 feet of the mouth of
Independence Creek. But she made clear that she was doing
so only because of the condition imposed by Vandiver, and
that, absent compliance with that condition, she would not be
allowed to engage in mining:
I totally disagree with these distances and believe
that dredging is actually beneficial to fish survival,
but I am willing to follow these recommendations in
order to continue with my mining operations.
Similarly, a week after Vandiver had communicated the
criteria to the New 49’ers, that group submitted an eight-page
single-spaced NOI for suction dredge mining in the Happy
Camp District that complied with the criteria. Vandiver
approved the NOI the next day.
In one sense, Vandiver is to be commended. He recognized
the danger that suction dredge mining posed to the critical
4694 KARUK TRIBE v. USFS
habitat of coho salmon, and he consulted with Forest Service
biologists Bemis and Grunbaum in formulating protective
criteria for approving mining under NOIs. The problem is that
Vandiver failed to consult with employees of the required
agencies. The ESA requires Vandiver consult with the Fish
and Wildlife Service and the National Marine Fisheries Ser-
vice, not merely within his own agency. Therefore, Van-
diver’s consultation with Forest Service biologists Bemis and
Grunbaum did nothing to comply with Section 7.
Second, the Forest Service exercised discretion in refusing
to approve a detailed NOI submitted by the New 49’ers for
suction dredge mining in the Orleans District. Acting Forest
Supervisor Metz refused to approve the NOI because, in his
view, it provided insufficient protection of fisheries habitat:
first, a cold-water refugia at the mouth of a particular creek
was not mentioned in the NOI; second, there was insufficient
mitigation of the dangers posed by loose tailings piles left by
the dredges. The New 49’ers submitted a new NOI, but then
withdrew it five days later. The New 49’ers’ representative
wrote that despite a “substantial . . . dialog,” the Forest Ser-
vice’s protective conditions meant that “there are too many
sensitive issues for us to try and manage a group mining
activity along the Salmon River at this time.”
Third, the Forest Service exercised discretion when its
employees applied different criteria for the protection of fish-
eries habitat in different districts of the Klamath National For-
est. District Ranger Vandiver developed and applied very
specific protective criteria for granting or denying NOIs in the
Happy Camp District. Different protective criteria for NOIs
were developed and applied in the Scott River District. There
is nothing in the record to tell us how the criteria were devel-
oped in the Scott River District. But it is clear from the record
that those criteria were different, at least in their application,
from those in the Happy Camp District. The New 49’ers sub-
mitted an NOI to District Ranger Haupt in the Scott River
District that complied in full with one of the criteria applied
KARUK TRIBE v. USFS 4695
in the Happy Camp District by specifying the maximum num-
ber of dredges per mile. The NOI complied, to some degree,
with a second Happy Camp criterion by committing to “work-
[ing] with” the Forest Service to identify cold-water refugia.
But the NOI did not promise to observe any particular cold-
water refugia and did not promise to stay a specified distance
from any creek mouth. Finally, the NOI did not comply at all
with the third Happy Camp criterion, for it did not mention
raking tailings piles back into dredge holes. Scott River Dis-
trict Ranger Haupt denied the NOI for reasons unrelated to
these three criteria, and he did not include these criteria in the
Plan of Operations.
A discretionary decision is one that is not dictated or con-
trolled by precise rules or regulations. District Rangers Van-
diver and Haupt each formulated and applied their own,
differing criteria in deciding whether to grant or deny NOIs
for suction dredge mining in their districts. In neither district
were those criteria dictated or controlled by precise rules or
regulations. See 70 Fed. Reg. at 32720, 32724 (explaining that
NOIs must be evaluated on a site-specific basis, and that there
is no “universal definition” of “significant disturbance”). This
difference in formulating and applying criteria is the very def-
inition of the exercise of discretion.
In every instance in the record before us, except one in
which the NOI was withdrawn, the Forest Service affirma-
tively acted. In each of those instances, it either approved or
denied the NOI in which suction dredge mining was pro-
posed. In each instance, the Forest Service took some kind of
discretionary action. Those actions were “agency actions”
within the meaning of Section 7 of the ESA.
2. “May Affect” Listed Species or Habitat
Section 7 and an implementing regulation require consulta-
tion whenever an agency action “may affect . . . critical habi-
tat” of a listed species. 50 C.F.R. § 402.14(a). An NOI is
4696 KARUK TRIBE v. USFS
required whenever proposed suction dredge mining “might
cause significant disturbance of surface resources.” 36 C.F.R.
§ 228.4(a). “Surface resources” include fisheries habitat. Id. at
§ 228.8(e). The Klamath River system is a “critical habitat”
for listed coho salmon.
Whether suction dredge mining under NOIs “may affect”
“critical habitat” can almost be resolved as a textual matter,
without the necessity to consult the factual record. That is, by
definition, suction dredge mining under an NOI “might cause
significant disturbance” of fisheries habitat in the Klamath
River system. If the phrase “might cause significant distur-
bance” of “fisheries habitat” is given an ordinary meaning, it
follows almost automatically that suction dredge mining pur-
suant to an NOI “may affect” critical habitat of the coho
salmon. Indeed, the Forest Service does not dispute that suc-
tion dredge mining in the Klamath River system pursuant to
NOIs “may affect” the listed coho salmon and its critical habi-
tat.
However, the New 49’ers contend that the record “is
devoid of any evidence whatsoever that the four challenged
suction dredge mining activities ‘may affect’ the coho salmon
‘species’ listed in Northern California.” The New 49’ers make
two arguments in support of their contention. Neither argu-
ment withstands scrutiny.
First, the New 49’ers argue that there is no evidence “that
even a single member of any listed species would be ‘taken’
by reason” of the suction dredge mining at issue. “Take” has
a particular definition under the ESA. 16 U.S.C. § 1532(19)
(“The term ‘take’ means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage
in any such conduct.”); Babbitt v. Sweet Home Chapter of
Cmty. for a Great Or., 515 U.S. 687, 691 (1995). Even if it
is true (which I will assume arguendo) that suction dredge
mining does not effectuate a “taking” of coho salmon under
the ESA, this has no bearing on whether such mining “may
KARUK TRIBE v. USFS 4697
affect” the salmon or its critical habitat under 50 C.F.R.
§ 402.14(a).
Second, the New 49’ers argue that Vandiver’s consultation
process within the Forest Service, and its resulting guidelines,
“assured” that there would be “no impact whatsoever on listed
species.” This argument cuts against rather than in favor of
the New 49’ers. The fact that District Ranger Vandiver for-
mulated his own criteria to mitigate effects of suction dredg-
ing on the coho salmon and their critical habitat does not
mean that the “may affect” standard was not met. Indeed, the
fact that Vandiver consulted with Forest Service biologists in
an attempt to reduce any adverse impact on coho salmon and
their habitat suggests exactly the opposite.
A review of the record reveals abundant evidence that suc-
tion dredging under NOIs in the Happy Camp District “may
affect” coho salmon and their critical habitat. Coho salmon in
the Klamath River system were listed as “threatened” in 1997,
and the river was listed as “critical habitat” two years later. 62
Fed. Reg. 24588, 24588 (May 6, 1997); 64 Fed. Reg. 24049
(May 5, 1999). In listing the salmon, the National Marine
Fisheries Service noted that its population was “very
depressed.” 62 Fed. Reg. at 24588. The Fisheries Service con-
cluded that “human-induced impacts,” including overharvest-
ing, hatchery practices, and habitat modification including
mining had played a significant role in the decline, and had
“reduced the coho salmon populations’ resiliency” in the face
of natural challenges. Id. at 24591-92. The Fisheries Service
also concluded that “existing regulatory mechanisms are
either inadequate or not implemented well enough to con-
serve” the salmon. Id. at 24588.
The record also includes information that Forest Service
biologist Grunbaum provided on the effects of suction dredge
mining at a meeting of Forest Service personnel on April 20,
2004. Grunbaum wrote that relatively few studies of suction
dredging had been performed, but “the majority . . . showed
4698 KARUK TRIBE v. USFS
that suction dredging can adversely affect aquatic habitats and
biota.” The effects varied across ecosystems; in some, “dredg-
ing may harm the population viability of threatened species.”
Grunbaum summarized specific potential adverse effects.
First, “[e]ntrainment by suction dredge can directly kill and
indirectly increase mortality of fish — particularly un-eyed
salmonid eggs and early developmental stages.” Second, dis-
turbance from suction dredging can kill the small inverte-
brates that larger fish feed on, or alter the invertebrates’
environment so that they become scarce. Third, destabilized
streambeds can “induc[e] fish to spawn on unstable material,”
and fish eggs and larvae can be “smothered or buried.”
Fourth, because the streams the salmon occupy are already at
“near lethal temperatures,” even “minor” disturbances in the
summer can harm the salmon. Fifth, juvenile salmon could be
“displaced to a less optimal location where overall fitness and
survival odds are also less.” Finally, a long list of other fac-
tors — disturbance, turbidity, pollution, decrease in food base,
and loss of cover associated with suction dredging — could
combine to harm the salmon.
I therefore conclude that the suction dredge mining chal-
lenged in this case “may affect” the listed coho salmon and
its critical habitat.
C. Burden on the Forest Service
The burden imposed upon the Forest Service by the obliga-
tion to consult under Section 7 of the ESA is not great.
Indeed, District Ranger Vandiver has already consulted with
Forest Service biologists Bemis and Grunbaum in formulating
the detailed criteria for suction dredge mining NOIs in the
Happy Camp District of the Klamath National Forest. That
consultation could not satisfy Section 7 because Bemis and
Grunbaum work for the Forest Service rather than the Fish
and Wildlife Service or the National Marine Fisheries Ser-
vice. But if Vandiver had consulted with employees of those
agencies, that consultation could have satisfied Section 7. If,
KARUK TRIBE v. USFS 4699
after engaging in that consultation, Vandiver had formulated
sufficiently detailed coho-protective criteria based on the
views of the Fish and Wildlife Service and the National
Marine Fisheries Service, any NOIs approved using those
criteria would not have required the exercise of further discre-
tion and therefore would not have required further consulta-
tion. See Texas Indep. Producers, 410 F.3d at 979; Envtl. Def.
Ctr., 344 F.3d at 853. Of course, Vandiver formulated his
criteria for NOIs only for the Happy Camp District. But there
is no reason why the Forest Service could not consult with the
Fish and Wildlife Service and the National Marine Fisheries
Service to formulate comparable criteria for all of the districts
in the Klamath National Forest, with the result that any indi-
vidual NOI approved under those criteria would not require
further consultation.
Conclusion
By definition, suction dredge mining pursuant to an NOI is
mining that “might cause” ”significant disturbance of surface
resources,” including the surface resource of “fisheries habi-
tat.” The Forest Service does not dispute that such mining
“may affect” critical habitat of coho salmon in the Klamath
River system within the meaning of Section 7 of the ESA.
The Forest Service therefore has an obligation under Section
7 to consult with the relevant agencies at some point in the
process of allowing such mining.
The Forest Service had several available choices. It could
have consulted under Section 7 when it promulgated the regu-
lation for dredge mining under NOIs. That is, it could have
consulted when it set the threshold criterion for an NOI as
mining that “might cause significant disturbance of surface
resources” including fisheries habitat. Or it could have con-
sulted under Section 7 when it formulated habitat-protective
criteria for approving NOIs. That is, it could have consulted
when District Ranger Vandiver formulated his criteria for
approving the NOIs for the Happy Camp District. Or, finally,
4700 KARUK TRIBE v. USFS
in the absence of criteria such as those formulated for the
Happy Camp District, it could have consulted under Section
7 with respect to each individual NOI.
The one choice that was not available to the Forest Service
was never to consult. Yet that is the choice the Forest Service
made. In making that choice, the Forest Service violated Sec-
tion 7 of the ESA.
I respectfully but emphatically dissent from the conclusion
of the majority to the contrary.