dissenting:
This case concerns a federal agency’s affirmative duty under Section 7 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1536 (1994), to ensure that it is not likely to jeopardize a threatened species before acting or authorizing private action. We decide what circumstances trigger the agency’s duty to consult with the Fish and Wildlife Service (“FWS”) about the environmental impact of its activities. An agency must reinitiate consultation where “discretionary Federal involvement or control over the action has been retained or is authorized by law and ... a new species is listed or critical habitat designated that may be affected by the identified action.” 50 C.F.R. § 402.16 (2000). In this case, FWS has substantial discretionary control over Simpson’s permit and two new species have been listed that may be harmed by Simpson’s activities pursuant to that permit. Moreover, FWS can exercise its discretion to benefit these species which, until now, was sufficient to trigger its duty to consult. See Sierra Club v. Babbitt, 65 F.3d 1502, 1509 (9th Cir.1995). The majority avoids this conclusion by creating a new requirement that the agency explicitly reserve the right to implement measures to protect new species in the permit. Because its holding contradicts the plain language of the regulation, misapplies our holding in Sierra Club, and frustrates the purpose of the consultation requirement, I respectfully dissent.
The plain language of 50 C.F.R. § 402.16 supports EPIC’s position that the only prerequisites for FWS’s duty to reini-tiate consultation are (1) that FWS has some discretionary control over Simpson’s permit, and (2) that a new species has been listed that may be affected by the permit. The regulation does not mention any other requirements, nor does it specify that the agency’s discretionary control must be of a certain nature for the consultation requirement to apply. The majority acknowledges that FWS has some discretion over Simpson’s permit and no one contests that the marbled murrelet and the coho salmon may be affected by Simpson’s activities authorized under the permit. Consequent*1084ly, section 7 and 50 C.F.R. § 402.16 require FWS to determine whether either species is likely to be harmed before it continues to authorize Simpson’s activities.
Even under the more demanding test outlined in Sierra Club, FWS has a duty to consult. FWS retains sufficient control over Simpson’s permit that it could take steps which “inure to the benefit” of the coho salmon and the marbled murrelet. 65 F.3d at 1509. First, the Implementation Agreement (“IA”) gives FWS authority to suspend Simpson’s incidental take permit “[i]n the event of any significant violation or breach.” IA at 22. If Simpson fails to honor its obligations, FWS can suspend the permit until appropriate remedial measures are taken. FWS’s authority is not limited to protecting the northern spotted owl. Under the terms of the agreement, Simpson promised to implement a series of mitigation measures designed specifically to benefit other species. For example, Simpson’s Habitat Conservation Plan (“HCP”) includes commitments to retain 50 to 70 percent canopy and 50 percent ground cover along Class I and Class II streams, and to design roads that minimize the impact and number of stream crossings through riparian areas. See HCP at 194. These promises were not limited, as the majority assumes, to benefit species already listed as threatened, but were worded broadly to encompass “other species of concern.” Id. Even under the majority’s narrow reading of Simpson’s commitment to “ensure compatibility with the habitat requirements of other species ... that are considered sensitive by state and federal regulatory agencies,” HCP at 195, the marbled murrelet is covered. The marbled murrelet was considered “sensitive” by federal and state regulatory agencies as early as June 1991, more than one year before FWS issued the permit to Simpson. See 56 Fed.Reg. 28362, 28365 (June 20,1991).
In addition, FWS’s general permitting regulations provide broad discretion for the agency to amend an incidental take permit. Under 50 C.F.R. § 13.23, FWS “reserves the right to amend any permit for just cause at any time during its term, upon written finding of necessity.”1 This clause was incorporated into Simpson’s permit and overrides any agreement to the contrary.2 If FWS determines that Simpson’s Timber Harvesting Plans (“THPs”) may jeopardize the marbled murrelet or coho salmon, FWS would have just cause to amend the permit to include stronger mitigation measures. These sources of discretion, together with the promises made by Simpson in its HCP, provide sufficient remedial authority for *1085FWS to implement measures that inure to the benefit of the marbled murrelet and coho salmon. Thus, unlike Sierra Chib, consultation would not be a meaningless exercise. In Sierra Club, the Bureau of Land Management’s discretionary authority was far more limited and had no connection to the newly listed species. The right of way agreement in that case gave the BLM authority to halt construction under very narrow circumstances, whereas the Implementation Agreement specifically delegates discretion to FWS to suspend the permit for any significant breach. Moreover, the BLM’s permitting regulations do not have an equivalent clause allowing it to amend its right-of-way agreements for just cause.3
In contrast, FWS has authority to review Simpson’s activities for compliance with the promises made in its HCP and can order Simpson to fulfill its obligations under the permit. Simpson promised to submit THPs that include resource management techniques designed to protect “other species of concern.” If Simpson fails to take into account the habitat requirements of the coho salmon and the marbled murrelet, FWS can suspend its permit until Simpson takes remedial measures. Had Sierra Club involved a similar promise to design the logging road so as to minimize damage to other species of concern, we certainly would have found there to be sufficient discretion to trigger the duty to consult.
Because FWS retains power to amend Simpson’s permit for just cause or suspend the permit if Simpson does not design its timber harvesting in such a way as to mitigate damage to other threatened species, consultation could obviously lead to measures that benefit the coho salmon or marbled murrelet. Under these circumstances, FWS is obligated to reinitiate the consultation process in order to fulfill its duties under section 7 of the ESA. Therefore, .FWS’s failure to reinitiate formal consultation violates the APA because the agency has acted without observance of the procedure required by law. See 5 U.S.C. § 706(2)(A).
The majority holds instead that FWS’s discretion is insufficient to trigger its duty to consult because the permit does not authorize FWS specifically to act for the benefit of the marbled murrelet and the coho salmon. In other words, since the permit does not explicitly give FWS the power to implement measures to protect these two species, the agency is powerless to require measures that inure to their benefit. The majority effectively reads a new requirement into the regulation. Even as interpreted in Sierra Club, 50 C.F.R. § 402.16 does not require the parties to anticipate the specific purpose for which discretion may be exercised in order for there to be sufficiént discretionary control that it can benefit a newly listed species.
The majority appears to be concerned about whether Simpson had sufficient notice that FWS might exercise its discretion for the benefit of newly listed species. This concern obscures the purpose behind the consultation requirement. Whereas section 9 of the ESA makes it unlawful for anyone to “take” an endangered species, 16 U.S.C. 1538(a)(1)(B), section 7 requires 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 threatened species. 16 U.S.C. 1536(a)(2). Thus, section 7 imposes a separate, affirmative duty on federal agencies to make *1086sure, before they act, that they will not harm listed species. Simpson’s expectations are irrelevant to whether FWS’s procedural obligation has been triggered. The majority’s failure to appreciate the unique duty created by section 7 is evident in its discussion of alternative remedies available to EPIC. The fact that Section 9 provides recourse against Simpson after it takes marbled murrelet is beside the point. EPIC brings this case now against FWS because it should not have to wait until Simpson takes a listed species to enforce FWS’s duty under the Act.
In any case, Simpson had sufficient notice based on the plain language of the regulation and its own commitments in the permit application. Simpson’s HCP included promises that would clearly appeal to FWS regulators. By promising not only to mitigate harm to the spotted owl, but other species of concern as well, Simpson made its application more attractive. And Simpson received a substantial benefit in exchange for these promises-the right to take northern spotted owls without running afoul of the ESA. Simpson accepted its permit subject to certain background conditions, one of which imposes an ongoing duty on FWS to insure that its actions do not jeopardize threatened species. We cannot ignore those provisions without in some way violating the bargain. To hold otherwise would rewrite the permit and give a windfall to Simpson in the form of extra assurances that were not bargained for in the original agreement.
. 50 C.F.R. § 13.23 was amended in August 2000 to limit FWS's discretion over certain permits. The new regulation reads: “The Service reserves the right to amend any permit for just cause at any time during its term, upon written finding of necessity, provided that any such amendment of a permit issued under § 17.22(b) through (d) or § 17.32(b) through (d) of this subchapter shall be consistent with the requirements of § 17.22(b)(5), (c)(5) and (d)(5) or § 17.32(b)(5), (c)(5) and (d)(5) of this subchapter, respectively.” Simpson’s permit was issued under § 17.32(b). Consequently, the permit would be protected from amendment under the assurances provided in § 17.32(b)(5), however, that section expressly excludes permits issued before March 25, 1998. Because Simpson's permit was issued in 1992, when no such assurances were provided under FWS's governing regulations, compare 50 Fed.Reg. 39681 (Sept. 30, 1985), with 63 Fed.Reg. 8859 (Feb. 23, 1998) (amending regulations to include Habitat Conservation Plan Assurances (“No Surprises”) Rule), FWS is not restricted by the current version of the regulations from amending Simpson's permit for just cause upon a written finding of necessity.
. The Implementation Agreement states: “nothing herein contained is intended to limit the authority or responsibility of the United States government to ... otherwise fulfill its responsibilities under the ESA.”
. We also deferred, in Sierra Club, to the Solicitor’s interpretation that BLM did not have a duty to consult. 65 F.3d at 1506, 1509. Here there is no such agency interpretation entitled to deference.