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Karuk Tribe of California v. United States Forest Service

ELR Citation: 41 ELR 20140
Nos. No. 05-16801, (9th Cir., 04/07/2011)

The Ninth Circuit held that a U.S. Forest Service decision that a proposed mining operation may proceed based on the miner's notice of intent (NOI) does not constitute an "agency action" for purposes of triggering the ESA's interagency consultation obligations. The case involves the Forest Service's approval of multiple small-scale suction dredge gold mining operations in the Klamath River Basin. A Native American tribe filed suit against the Forest Service alleging violations of the National Forest Management Act, NEPA, and the ESA, but the district court denied summary judgment on all grounds. On appeal, the tribe raised only the ESA claim, challenging the Service's decision to accept the miners' NOIs without consulting with other agencies about the biological effects of the miners' conduct. But the Forest Service's receipt of an NOI and resulting decision not to require a plan of operations is most accurately described as an agency decision not to act. Because prior case law holds that inaction is not action for ESA §7(a)(2) purposes, the lower court properly denied the tribe's motion for summary judgment.