## Facts

- The Karuk Tribe relied on coho salmon in the Klamath River for subsistence and cultural and religious practices.
- Coho salmon in the Klamath River system were listed as a threatened species, and critical habitat in the river system was designated.
- Forest Service regulations required: (1) no prior approval for de minimis mining; (2) a Notice of Intent to Operate (NOI) for mining that “might cause” disturbance of surface resources; and (3) a Plan of Operations for mining “likely to cause significant disturbance.” Surface resources included fisheries and wildlife habitat.
- Between 2001 and 2004, Forest Service District Rangers reviewed four NOIs for small-scale suction dredge and related mining in or near the Klamath River and its tributaries, within designated coho critical habitat.
- The Forest Service responded with letters allowing operations to proceed without Plans of Operations and imposed conditions for operating under the NOIs.
- The Forest Service did not conduct ESA § 7 consultation with the National Marine Fisheries Service or the Fish and Wildlife Service before allowing the NOI-described mining to proceed.
- The district court rejected the Tribe’s ESA claim; a Ninth Circuit panel affirmed; the en banc court reheard the case.

## Issues

1. Whether the Forest Service’s review and approval/conditioning of mining NOIs constitutes “agency action” under ESA § 7(a)(2).
2. Whether the approved mining activities “may affect” coho salmon or their critical habitat, triggering a duty to consult under ESA § 7.

## Decision

- The en banc Ninth Circuit reversed and remanded.
- The Forest Service’s decisions to allow mining to proceed under the NOIs, including imposing conditions and determining that no Plan of Operations was required, were affirmative, discretionary “agency action” under ESA § 7.
- Because the NOI process applied to mining that “might cause” disturbance to surface resources (including fisheries and wildlife habitat) and the projects occurred in designated coho critical habitat, the actions satisfied the ESA’s low “may affect” threshold.
- The Forest Service violated ESA § 7 by failing to consult with the appropriate wildlife agencies before approving the NOI-based mining in coho critical habitat.
- A dissent would have treated the NOI process as non-regulatory screening and thus not “agency action.”

## Legal Principles

- ESA § 7 consultation is required for any federal “agency action” that “may affect” a listed species or critical habitat.
- “Agency action” exists when an agency makes an affirmative, discretionary decision about whether, or under what conditions, to allow private activity to proceed.
- The “may affect” trigger is a low threshold; consultation is required even if effects are uncertain or not shown to be significant at the consultation stage.
- Agency programs characterized as informational or screening mechanisms can still be “agency action” when the agency exercises discretion to approve, condition, or effectively authorize private conduct in circumstances implicating listed species or critical habitat.

## Conclusion

The court held that the Forest Service’s discretionary approval and conditioning of mining under NOIs in coho salmon critical habitat constituted ESA “agency action” that may affect the species or its habitat, requiring § 7 consultation; failure to consult required reversal and remand.


Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006 (9th Cir. 2012) (en banc)