Endangered Species Law & Policy

On June 1, 2012, a sharply divided Ninth Circuit sitting en banc filed an opinion in Karuk Tribe of California v. U.S. Forest Service, No. 05-16801 (June 1, 2012) (pdf) holding that U.S. Forest Service "approvals" of notices of intent (NOIs) to undertake suction dredge mining are discretionary agency actions that may affect listed coho salmon designated critical habitat in the Klamath National Forest, thus triggering a duty to consult under section 7 of the Endangered Species Act (ESA). 

The en banc opinion reverses both the district court and a prior panel opinion in which a divided three-judge panel held that the Forest Service was not required to consult because the "approvals" at issue are tantamount to decisions not to require "plans of operations" for proposed dredging, and are therefore agency inaction, not agency action.  Judge William A. Fletcher wrote the dissenting opinion in last year's decision, but he wrote for the 7-4 majority of the en banc court.