dissenting:
The issue we must resolve in this case is whether the Bureau of Land Management (“BLM”) had discretion to control — for the benefit of the threatened spotted owl — Seneca Sawmill’s construction of a road on BLM land. If the BLM had such discretion, then before approving Seneca’s road construction the BLM was obligated under section 7 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1536, to consult with the Fish and Wildlife Service (“FWS”) before authorizing any “action” that “may affect” the threatened spotted owl. Under the regulations promulgated by the Secretary of the Interior, the section 7 consultation requirement applies “to all actions in which there is discretionary Federal involvement or control.” 50 C.F.R. § 402.03 (emphasis added).
The majority opinion defers to the conclusion reached by the Regional Solicitor of the Department of the Interior who reviewed this very question. The Regional Solicitor concluded that the BLM did not retain discretion under the right-of-way agreements to influence — for the benefit of the spotted owl — the construction of roads on BLM land. The Regional Solicitor also concluded that the addition of the environmental stipulation did not give the BLM any additional discretion over permittees’ rights to construct roads on BLM land. The environmental stipulation authorized the BLM to halt construction of the roadway if Seneca violates any environmental law. I am disinclined to accept such a categorical denial of the existence of agency discretion.
The majority opinion cites Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, — U.S. -, -, 115 S.Ct. 2407, 2415-18, 132 L.Ed.2d 597 (1995) for the proposition that we should defer to the Regional Solicitor’s interpretation where Congress “did not unambiguously manifest its intent” to adopt a contrary construction. But the statutory language at issue in the present case, i.e., the words “agency action,” is not ambiguous.
“[Tjhere is little doubt that Congress intended to enact a broad definition of agency action in the ESA.” Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1054 (9th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1793, 131 L.Ed.2d 721 (1995). In Pacific Rivers, we concluded that “[t]he ESA’s plain language affirmatively commands all federal agencies to ‘insure that any action authorized, funded or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or result in the destruction or adverse modification of habitat to such species.’” Id. (quoting 16 U.S.C. § 1536(a)(2)) (emphasis in original). Moreover, the Supreme Court noted in TVA *1514v. Hill, 437 U.S. 153, 173, 98 S.Ct. 2279, 2291-92, 57 L.Ed.2d 117 (1978), that this definition of agency action “admits of no exception.”
Instead of deferring to the findings of the Regional Solicitor, we should instead follow the canon of statutory construction which requires us to “reject administrative constructions which are contrary to clear congressional intent.” I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 447-48, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987).
Here, the Regional Solicitor’s conclusion that the BLM did not retain discretion to influence — for the benefit of the spotted owl — the permittees’ construction of roads under the right-of-way agreements thwarts Congress’s explicit instruction that “agency action” be read broadly. Unlike the view expressed in the majority opinion, I believe that the BLM retained discretion to influence the roadway project for the benefit of the spotted owl. The BLM had the right under the contract to review the location of the proposed road and object if it concluded that the planned road was not the most direct and reasonable route. Moreover, under the stipulation, the BLM could halt the project if it believed that Seneca’s construction would be likely to violate section 9 of the ESA or any other environmental law. The authority to review the project pursuant to the contract or stop it until the conditions of the environmental stipulation are met plainly constitutes “discretion,” albeit limited.
The dictionary definition of “discretion” is “the power or right to decide or act according to one’s own judgment.” The Random House College Dictionary 379 (1980). Both the contractual review and the environmental stipulation must then require the BLM to consult with FWS to assess whether a “taking” will occur and to discontinue Seneca’s construction if such is the case, or pursue any viable alternative which can be worked out given the terms of the contract.
At the very least, because the BLM had to review the planned project to determine whether it could ascertain any objections, its “approval” constitutes agency action for purposes of triggering the Act. Here, the BLM wildlife biologist concluded in his amended report that Seneca’s proposed construction “may affect” the threatened spotted owl.1 An action which “may affect” a listed species is one which could jeopardize the continued existence of that species. 16 U.S.C. § 1536(a)(2). Thus, consultation was required.
Therefore, I would affirm the ruling of the district court on the Sierra Club’s ESA claim on the basis that under the contract and the environmental stipulation, the BLM retained some discretion to control Seneca’s construction project for the benefit of the spotted owl. Because the BLM retained some discretion, its approval and countenance of the project is an action which may affect the owl; therefore, consultation with FWS is required to ensure that even such limited discretion is exercised in the best interest of the endangered species.
. The implementing regulations of section 7 of the ESA require federal agencies to consult with the appropriate federal fish and wildlife agency— in this case the FWS — whenever their actions "may affect” an endangered or threatened species. See 50 C.F.R. § 402.14(a).