## Facts

- Environmental groups challenged federal land managers’ handling of numerous private water diversions across public lands in Idaho’s Upper Salmon River basin.
- The diversions were operated by private water-rights holders under vested rights-of-way established under the Act of 1866 (and one under the Act of 1891).
- FLPMA preserved pre-1976 rights-of-way, allowing continued use without further federal authorization absent a substantial change in use or location.
- The district court selected six diversions as test cases (two on Big Timber Creek, three on the Pahsimeroi River, and one on Mahogany Creek).
- Plaintiffs alleged the diversions reduced stream flows and threatened listed fish species.
- Plaintiffs sought declaratory and injunctive relief requiring the Bureau of Land Management (BLM) to consult with the Fish and Wildlife Service under ESA § 7(a)(2).
- The district court held BLM had discretion to regulate the diversions and that its failure to exercise that discretion was “agency action” triggering consultation; it ordered consultation and enjoined BLM on set timelines.

## Issues

1. Whether BLM’s failure to regulate, or its retention of discretionary authority over preexisting, vested diversion rights-of-way, constitutes “agency action” under ESA § 7(a)(2) triggering a duty to consult.

## Decision

- The Ninth Circuit reversed the district court’s partial summary judgment for plaintiffs and vacated the injunction.
- The court held that ESA § 7(a)(2) is triggered by affirmative agency action—activities “authorized, funded, or carried out” by the agency—not by agency inaction.
- BLM’s non-interference with vested, pre-FLPMA diversion rights, even if coupled with some unexercised regulatory discretion, did not amount to an “agency action.”
- Because BLM did not fund, permit, construct, operate, or otherwise affirmatively approve the diversions at issue, ESA consultation was not required on that basis.
- Post-judgment regulatory amendments to BLM rights-of-way rules were not considered in the court’s review.

## Legal Principles

- ESA § 7(a)(2) imposes a consultation duty only for affirmative federal “action” that an agency “authorizes, funds, or carries out.”
- A “failure to act” does not qualify as “agency action” for § 7(a)(2) purposes.
- Unexercised discretionary authority to regulate private conduct, without an affirmative federal undertaking or approval, does not trigger consultation.
- Recognition or preservation of vested, pre-FLPMA rights-of-way is not equivalent to issuing a new authorization or undertaking a federal project.

## Conclusion

The Ninth Circuit limited ESA § 7(a)(2) consultation to affirmative federal involvement and held that BLM’s inaction toward privately operated, vested water-diversion rights-of-way on federal land was not “agency action” requiring consultation.


W. Watersheds Project v. Matejko, 468 F.3d 1099 (9th Cir. 2006)