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Karuk Tribe of California v. United States Forest Service; Margaret Boland

April 7, 2011

KARUK TRIBE OF CALIFORNIA, PLAINTIFF-APPELLANT,
v.
UNITED STATES FOREST SERVICE; MARGARET BOLAND, DEFENDANTS-APPELLEES,
THE NEW 49'ERS, INC.;RAYMOND W. KOONS, DEFENDANTS-INTERVENORS-APPELLEES.



D.C. No.CV-04-04275-SBA Appeal from the United States District Court for the Northern District of California Saundra B. Armstrong, District Judge, Presiding

The opinion of the court was delivered by: M. Smith, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted July 13, 2010-San Francisco, California

Before: William A. Fletcher and Milan D. Smith, Jr., Circuit Judges, and James D. Todd, Senior District Judge.*fn1

Opinion by Judge Milan D. Smith, Jr.; Dissent by Judge William A. Fletcher

OPINION

Section 7 of the Endangered Species Act (ESA), 16 U.S.C. § 1536(a)(2), requires interagency consultation for any federal agency action that may affect a listed species. In this opinion, we determine whether a United States Forest Service (USFS) District Ranger's (Ranger) decision that a proposed mining operation may proceed according to the miner's Notice of Intent (NOI) and will not require a Plan of Operations (Plan) is an "agency action" for purposes of triggering the ESA's interagency consulting obligations.

We hold that the NOI process does not constitute an "agency action," as that term is defined under the ESA. The Ranger's receipt of an NOI and resulting decision not to require a Plan is most accurately described as an agency decision not to act. Because " 'inaction' is not 'action' for section 7(a)(2) purposes," W. Watersheds Project v. Matejko, 468 F.3d 1099, 1108 (9th Cir. 2006), we affirm the district court's denial of summary judgment on the Tribe's ESA challenge to the NOI process.

FACTUAL AND PROCEDURAL BACKGROUND

I. Gold and Silver Salmon

The Klamath River (River) runs from Oregon, through California, to the Pacific Ocean. As it winds through Northern California, it crosses through the lands that have been home to the Plaintiff-Appellant Karuk Tribe of California (the Tribe) since time immemorial. The River is a designated critical habitat of the Coho, or silver, salmon*fn2 and various other fish species, and is a source of cultural and religious significance to the Tribe, who depend upon it for the fish and other subsistence uses.

The River also contains gold deposits. As erosion and other natural processes loosen gold from hard rock in and around the River, the gold travels downstream and settles at the bottom, underneath the lighter sediments but above the bedrock. One method of retrieving this gold is by using a suction dredger, a machine that vacuums a small area of the riverbed and extracts the gold from the other sediments. Because the precise mechanics of suction dredging are not relevant to our disposition and are ably described in Siskiyou Regional Education Project v. Rose, 87 F. Supp. 2d 1074, 1081-82 (D. Or. 1999), and other decisions cited herein, we do not repeat them here. Suffice it to say that suction dredgers are mechanical equipment, and accordingly, may not be used on federal forest lands without formally notifying the USFS, see 36 C.F.R. § 228.4(a) (2004).*fn3 The suction dredge mining activity conducted by the individual gold miners represented in this suit by the Defendants-Intervenors The New 49'ers is best described as small-scale suction dredge gold mining (a few cubic inches at a time) performed for recreational purposes.

The Tribe contends that even small-scale suction dredge mining, especially when conducted by sufficient numbers of people with sufficient frequency, significantly disturbs surface resources and destroys aquatic habitat. In particular, the Tribe offers expert evidence that suction dredging kills salmonid and other fish eggs, kills fish food sources, destabilizes riverbed areas used for spawning, and otherwise disturbs the fish and their reproductive activities. The New 49'ers disagree, and contend that there is no evidence that the very small-scale suction dredging at issue in this case causes any harm to the Coho salmon.*fn4 Because the standard for ESA consultation is only whether the conduct "may affect" a listed species, see Pac. Rivers Council v. Thomas, 30 F.3d 1050, 1055 (9th Cir. 1994), the district court did not resolve this factual dispute, and neither must we. We assume the Tribe has established that suction dredge mining may affect the Coho salmon. See Siskiyou Reg'l Educ. Project v. U.S. Forest Serv., 565 F.3d 545, 550 & n.2 (9th Cir. 2009). In fact, the Tribe, the USFS, and The New 49'ers met for the purpose of discussing what criteria the USFS should consider when deciding whether a Plan will be required for a proposed suction dredge operation. Most of the discussion at that meeting centered on what those miners who do not want to have to submit a Plan should do to avoid disturbing fish and aquatic habitat, suggesting that the USFS would admit that at least some suction dredging activities "may affect" the Coho salmon.

II. Statutory and Regulatory Background

The Organic Administration Act, 16 U.S.C. §§ 473-78 (1897) (the Organic Act), provides that federal forest lands are subject to the United States mining laws, including the General Mining Law of 1872, 30 U.S.C. § 22, as amended by 30 U.S.C. § 612. Under the mining laws, citizens are entitled to enter public lands for the purpose of prospecting and removing mineral deposits. The Organic Act further provides that prospectors and miners entering federal forest lands "must comply with the rules and regulations covering such national forests." 16 U.S.C. § 478. The government's regulatory authority (vested in the Secretary of Agriculture and, derivatively, the USFS), however, does not go so far as to permit it to "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." Id. (emphasis added). Indeed, "[e]xercise of th[e] right [to enter federal lands for prospecting] may not be unreasonably restricted." National Forests Surface Use Under U.S. Mining Laws, 39 Fed. Reg. 31,317 (Aug. 28, 1974) (hereinafter Forests Use Under Mining Laws) (emphasis added).

The Organic Act thus creates a regulatory scheme whereby the USFS may regulate mining activity on federal forest lands "to preserve the forests thereon from destruction," 16 U.S.C. § 551, but may not otherwise interfere with or prohibit the activities permitted under the mining laws. See Siskiyou, 565 F.3d at 557-58. To achieve an appropriate balance between mining rights and environmental preservation, the USFS promulgated regulations, which are the source of the present controversy.

The relevant regulations, set forth as 36 C.F.R. § 228.4(a), outline a three-tiered approach to regulating mining in the national forests. The regulatory scheme is based on the touch-stone "disturbance of surface resources." 36 C.F.R. § 228.4(a).*fn5

The regulations first describe certain de minimis activities, such as gold panning, that citizens may conduct without involving the USFS. See id. § 228.4(a)(1) (listing activities that require no notice to the USFS, including use of existing roads, mineral sampling, marking out a mining claim, and other activities that "will not cause significant surface resource disturbance"). Second are activities that "might cause disturbance of surface resources." Id. § 228.4(a). The person intending to engage in such an activity must submit a "notice of intent to operate" to the Ranger-an NOI. Third are activities that are "likely [to] cause significant disturbance of surface resources." Id. These activities require a Plan, which may include, among other things, specific conditions requiring the proposed operator to ensure environmental preservation. Operations requiring a Plan cannot be conducted until the Ranger approves the Plan. See id. § 228.5.

Upon receipt of an NOI, the Ranger decides, within his discretion, whether the activities described in the NOI are likely to significantly disturb surface resources and will consequently require a Plan to be submitted for the USFS's approval. 36 C.F.R. § 228.4(a); Siskiyou, 565 F.3d at 551. When the USFS clarified its regulations in 2005, it explained that:

The 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 (NFS)] lands which the operator believes might, but are not likely to, cause significant disturbance of NFS surface resources and gives the Forest Service the opportunity 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, 32,720 (June 6, 2005) (hereinafter NOI Clarification). In other words, the purpose of submitting an NOI is "to provide the Forest Service District Ranger with sufficient information to determine if the level of disturbance will require a Plan and a detailed environmental analysis." U.S. Forest Serv., Notice of Intent Instructions: 36 CFR 228.4(a) - Locatable Minerals, http://www.fs.fed.us/geology/noi_instructions.doc (last visited Mar. 31, 2011). The NOI need include only (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. Id.; see also 36 C.F.R. § 228.4(a)(2). There is no requirement that an NOI include any statement of planned environmental protection measures.*fn6

If the Ranger concludes that the NOI describes an activity likely to cause significant disturbance of surface resources, the Ranger must "notify the operator if approval of a plan of operations is required before the operations may begin." 36 C.F.R. § 228.4(a)(2). The Ranger's notice must be given within fifteen days of receiving the NOI. Id. If the Ranger does not request a Plan, then the mining operations may proceed. See id.

III. The NOIs at Issue in this Appeal

In this appeal, the Tribe challenges the USFS's decision to "accept" four NOIs without consulting with other agencies about the biological effects of the miners' conduct. Importantly, the Tribe does not argue that the Ranger abused his discretion in deciding that the activities described in these NOIs did not require a Plan, or that the USFS breached its ESA consultation obligations by adopting the regulatory scheme described supra.*fn7

The first NOI at issue is a May 24, 2004 NOI submitted by Dave McCracken, General Manager for The New 49'ers. This NOI notified the USFS of multiple small-scale suction dredge mining operations members of The New 49'ers planned to conduct over a 35-mile river and stream area. Each dredge was estimated to affect about one quarter of a cubic yard of the river, limited to no more than ten dredges per mile in the River proper and three dredges per mile in its tributaries. The NOI specifically mentioned that the miners would avoid a handful of places along the River to guard against disturbing certain cold water refugia used by fish in the warmer summer months. After receiving and reviewing McCracken's NOI, on May 25, 2004, the Ranger sent a letter to McCracken explaining that he had "determined that [McCracken and The New 49'ers'] proposed operations would not require a Plan of Operations." The "authorization" was set to expire on December 31, 2004.

The second challenged NOI was submitted to the USFS on May 29, 2004 by Nida Jo Lawson Johnson. Johnson's NOI described her activities as using a six-to-eight inch dredger to make four-to-five inch dredges. She also indicated that she would not conduct dredging activities near the mouths of certain tributaries. The Ranger responded that the described mining operations "would not require a Plan of Operations." The Ranger stated that the NOI would "expire" on December 21, 2004.

Third, the Tribe challenges Robert Hamilton's June 2, 2004 NOI. Hamilton sought to use a four-inch suction dredger, restricted to a two-and-a-half inch opening, to mine for gold in up to twenty cubic yards of riverbed, between July 12 and July 23, 2004. The Ranger's June 15 response was nearly identical to his response to Johnson's NOI.

Finally, the last challenged NOI was submitted on June 14, 2004 by Ralph Easley. Easley proposed to use a four-inch dredge for recreational purposes between July 1, 2004 and September 30, 2004. The Ranger responded with the same form letter sent to Johnson and Hamilton, explaining that no Plan was required for Easley's planned operations, and that the NOI would expire on December 31, 2004.

IV. The Summary Judgment Motion

The Tribe filed suit against the USFS for various claims alleging violations of the National Forest Management Act, the National Environmental Policy Act (NEPA), and the ESA. Karuk Tribe of Cal. v. U.S. Forest Serv., 379 F. Supp. 2d 1071 (N.D. Cal. 2005). The district court denied summary judgment on all grounds. The Tribe appeals only the ESA claim.

The district court rejected the Tribe's argument that the USFS's review of an NOI constitutes an "authorization" of mining activity. Id. at 1101. Given that the miners, not the USFS, conduct the mining activities, that the NOI process is more like a review than an authorization, and that the mining laws confer a statutory right on the miners to prospect, subject only to limited agency interference, the district court found that the Tribe failed to meet its burden to show that the NOI process is equivalent to the sort of affirmative agency action required to trigger ESA consulting obligations. Id. The district court subsequently entered its final judgment in favor of the USFS.

JURISDICTION AND STANDARD OF REVIEW

Summary judgment is appropriate when there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Sierra Club v. Bosworth, 510 F.3d 1016, 1022 (9th Cir. 2007).

Although denial of summary judgment is ordinarily not appealable, we have jurisdiction under 28 U.S.C. § 1291, as the district court's order denying summary judgment fully resolved all of the legal issues in the case and resulted in the district court's entry of final judgment in favor of the USFS. See Regula v. Delta Family-Care Disability Survivorship Plan, 266 F.3d 1130, 1138 (9th Cir. 2001), cert. granted and opinion vacated on other grounds, 539 U.S. 901 (2003). We review the district court's denial of summary judgment de novo. Id. at 1136-37. We also review questions of statutory interpretation de novo. Idaho Farm Bureau Fed. v. Babbitt, 58 F.3d 1392, 1399 (9th Cir. 1995).

DISCUSSION

[1] Section 7 of the ESA provides, in pertinent part:

Each Federal agency shall, in consultation with and with the assistance of [U.S. Fish and Wildlife Service (USFWS) or other relevant agency], 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 continued existence of any endangered species or threat ened species or result in the destruction or adverse modification of habitat of such species . . . .

16 U.S.C. § 1536(a)(2). Consultation is designed "to allow [USFWS, in this case,] to determine whether [a] federal action is likely to jeopardize the survival of a protected species or result in the destruction of its critical habitat, and if so, to identify reasonable and prudent alternatives that will avoid the action's unfavorable impacts." Turtle Island Restoration Network v. Nat'l Marine Fisheries Serv., 340 F.3d 969, 974 (9th Cir. 2003) (citing 16 U.S.C. § 1536(b)(3)(A)). When consultation is required, the agency begins by preparing a "bio-logical assessment" or engaging in an "informal consultation." 50 C.F.R. § 402.14(b)(1).*fn8 The agency uses the biological assessment or materials gathered during informal consultation to determine whether its action is "likely to adversely affect" a listed species. Turtle Island, 340 F.3d at 974 n.9 (citing 50 C.F.R. § 402.12(a)). The likelihood of adverse effects, as determined by the biological assessment, dictates whether further consultation with USFWS must occur. Id. (citing 50 C.F.R. § 402.13(a)).

[2] To trigger the consultation duty, there must be a qualifying federal agency action. "Agency action" for ESA purposes is defined by regulations promulgated by the Secretaries of Commerce and the Interior:

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 regulations; (c) the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid; or (d) actions directly or indirectly causing modifications to the land, water, or air.

50 C.F.R. § 402.02 (emphases added).*fn9 Although "agency action" is construed broadly, it does not encompass everything an agency does related to planned private activity. As we explained in Sierra Club v. Babbitt, 65 F.3d 1502, 1510 (9th Cir. 1995), "Congress specifically limited the application of section 7(a)(2) to cases where the federal agency retained some measure of control over the private activity." Congress intended that the "discrete burdens [of the ESA] properly fall on a private entity only to the extent the activity is dependent on federal authorization." Id. at 1512 (emphasis added).*fn10

[3] Here, the activities described in an NOI are neither funded by the USFS nor carried out by the USFS. They are carried out by private parties, such as the individual members of The New 49'ers. The Tribe thus bears the burden of showing that the activities described in an NOI are "authorized" by the USFS.

The Tribe contends that filing an NOI is a legal prerequisite to conducting the mining activities described therein, and that accordingly, the Ranger's decision to allow the suction dredging activities described in the NOI is an agency authorization of the activities. See Turtle Island, 340 F.3d at 977 (finding agency action under ESA where NMFS issued permits pursuant to the High Seas Fishing Compliance Act and had "substantial discretion to condition permits to inure to the benefit of listed species"); see also Mayaguezanos por la Salud y el Ambiente v. United States, 198 F.3d 297, 302 (1st Cir. 1999) (collecting cases in which various circuits have held that there is an agency action for NEPA purposes when the private activity cannot go forward without federal approval and the federal agency has some discretionary authority over the outcome). The Tribe also points to the USFS's response to McCracken's NOI, in which the USFS notified McCracken of its "authorization" of his NOI. In addition, the Tribe relies on evidence showing that the Ranger can monitor suction dredge mining conducted pursuant to an NOI much the same as he monitors activities conducted pursuant to a Plan. This, the Tribe contends, shows that the Ranger has discretionary involvement or control over the mining operations. The Tribe also emphasizes that the Ranger is able to influence proposed activities for the benefit of species even under an NOI by demanding changes to an NOI to ensure there is no significant disturbance of surface resources.

The USFS responds that it has no power to "authorize" mining activities described in an NOI because the miners already possess the right to mine under the mining laws, and that the permits to engage in such mining are granted by other state and federal bodies.*fn11 While the USFS has some power to require miners to seek its approval and submit to reasonable USFS regulation, such power only materializes once the USFS determines that the activity is likely to cause significant disturbance of surface resources. The USFS concedes that ESA consultation is required before it can approve a Plan, but argues that the Ranger's decision not to require a Plan for the proposed activities is essentially a decision not to act and a recognition of its lack of discretionary authority over the proposed activities. The USFS further argues that its decision not to require a Plan leaves it with no remaining discretionary involvement with or control over the mining operations that it could exercise for the benefit of listed species.

[4] Our resolution of these competing positions depends on the proper characterization of what the USFS does with respect to an NOI and the activities described therein. If the Tribe's description was accurate-that the NOI is a decision to authorize the operations described in the NOI-a holding in the Tribe's favor would necessarily follow. However, we conclude that the Tribe does not accurately describe the NOI process. Rather, the NOI process was designed to be "a simple notification procedure" that would 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. . . . Th[e 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 proposed 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 question, "Is submission and approval of a plan of operations required before the operator can commence proposed operations?"

NOI Clarification, 70 Fed. Reg. at 32,728 (emphases added). Following the tenor of our precedents discussed below, including Western Watersheds, 468 F.3d 1099, Sierra Club v. Babbitt, 65 F.3d 1502, California Sportfishing Protection Alliance v. FERC, 472 F.3d 593 (9th Cir. 2006), Marbled Murrelet v. Babbitt, 83 F.3d 1068 (9th Cir. 1996), and Sierra Club v. Penfold, 857 F.2d 1307 (9th Cir. 1988), we hold that the NOI process is not "authorization" of private activities when those activities are already authorized by other law. Rather, it is merely a precautionary agency notification procedure, which is at most a preliminary step prior to agency action being taken. The USFS acts in the sense claimed by the Tribe only in approving a Plan. The Tribe's statement that the "Ranger determines whether mining should be regulated under a[n] NOI or [Plan]," is inaccurate. Mining is not "regulated" under an NOI because an NOI is not a regulatory document. The Ranger's response to an NOI-which is not even required by statute or regulation-is analogous to the NOI itself, a notice of the agency's review decision. It is not a permit, and does not impose regulations on the private conduct as does a Plan.

In Western Watersheds, we explained that "the duty to consult is triggered by affirmative actions." 468 F.3d at 1102. In other words, "authorization" under the ESA and its implementing regulations means affirmative authorization of the activity, in the manner of granting a license or permit, as opposed to merely acquiescing in the private activity. Thus, in that case we held that the Bureau of Land Management's (BLM) "acquiescence" in private parties' diversions of water was not an agency action under the ESA. Id. at 1103, 1108.

In addition and of particular interest here, in Western Watersheds, the BLM asserted authority to regulate diversions of vested rights-of-way (which were protected by nineteenth-century statutes) only after deciding that a given diversion was a "substantial deviation" from the original use. The BLM's failure to regulate diversions of vested rights-of-way that fell below that threshold was merely an agency decision not to exercise discretionary involvement with or control over the activities, and accordingly did not require ESA consultation. This was true even if the BLM could have asserted regulatory authority over the diversions, but simply chose, as a matter of internal agency discretion, not to do so. See id. at 1108 ("[E]ven assuming the BLM could have had some type of discretion here to regulate the diversions (beyond a 'substantial deviation'), the existence of such discretion without more is not an 'action' triggering a consultation duty.").

Just as the BLM's internal decision not to regulate diversions less than "substantial" could not be construed as "authorizing" the diversions permitted under prior law, here, the USFS's internal decision not to require a Plan for a mining operation unlikely to cause significant disturbance of surface resources does not "authorize" the mining already permitted under the mining laws. See also Cal. Sportfishing, 472 F.3d at 595, 598 (holding that "the agency[ ] ha[d] proposed 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"). It is merely an internal decision not to regulate miners' exercise of their pre-existing rights to prospect in national forests. Importantly, the USFS is not compelled to respond to NOIs; rather the USFS need only respond "if approval of a plan of operations is required before the operations may begin." 36 C.F.R. § 228.4(a)(2) (emphasis added). Absent the USFS's request for a Plan, miners may simply proceed with their operations. In other words, to allow mining to take place under an NOI, the USFS does nothing. See W. Watersheds, 468 F.3d at 1108 (" 'inaction' is not 'action' for section 7(a)(2) purposes").*fn12

Sierra Club v. Babbitt is also instructive. In that case, we held that the BLM's issuance of an "approval" letter to a private party concerning the private party's planned construction of a right-of-way was not an agency authorization of private activity triggering the ESA consultation duty. 65 F.3d at 1511. Although the agency might have been acting in some way by issuing the letter, such was not an agency action for section 7 purposes because the private party had a contractual right to develop the right-of-way. Id. In other words, the private action was already authorized in the relevant sense. We explained:

Id. at 1509. We have reiterated this reasoning many times. See Envtl. Prot. Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073, 1080 (9th Cir. 2001); Natural Res. Def. Council v. Houston, 146 F.3d 1118, 1125-26 (9th Cir. 1998); Turtle Island, 340 F.3d at 975.

Here, just as the contract in Sierra Club v. Babbitt gave the private party a right to construct the right-of-way, and the BLM was constrained from imposing conditions for the benefit of species, the relevant regulations provide USFS no authority to "approve" NOI activities related to the exercise of pre-existing mining rights unless the activities are likely to significantly disturb surface resources. Indeed, for those mining activities authorized under the mining laws and not subject to the Plan requirement, the USFS can impose no conditions whatsoever.*fn13

[5] In short, we find Western Watersheds and Sierra Club v. Babbitt particularly applicable because, in both those cases as well as this one, prior law (or contract) endowed the private parties with the "right, not mere privilege," Forests Use Under Mining Laws, 39 Fed. Reg. at 31,317, to engage in the activities at issue. Where the agency is not the authority that empowers or enables the activity, because a pre-existing law or contract grants the right to engage in the activity subject only to regulation, the agency's decision not to regulate (be it based on a discretionary decision not to regulate or a legal bar to regulation) is not an agency action for ESA purposes. This case, like Western Watersheds and Sierra Club v. Babbitt, is thus distinct from Turtle Island Restoration Network, 340 F.3d at 976, in which permission to engage in the activity (fishing in that case) depends upon the federal agency's own discretionary authority to grant permits, which it has the power to condition for the benefit of listed species.

In a slightly modified argument, the Tribe argues that the Ranger's discretionary authority over the NOI/Plan decision enables the USFS to tell miners how to alter their activities in order to avoid significantly disturbing surface resources, and such power to direct activities could be employed for the benefit of species. See Turtle Island, 340 F.3d at 977 (holding that USFWS had discretion over permits because it "could condition permits to benefit listed species"). When the Ranger responds to an NOI by expressing concerns that the NOI is unclear or that a Plan would probably be required, however, we again do not see how the Ranger "authorizes" anything at that stage. Rather, the Ranger is merely providing advice about what additional information is needed for him to evaluate the NOI, and how the proposed miner can alter his operations to avoid filing a Plan.

Marbled Murrelet provides insight on this point. In Marbled Murrelet, we considered whether section 7 consultation was required when USFWS "consulted with [a private timber company] and provided them with information as to what they would have to do to avoid a 'take' of endangered species under the [ESA]." 83 F.3d at 1070. Environmental groups challenged this informal, voluntary consultation between the timber company and USFWS under section 7, claiming that the consultation was an agency action. We rejected the environmental groups' argument. The environmental groups' best evidence of discretionary federal agency action was a joint letter from USFWS and the California Department of Fish and Game describing "specific conditions that must be followed to . . . avoid 'take' of the identified species under the ESA." Id. at 1074. We characterized this as "merely provid[-ing] advice" because "there [was] no evidence that the USFWS had any power to enforce those conditions other than its authority under section 9 of the ESA, and this is not enough to trigger 'federal action' under section 7." Id. We explained, 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 ...


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