Karuk Tribe v. United States Forest Service

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
December 13, 2011—San Francisco, California

Filed June 1, 2012

Before: Alex Kozinski, Chief Judge, Barry G. Silverman,
Susan P. Graber, Kim McLane Wardlaw,
William A. Fletcher, Ronald M. Gould, Richard A. Paez,
Marsha S. Berzon, Milan D. Smith, Jr., Sandra S. Ikuta, and
Mary H. Murguia, Circuit Judges.

Opinion by Judge William A. Fletcher;
Dissent by Judge M. Smith

6067
 KARUK TRIBE OF CALIFORNIA v. USFS 6071

COUNSEL

Roger Flynn and Jeffrey Charles Parsons, WESTERN MIN-
ING ACTION PROJECT, Lyons, Colorado, Lynne Saxton,
ENVIRONMENTAL LAW FOUNDATION, Oakland, Cali-
fornia, James R. Wheaton, PUBLIC INTEREST LAW
OFFICE, Oakland, California, for the plaintiff-appellant.

Lane N. McFadden and Brian C. Toth, U.S. DEPARTMENT
OF JUSTICE, Washington, D.C., Barclay T. Samford, U.S.
DEPARTMENT OF JUSTICE, Denver, Colorado, Charles
Michael O’Connor, OFFICE OF THE UNITED STATES
ATTORNEY, San Francisco, California, for the defendants-
appellees.

Jason Craig Rylander, DEFENDERS OF WILDLIFE, Wash-
ington, D.C., for the amicus curiae.

OPINION

W. FLETCHER, Circuit Judge:

We consider whether the U.S. Forest Service must consult
with appropriate federal wildlife agencies under Section 7 of
6072 KARUK TRIBE OF CALIFORNIA v. USFS
the Endangered Species Act (“ESA”) before allowing mining
activities to proceed under a Notice of Intent (“NOI”) in criti-
cal habitat of a listed species. The ESA requires consultation
with the Fish and Wildlife Service or the NOAA Fisheries
Service for any “agency action” that “may affect” a listed spe-
cies or its critical habitat. 16 U.S.C. § 1536(a)(2); 50 C.F.R.
§ 402.14(a). There are two substantive questions before us.

The first is whether the Forest Service’s approval of four
NOIs to conduct mining in the Klamath National Forest is
“agency action” within the meaning of Section 7. Under our
established case law, there is “agency action” whenever an
agency makes an affirmative, discretionary decision about
whether, or under what conditions, to allow private activity to
proceed. The record in this case shows that Forest Service
District Rangers made affirmative, discretionary decisions
about whether, and under what conditions, to allow mining to
proceed under the NOIs.

The second is whether the approved mining activities “may
affect” a listed species or its critical habitat. Forest Service
regulations require a NOI for all proposed mining activities
that “might cause” disturbance of surface resources, which
include fisheries and wildlife habitat. 36 C.F.R. §§ 228.4(a),
228.8(e). In this case, the Forest Service approved mining
activities in and along the Klamath River, which is critical
habitat for threatened coho salmon. The record shows that the
mining activities approved under NOIs satisfy the “may
affect” standard.

We therefore hold that the Forest Service violated the ESA
by not consulting with the appropriate wildlife agencies1
before approving NOIs to conduct mining activities in coho
salmon critical habitat within the Klamath National Forest.
1
The parties appear to assume that if consultation is required under Sec-
tion 7, it is required with both agencies. Without deciding the question, we
also will so assume.
 KARUK TRIBE OF CALIFORNIA v. USFS 6073
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. In northern California, the Klamath
River passes through the Six Rivers and Klamath National
Forests. 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. 24,588 (May 6, 1997). The Klamath River
system and adjacent streamside riparian zones were desig-
nated as critical habitat for coho salmon in 1999. 64 Fed. Reg.
24,049 (May 5, 1999). The Karuk Tribe depends on coho
salmon in the Klamath River system for cultural, religious,
and subsistence uses.

The rivers and streams of the Klamath River system also
contain gold. Commercial gold mining in and around the riv-
ers and streams of California was halted long ago due, in part,
to extreme environmental harm caused by large-scale placer
mining. See generally People v. Gold Run Ditch & Mining
Co., 4 P. 1152 (Cal. 1884) (affirming injunction against
hydraulic gold mining because of impacts on downstream riv-
ers); Green Versus Gold: Sources in California’s Environ-
mental History 101-40 (Carolyn Merchant ed., 1998)
(describing environmental impacts of the California Gold
Rush). However, small-scale recreational mining has contin-
ued. Some recreational miners “pan” for gold by hand, exam-
ining one pan of sand and gravel at a time. Some conduct
“motorized sluicing” by pumping water onto streambanks to
process excavated rocks, gravel, and sand in 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 mate-
rial runs through the box and is deposited in a tailings pile.
Finally, some recreational miners conduct mechanical “suc-
6074 KARUK TRIBE OF CALIFORNIA v. USFS
tion dredging” within the streams themselves. These miners
use gasoline-powered engines to suck streambed material up
through flexible intake hoses that are typically four or five
inches in diameter. The streambed material is deposited into
a floating sluice box, and the excess is discharged in a tailings
pile in or beside the stream. Dredging depths are usually
about five feet, but can be as great as twelve feet.

The Karuk Tribe contends that these mining activities
adversely affect fish, including coho salmon, in the Klamath
River system. The Tribe challenges the Forest Service’s
approval of four NOIs to conduct mining activities in coho
salmon critical habitat in the Klamath National Forest, with-
out first consulting with federal wildlife agencies pursuant to
Section 7 of the ESA.

A. Mining Regulations

Under the General Mining Law of 1872, a private citizen
may enter public lands for the purpose of prospecting and
mining. 30 U.S.C. § 22. The Organic Administration Act of
1897 extended the Mining Law to the National Forest system
but authorized the Secretary of Agriculture to regulate mining
activities in the National Forests to protect the forest lands
from destruction and depredation. 16 U.S.C. §§ 482, 551. The
Act specified that prospectors and miners entering federal for-
est lands “must comply with the rules and regulations cover-
ing such national forests.” Id. § 478. We have repeatedly
upheld the Forest Service’s authority to impose reasonable
environmental regulations on mining activities in National
Forests, so long as they do not prohibit or impermissibly
encroach on legitimate mining uses. See, e.g., United States
v. Shumway, 199 F.3d 1093, 1106-07 (9th Cir. 1999); Clouser
v. Espy, 42 F.3d 1522, 1529-30 (9th Cir. 1994); United States
v. Weiss, 642 F.2d 296, 298-99 (9th Cir. 1981).

In 1974, the Forest Service promulgated regulations to min-
imize the adverse environmental impacts of mining activities
 KARUK TRIBE OF CALIFORNIA v. USFS 6075
in National Forests. 39 Fed. Reg. 31,317 (Aug. 28, 1974); 36
C.F.R. § 228.1 (2004). The regulations establish three differ-
ent categories of mining, based on whether the proposed
activities “will not cause,” “might cause,” or “will likely
cause” significant disturbance of surface resources, which
include fisheries and wildlife habitat. 36 C.F.R. §§ 228.4(a),
228.8(e). The first category, de minimis mining activities that
“will not cause” significant disturbance of surface resources,
may proceed without notifying the Forest Service or obtaining
the agency’s approval or authorization. Id. § 228.4(a)(1),
(2)(ii). The third category, mining activities that “will likely
cause” significant disturbance of surface resources, may not
proceed until the Forest Service approves a Plan of Opera-
tions (“Plan”) submitted by the miner. Id. § 228.4(a). A Plan
requires relatively detailed information, including “the
approximate location and size of areas where surface
resources will be disturbed” and “measures to be taken to
meet the requirements for environmental protection.” Id.
§ 228.4(c). Within 30 days of receiving a Plan, or 90 days if
necessary, the Forest Service must approve the proposed Plan
or notify the miner of any additional environmental conditions
necessary to meet the purpose of the regulations. Id.
§ 228.5(a).

At issue in this appeal is the middle category of mining
activities: those that “might cause” disturbance of surface
resources. Id. § 228.4(a). Forest Service mining regulations
require that any person proposing such activities must submit
a Notice of Intent to operate, or NOI, to the appropriate Dis-
trict Ranger. Id. A NOI is less detailed than a Plan. It need
only contain information “sufficient to identify the area
involved, the nature of the proposed operations, the route of
access to the area of operations and the method of transport.”
Id. § 228.4(a)(2)(iii). Within 15 days of receiving a NOI, the
District Ranger must notify the miner whether a Plan is
required. Id. The Ranger will require a Plan if, in his discre-
tion, he determines that the operation “will likely cause” sig-
nificant disturbance of surface resources. Id. § 228.4(a).
6076 KARUK TRIBE OF CALIFORNIA v. USFS
The Forest Service revised its regulations in 2005 to clarify
when a NOI or Plan is required. See 70 Fed. Reg. 32,713
(June 6, 2005). The revised regulations provide examples of
de minimis mining activities — such as gold panning, metal
detecting, and mineral sampling — that “will not cause” sig-
nificant disturbance of surface resources and thus require nei-
ther a NOI or Plan. 36 C.F.R. § 228.4(a)(1)(ii) (2011). The
revised regulations also clarify that a NOI is required only for
proposed mining activities that might cause “significant” dis-
turbance of surface resources. Id. § 228.4(a) (2011). The par-
ties agree that the 2005 revisions do not materially affect the
issues on appeal. However, because the Karuk Tribe chal-
lenges the Forest Service’s approval of NOIs during the 2004
mining season, our citations to subsections of 36 C.F.R. § 228
are to the 2004 version of the Forest Service regulations,
unless otherwise noted.

B. 2004 Mining Season

Before the start of the 2004 mining season, representatives
of the Karuk Tribe expressed concern to the Forest Service
about the effects of suction dredge mining on fisheries in the
Klamath River system. The District Ranger for the Happy
Camp District of the Klamath National Forest, Alan Vandiver,
responded by organizing meetings that included Tribal lead-
ers, miners, and district officials. Vandiver also consulted
with Forest Service biologists Bill Bemis and Jon Grunbaum.
Vandiver wrote the following memorandum on May 24,
2004:

On April 20th a meeting was held in Orleans to dis-
cuss possible fisheries issues relating to dredging. 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
 KARUK TRIBE OF CALIFORNIA v. USFS 6077
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.

The first of the four NOIs challenged in this appeal was
submitted by the New 49’ers, a recreational mining company.
The New 49’ers own and lease numerous mining claims in
and around the Klamath and Six Rivers National Forests. On
May 17, 2004, District Ranger Vandiver met with two repre-
6078 KARUK TRIBE OF CALIFORNIA v. USFS
sentatives of the New 49’ers and other interested parties.
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 areas of cold
water habitat, or “cold water refugia,” must be maintained
within 500 feet of the mouths of twenty-two named creeks
that feed 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 sea-
son.” 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 mile on Klamath tributaries.

On May 24, 2004, a week after their meeting with Van-
diver, the New 49’ers submitted an eight-page, single-spaced
NOI for mining activities in the Happy Camp District during
the 2004 season. The NOI proposed suction dredge mining in
approximately 35 miles of the Klamath River and its tribu-
taries. The NOI also proposed motorized sluicing within the
mean high water mark adjacent to the streams. In accordance
with Vandiver’s instructions, the NOI specified that no dredg-
ing would occur in specified cold water refugia in the summer
and early fall, that dredging holes would be filled in coho
salmon spawning grounds on Elk Creek, and that dredge den-
sity would not exceed ten dredges per mile on the Klamath
River and three dredges per mile on its tributaries.

On May 25, Vandiver sent the New 49’ers a letter approv-
ing their NOI. He wrote: “You may begin your mining opera-
tions when you obtain all applicable State and Federal
permits. This authorization expires December 31, 2004.” 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
 KARUK TRIBE OF CALIFORNIA v. USFS 6079
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 challenged NOI was submitted by Nida John-
son, an individual miner who planned to mine thirteen claims.
She submitted 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.” The NOI stated that she planned to use a four- or five-
inch suction dredge. In an attachment, she wrote that
“[d]redge tailings piles in Independence Cr[eek] will be lev-
eled.” In a second attachment signed June 4, 2004, 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 dredging is actually beneficial to fish survival,
but I am 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 four claims. He submitted
his NOI on June 2, 2004. The NOI 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 shal-
6080 KARUK TRIBE OF CALIFORNIA v. USFS
low areas or spread over [a] large area in deep areas.” Van-
diver approved the NOI on June 15.

The fourth NOI was submitted by Ralph Easley, an individ-
ual miner who planned to mine a single claim. He submitted
his NOI on June 14. The NOI stated that he planned to use a
four-inch suction dredge from the beginning of July to the end
of September. He wrote that the “[d]redge tailings will be
raked back into dredge holes.” Vandiver approved the NOI on
June 15.

The Forest Service never consulted with the Fish and Wild-
life Service or NOAA Fisheries Service before approving the
four NOIs.

In addition to the four NOIs specifically challenged in this
appeal, the record includes other NOIs for mining activities
during the 2004 season in the Six Rivers and Klamath
National Forests. These NOIs provide important information
about the Forest Service’s practices with respect to mining
pursuant to NOIs.

First, on April 26, 2004, the New 49’ers submitted another
eight-page, single-spaced NOI that proposed suction dredging
and motorized sluicing in and along the Salmon River in the
Orleans District of the Six Rivers National Forest. 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
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:
 KARUK TRIBE OF CALIFORNIA v. USFS 6081
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 tailing piles erode away by stream
course action while eggs are still present. . . . Any
resubmitted NOI or Plan of Operation needs to
address the need to flatten tailings piles and rolling
large dislodged rocks on the edge of the dredged
holes back into the holes.

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 [then] I would suggest that we arrange an on-the-ground
meeting at the earliest possible time.” On May 29, anticipat-
ing that Metz would not approve the revised NOI, the New
49’ers withdrew it. 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
seven-page, single-spaced NOI to conduct suction dredging
and motorized sluicing in the Scott River District of the
Klamath National Forest. The NOI proposed an estimated fif-
teen dredges along fifteen miles of streams, with “[d]ensities
of above five dredges per 100 yards . . . not anticipated.” The
NOI made a general commitment concerning mining in cold
water refugia at the mouths of tributaries, stating that the New
49’ers would work with the Forest Service to identify these
6082 KARUK TRIBE OF CALIFORNIA v. USFS
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 District made no provision for
raking tailings piles back into dredge holes. On May 10, Dis-
trict 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 [Scott River District] under a NOI
because of your bonded campsite which allows your
club members to camp (occupancy) longer than the
14 day camping limit. Your current Plan of Opera-
tions 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 Operations with
the following conditions . . . .

None of the conditions in the approved Plan related to specific
cold water refugia or tailings piles.

C. Procedural Background

The Tribe brought suit in federal district court alleging that
the Forest Service violated the ESA, the National Environ-
mental Policy Act (“NEPA”), and the National Forest Man-
agement Act (“NFMA”) when it approved the four NOIs to
conduct mining in and along the Klamath River in the Happy
Camp District. Karuk Tribe of Cal. v. U.S. Forest Serv.
(“Karuk I”), 379 F. Supp. 2d 1071, 1085 (N.D. Cal. 2005).
The Tribe sought declaratory and injunctive relief. The New
49’ers and Raymond Koons, an individual who leases several
mining claims to the New 49’ers on the Klamath River, inter-
vened as defendants in the suit (collectively “the Miners”). Id.
at 1077. Initially, the Tribe also challenged five Plans of
Operations approved by the Forest Service during the 2004
mining season, but the Tribe dropped those claims in April
 KARUK TRIBE OF CALIFORNIA v. USFS 6083
2005 after the agency agreed in a stipulated settlement that it
violated the ESA and NEPA when it approved the Plans. In
other words, the Forest Service agreed that it had a duty under
the ESA to consult with the appropriate wildlife agencies, and
under NEPA to prepare additional environmental review doc-
uments, before approving the Plans.

In July 2005, the district court denied the Tribe’s motion
for summary judgment and ruled against the Tribe on all
remaining claims. Id. at 1103. Briefing on appeal was stayed
by agreement of the parties until we decided a case involving
suction dredge mining in the Siskiyou National Forest in Ore-
gon. Siskiyou Reg’l Educ. Project v. U.S. Forest Serv., 565
F.3d 545 (9th Cir. 2009). When briefing resumed, the Tribe
pursued only the ESA claim, arguing that the Forest Service
violated its duty to consult with the expert wildlife agencies
before approving the four NOIs.

In April 2011, a divided panel of this court affirmed the
district court’s denial of summary judgment, holding that the
Forest Service’s decision to allow proposed mining activities
to proceed pursuant to a NOI did not constitute “agency
action” under the ESA. Karuk Tribe v. U.S. Forest Serv.
(“Karuk II”), 640 F.3d 979 (9th Cir. 2011). We agreed to
rehear the case en banc. 658 F.3d 953 (9th Cir. 2011).

II. Standard of Review

We review de novo a district court’s denial of summary
judgment. Russell Country Sportsmen v. U.S. Forest Serv.,
668 F.3d 1037, 1041 (9th Cir. 2011). Summary judgment is
appropriate when there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of
law. Sierra Club v. Bosworth, 510 F.3d 1016, 1022 (9th Cir.
2007). Because this is a record review case, we may direct
that summary judgment be granted to either party based upon
our review of the administrative record. Lands Council v.
Powell, 395 F.3d 1019, 1026 (9th Cir. 2005).
6084 KARUK TRIBE OF CALIFORNIA v. USFS
An agency’s compliance with the ESA is reviewed under
the Administrative Procedure Act (“APA”). Westlands Water
Dist. v. U.S. Dep’t of Interior, 376 F.3d 853, 865 (9th Cir.
2004). Under the APA, a court may set aside an agency action
if the court determines that the action was “arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A).

Although we defer to an agency’s interpretation of its own
regulations and the statutes it is charged with administering,
Cal. Dep’t of Water Res. v. Fed. Energy Regulatory Comm’n,
489 F.3d 1029, 1035-36 (9th Cir. 2007), an agency’s interpre-
tation of a statute outside its administration is reviewed de
novo, Am. Fed’n of Gov’t Emps. v. Fed. Labor Relations
Auth., 204 F.3d 1272, 1274-75 (9th Cir. 2000).

III. Discussion

A. Mootness

As a preliminary matter, we must decide whether interven-
ing events have rendered the Karuk Tribe’s claims for declar-
atory and injunctive relief moot. “The Supreme Court has
emphasized that the doctrine of mootness is more flexible
than other strands of justiciability doctrine.” Jacobus v.
Alaska, 338 F.3d 1095, 1103 (9th Cir. 2003). The Court has
instructed that “harmful conduct may be too speculative to
support standing, but not too speculative to overcome moot-
ness.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 190 (2000). In Laidlaw, the Court
cautioned that dismissing a case as moot in the late stages of
appeal could be “more wasteful than frugal.” Id. at 191-92.
Doing so is justified only when it is “absolutely clear” that the
litigant no longer has “any need of the judicial protection that
it sought.” Adarand Constructors, Inc. v. Slater, 528 U.S.
216, 224 (2000) (per curiam). The party asserting mootness
bears a “heavy” burden; a case is not moot if any effective
relief may be granted. Forest Guardians v. Johanns, 450 F.3d
 KARUK TRIBE OF CALIFORNIA v. USFS 6085
455, 461 (9th Cir. 2006) (citing Nw. Envtl. Def. Ctr. v. Gor-
don, 849 F.2d 1241, 1244 (9th Cir. 1988)).

[1] In this appeal, the Tribe challenges the Forest Service’s
approval of four NOIs allowing mining activities in and along
the Klamath River during the 2004 mining season. Pursuant
to the Forest Service letters approving the four NOIs, they all
expired on December 31, 2004. However, we conclude that
the Tribe’s claims are justiciable under the “capable of repeti-
tion, yet evading review” exception to the mootness doctrine.
The exception applies when (1) the duration of the challenged
action is too short to allow full litigation before it ceases or
expires, and (2) there is a reasonable expectation that the
plaintiffs will be subjected to the challenged action again.
Feldman v. Bomar, 518 F.3d 637, 644 (9th Cir. 2008).

We have repeatedly held that similar actions lasting only
one or two years evade review. See, e.g., Natural Res. Def.
Council, Inc. v. Evans, 316 F.3d 904, 910 (9th Cir. 2003);
Alaska Ctr. for the Env’t v. U.S. Forest Serv., 189 F.3d 851,
856 (9th Cir. 1999); Alaska Fish & Wildlife Fed’n & Outdoor
Council, Inc. v. Dunkle, 829 F.2d 933, 939 (9th Cir. 1987).
Although the Forest Service mining regulations do not specify
that NOIs must expire after a certain period, the record in this
case reveals that the agency allows seasonal mining activities
pursuant to NOIs for only one year at a time. Accordingly, the
challenged NOI approvals evade review because they are too
short in duration for a plaintiff to complete litigation before
the mining activities end.

[2] The controversy is capable of repetition because the
Tribe has shown “a reasonable expectation that the Forest
Service will engage in the challenged conduct again.” Alaska
Ctr. for the Envt., 189 F.3d at 857. During the pendency of
this appeal, and as recently as December 2011, the Forest Ser-
vice has continued to approve NOIs allowing mining activi-
ties in coho salmon critical habitat along the Klamath River
without consultation under Section 7 of the ESA. The Tribe
6086 KARUK TRIBE OF CALIFORNIA v. USFS
has demonstrated a commitment to challenging these approv-
als. See Biodiversity Legal Found. v. Badgley, 309 F.3d 1166,
1174 (9th Cir. 2002) (finding a controversy capable of repeti-
tion where there is “a reasonable expectation that [the parties]
will again litigate the issue”).

The Forest Service and Miners argue that the controversy
is moot because the California legislature has imposed a state-
wide moratorium on suction dredge mining. Cal. Fish &
Game Code § 5653.1 (2011). No suction dredge mining may
occur in the Six Rivers or Klamath National Forests until the
temporary state ban expires. The moratorium is a result of a
state court lawsuit filed by the Karuk Tribe against the Cali-
fornia Department of Fish and Game (“CDFG”) in 2005. By
its terms, the moratorium will expire on June 30, 2016, or
when the CDFG certifies that five specified conditions have
been satisfied, whichever is earlier. Id. § 5653.1(b). Among
other conditions, CDFG must promulgate new state suction
dredge mining regulations that “fully mitigate all identified
significant environmental impacts.” Id. § 5653.1(b)(4).

The moratorium does not moot this appeal for two reasons.
First, the suction dredge moratorium does not prohibit other
mining activities at issue in this case. Throughout this litiga-
tion, the Tribe has challenged the Forest Service’s approval of
NOIs to conduct not only suction dredge mining in the Klam-
ath River, but also mining activities outside the stream chan-
nel, such as motorized sluicing. See, e.g., Karuk I, 379 F.
Supp. 2d at 1085 (“Plaintiff’s Second Amended Complaint
seeks declaratory and injunctive relief arising from Defen-
dants’ allegedly improper management of suction dredge and
other mining operations in waterways and riparian areas
within the Klamath National Forest.” (emphasis added)). Dis-
trict Rangers in the Klamath National Forest have continued
to approve NOIs allowing these other mining activities in
coho salmon critical habitat along the shores of the Klamath
River. The Forest Service argues that the Tribe has not estab-
lished a cognizable injury resulting from these activities.
 KARUK TRIBE OF CALIFORNIA v. USFS 6087
However, the district court specifically held that the Tribe had
standing based on “suction dredge mining and other mining
operations occurring in and along the Klamath River and its
tributaries.” Id. at 1092 (emphasis added). Because the court
found that these operations “could impact the Tribe’s ability
to enjoy the spiritual, religious, subsistence, recreational,
wildlife, and aesthetic qualities of the areas affected by the
mining operations,” it concluded that “any alleged failure of
the Forest Service to properly regulate mining operations
could directly and adversely harm the Tribe and its members.”
Id. We agree.

Second, even if these other mining activities were not at
issue, the state’s moratorium on suction dredge mining is only
temporary. See City of Los Angeles v. Lyons, 461 U.S. 95,
100-01 & n.4 (1983) (open-ended, temporary moratorium did
not moot a claim for injunctive relief because “the morato-
rium by its terms is not permanent”); W. Oil & Gas Ass’n v.
Sonoma Cnty., 905 F.2d 1287, 1290-91 (9th Cir. 1990) (fed-
eral moratorium on oil drilling off the California coast did not
moot a challenge to local land use ordinances that regulated
related onshore facilities). The Forest Service and Miners
argue that, once the moratorium expires, any future suction
dredging in the Klamath River will occur under a revised state
permitting regime. But changes to the state regulations are
immaterial to the legal controversy at issue in this appeal. In
California Coastal Commission v. Granite Rock Co., 480 U.S.
572, 577-78 (1987), the plaintiff mining company’s five-year
Plan of Operations had expired during the course of litigation,
and the Supreme Court recognized that the federal and state
regulatory landscape might change before the company sub-
mitted a new Plan to the Forest Service. But the Court held
that the controversy was capable of repetition yet evading
review, and thus not moot, because “dispute would continue”
over whether the state could enforce future permit conditions.
Id. at 578. Similarly, here, despite any changes to the state
suction dredge regulations, “dispute would continue” over
whether the Forest Service can approve NOIs allowing min-
6088 KARUK TRIBE OF CALIFORNIA v. USFS
ing activities in critical habitat of a listed species without con-
sultation under the ESA. Declaratory judgment in the Tribe’s
favor would “ensure that the Forest Service . . . fulfills its
duty under the ESA to consult.” Forest Guardians, 450 F.3d
at 462.

[3] A case becomes moot on appeal if “ ‘events have com-
pletely and irrevocably eradicated the effects of the alleged
violation,’ ” and there is “ ‘no reasonable . . . expectation that
the alleged violation will recur.’ ” Am. Cargo Transp., Inc. v.
United States, 625 F.3d 1176, 1179 (9th Cir. 2010) (quoting
Los Angeles Cnty. v. Davis, 440 U.S. 625, 631 (1979)). Here,
the state moratorium neither completely (because it does not
prohibit other mining activities) nor irrevocably (because it is
only temporary) eradicated the effects of the Forest Service’s
alleged ESA violations. The agency’s continued approval of
NOIs allowing mining activities in coho salmon critical habi-
tat along the Klamath River, without consultation under the
ESA, makes clear that the alleged violations will recur.

Because we conclude that this appeal is not moot, we pro-
ceed to the merits.

B. Consultation Under the Endangered Species Act

[4] We have described Section 7 as the “heart of the ESA.”
W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 495
(9th Cir. 2011). Section 7 requires federal agencies to ensure
that none of their activities, including the granting of licenses
and permits, will jeopardize the continued existence of listed
species or adversely modify a species’ critical habitat. Babbitt
v. Sweet Home Chapter, 515 U.S. 687, 692 (1995) (citing 16
U.S.C. § 1536(a)(2)).

[5] Section 7 imposes on all agencies a duty to consult
with either the Fish and Wildlife Service or the NOAA Fish-
eries Service before engaging in any discretionary action that
may affect a listed species or critical habitat. Turtle Island
 KARUK TRIBE OF CALIFORNIA v. USFS 6089
Restoration Network v. Nat’l Marine Fisheries Serv., 340
F.3d 969, 974 (9th Cir. 2003). The purpose of consultation is
to obtain the expert opinion of wildlife agencies to determine
whether the action is likely to jeopardize a listed species or
adversely modify its critical habitat and, if so, to identify rea-
sonable and prudent alternatives that will avoid the action’s
unfavorable impacts. Id. The consultation requirement reflects
“a conscious decision by Congress to give endangered species
priority over the ‘primary missions’ of federal agencies.”
Tenn. Valley Auth. v. Hill, 437 U.S. 153, 185 (1978).

Section 7(a)(2) of the ESA provides:

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-
ened species or result in the destruction or adverse
modification of [critical] habitat of such species . . . .

16 U.S.C. § 1536(a)(2) (emphasis added).

[6] 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).

We discuss the “agency action” and “may affect” require-
ments in turn.
6090 KARUK TRIBE OF CALIFORNIA v. USFS
1. Agency Action

[7] Section 7 of the ESA defines agency action as “any
action authorized, funded, or carried out by [a federal] agen-
cy.” 16 U.S.C. § 1536(a)(2). The ESA implementing regula-
tions provide:

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-
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. There is “little doubt” that Congress
intended agency action to have a broad definition in the ESA,
and we have followed the Supreme Court’s lead by interpret-
ing its plain meaning “in conformance with Congress’s clear
intent.” Pac. Rivers Council v. Thomas, 30 F.3d 1050, 1054-
55 (9th Cir. 1994) (citing Tenn. Valley Auth., 437 U.S. at
173).

The ESA implementing regulations limit Section 7’s appli-
cation to “ ‘actions in which there is discretionary Federal
involvement or control.’ ” Nat’l Ass’n of Home Builders v.
Defenders of Wildlife, 551 U.S. 644, 666 (2007) (quoting 50
C.F.R. § 402.03). The Supreme Court explained that this limi-
tation harmonizes the ESA consultation requirement with
other statutory mandates that leave an agency no discretion to
consider the protection of listed species. Home Builders, 551
U.S. at 665-66.

Our “agency action” inquiry is two-fold. First, we ask
whether a federal agency affirmatively authorized, funded, or
 KARUK TRIBE OF CALIFORNIA v. USFS 6091
carried out the underlying activity. Second, we determine
whether the agency had some discretion to influence or
change the activity for the benefit of a protected species.

a. Affirmative Authorization

We have repeatedly held that the ESA’s use of the term
“agency action” is to be construed broadly. W. Watersheds
Project v. Matejko, 468 F.3d 1099, 1108 (9th Cir. 2006); Tur-
tle Island, 340 F.3d at 974; Pac. Rivers, 30 F.3d at 1055.
Examples of agency actions triggering Section 7 consultation
include the renewal of existing water contracts, Natural Res.
Def. Council v. Houston, 146 F.3d 1118, 1125 (9th Cir. 1998),
the creation of interim management strategies, Lane Cnty.
Audubon Soc’y v. Jamison, 958 F.2d 290, 293-94 (9th Cir.
1992), and the ongoing construction and operation of a federal
dam, Tenn. Valley Auth., 437 U.S. at 173-74. We have also
required consultation for federal agencies’ authorization of
private activities, such as the approval and registration of pes-
ticides, Wash. Toxics Coal. v. Envtl. Prot. Agency, 413 F.3d
1024, 1031-33 (9th Cir. 2005), and the issuance of permits
allowing fishing on the high seas, Turtle Island, 340 F.3d at
974.

[8] An agency must consult under Section 7 only when it
makes an “affirmative” act or authorization. Cal. Sportfishing
Prot. Alliance v. Fed. Energy Regulatory Comm’n, 472 F.3d
593, 595, 598 (9th Cir. 2006); Matejko, 468 F.3d at 1108.
Where private activity is proceeding pursuant to a vested right
or to a previously issued license, an agency has no duty to
consult under Section 7 if it takes no further affirmative action
regarding the activity. Cal. Sportfishing, 472 F.3d at 595, 598-
99; Matejko, 468 F.3d at 1107-08 (“‘inaction’ is not ‘action’
for section 7(a)(2) purposes”). Similarly, where no federal
authorization is required for private-party activities, an agen-
cy’s informal proffer of advice to the private party is not
“agency action” requiring consultation. Marbled Murrelet v.
Babbitt, 83 F.3d 1068, 1074-75 (9th Cir. 1996); see also
6092 KARUK TRIBE OF CALIFORNIA v. USFS
Sierra Club v. Babbitt, 65 F.3d 1502, 1512 (9th Cir. 1995)
(Section 7 applies to private activity “only to the extent the
activity is dependent on federal authorization”).

[9] Here, the Forest Service’s mining regulations and
actions demonstrate that the agency affirmatively authorized
private mining activities when it approved the four challenged
NOIs. By regulation, the Forest Service must authorize min-
ing activities before they may proceed under a NOI. The regu-
lations require that a miner submit a NOI for proposed mining
activities. 36 C.F.R. § 228.4(a) (“[A] notice of intention to
operate is required from any person proposing to conduct
operations which might cause disturbance of surface
resources.”); see also 70 Fed. Reg. at 32728 (describing the
requirement for “submission of a notice of intent to operate
before an operator conducts proposed operations” (emphasis
added)). By contrast, a miner conducting de minimis mining
activities, such as gold panning or mineral sampling, may pro-
ceed without submitting anything to, or receiving anything
from, the Forest Service. 36 C.F.R. § 228.4(a)(1), (2)(ii).
When a miner submits a NOI, the regulations also require that
the Forest Service inform the miner within 15 days whether
the mining may proceed under the NOI or whether he must
prepare a Plan of Operations instead. Id. § 228.4(a)(2)(iii). In
other words, when a miner proposes to conduct mining opera-
tions under a NOI, the Forest Service either affirmatively
authorizes the mining under the NOI or rejects the NOI and
requires a Plan instead.

[10] The actions of both the Forest Service and the miners
in this case accord with the understanding that the agency
affirmatively authorizes mining activities when it approves a
NOI. The District Ranger’s letter approving the New 49’ers
NOI for the 2004 mining season stated, “You may begin your
mining operations when you obtain all applicable State and
Federal permits. This authorization expires December 31,
2004.” The District Ranger’s letters approving six NOIs for
the 2010, 2011, and 2012 mining seasons stated, “I am allow-
 KARUK TRIBE OF CALIFORNIA v. USFS 6093
ing your proposed mining activities . . . under a NOI with the
following conditions.” Another District Ranger stated in a let-
ter rejecting a NOI for the 2004 season that he was “unable
to allow your proposed mining operations . . . under a NOI.”
The miners also understood that they were seeking authoriza-
tion. In one instance, the New 49’ers sent a letter stating: “We
would like to make a correction to our Notice of Intent which
was recently approved on May 25, 2004.” In another instance,
a miner amended her NOI to accommodate Forest Service
protective criteria about cold water refugia. She wrote, “I
totally disagree with these distances and believe that dredging
is actually beneficial to fish survival, but I am willing to fol-
low these recommendations in order to continue with my min-
ing operations.”

[11] Cal. Sportfishing, Matejko, and Marbled Murrelet
involved private-party activities that required no affirmative
act or authorization by the agency. The private parties in those
cases were not required to submit proposals to the agency,
and the agency was not required to respond affirmatively to
the private parties. Here, by contrast, a person proposing to
conduct mining activities that might cause disturbance of sur-
face resources must submit a NOI for approval, and the Dis-
trict Ranger must respond within 15 days. 36 C.F.R.
§ 228.4(a)(2)(iii) (“[T]he District Ranger will, within 15 days
of [receiving a NOI], notify the operator whether a plan of
operations is required.”). The 2005 amendments to the mining
regulations changed the wording slightly, stating that the Dis-
trict Ranger will notify the operator within 15 days “if
approval of a plan of operations is required.” Id. § 228.4(a)(2)
(2011) (emphasis added). The Forest Service explained in its
commentary to the amendments that it intended no substan-
tive change when it reworded the requirement. See 70 Fed.
Reg. at 32,721. In its commentary, the Forest Service also
quoted its earlier explanation that the District Ranger will
notify the prospective miner within 15 days “as to whether or
not an operating plan will be necessary.” 70 Fed. Reg. at
32,728 (emphasis added); see also id. at 32,729-30 (describ-
6094 KARUK TRIBE OF CALIFORNIA v. USFS
ing the miner’s possible remedies if a District Ranger does not
“comply with the requirement to respond [to a NOI] within 15
days”). In other words, the Forest Service must decide
whether or not to authorize mining pursuant to the NOI and
affirmatively notify the miner of its decision either way.

[12] The District Rangers affirmatively responded to all
six non-withdrawn NOIs in the record for the 2004 mining
season. The Forest Service approved four of them and denied
two. The District Ranger for the Happy Camp District also
affirmatively approved all six NOIs for the 2010, 2011, and
2012 mining seasons. There is no NOI in the record, other
than the one that was withdrawn, that the Forest Service did
not affirmatively act to approve or deny. Thus, the Forest Ser-
vice’s mandatory, affirmative response to a NOI clearly dis-
tinguishes this case from Cal. Sportfishing, 472 F.3d at 597-
98, and Matejko, 468 F.3d at 1108-10, where we held that
there is no “agency action” or duty to consult under the ESA
if the agency takes no affirmative act. Marbled Murrelet is
also inapposite because the Forest Service does not “merely
provide[ ] advice” to a prospective miner when the agency
approves a NOI for proposed mining activities. 83 F.3d at
1074.

[13] In Siskiyou, 565 F.3d at 554, we held that the Forest
Service’s approval of a NOI to conduct suction dredge mining
constitutes “final agency action” under the APA. This holding
confirms that a NOI approval is not merely advisory. Rather,
it “ ‘mark[s] the consummation of the agency’s decision mak-
ing process’ ” and is an action “ ‘from which legal conse-
quences will flow.’ ” Hells Canyon Pres. Council v. U.S.
Forest Serv., 593 F.3d 923, 930 (9th Cir. 2010) (quoting Ben-
nett v. Spear, 520 U.S. 154, 177-78 (1997)). Further evidence
that the Forest Service authorizes, rather than advises, pro-
posed mining activities when it approves a NOI is provided
by the Forest Service’s rejection of two NOIs in the record in
this case. In one instance, the District Ranger wrote that he
was “unable to allow your proposed mining operations . . .
 KARUK TRIBE OF CALIFORNIA v. USFS 6095
under a NOI.” In the other, the District Ranger rejected the
NOI because it did not comply with criteria for the protection
of critical fisheries habitat. Finally, the Forest Service periodi-
cally inspects mining operations to determine if they are com-
plying with the regulations. 36 C.F.R. § 228.7. During the
2004 mining season, the Forest Service monitored miners’
compliance with the protective criteria set forth in the
approved NOIs, something the agency would not do if the
approval merely constituted unenforceable, nonbinding
advice. Thus, unlike in Marbled Murrelet, 83 F.3d at 1074,
where there was “no evidence” that the agency had the power
to enforce the advice that it gave, here the record indicates
that the Forest Service can enforce the NOI conditions.

The Forest Service and the Miners contend that the under-
lying mining activities are authorized by the General Mining
Law, rather than by the agency’s approval of the NOIs. But
private activities can and do have more than one source of
authority, and more than one source of restrictions on that
authority. See 50 C.F.R. § 402.02 (agency “action” under the
ESA includes all private activities authorized “in part” by a
federal agency). The Mining Law and the Organic Act give
miners “a statutory right, not mere privilege,” to enter the
National Forests for mining purposes, 39 Fed. Reg. at 31,317,
but Congress has subjected that right to environmental regula-
tion. See 16 U.S.C. § 478 (miners entering federal forest lands
“must comply with the rules and regulations covering such
national forests”); see also United States v. Locke, 471 U.S.
84, 104-05 (1985) (the right to mine on public lands is a
“unique form of property” over which the federal government
“retains substantial regulatory power” (internal quotation
marks omitted)). The Forest Service concedes that its
approval of a Plan of Operations “authorizes” mining activi-
ties and constitutes an “agency action” under the ESA, even
though the Mining Law presumably “authorized” those activi-
ties as well. The same logic extends to the agency’s approval
of a NOI.
6096 KARUK TRIBE OF CALIFORNIA v. USFS
The Forest Service contends that approval of a NOI is
merely a decision not to regulate the proposed mining activi-
ties. See 70 Fed. Reg. at 32,720; id. at 32,728 (“a notice of
intent to operate was not intended to be a regulatory instru-
ment”). But the test under the ESA is whether the agency
authorizes, funds, or carries out the activity, at least in part.
50 C.F.R. § 402.02 (emphasis added). As shown above, the
Forest Service authorizes mining activities when it approves
a NOI and affirmatively decides to allow the mining to pro-
ceed. Moreover, the record in this case demonstrates that the
Forest Service controls mining activities through the NOI pro-
cess, whether or not such control qualifies a NOI as a “regula-
tory instrument.” As discussed below, the Forest Service
formulated precise criteria for the protection of coho salmon,
communicated those criteria to prospective miners, and
approved the miners’ activities under a NOI only if they
strictly conformed their mining to the specified criteria. The
Forest Service also monitored the miners’ compliance with
those criteria.

Finally, the Forest Service and the Miners point to our
holding in Sierra Club v. Penfold, 857 F.2d 1307 (9th Cir.
1988), which involved Bureau of Land Management (“BLM”)
mining regulations similar to the Forest Service regulations at
issue in this appeal. In Penfold, we held that BLM’s review
of “notice” mining operations did not constitute a “major fed-
eral action” triggering the need for an environmental assess-
ment under NEPA. Id. at 1313-14. Although the “major
federal action” standard under NEPA is similar to the more
liberal “agency action” standard under the ESA, Marbled
Murrelet, 83 F.3d at 1075, the terms are not interchangeable.
In Penfold, 857 F.2d at 1313-14, we held that BLM’s review
of notice mines was a “federal action” — albeit, a “marginal”
instead of a “major” action. Under Section 7 of the ESA, a
federal agency action need not be “major” to trigger the duty
to consult. It need only be an “agency action.” Thus, Penfold
cuts against rather than in favor of the Forest Service and the
Miners.
 KARUK TRIBE OF CALIFORNIA v. USFS 6097
[14] In sum, the Forest Service’s approval of the four chal-
lenged NOIs constituted agency action under Section 7 of the
ESA.

b. Discretionary Involvement or Control

[15] The ESA implementing regulations provide that Sec-
tion 7 applies only to actions “in which there is discretionary
Federal involvement or control.” 50 C.F.R. § 402.03. There is
no duty to consult for actions “that an agency is required by
statute to undertake once certain specified triggering events
have occurred.” Home Builders, 551 U.S. at 669 (emphasis in
original); id. at 672-73 (no duty to consult where Clean Water
Act required Environmental Protection Agency (“EPA”) to
transfer regulatory authority to a state upon satisfaction of
nine specified criteria). However, to avoid the consultation
obligation, an agency’s competing statutory mandate must
require that it perform specific nondiscretionary acts rather
than achieve broad goals. Nat’l Wildlife Fed’n v. Nat’l Marine
Fisheries Serv., 524 F.3d 917, 928-29 (9th Cir. 2008). An
agency “cannot escape its obligation to comply with the ESA
merely because it is bound to comply with another statute that
has consistent, complementary objectives.” Wash. Toxics, 413
F.3d at 1032. The competing statutory objective need only
leave the agency “some discretion.” Houston, 146 F.3d at
1126.

To trigger the ESA consultation requirement, the discre-
tionary control retained by the federal agency also must have
the capacity to inure to the benefit of a protected species. Tur-
tle Island, 340 F.3d at 974-75; Ground Zero Ctr. for Non-
violent Action v. U.S. Dep’t of the Navy, 383 F.3d 1082, 1092
(9th Cir. 2004) (no duty to consult where Navy lacked discre-
tion to cease missile operations for the protection of listed
species). If an agency cannot influence a private activity to
benefit a listed species, there is no duty to consult because
“consultation would be a meaningless exercise.” Sierra Club,
65 F.3d at 1508-09 (no duty to consult for approval of logging
6098 KARUK TRIBE OF CALIFORNIA v. USFS
roads where, pursuant to a prior right-of-way agreement,
BLM retained discretion over only three specified criteria,
none of which related to protecting listed species); Envtl.
Prot. Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073, 1081-
82 (9th Cir. 2001) (no duty to reinitiate consultation for previ-
ously issued permits where Fish and Wildlife Service lacked
discretion to add protections for newly listed species). The
relevant question is whether the agency could influence a pri-
vate activity to benefit a listed species, not whether it must do
so. Turtle Island, 340 F.3d at 977.

[16] Here, the Forest Service’s mining regulations and
actions demonstrate that the decision whether to approve a
NOI is a discretionary determination through which the
agency can influence private mining activities to benefit listed
species. In Siskiyou, 565 F.3d at 548, we held that the applica-
ble mining regulation “confers discretionary authority on dis-
trict rangers” to determine whether mining activities may
proceed under a NOI. We noted that the Forest Service’s
commentary to the 2005 amendments “emphasize[d] the dis-
cretionary elements of the regulation.” Id. at 557 n.11. In that
commentary, the Forest Service acknowledged that it has
“ ‘broad discretion to regulate the manner in which mining
activities are conducted on the national forest lands.’ ” 70
Fed. Reg. at 32,720 (quoting Freese v. United States, 6 Cl. Ct.
1, 14 (1984), aff’d mem., 770 F.2d 177 (Fed. Cir. 1985)).

The agency’s exercise of discretion under the mining regu-
lations also may influence the mining activities to protect a
listed species. The overriding purpose of the regulations is “to
minimize [the] adverse environmental impacts” of mining
activities on federal forest lands. 36 C.F.R. § 228.1. The
touchstone of the agency’s discretionary determination is the
likelihood that mining activities will cause significant distur-
bance of surface resources, which include fisheries and wild-
life habitat. Id. §§ 228.4(a), 228.8(e); see also Siskiyou, 565
F.3d at 551 (“[T]his regulation . . . vests discretion in the dis-
trict ranger to determine if the mining operation ‘will likely
 KARUK TRIBE OF CALIFORNIA v. USFS 6099
cause significant disturbance of surface resources.’ ”). Thus,
the Forest Service can exercise its discretion to benefit a listed
species by approving or disapproving NOIs based on whether
the proposed mining activities satisfy particular habitat pro-
tection criteria. The agency can reject a NOI and require that
the prospective miner instead submit a Plan of Operations,
under which the Forest Service can impose additional habitat
protection conditions. 36 C.F.R. §§ 228.4(e), 228.5(a)(3).

The record in this case reveals at least three ways in which
the Forest Service exercised discretion when deciding
whether, and under what conditions, to approve NOIs for
mining activities in the Klamath and Six Rivers National For-
ests.

[17] First, the Forest Service exercised discretion by for-
mulating criteria for the protection of coho salmon habitat.
Those criteria governed the approval or denial of NOIs. As
described in detail above, District Ranger Vandiver of the
Happy Camp District prepared for the 2004 mining season by
meeting with Forest Service biologists Bemis and Grunbaum.
After consulting with them, Vandiver formulated criteria for
protecting coho salmon habitat from the effects of suction
dredge mining conducted pursuant to NOIs. He specified by
name each of the tributaries to the Klamath River that pro-
vided cold water refugia 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
prospective miner submitting a NOI in the Happy Camp Dis-
trict had to comply. For example, Nida Johnson amended her
NOI to refrain from dredging in a cold water refugia near the
mouth of Independence Creek. But she made clear that she
did so only because, absent compliance with the condition
imposed by Vandiver, she would not be allowed to engage in
6100 KARUK TRIBE OF CALIFORNIA v. USFS
mining under a NOI. Similarly, a week after Vandiver had
communicated the criteria to the New 49’ers, that group sub-
mitted an eight-page, single-spaced NOI for mining in the
Happy Camp District that complied with the three criteria.
Vandiver approved the NOI the next day. All four NOIs
approved in the Happy Camp District complied with Van-
diver’s specified criteria.

[18] Second, the Forest Service exercised discretion by
refusing to approve a detailed NOI submitted by the New
49’ers for mining activities in the Orleans District of the Six
Rivers National Forest. Acting Forest Supervisor Metz
refused to approve the NOI because, in his view, it provided
insufficient protection of fisheries habitat: a cold water
refugia at the mouth of a particular creek was not mentioned
in the NOI, and there was insufficient mitigation of the dan-
gers 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
“substantial . . . dialog,” the Forest Service’s protective condi-
tions 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.”

[19] Third, the Forest Service exercised discretion when it
applied different criteria for the protection of fisheries habitat
in different districts of the Klamath National Forest. District
Ranger Vandiver developed and applied very specific protec-
tive 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 developed in the Scott
River District. But it is clear that those criteria were different,
at least in their application, from those in the Happy Camp
District. The New 49’ers submitted a NOI to District Ranger
Haupt in the Scott River District that complied in full with
one of the criteria applied in the Happy Camp District by
specifying the maximum number of dredges per mile. The
 KARUK TRIBE OF CALIFORNIA v. USFS 6101
NOI complied, to some degree, with a second Happy Camp
criterion by committing to work 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 crite-
rion, for it did not mention raking tailings piles back into
dredge holes. Scott River District Ranger Haupt denied the
NOI for reasons unrelated to these three criteria, and he did
not include these criteria in the approved Plan of Operations.
Discretion is defined as “ ‘the power or right to decide or act
according to one’s own judgment; freedom of judgment or
choice.’ ” Home Builders, 551 U.S. at 668 (quoting Random
House Dictionary of the English Language 411 (unabridged
ed. 1967)). District Rangers Vandiver and Haupt each exer-
cised their own judgment by formulating and applying differ-
ent criteria when deciding whether to approve or deny NOIs
in their districts. This is the very definition of discretion.

[20] Under our established case law, there is “agency
action” sufficient to trigger the ESA consultation duty when-
ever an agency makes an affirmative, discretionary decision
about whether, or under what conditions, to allow private
activity to proceed. As to all four NOIs challenged in this
appeal, the Forest Service made an affirmative, discretionary
decision whether to allow private mining activities to proceed
under specified habitat protection criteria. Accordingly, we
hold that the Forest Service’s approval of the NOIs consti-
tuted discretionary agency action within the meaning of Sec-
tion 7 of the ESA.

2. May Affect Listed Species or Critical Habitat

[21] An agency has a duty to consult under Section 7 of
the ESA for any discretionary agency action that “may affect”
a listed species or designated critical habitat. Turtle Island,
340 F.3d at 974 (citing 50 C.F.R. § 402.14(a)). An agency
may avoid the consultation requirement only if it determines
6102 KARUK TRIBE OF CALIFORNIA v. USFS
that its action will have “no effect” on a listed species or criti-
cal habitat. Sw. Ctr. for Biological Diversity v. U.S. Forest
Serv., 100 F.3d 1443, 1447-48 (9th Cir. 1996). Once an
agency has determined that its action “may affect” a listed
species or critical habitat, the agency must consult, either for-
mally or informally, with the appropriate expert wildlife
agency. If the wildlife 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 affect-
ing listed species or critical habitat — even if it is later deter-
mined that the actions are “not likely” to do so — require at
least some consultation under the ESA.

We have previously explained that “may affect” is a “rela-
tively low” threshold for triggering consultation. Cal. 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
requirement. Id. at 1018-19 (quoting 51 Fed. Reg. 19,926,
19,949 (June 3, 1986)) (emphasis in Lockyer). The Secretaries
of Commerce and the Interior have explained that “[t]he
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 adversely
modify critical habitat. 51 Fed. Reg. at 19,949.

[22] Whether the mining activities approved by the Forest
Service in this case “may affect” critical habitat of a listed
species can almost be resolved as a textual matter. By defini-
tion, mining activities that require a NOI “might cause” dis-
turbance of surface resources. 36 C.F.R. § 228.4(a). “Surface
resources” include underwater fisheries habitat. Id. at
§ 228.8(e); 70 Fed. Reg. at 32,718 (“Fisheries habitat, of
course, can consist of nothing other than water, streambeds,
or other submerged lands.”). The Forest Service approved
NOIs to conduct mining activities in and along the Klamath
 KARUK TRIBE OF CALIFORNIA v. USFS 6103
River system, which is designated critical habitat for listed
coho salmon. 64 Fed. Reg. at 24,049. If the phrase “might
cause” disturbance of fisheries habitat is given an ordinary
meaning, it follows almost automatically that mining pursuant
to the approved NOIs “may affect” critical habitat of the coho
salmon. Indeed, the Forest Service does not dispute that the
mining activities in the Klamath River system “may affect”
the listed coho salmon and its critical habitat.

The Miners, however, contend that the record is “devoid of
any evidence” that the mining activities may affect coho
salmon. The Miners make two arguments in support of their
contention. Neither argument withstands scrutiny.

First, the Miners argue that there is no evidence “that even
a single member of any listed species would be ‘taken’ by
reason” of the mining activities approved in the NOIs.
“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.”); see also 50 C.F.R. § 17.3
(further defining “harm” and “harass”). Whether mining
activities effectuate a “taking” under Section 9 of the ESA is
a distinct inquiry from whether they “may affect” a species or
its critical habitat under Section 7. See Sweet Home Chapter,
515 U.S. at 703 (“Section 7 imposes a broad, affirmative duty
to avoid adverse habitat modifications that § 9 does not repli-
cate . . . .”). The Miners also fault the Tribe for failing to iden-
tify “so much as a single endangered fish or fish egg ever
injured by this [mining] activity.” But where, as here, a plain-
tiff alleges a procedural violation under Section 7 of the ESA,
as opposed to a substantive violation under Section 9, the
plaintiff need not prove that a listed species has in fact been
injured. See Thomas v. Peterson, 753 F.2d 754, 765 (9th Cir.
1985) (“It is not the responsibility of the plaintiffs to prove,
nor the function of the courts to judge, the effect of a pro-
posed action on an endangered species when proper proce-
dures have not been followed.”). The plaintiff need only
6104 KARUK TRIBE OF CALIFORNIA v. USFS
show, as the Tribe has done here, that the challenged action
“may affect” a listed species or its critical habitat.

Second, the Miners argue that Vandiver’s consultation with
Forest Service biologists, and the resulting habitat protection
criteria, “assured” that there would be “no impact whatsoever
on listed species.” This argument cuts against, rather than in
favor of, the Miners. The fact that District Ranger Vandiver
formulated criteria to mitigate effects of suction dredging on
coho salmon habitat does not mean that the “may affect” stan-
dard was not met. Indeed, that Vandiver consulted with Forest
Service biologists in an attempt to reduce a possible adverse
impact on coho salmon and their habitat suggests exactly the
opposite. After Vandiver approved a NOI to conduct mining
activities in and along the Klamath River for the 2004 mining
season, Forest Service biologist Bemis sent a “Note to the
File” stating that the miners’ compliance with Vandiver’s
specified criteria should “reduce” — not eliminate — “the
impacts to anadromous fisheries on the Happy Camp Ranger
District.” The agency has never suggested that the approved
mining activities would have “no effect” on coho salmon or
their critical habitat. See Sw. Ctr. for Biological Diversity, 100
F.3d at 1447.

Moreover, the record in this appeal includes ample evi-
dence that the mining activities approved under the 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 and adjacent
riparian zones were designated as critical habitat two years
later. In listing the coho salmon, the Fisheries Service noted
that the salmon population was “very depressed.” 62 Fed.
Reg. at 24,588. The Fisheries Service concluded that “human-
induced impacts,” such as over-harvesting, hatchery practices,
and habitat modification including mining, had played a sig-
nificant role in the decline and had “reduced the coho salmon
populations’ resiliency” in the face of natural challenges. Id.
at 24,591. The Fisheries Service also concluded that “existing
 KARUK TRIBE OF CALIFORNIA v. USFS 6105
regulatory mechanisms are either inadequate or not imple-
mented well enough to conserve” the salmon. Id. at 24,588.

The record also includes information about the effects of
suction dredge mining that Forest Service biologist Grunbaum
provided at an April 2004 meeting. Grunbaum wrote that rela-
tively few studies of suction dredging had been performed,
but “the majority . . . showed that suction dredging can
adversely affect aquatic habitats and biota.” The effects varied
across ecosystems; in some, “dredging may harm the popula-
tion viability of threatened species.” Grunbaum summarized
specific potential adverse effects. First, “[e]ntrainment by suc-
tion dredge can directly kill and indirectly increase mortality
of fish — particularly un-eyed salmonid eggs and early devel-
opmental stages.” Second, disturbance from suction dredging
can kill the small invertebrates 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 “smoth-
ered 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 factors — disturbance, turbidity,
pollution, decrease in food base, and loss of cover associated
with suction dredging — could combine to harm the salmon.

[23] We conclude that the mining activities approved by
the Forest Service in this case “may affect” the listed coho
salmon and its critical habitat. Indeed, as a textual matter,
mining activities in designated critical habitat that require
approval under a NOI likely satisfy the low threshold trigger-
ing the duty to consult under the ESA. See 64 Fed. Reg. at
24,050 (“designation of critical habitat provides Federal agen-
cies with a clear indication as to when consultation under sec-
tion 7 of the ESA is required”).
6106 KARUK TRIBE OF CALIFORNIA v. USFS
3. Burden on the Forest Service

The burden imposed by the consultation requirement need
not be great. Consultation under the ESA may be formal or
informal. 50 C.F.R. §§ 402.13, 402.14. Formal consultation
requires preparation of a biological opinion detailing how the
agency action affects listed species or their critical habitat, but
informal consultation need be nothing more than discussions
and correspondence with the appropriate wildlife agency. Id.
§ 402.02. If the wildlife agency agrees during informal con-
sultation that the agency action “is not likely to adversely
affect listed species or critical habitat,” formal consultation is
not required and the process ends. Id. § 402.13(a). Thus,
whereas approval of a Plan of Operations — for mining activ-
ities that “will likely cause significant disturbance of surface
resources” — may often require formal consultation and prep-
aration of a biological opinion, informal consultation may
often suffice for approval of a NOI.

In fact, District Ranger Vandiver voluntarily initiated a
type of informal consultation in this case. He consulted with
Forest Service biologists Bemis and Grunbaum in formulating
detailed protective criteria that would avoid the likelihood of
significant habitat disturbance caused by suction dredge min-
ing in the Happy Camp District. The problem is that Vandiver
consulted with employees of the Forest Service, rather than
the Fish and Wildlife Service or NOAA Fisheries Service.
Congress made a conscious decision in the ESA to require
that federal agencies consult with the expert wildlife agencies,
not merely with biologists within their own agencies, about
the adverse effects that their actions might have on listed spe-
cies. If Vandiver had consulted with employees of the federal
wildlife agencies, and those agencies agreed that the specified
protective criteria would avoid the likelihood of adverse
effects on coho salmon habitat, that consultation would have
sufficed under the ESA. See 50 C.F.R. § 402.13. Any NOIs
approved under such protective criteria likely would have
required no further consultation. Cf. Tex. Indep. Producers &
 KARUK TRIBE OF CALIFORNIA v. USFS 6107
Royalty Owners Ass’n v. Envtl. Prot. Agency, 410 F.3d 964,
979 (7th Cir. 2005) (because EPA informally consulted before
issuing a “general permit” authorizing private operators to
discharge stormwater according to specified criteria, the
agency had no duty to consult when operators submitted indi-
vidual NOIs indicating their compliance with the general per-
mit).

Conclusion

[24] There is “agency action” under Section 7 of the ESA
whenever an agency makes an affirmative, discretionary deci-
sion about whether, or under what conditions, to allow private
activity to proceed. In approving the NOIs challenged in this
case, the Forest Service made affirmative, discretionary deci-
sions to authorize mining activities under specified protective
criteria. By definition, mining activities requiring a NOI are
those that “might cause” disturbance of surface resources,
including underwater fisheries habitat. The Forest Service
does not dispute that the mining activities it approved in this
case “may affect” critical habitat of coho salmon in the Klam-
ath River system. The Forest Service therefore had a duty
under Section 7 of the ESA to consult with the relevant wild-
life agencies before approving the NOIs.

[25] We reverse the district court’s denial of summary
judgment on the Karuk Tribe’s ESA claim and remand for
entry of judgment in favor of the Tribe.

REVERSED and REMANDED.
6108 KARUK TRIBE OF CALIFORNIA v. USFS
M. SMITH, Circuit Judge, with whom KOZINSKI, Chief
Judge, joins, and with whom IKUTA and MURGUIA, Circuit
Judges, join as to Parts I through VI, dissenting:

I attempted to rise, but was not able to stir: for, as
I happened to lie on my back, I found my arms and
legs were strongly fastened on each side to the
ground; and my hair, which was long and thick, tied
down in the same manner. I likewise felt several
slender ligatures across my body, from my arm-pits
to my thighs. I could only look upwards; the sun
began to grow hot, and the light offended my eyes.
 KARUK TRIBE OF CALIFORNIA v. USFS 6109
—Jonathan Swift, GULLIVER’S TRAVELS, Chapter 1.

Here we go again.

Until today, it was well-established that a regulatory agen-
cy’s “ ‘inaction’ is not ‘action’ ” that triggers the Endangered
Species Act’s (ESA) arduous interagency consultation pro-
cess. W. Watersheds Project v. Matejko, 468 F.3d 1099, 1108
(9th Cir. 2006). Yet the majority now flouts this crystal-clear
and common sense precedent, and for the first time holds that
an agency’s decision not to act forces it into a bureaucratic
morass.

In my view, decisions such as this one, and some other
environmental cases recently handed down by our court (see
Part VII, infra), undermine the rule of law, and make poor
Gulliver’s situation seem fortunate when compared to the
plight of those entangled in the ligatures of new rules created
out of thin air by such decisions.

I. Mining in national forests

The right to mine on national lands is established by the
Mining Act of 1872, 30 U.S.C. § 21 et seq.:

‘Under the provisions of the Mining Act, an individ-
ual may enter and explore land in the public domain
in search of valuable mineral deposits. After miner-
als are discovered, the claimant may file a “mining
claim” with the Bureau of Land Management
(BLM), which if approved, entitles the claimant to
the right of exclusive possession of that claim, as
long as the requirements of the Mining Act are met.
Although ownership of a mining claim does not con-
fer fee title to the claimant, the claimant does have
the right to extract all minerals from the claim with-
out paying royalties to the United States.
6110 KARUK TRIBE OF CALIFORNIA v. USFS
Swanson v. Babbitt, 3 F.3d 1348, 1350 (9th Cir. 1993).

The Mining Act’s permissive regime extends to national
forests as well. The 1897 act that created the national forests
and provided rules governing those forests’ use, see Organic
Administration Act, 16 U.S.C. §§ 473-78, emphasized that its
provisions do not “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. Such persons must comply with the
rules and regulations covering such national forests.” 16
U.S.C.§ 478.

When the U.S. Forest Service issued the mining regulations
at issue in this case, the Service emphasized “that prospectors
and miners have a statutory right, not mere privilege, under
the 1872 mining law and the Act of June 4, 1897, to go upon
and use the open public domain lands of the National Forest
System for the purposes of mineral exploration, development
and production.” National Forests Surface Use Under U.S.
Mining Laws, 39 Fed. Reg. 31,317, at 31,317 (Aug. 28, 1974)
(emphasis added).

II. The regulatory scheme

This case turns on whether a Forest Service District Rang-
er’s receipt of, consideration of, and response to a miner’s
notice of intention to operate—a Notice of Intent—is an
agency action that authorizes mining activities on national
forests. This distinction is critical because the ESA requires
federal agencies to consult with the Fish and Wildlife Service
or NOAA Fisheries Service before taking “any action autho-
rized, funded, or carried out by such agency” that might harm
a listed species. 16 U.S.C. § 1536(a)(2).

The ESA’s implementing regulations (promulgated by the
Secretaries of Commerce and the Interior) offer a list of
examples of agency action, including (in relevant part) “the
 KARUK TRIBE OF CALIFORNIA v. USFS 6111
granting of licenses, contracts, leases, easements, rights-of-
way, permits, or grants-in-aid.” 50 C.F.R. § 402.02 (2004).

In this appeal, Plaintiff-Appellant asserts a single claim
challenging the District Ranger’s failure to consult with the
Fish and Wildlife Service or NOAA Fisheries Service when
deciding to allow certain suction dredge mining to proceed
under a Notice of Intent rather than a Plan of Operations. The
dispute here is narrow: specifically, does the Forest lK Ser-
vice’s handling of Notices of Intent constitute an “authoriza-
tion” of private mining activity under the ESA?

To answer this question, one must have a clear understand-
ing of the operative regulations. In recognition of the “statu-
tory right, not mere privilege” to mine in national forests, the
Forest Service has carefully tailored its regulations to balance
environmental goals with miners’ unique pre-existing rights
of access to national forests. See National Forests Surface
Use, 39 Fed. Reg. 31,317 (Aug. 28, 1974). These regulations
apply only to mining activities on Forest Service lands. 36
C.F.R. § 228.2 (2004).1

All mining “operations” must “be conducted so as, where
feasible, to minimize adverse environmental impacts on
National Forest surface resources.” Id. § 228.8(e); see also id.
§ 228.3(a) (defining “operations” broadly for purposes of
these regulations). This environmental-impact provision
requires compliance with federal air and water quality stan-
dards, as well as (among other things) the use of “all practica-
ble measures to maintain and protect fisheries and wildlife
habitat which may be affected by the operations.” Id. § 228.8.
Forest Service officials must “periodically inspect operations
to determine if the operator is complying with the[se] regula-
tions,” and inform non-compliant miners how to bring their
activities into compliance. Id. § 228.7.
1
Because the challenged Notice of Intent decisions were made in 2004,
I rely upon the 2004 version of the regulation.
6112 KARUK TRIBE OF CALIFORNIA v. USFS
In addition to these generally applicable limitations on min-
ing in the national forests, the Forest Service imposes addi-
tional requirements depending on the mining activities’
potential environmental impact. For purposes of these addi-
tional requirements, mining activities are divided into three
categories: activities that “will not,” “might,” and “will like-
ly” lead to “significant disturbance of surface resources.” Id.
§ 228.4(a), (a)(1)(v).

For activities that “will not” significantly disturb surface
resources—including “occasionally remov[ing] small mineral
samples or specimens,” and “remov[ing] . . . a reasonable
amount of mineral deposit for analysis and study”—persons
may freely enter the national forest to conduct those activities.
Id. § 228.4(a)(1), (a)(2)(ii), (a)(2)(iii).

For more substantial mining activities that “might” or “will
likely” cause resource disturbance, miners must file a “notice
of intention to operate”—a Notice of Intent, which is the
focus of this appeal. Id. § 228.4(a).2 The Notice of Intent is a
straightforward document, requiring miners to list: (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. U.S. Forest Serv., Notice of Intent Instructions: 36
CFR 228.4(a) - Locatable Minerals, http://www.fs.usda.gov/
Internet/FSE_DOCUMENTS/fsm9_020952.pdf (last visited
May 4, 2012); see also 36 C.F.R. § 228.4(a)(2)(iii) (2004).

Once “a notice of intent is filed, the District Ranger will,
within 15 days of receipt thereof, notify the operator whether
a plan of operations is required.” 36 C.F.R. § 228.4(a)(2)(iii)
(2004). A Plan of Operations is required if the proposed min-
ing activities “will likely” cause significant surface resource
2
For purposes of this dissent, it is unnecessary to resolve whether suc-
tion dredge mining “may affect” Coho salmon. My primary disagreement
with the majority stems from its finding of an agency “action.”
 KARUK TRIBE OF CALIFORNIA v. USFS 6113
disturbance. Id. § 228.4(a). In contrast, if “significant distur-
bance is not likely,” then a Plan of Operations “is not
required.” Siskiyou Reg’l Educ. Project v. U.S. Forest Serv.,
565 F.3d 545, 557 (9th Cir. 2009) (emphasis in original).
“[M]ining activity that might cause disturbance of surface
resources, yet [is] not likely to do so . . . require[s] only a
notice of intent under 36 C.F.R. § 228.4(a).” Id. (emphasis in
original).

If the District Ranger requests a Plan of Operations, the
Plan must contain “[i]nformation sufficient to describe or
identify the type of operations proposed and how they would
be conducted, the type and standard of existing and proposed
roads or access routes, the means of transportation used . . . ,
the period during which the proposed activity will take place,
and measures to be taken to meet the requirements for envi-
ronmental protection in § 228.8.” 36 C.F.R. § 228.4(c)(3)
(2004). The District Ranger must “complet[e] . . . an environ-
mental analysis in connection with each proposed operating
plan,” id. § 228.4(f), and within thirty days of submission (or
ninety days if necessary), either “approve[ ] the plan” or
“[n]otify the operator of any changes in, or additions to, the
plan of operations deemed necessary to meet the purpose of
the regulations in this part.” Id. § 228.5(a)(1), (3).3

III. Forest Service’s interpretation of its regulations

The majority asserts that the Forest Service’s decision not
to require a Plan of Action for the mining activities described
in a Notice of Intent constitutes an implicit authorization of
those mining activities, therefore equating the Forest Ser-
vice’s “decision” with an agency “authorization” under the
ESA.
3
In some cases, the District Ranger will inform the miner that a Plan of
Operations is unnecessary, id. § 228.5(a)(2), or require the filing of an
environmental statement with the Council on Environmental Quality, id.
§ 228.5(a)(5).
6114 KARUK TRIBE OF CALIFORNIA v. USFS
The Forest Service never contemplated such a result. The
Forest Service’s explanation of its mining regulations estab-
lishes that a Notice of Intent is used as an information-
gathering tool, not an application for a mining permit. Consis-
tent with the Forest Service’s interpretations, the Ranger’s
response to a Notice of Intent is analogous to the Notice of
Intent itself, and provides merely notice of the agency’s
review decision. It is not a permit, and does not impose regu-
lations on private conduct as does a Plan of Operations. The
Forest Service interprets the Notice of Intent as an
information-gathering tool used to decide whether a miner
should file a Plan of Operations:

“[T]he 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] lands which the operator
believes might, but are not likely to, cause signifi-
cant disturbance of [National Forest Service] surface
resources and gives the Forest Service the opportu-
nity 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-
tions on National Forest System Lands, 70 Fed. Reg. 32,713,
at 32,720 (June 6, 2005) (emphasis added).4

The Forest Service adds that the Notice of Intent process
was designed to be “a simple notification procedure” that
would
4
I rely on the Forest Service’s 2005 clarification of its mining rules
because this document contains the clearest and most thorough explana-
tion of the history and application of these regulations. The 2005 clarifica-
tion did not materially change the operative provisions. 70 Fed. Reg. at
32,727-28.
 KARUK TRIBE OF CALIFORNIA v. USFS 6115
“assist prospectors in determining whether their
operations 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 . . . . [The
1974 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 operations 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 pro-
posed operations. In such a circumstance, the early
alert provided by a notice of intent to operate would
advance the interests of both the Forest Service and
the operator by facilitating resolution of the ques-
tion, “Is submission and approval of a plan of opera-
tions required before the operator can commence
proposed operations?”

Id. at 32,728 (emphasis added).

Under the Forest Service’s regulations, a Notice of Intent
is exactly what its name implies: a notice from the miner, not
a permit or license issued by the agency. It is merely a precau-
tionary agency notification procedure, which is at most a pre-
liminary step prior to agency action being taken.

IV. Precedent distinguishing “action” from “inaction”

Our precedent establishes that there is a significant differ-
ence between a decision not to act and an affirmative authori-
zation. These cases distinguish between “agency action” and
“agency inaction,” and illustrate the meaning of the operative
regulation’s reference to “licenses,” “permits,” and the like.
6116 KARUK TRIBE OF CALIFORNIA v. USFS
50 C.F.R. § 402.02 (2004). In the pertinent cases involving
“agency action,” the agency takes an affirmative step that
allows private conduct to take place; without the agency’s
affirmative action (such as issuing a permit, license, or con-
tract), the private conduct could not occur.5 In the pertinent
cases involving agency inaction, private conduct may take
place until the agency takes affirmative steps to intervene.
The relevant case law requires us to identify the default posi-
tion: if the agency does nothing, can the private activity take
place? If the activity can proceed regardless of whether the
agency takes any actions, then the activity does not involve
the agency’s “granting of licenses, contracts, leases, ease-
ments, rights-of-way, permits, or grants-in-aid” as required
for “agency action” under the regulations. Id.

Western Watersheds Project involved the BLM’s regula-
tion (or, more accurately, non-regulation) of private parties’
diversions of water that were done pursuant to those parties’
pre-existing rights-of-way. 468 F.3d at 1103. Similar to this
case, nineteenth-century federal laws recognized those rights-
of-way, id. at 1103-04, but the BLM retained the power to
regulate diversions that were more than “ ‘substantial devia-
tion[s]’ ” from prior uses, id. at 1109 (quoting 43 C.F.R.
§ 2803.2(b) (2004) (promulgated in 1986)). We assumed that
the BLM had the power to regulate the diversions in dispute,
and held that the BLM’s failure to exercise this power was not
an “agency action” triggering ESA consultation obligations.
Id. at 1108-09. We explained that agency “ ‘inaction’ is not
‘action’ for section 7(a)(2) purposes.” Id. at 1108. “[T]he
BLM did not fund the diversions, it did not issue permits, it
did not grant contracts, it did not build dams, nor did it divert
5
For example, Turtle Island Restoration Network v. National Marine
Fisheries Service, 340 F.3d 969 (9th Cir. 2003), involved an agency’s
issuance of permits to fishing vessels. The operative statutory regime “re-
quire[d] United States vessels to obtain permits to engage in fishing oper-
ations on the high seas . . . .” Id. at 973 (emphasis added). In other words,
absent an agency permit, the vessels could not undertake their fishing
operations.
 KARUK TRIBE OF CALIFORNIA v. USFS 6117
streams.” Id. at 1109 (emphasis in original). Rather, the BLM
made a decision not to regulate, which was not “agency
action” under the ESA. We explained that “the duty to consult
is triggered by affirmative actions.” Id. at 1102; see also Mar-
bled Murrelet v. Babbitt, 83 F.3d 1068, 1070 (9th Cir. 1996)
(“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.”); Cal.
Sportfishing Protection Alliance v. FERC, 472 F.3d 593, 595,
598 (9th Cir. 2006) (holding that “the agency[ ] ha[d] pro-
posed no affirmative act that would trigger the consultation
requirement” for operations of a hydroelectric plant that were
authorized by an earlier and ongoing permit, even though the
agency was empowered to “unilaterally institute proceedings
to amend the license if it so chose”). Predictably, the majority
relegates discussion of this precedent to a brief citation and
entirely fails to distinguish it from this case. Moreover, the
majority does not point to a single opinion in which any court
has held that such inaction triggers the ESA’s consultation
requirements.

Granted, Western Watersheds Project addressed both
prongs of the ESA’s “agency action” requirement: first,
whether there is agency action as defined in 50 C.F.R.
§ 402.02, and second, whether that agency action is “discre-
tionary,” 50 C.F.R. § 402.03. Here, I address only the “ac-
tion” requirement, because the agency has discretion when
deciding whether or not to act. But the regulations and case
law show that these two requirements—action and discretion
—are conjunctive, not disjunctive. If the agency has discre-
tion to act but decides not to act, then there is no agency
action under the ESA.

An almost identical regulatory scheme was at issue in
Sierra Club v. Penfold, 857 F.2d 1307 (9th Cir. 1988). Under
43 C.F.R. § 3809 (1986), the BLM uses a three-tiered
approach to regulating placer mining on federal lands within
6118 KARUK TRIBE OF CALIFORNIA v. USFS
its jurisdiction. First are “casual” use mines, for which no
notice or approval is required. 857 F.2d at 1309. Second are
“notice” mines, for which no BLM approval is required but
for which the miner must submit basic information to the
BLM about the proposed operations at least fifteen days prior
to commencing them. Id. BLM monitors “casual” and “no-
tice” mining operations for compliance. Id. at 1310. Third are
“plan” mines, which must be approved by the BLM and sub-
jected to environmental assessment before the operation may
proceed. Id. at 1309.

The BLM’s approach to “casual,” “notice,” and “plan”
mining operations follows the same structure as the Forest
Service’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 Service regulations”).

At issue in Penfold was whether the BLM’s approval of
Notice mines is a “major Federal action.” Such a finding
would trigger the National Environmental Policy Act’s
(NEPA) requirement that the BLM file an environmental
impact statement. We held that the approval was not a major
Federal action. 857 F.2d at 1314. 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’s con-
sultation requirement. 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, I none-
theless find our previous determination that a similar notice
scheme was not the sort of agency action that requires envi-
 KARUK TRIBE OF CALIFORNIA v. USFS 6119
ronmental compliance to be additional persuasive authority in
support of the district court’s holding.

I emphasize the narrowness of the question before us; I do
not argue that every Forest Service “decision” is exempted
from ESA consultation. The Forest Service’s mining regula-
tions are clearly distinguishable from the Forest Service’s
other regulatory activities. For example, the Forest Service
must consult under the ESA when it creates and implements
Land and Resource Management Plans, which govern “every
individual project” in each national forest. Pac. Rivers Coun-
cil v. Thomas, 30 F.3d 1050, 1053 (9th Cir. 1994). In addition,
the Forest Service’s negotiation and execution of timber-sale
contracts, 16 U.S.C. § 472a(a); 36 C.F.R. § 223.1 (2011), is
undoubtedly an agency “authoriz[ation]” that requires ESA
consultation. See 50 C.F.R. § 402.02 (2004) (agency actions
include “granting of . . . contracts”); see also Nw. Forest Res.
Council v. Pilchuck Audubon Soc’y, 97 F.3d 1161, 1167 (9th
Cir. 1996) (noting that Forest Service consulted with Fish and
Wildlife Service regarding timber sales’ effect on marbled
murrelets). The same is true for the Forest Service’s construc-
tion of roads in the national forest. Thomas v. Peterson, 753
F.2d 754, 763-64 (9th Cir. 1985). Likewise, “all grazing and
livestock use on National Forest System lands and on other
lands under Forest Service control must be authorized by a
grazing or livestock use permit.” 36 C.F.R. § 222.3 (2011).
The Forest Service’s grant and oversight of such permits is
undeniably “agency action” subject to the ESA consultation
requirement. See Forest Guardians v. Johanns, 450 F.3d 455,
457-58, 463 (9th Cir. 2006).

But here, Notices of Intent are not permits, contracts, or
plans issued by the Forest Service. They are mere notifica-
tions about miners’ activities. Certainly, the Forest Service
retains discretion to require miners to submit a Plan of Opera-
tions under appropriate circumstances. That was the conclu-
sion reached in a recent Administrative Procedures Act
decision, Siskiyou Regional Education Project v. U.S. Forest
6120 KARUK TRIBE OF CALIFORNIA v. USFS
Service: “determining which operations are likely to cause
significant disturbance of surface resources—and therefore
require a plan of operations—requires a discretionary deter-
mination by a district ranger.” 565 F.3d at 557 (emphasis
omitted). But the Forest Service’s decision not to require a
Plan of Operations is simply not an “authorization” as defined
by the statute and regulations. The majority’s proposed new
category of agency conduct—implicit agency action—finds
little support in the statutes, regulations, and case law.

The district court’s opinion in this case follows naturally
from Western Watersheds Project. Although the majority
characterizes the Forest Service’s response to a Notice of
Intent as an “approval,” an “authorization,” and a “rejection,”
the relevant regulations show that the Forest Service is not
approving, authorizing, or rejecting anything. It is receiving
and analyzing information, and deciding not to take further
action.

V. Subjective views of the parties

The majority relies heavily on the fact that the District
Ranger and the miners in this case understood the Notice of
Intent to be an “authorization.”

At first glance, this case-specific reasoning may be entic-
ing: after all, the miners sought the Ranger’s “approv[al]” and
the Ranger “authoriz[ed]” their activities. But this path of rea-
soning is full of legal obstacles, any one of which should be
dispositive of the ultimate legal question under the ESA.

First, a similar argument was considered and rejected in
Sierra Club v. Babbitt, 65 F.3d 1502 (9th Cir. 1995), where
we held that the BLM’s letter purporting to “approv[e]” a
construction project could not “be construed as an authoriza-
tion within the meaning of [ESA] section 7(a)(2)” because the
BLM’s letter did not otherwise satisfy the statutory criteria of
an ESA authorization. Id. at 1511.
 KARUK TRIBE OF CALIFORNIA v. USFS 6121
Second, we are not bound by litigants’ concessions of law
(even assuming that the miners’ and Ranger’s letters can be
deemed “concessions”). E.g., United States v. Ogles, 440 F.3d
1095, 1099 (9th Cir. 2006) (en banc).

Third, the District Ranger has no authority to interpret the
ESA or its implementing regulations, so his use of the term
“authorization” cannot reasonably be read as an interpretation
of the ESA regulations, 50 C.F.R. §§ 402.02-03 (2004).6 See
generally Robertson, 490 U.S. at 359 (discussing deference
owed to agency’s interpretation of its regulations); Chevron
U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
843-45 (1984).

Fourth—as even the Plaintiffs-Appellants recognize—the
question of whether an agency’s course of conduct constitutes
an “agency action” under the ESA is a legal question, not a
factual one. Nat’l Wildlife Fed’n v. Brownlee, 402 F. Supp. 2d
1, 11 (D.D.C. 2005).

Finally, to understand why the parties’ conduct in this case
cannot control our application of the ESA and its regulations,
consider the implications of such a holding. A single District
Ranger would be subjected to the ESA consultation process
because he used the word “authorize” when responding to a
Notice of Intent. However, no other District Ranger in the
country would be subjected to the ESA under similar circum-
stances, even though those District Rangers operate under the
same Forest Service regulations governing Notices of Intent.
It goes without saying that this result makes little, if any,
6
Regulatory authority under the ESA is delegated to the Departments of
Interior and Commerce, see Nat’l Ass’n of Home Builders v. Defenders of
Wildlife, 551 U.S. 644, 651, 664-65 (2007), whereas the Forest Service is
a part of the Department of Agriculture, see U.S. Forest Service,
“U.S. Forest Service History: Agency Organization,” http://
www.foresthistory.org/ASPNET/Policy/Agency_Organization/index.aspx
(last visited May 4, 2012).
6122 KARUK TRIBE OF CALIFORNIA v. USFS
sense as an application of our national environmental protec-
tion laws.

VI. Discussions between miners and district rangers

The majority also relies on the fact that informal discus-
sions take place between miners and district rangers regarding
how the miners can modify their proposed activities to avoid
triggering the obligation to prepare a Plan of Operations. For
instance, a ranger may advise miners how to change their
plans in a way that will avoid causing significant surface
resource disturbances. If the miners do so, and describe their
appropriately modified activities in Notices of Intent, the reg-
ulations do not require anything further; the miners are autho-
rized to proceed with their mining activities under the General
Mining Law.

The majority mistakenly attempts to characterize such
informal discussions as the Forest Service’s exercise of dis-
cretion to approve or deny an NOI. But we have long held
that these sorts of informal, voluntary discussions do not con-
stitute an agency action. Marbled Murrelet v. Babbitt, 83 F.3d
1068 (9th Cir. 1996). Marbled Murrelet is directly on point.
In that case, we held that a joint letter from U.S. Forest Ser-
vice and the California Department of Fish and Game to a
timber company describing “specific conditions that must be
followed to . . . avoid ‘take’ of the identified species under the
ESA” was “merely provid[ing] advice” that did not trigger
section 7 consultation under the ESA. Id. at 1074. As we
explained, “[p]rotection of endangered species would not be
enhanced by a rule which would require a federal agency to
perform the burdensome procedural tasks mandated by sec-
tion 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.” Id.

The majority takes exactly that step here. In holding that a
miner’s submission of an NOI triggers section 7 consultation
 KARUK TRIBE OF CALIFORNIA v. USFS 6123
under the ESA, the majority discourages miners from discuss-
ing their proposed activities with the Forest Service to volun-
tarily reduce their impact on the environment, and rather
encourages miners to make their own determination that their
activities are not likely to “cause significant disturbance of
surface resources,” 36 C.F.R. § 228.4(a), and thus no NOI
need be filed.

VII. Brave New World

Abandon all hope, ye who enter here.

— Dante Alighieri, THE DIVINE COMEDY, Inferno Canto III

I cannot conclude my dissent without considering the
impact of the majority’s decision in this case, and others like
it, which, in my view, flout our precedents and undermine the
rule of law. In doing so, I intend no personal disrespect or
offense to any of my colleagues. My intent is solely to illumi-
nate the downside of our actions in such environmental cases.

By rendering the Forest Service impotent to meaningfully
address low impact mining, the majority effectively shuts
down the entire suction dredge mining industry in the states
within our jurisdiction. The informal Notice of Intent process
allows projects to proceed within a few weeks. In contrast,
ESA interagency consultation requires a formal biological
assessment and conferences, and can delay projects for
months or years. Although the ESA generally requires agen-
cies to complete consultations within ninety days, 16 U.S.C.
§ 1536(b), the agencies frequently miss their deadlines due to
personnel shortages. One study found that nearly 40 percent
of U.S. Fish and Wildlife Service ESA consultations were
untimely, with some taking two or three years. Government
Accountability Office, More Federal Management Attention
is Needed to Improve the Consultation Process, March 2004.
Moreover, formal consultation comes at great costs to the pri-
vate applicants, often requiring them to hire outside experts
6124 KARUK TRIBE OF CALIFORNIA v. USFS
because the agency is backlogged. Id. Most miners affected
by this decision will have neither the resources nor the
patience to pursue a consultation with the EPA; they will sim-
ply give up, and curse the Ninth Circuit.

As a result, a number of people will lose their jobs and the
businesses that have invested in the equipment used in the rel-
evant mining activities will lose much of their value. In 2008,
California issued about 3,500 permits for such mining, and 18
percent of those miners received “a significant portion of
income” from the dredging. See Justin Scheck, California
Sifts Gold Claims, The Wall Street Journal, April 29, 2012.
The gold mining operation in this case, the New 49ers, orga-
nizes recreational weekend gold-mining excursions. The
majority’s opinion effectively forces these people to await the
lengthy and costly ESA consultation process if they wish to
pursue their mining activities, or simply ignore the process, at
their peril.

Unfortunately, this is not the first time our court has broken
from decades of precedent and created burdensome, entan-
gling environmental regulations out of the vapors. In one of
the most extreme recent examples, our court held that timber
companies must obtain Environmental Protection Agency per-
mits for stormwater runoff that flows from primary logging
roads into systems of ditches, culverts, and channels. Nw.
Envtl. Def. Ctr. v. Brown, 640 F.3d 1063 (9th Cir. 2011). In
the nearly four decades since the Clean Water Act was
enacted, no court or government agency had ever imposed
such a requirement. Indeed, the EPA promulgated regulations
that explicitly exempted logging from this arduous permitting
requirement. Id. at 1073. Yet our court decided to disregard
the regulation and require the permits.

The result? The imminent decimation of what remains of
the Northwest timber industry. The American Loggers Coun-
cil estimates that the decision, if implemented, will result in
up to three million more permit applications nationwide. The
 KARUK TRIBE OF CALIFORNIA v. USFS 6125
timber industry is not the only group criticizing Brown. Three
of Oregon’s leading politicians quickly attacked the ruling.
Oregon U.S. Senator Ron Wyden predicted that this opinion
“would shut down forestry on private, state and tribal lands by
subjecting it to the same, endless cycle of litigation.” Oregon
Congressman Kurt Schrader called the opinion a “bad deci-
sion” that would create “another layer of unnecessary bureau-
cracy.” Oregon Governor John Kitzhaber branded the opinion
as “legally flawed.”

Oregon political leaders have good reason to be concerned
about the impact of our rulings on logging. Decades of court
injunctions already have battered the state’s timber industry,
once a dominant employer that paid excellent wages. In the
1970s and 1980s, the wood product industry employed more
than 70,000 Oregonians and paid 30 percent more than the
state average wage. Now, the industry employs 25,000 people
and pays the state average wage. Josh Lehner, Historical Look
at Oregon’s Wood Product Industry, Oregon Office of Eco-
nomic Analysis, Jan. 23, 2012, available at
http://oregoneconomicanalysis.wordpress.com/2012/01/23/
historical-look-at-oregons-wood-product-industry/ (last vis-
ited May 4, 2012). Requiring millions of burdensome new
permits will only accelerate the decline.

Brown also profoundly harms rural local governments.
Because counties receive twenty-five percent of the revenues
from timber harvests on federal land, the decrease in logging
has caused shorter school days, smaller police forces, and clo-
sures of public libraries. Moreover, Brown subjects rural
counties to the burdensome permitting requirement if their
roads are used for logging. The Association of Oregon Coun-
ties estimates that the decision will increase planning costs to
Oregon counties by $56 million.

More recently, a panel majority of our court handed down
Pacific Rivers Council v. United States Forest Service, 668
F.3d 609 (9th Cir. 2012). The Forest Service spent years
6126 KARUK TRIBE OF CALIFORNIA v. USFS
developing a forest management plan for 11.5 million acres
of national forest land in the Sierra Nevada. We overturned
that plan, holding that the Forest Service’s programmatic
environmental impact statement must “analyze environmental
consequences of a proposed plan as soon as it is ‘reasonably
possible’ to do so.” Id. at 623. This conflicts with our long-
standing rule that “NEPA requires a full evaluation of site-
specific impacts only when a ‘critical decision’ has been made
to act on site development—i.e., when ‘the agency proposes
to make an irreversible and irretrievable commitment of the
availability of resources to [a] project at a particular site.’ ”
Friends of Yosemite Valley v. Norton, 348 F.3d 789, 801 (9th
Cir. 2003) (quoting California v. Block, 690 F.2d 753, 761
(9th Cir. 1982)). Pacific Rivers Council’s de facto reversal of
well-established precedent will dramatically impede any
future logging in the West. Because environmental agencies
will never be certain whether the unclear “reasonably possi-
ble” standard applies, it will take even longer for the agencies
to approve forest plans.

Farmers, too, have suffered, and will continue to suffer,
from the impact of similarly extreme environmental decisions.
The Central Valley Project Improvement Act, Pub. L. No.
102-575, 106 Stat. 4600 (1992), requires that 800,000 acre
feet of water in California’s Central Valley Project be desig-
nated for “the primary purpose of implementing the fish,
wildlife, and habitat restoration purposes and measures[.]” In
San Luis & Delta-Mendota Water Authority v. United States,
672 F.3d 676 (9th Cir. 2012), the majority inexplicably read
this requirement to mean that water counts toward that yield
only if it “predominantly contributes to one of the primary
purpose programs.” Id. at 697. This interpretation has abso-
lutely no basis in the statutory text. The practical impact of
this decision is that there will be less, perhaps far less, water
for irrigation in the San Joaquin Valley’s $20 billion crop
industry. Id. at 715-16 (M. Smith, J., dissenting). The region’s
farms and communities, and the thousands of people
employed there, already have suffered because of the lack of
 KARUK TRIBE OF CALIFORNIA v. USFS 6127
water, with approximately 250,000 acres of farmland now
lying fallow, and unemployment ranging between 20 percent
and 40 percent. Id.

No legislature or regulatory agency would enact sweeping
rules that create such economic chaos, shutter entire indus-
tries, and cause thousands of people to lose their jobs. That is
because the legislative and executive branches are directly
accountable to the people through elections, and its members
know they would be removed swiftly from office were they
to enact such rules. In contrast, in order to preserve the vitally
important principle of judicial independence, we are not polit-
ically accountable. However, because of our lack of public
accountability, our job is constitutionally confined to inter-
preting laws, not creating them out of whole cloth. Unfortu-
nately, I believe the record is clear that our court has strayed
with lamentable frequency from its constitutionally limited
role (as illustrated supra) when it comes to construing envi-
ronmental law. When we do so, I fear that we undermine pub-
lic support for the independence of the judiciary, and cause
many to despair of the promise of the rule of law.7

I respectfully dissent.

7
“[R]epeated and essentially head-on confrontations between the life-
tenured branch and the representative branches of government will not, in
the long run, be beneficial to either. The public confidence essential to the
former and the vitality critical to the latter may well erode if we do not
exercise self-restraint in the utilization of our power to negative the
actions of the other branches.” United States v. Richardson, 418 U.S. 166,
188 (1974) (Powell, J., concurring).