FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KARUK TRIBE OF CALIFORNIA, 

Plaintiff-Appellant,

v. No. 05-16801

UNITED STATES FOREST SERVICE; D.C. No.

MARGARET BOLAND,  CV-04-04275-SBA

Defendants-Appellees,

OPINION

THE NEW 49’ERS, INC.; RAYMOND

W. KOONS,

Defendants-Intervenors-Appellees. 

Appeal from the United States District Court

for the Northern District of California

Saundra B. Armstrong, District Judge, Presiding

Argued and Submitted

July 13, 2010—San Francisco, California

Filed April 7, 2011

Before: William A. Fletcher and Milan D. Smith, Jr.,

Circuit Judges, and James D. Todd, Senior District Judge.*

Opinion by Judge Milan D. Smith, Jr.;

Dissent by Judge William A. Fletcher

*Senior United States District Judge for the Western District of Tennessee, sitting by designation. 

4643
COUNSEL

Roger Flynn (argued) and Jeffrey C. Parsons, Western Mining

Action Project, Lyons, Colorado, for plaintiff-appellant Karuk

Tribe of California.

John C. Cruden (argued), Acting Assistant Attorney General,

Washington, D.C.; Andrew C. Mergen, David C. Shilton, and

Lane N. McFadden, Environmental & Natural Resources

Division, United States Department of Justice, Washington,

D.C.; Andrew R. Varcoe and Rose Miksovsky, Office of the

General Counsel, United States Department of Agriculture,

Washington, D.C., for defendants-appellees United States

Forest Service, et al.

James L. Buchal, Murphy & Buchal LLP, Portland, Oregon,

for defendants-intervenors-appellees The New 49’ers, et al.

OPINION

M. SMITH, Circuit Judge:

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.

4646 KARUK TRIBE v. USFS
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, salmon1

 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.

1The Coho salmon was listed as “threatened” in 1997, 62 Fed. Reg.

24,588 (May 6, 1997), and the River was designated as critical habitat for

the Coho salmon in 1999, 64 Fed. Reg. 24,049 (May 5, 1999). The New

49’ers assert that the district court improperly ignored the fact that the listing was invalid. The New 49’ers base this argument on the transcript of

proceedings taken in California States Grange v. Department of Commerce, No. 02-CV-6044-HO (D. Or. Jan. 11, 2005), in which a district

court declared the Coho salmon listing unlawfully promulgated under the

Administrative Procedure Act (APA), in light of another district court

decision, Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 1154, 1163 (D.

Or. 2001). However, despite its concerns, the district court left the listing

in place because doing so was consistent with the purpose of the ESA.

There is nothing in section 7 requiring that a listing be unassailable in

order for consultation to be required as to a listed species. 

KARUK TRIBE v. USFS 4647
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).2 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.3 Because the standard for ESA con2Because the challenged NOI decisions were made in 2004, we rely

upon the 2004 version of the regulation. 

3The New 49’ers argue that the district court improperly excluded certain extra-record evidence that shows that small-scale suction dredge mining is not harmful to fish. “This circuit has only allowed extra-record

materials: (1) if necessary to determine ‘whether the agency has consid4648 KARUK TRIBE v. USFS
sultation 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

ered all relevant factors and has explained its decision,’ (2) ‘when the

agency has relied on documents not in the record,’ or (3) ‘when supplementing the record is necessary to explain technical terms or complex subject matter.’ ” Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100

F.3d 1443,1450 (9th Cir. 1996) (quoting Inland Empire Pub. Lands Council v. Glickman, 88 F.3d 697, 703-04 (9th Cir. 1996)). It is usually inappropriate for a district court to consider extra-record evidence offered

merely to rebut the merits of an agency’s findings. See Asarco, Inc. v.

EPA, 616 F.2d 1153, 1160 (9th Cir. 1980) (“Consideration of the evidence

to determine the correctness or wisdom of the agency’s decision is not permitted[.] . . . If the court determines that the agency’s course of inquiry

was insufficient or inadequate, it should remand the matter to the agency

for further consideration and not compensate for the agency’s dereliction

by undertaking its own inquiry into the merits.”). Here, not only were the

disputed documents offered merely to rebut the merits of the USFS’s decision concerning the risks to species from suction dredging, the merits of

that decision are not even relevant to the purely legal question at issue

here. Accordingly, the district court did not abuse its discretion in striking

The New 49’ers’ proffered materials. 

KARUK TRIBE v. USFS 4649
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 touchstone “disturbance of surface resources.” 36 C.F.R. § 228.4(a).4

4The current version is slightly different in that it adds that the disturbance must be “significant” in order to require an NOI to be filed. See 36

C.F.R. § 228.4(a) (2010). This difference is immaterial for our purposes.

See Siskiyou, 565 F.3d at 550 n.3 (“The revised regulations retain the basic

requirements of the earlier version, and do not materially affect suctiondredge mining.”). 

4650 KARUK TRIBE v. USFS
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 OperaKARUK TRIBE v. USFS 4651
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.5

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

5Given that the Ranger considers the environmental impact of the proposed mining operation in deciding if significant surface resource disturbance is likely, however, some of the longer NOIs do include details about

certain environmental factors (such as location and season) that the operator plans to account for in order to avoid significantly disturbing surface

resources. 

4652 KARUK TRIBE v. USFS
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.

6

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

6The Dissent concludes in part that the USFS’s “actions” included “formulating criteria” that “governed the approval or denial of NOIs for suction dredge mining.” Dissent at 4693. However, the Tribe does not

contend on appeal that the Ranger’s creation of an informal (albeit

detailed) document constitutes a challenged “action” during which the

USFS should have engaged in ESA consultations. The Dissent’s analysis

therefore violates the well-established tenet that “[w]e review only issues

which are argued specifically and distinctly in a party’s opening brief. . .

We will not manufacture arguments for an appellant, and a bare assertion

does not preserve a claim, particularly when, as here, a host of other issues

are presented for review.” Birdsong v. Apple, Inc., 590 F.3d 955, 959 (9th

Cir. 2009) (internal quotation marks omitted). 

KARUK TRIBE v. USFS 4653
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

4654 KARUK TRIBE v. USFS
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 threatKARUK TRIBE v. USFS 4655
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 “biological assessment” or engaging in an “informal

consultation.” 50 C.F.R. § 402.14(b)(1).7 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 regu7The New 49’ers contend that interagency consultation did occur. However, “[b]ecause these arguments were not raised before the district court,

they are waived.” O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1063

n.3 (9th Cir. 2007). 

4656 KARUK TRIBE v. USFS
lations; (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).8 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).9

8Further, interagency consultation is required only for “actions in which

there is discretionary Federal involvement or control.” 50 C.F.R. § 402.03

(emphasis added): see also Nat’l Ass’n of Home Builders v. Defenders of

Wildlife, 551 U.S. 644, 664-65 (2007). Our case law may not be a model

of clarity when it comes to separating our inquiries into whether an action

is a qualifying “agency action,” 50 C.F.R. § 402.02, as well as one in

which the agency has “discretionary Federal involvement or control,” 50

C.F.R. § 402.03. Often, when an agency is empowered to authorize an

activity, it will have discretion over that decision, making the inquiries

necessarily overlap and showing that the section 7 duty obviously applies.

See, e.g., Turtle Island, 340 F.3d 969. 

In this case, we agree with the Dissent that the USFS exercises “discretion” in deciding whether to request a Plan on a case-by-case basis. See

Dissent at 4675-77, 4695 (citing NOI Clarification, 70 Fed. Reg. at

32,728); see also Siskiyou, 565 F.3d at 551. However, 50 C.F.R. § 402.03

makes clear that the ESA consultation obligation is only triggered if a discretionary “action” is involved. 50 C.F.R. § 402.03 (emphasis added). As

described in greater detail infra, absent an “agency action” as defined by

50 C.F.R. § 402.02, the consultation obligation is not triggered. 

9At oral argument, it was suggested that the USFS’s decision with

respect to an NOI is an “agency action” for purposes of the ESA because

in Siskiyou, 565 F.3d at 554, we concluded that such a decision is a “final

agency action” for purposes of the APA, 5 U.S.C. § 704. However, the

standard for “agency action” under the ESA (articulated supra) is distinct

KARUK TRIBE v. USFS 4657
[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

from the standard under the APA; under the APA, “[t]he core question is

whether the agency has completed its decisionmaking process, and

whether the result of that process is one that will directly affect the parties.” Or. Natural Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 982

(9th Cir. 2006) (internal quotation marks omitted). 

4658 KARUK TRIBE v. USFS
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.10 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 pro10The New 49’ers direct our attention to California Senate Bill No. 670

(Aug. 5, 2009), which amends California Fish and Game Code § 5653.

The new section, Cal. Fish & Game Code § 5653.1, requires an environmental impact report to be prepared prior to issuance of any suction dredging permits. This statutory section was added pursuant to a court order and

consent judgment entered in a state court action brought by the Tribe

against the California Department of Fish and Game. The New 49’ers contend that, because the state statutory amendment effectively prohibits suction dredge mining in California without completion of an environmental

impact report, the Tribe’s concerns about the USFS failing to conduct

environmental consultation about such mining activities are moot. We disagree. “The basic question in determining mootness is whether there is a

present controversy as to which effective relief can be granted.” Nw. Envtl.

Def. Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir. 1988). Although the

particular suction dredge mining operations the Tribe objects to are temporarily suspended under California law pending environmental assessment,

the Tribe and the USFS nonetheless have a live controversy over whether

the NOI process is being conducted in violation of ESA consulting

requirements. Whether or not California issues permits is an entirely distinct legal issue from whether the USFS is obliged to consult with USFWS

about the activity authorized by the state permit, so a final declaration of

the legal status of the NOI review process under the ESA would give the

parties the primary relief they are seeking. Thus, the New 49’ers have not

shown that the case is moot. 

KARUK TRIBE v. USFS 4659
posed 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-andcomment 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,

4660 KARUK TRIBE v. USFS
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 nineteenthcentury 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

KARUK TRIBE v. USFS 4661
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”).11

11The USFS’s use of the word “authorization” in one of its NOI

response letters does not resolve the matter. The USFS is not empowered

to make any authoritative interpretation of whether its decision constitutes

an “authorization” under the regulations implementing the ESA, see Home

Builders, 551 U.S. at 651-52, nor is there any suggestion that the Ranger

4662 KARUK TRIBE v. USFS
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: 

the right-of-way was granted prior to the enactment

of the ESA and there is no further action relevant to

the threatened [species] that the BLM c[ould] take

prior to [the private party’s] exercise of [its] contractual rights. In light of the [ESA’s] plain language,

the agency’s regulations, and the case law construing

the scope of “agency action,” we conclude that

where, as here, the federal agency lacks the discretion to influence the private action, consultation

would be a meaningless exercise; the agency simply

does not possess the ability to implement measures

that inure to the benefit of the protected species.

intended to do so by means of his letter to McCracken. In any event, as

the Tribe recognizes in its reply brief, “the permitting agency’s position

regarding whether its action was an ‘agency action’ under the ESA is a

‘legal question,’ and ‘not a factual question.’ ” (Quoting Nat’l Wildlife

Fed’n v. Brownlee, 402 F. Supp. 2d 1, 11 (D.D.C. 2005)). 

The Dissent also relies on the USFS’s statement to the miners that

“[they] may begin [their] mining operations when [they] obtain all applicable state and federal permits.” Dissent at 4677. But rather than providing

“authorization” or “approval” for the mining activities to begin, the

USFS’s statements simply pointed out the obvious: miners must obtain

relevant permits before they begin mining. 

In short, the record does not support the Dissent’s view that the USFS’s

correspondence with miners affirmatively “approved” the NOIs. 

KARUK TRIBE v. USFS 4663
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.12

[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 preexisting law

or contract grants the right to engage in the activity subject

12While the Ranger may be able to alter the way he applies the standard

“likely to cause significant disturbance of surface resources” to the benefit

of species (resulting in more NOIs requiring a Plan, in connection with

which the Ranger can demand changes in the intended private conduct),

his adoption and carrying out of the standard is not at issue here. Cf. 50

C.F.R. § 402.02 (listing as “agency action” the promulgation of regulations and the carrying out of programs “intended to conserve listed species

or their habitat”). If it were, the holding in this case might be very different. Rather, the Tribe seeks to force interagency consultation for NOIs

that, we must assume, are properly deemed not Plan-worthy under the

governing standard. Cf. Tex. Indep. Producers & Royalty Owners Ass’n v.

EPA, 410 F.3d 964, 979 (7th Cir. 2005) (holding section 7 consultation not

required for ministerial acceptance of NOIs filed to take advantage of a

previously-authorized general permit). 

4664 KARUK TRIBE v. USFS
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

KARUK TRIBE v. USFS 4665
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 7 simply because it advised or

consulted with a private party. Such a rule would be

a disincentive for the agency to give such advice or

consultation. Moreover, private parties who wanted

advice on how to comply with the ESA would be

loath to contact the USFWS for fear of triggering

burdensome bureaucratic procedures.

Id.

Although Marbled Murrelet involved a private party’s voluntary decision to consult (whereas the Ranger in this case

appears to have adopted a blanket, informal policy of using

the NOI process to consult with miners), its facts are analogous and its reasoning is compelling. There is nothing the

USFS can do to enforce the conditions it sets forth in an NOI

response, short of its authority to require a Plan. The NOI process is a “simple notification procedure” that facilitates determination of whether a Plan, and its attendant regulatory

oversight, is required; it is not a regulatory action in and of

itself.13 The communications between the private party and

13We particularly note that the USFS will “notify the operator if

approval of a plan of operations is required” within fifteen days of receiving an NOI. 36 C.F.R. § 228.4(a)(2). In contrast, the Ranger is entitled to

spend 30 days, plus another 60 when necessary, considering the terms of

4666 KARUK TRIBE v. USFS
the agency at the NOI stage occur for the limited purpose of

categorizing the private activity, not for the purpose of obtaining the agency’s affirmative permission to act or setting forth

an enforceable regulatory regime. 

As we explained in Marbled Murrelet, environmental compliance is enhanced by encouraging private party-agency

communications about the environmental impact of the

intended private activities. Importantly, as described supra,

the Organic Act and Mining Law combine to give the USFS

only limited regulatory authority over mining. The USFS has

interpreted its authority to materialize only when mining is

likely to cause significant disturbance of surface resources.

Without the NOI process, then, either the miners would be the

ones making the decision about whether their activities meet

the regulatory threshold, or all mining activities would require

a Plan. We have already disapproved of the latter option in

light of legislative intent. See Siskiyou, 565 F.3d at 557-58.

Specifically, the USFS adopted the NOI process in response

to a suggestion from the House Committee on Interior and

Insular Affairs, Subcommittee on Public Lands, which recommended that the USFS use a notice procedure in order to

avoid the unreasonable restrictions on small-scale mining

rights, and the unnecessary burdens on federal agencies, that

are associated with the costs of preparing and submitting

detailed Plans for operations that do not need them. See Forests Use Under Mining Laws, 39 Fed. Reg. at 31,317; see also

supra at 4660-61. On the other hand, the former option would

result in too little deserved regulation. Here, giving the USFS

the final say over whether an activity is likely to significantly

disturb surface resources results in greater environmental proa proposed Plan. 36 C.F.R. § 228.5(a). Preparation of a biological assessment and consultation would take considerably longer than the short time

the Ranger has to review and acknowledge an NOI, strongly evidencing

that the NOI process, unlike the process for submission and approval of

a Plan, is merely ministerial. 

KARUK TRIBE v. USFS 4667
tection than would result from leaving that decision up to the

miners themselves, who have little incentive to voluntarily

subject themselves to perhaps costly regulation. See Marbled

Murrelet, 83 F.3d at 1074. 

[6] In sum, the NOI process was not intended necessarily

to trigger more environmental compliance; it was designed to

make environmental compliance better and more efficient. It

would undermine the goals of the entire scheme to require

consultation for an NOI, the procedural device designed to

avoid burdensome compliance obligations and focus the

USFS’s energies on those activities that are likely to cause

significant disturbance. The NOI process is a careful balancing act, designed to facilitate resolution of the question of

whether a Plan should be filed. Given such considerations, we

conclude that the NOI process is analogous to the adviceseeking process at issue in Marbled Murrelet for which section 7 consultation is not required. 

An almost identical regulatory scheme was at issue in

Sierra Club v. Penfold, 857 F.2d 1307. Under 43 C.F.R.

§ 3809 (1986), the BLM uses a three-tiered approach to regulating placer mining on federal lands within its jurisdiction.

First are “casual” use mines, for which no notice or approval

is required. Id. at 1309. The BLM nonetheless monitors casual

uses to ensure no “undue degradation” of the lands occurs. Id.

Second are “notice” mines, for which no BLM approval is

required but for which the miner must submit basic information to the BLM about the proposed operations at least fifteen

days prior to commencing them. Id. The notice must include

a statement that “reclamation of disturbed areas will be completed and that reasonable measures will be taken to prevent

unnecessary or undue degradation of the lands during operations.” Id. BLM monitors “notice” mining operations for compliance, as well. Id. at 1310. Third are “plan” mines, which

must be approved by the BLM and subjected to environmental assessment before the operation may proceed. Id. at 1309.

4668 KARUK TRIBE v. USFS
It is clear that the BLM’s approach to “casual,” “notice,”

and “plan” mining operations follows the same structure as

the USFS’s approach to mining activities that “are not likely

to,” “might,” and “are likely to” cause significant surface

resource disturbance, see 36 C.F.R. § 228.4. This similarity

was intentional. 45 Fed. Reg. 78,906 (Nov. 26, 1980)

(explaining that the regulations were designed “to be as consistent as possible with the Forest USFS regulations”).

In Penfold, we determined that the “BLM’s approval of

Notice mines without an [environmental assessment] does not

constitute major federal action within the scope of NEPA.”

857 F.2d at 1314 (emphasis added). Penfold can be read to

say that the BLM’s review of a notice is a “marginal” agency

action, just not a “major” one. See id. at 1313-14. But, just as

actions must be “major” to trigger NEPA obligations, actions

carried out entirely by private parties must involve “affirmative” federal agency authorization to trigger section 7. The

mere fact that the agency is involved in some way is not

enough. Thus, even assuming the Tribe is correct that the

threshold for triggering environmental compliance under the

ESA is lower than for NEPA,14 we nonetheless find our previ14We have previously explained that “[t]he standards for ‘major federal

action’ under NEPA and ‘agency action’ under the ESA are much the

same[,]” although the ESA standard is arguably more liberal because it

does not contain the “major” requirement. Marbled Murrelet, 83 F.3d at

1075. We note, however, that agency action under the ESA is specifically

defined as those actions “authorized, funded, or carried out” by a federal

agency. 50 C.F.R. § 402.02. Under NEPA, agency action is defined as an

activity “entirely or partly financed, assisted, conducted, regulated, or

approved by federal agencies.” 40 C.F.R. § 1508.18(a). Thus, although the

ESA may be more liberal in the sense of the size of the federal undertaking that triggers the statute, NEPA may be broader in a different sense

because it covers a broader array of activities than the ESA. The distinctions may thus cut both ways, further convincing us that while the NEPA

and ESA analysis is certainly not interchangeable, in determining whether

the federal activity is a qualifying “agency action,” our analysis in Penfold

of the BLM’s equivalent of the NOI process under NEPA is highly persuasive as to the ESA question. 

KARUK TRIBE v. USFS 4669
ous determination that a similar notice scheme was not the

sort of agency action that requires environmental compliance

to be additional persuasive authority in support of our holding.15

In sum, our conclusion is amply supported by the reasoning

and holdings of our prior case law. Importantly, our conclusion is consistent with common sense as well. The operative

words in the ESA and implementing regulations are “action”

and “authorize,” which inherently require affirmative conduct: “action” is “[t]he process of doing something; conduct

or behavior,” and to “authorize” is “[t]o give legal authority[,]

to empower[,]. . . [t]o formally approve[, or] to sanction.”

Black’s Law Dictionary 32, 153 (9th ed. 2009). Our conclusion is also eminently logical. Nothing in the ESA or the relevant rule-making history suggests that the ESA imposes a

duty on federal agencies to affirmatively engage in regulatory

actions to protect the environment. As the Supreme Court

noted in National Association of Home Builders, the ESA

requires agencies to “insure”—that is, “ ‘to make certain, to

secure, to guarantee’ ”—that “listed species or their habitats”

are not “jeopardize[d].” 551 U.S. at 666-67 (alterations omitted) (quoting Defenders of Wildlife v. EPA, 420 F.3d 946, 963

(9th Cir. 2005)). If agencies were forced to conform their

inaction to the ESA’s requirements, then the ESA would

operate as a blanket mandate requiring federal agencies to

take affirmative steps to guarantee that listed species are not

harmed. That is, of course, not the law.

15We are additionally persuaded by analogy to Penfold that the NOI

process is hardly an agency “action” (let alone an “authorization” of the

mining activities) because the notice review process in Penfold was significantly more substantive than the review the USFS does here. If the

detailed regulatory review of a notice in Penfold was merely a “marginal”

agency action, the much less rigorous and involved review of an NOI by

the USFS under 36 C.F.R. § 228.4 is not the sort of affirmative authorization we require for ESA consultation. 

4670 KARUK TRIBE v. USFS
CONCLUSION

[7] The mining laws provide miners like The New 49’ers

with the “right, not the mere privilege” to prospect for gold

in the Klamath River and its tributaries. We therefore find it

is most accurate to say that the mining laws, not the USFS,

authorize the mining activities at issue here. The USFS has

adopted a simple review process to sort between those mining

activities it will regulate in order to conserve forest resources,

and those activities it will not regulate because such regulation would be unnecessary and unduly interfere with mining

rights. The USFS’s limited and internal review of an NOI for

the purpose of confirming that the miner does not need to submit a Plan for approval (because the activities are unlikely to

cause any significant disturbance of the forest or river) is an

agency decision not to regulate legal private conduct. In other

words, the USFS’s decision at issue results in agency inaction, not agency action. 

The decision of the district court is 

AFFIRMED.

W. FLETCHER, Circuit Judge, dissenting:

I respectfully but emphatically dissent.

The issue in this case is whether the Endangered Species

Act (“ESA”) requires the U.S. Forest Service to consult with

appropriate agencies of the federal government before

approving a Notice of Intent (“NOI”) to conduct suction

dredge mining in the Klamath National Forest. Section 7(a)(2)

of the ESA requires that a federal agency consult with one or

both of the Fish and Wildlife Service and the National Marine

Fisheries Service to ensure that any “agency action” is “not

likely to jeopardize the continued existence” of any endanKARUK TRIBE v. USFS 4671
gered or threatened species or “to result in the destruction or

adverse modification of habitat of such species.” 16 U.S.C.

§ 1536(a)(2). Consultation is required under Section 7(a)(2)

whenever agency action “may affect listed species or critical

habitat.” 50 C.F.R. § 402.14(a).

An NOI is required when suction dredge mining “might

cause significant disturbance of surface resources.” 36 C.F.R.

§ 228.4(a). Mining is not allowed unless the NOI is approved

by the Forest Service. “Surface resources” include underwater

fisheries habitat. Id. at § 228.8(e). The Klamath River system

is “critical habitat” for coho salmon, a listed species.

There are two questions before us. 

The first is whether Forest Service approval of NOIs to

conduct suction dredge mining in the Klamath National Forest

is “agency action” within the meaning of Section 7(a)(2).

Under our established case law, there is “agency action”

whenever an agency makes a discretionary decision about

whether, or under what conditions, to allow private activity to

proceed. The record in this case shows that District Rangers

in the Klamath National Forest made discretionary decisions

about whether, and under what conditions, to allow suction

dredge mining to proceed under NOIs.

The second is whether suction dredge mining under NOIs

(which, by definition, is mining that “might cause significant

disturbance” to fisheries habitat) “may affect” critical habitat

of the listed coho salmon. The record in this case shows such

mining satisfies the “may affect” standard.

I would therefore hold that the Forest Service must consult

with the Fish and Wildlife Service and the National Marine

Fisheries Service1 before allowing suction dredge mining to

proceed under NOIs in the Klamath National Forest.

1The parties appear to assume that if consultation is required under Section 7(a)(2), it is required with both agencies. Without deciding the question, I will also so assume. 

4672 KARUK TRIBE v. USFS
I. Background

The Karuk Tribe has inhabited what is now northern California since time immemorial. The Klamath River originates

in southeastern Oregon, runs through northern California, and

empties into the Pacific Ocean about forty miles south of the

California-Oregon border. As it runs through northern California, the Klamath River passes though the Klamath National

Forest. The Klamath River system is home to several species

of fish, including coho salmon. Coho salmon in the Klamath

River system were listed as “threatened” under the ESA in

1997. 62 Fed. Reg. 24588 (May 6, 1997). The Klamath River

system was designated a “critical habitat” for coho salmon in

1999. 64 Fed. Reg. 24049 (May 5, 1999).

The rivers and streams of the Klamath River system contain gold. Commercial gold mining in and around the rivers

and streams of California was halted long ago due to the

extreme harm to the environment caused by large-scale placer

mining. See generally Charles N. Alpers et al., Mercury Contamination from Historical Gold Mining in California, U.S.

GEOLOGICAL SURVEY FACT SHEET 2005-3014 (Oct. 2005);

GREEN VERSUS GOLD: SOURCES IN CALIFORNIA’S ENVIRONMENTAL

HISTORY (Carolyn Merchant ed., 1998); Scott Fields, Tarnishing the Earth, ENVIRONMENTAL HEALTH PERSPECTIVES 109:10

(Oct. 2001). However, small-scale recreational mining has

continued. Some recreational miners “pan” for gold by hand,

examining one pan of sand and gravel at a time. Others use

mechanical suction dredging devices.

Suction dredge miners use gasoline-powered engines and

hoses to suck rock, gravel and sand from streambeds. The

material sucked from the streambed is discharged into a sluice

box. As the material flows through the box, a small amount

of the heavier material, including gold, is slowed by “riffles”

and is then captured in the bottom of the box. The remaining

material runs through the box and is deposited in a tailings

pile in or beside the stream. The suction dredges at issue typiKARUK TRIBE v. USFS 4673
cally have intake hoses four or five inches in diameter. Dredging depths are usually about five feet, but can be as great as

twelve feet.

The majority attempts to minimize the impact of suction

dredge mining, stating it is “best described” as moving “a few

cubic inches at a time” and “affect[ing] about one quarter of

a cubic yard of the river.” Maj. Op. at 4648, 4653. A typical

suction dredge picks up from the bottom of the stream and

deposits in a tailings pile about one-quarter of a cubic yard of

material per day. A cubic yard contains 11,664 cubic inches.

Many square yards of stream bottom are scoured in order to

obtain one-quarter of a cubic yard of movable material per

day, but the record does not tell us how many.

The Karuk Tribe contends that suction dredge mining

adversely affects fish, including coho salmon, in the Klamath

River system. The Tribe brought suit in federal district court

in 2004 seeking to limit suction dredge mining in the Klamath

National Forest under the National Forest Management Act

(“NFMA”), the National Environmental Policy Act

(“NEPA”), and the ESA. The Tribe alleged that the Forest

Service defendants violated these statutes when they allowed

suction dredge mining under Notices of Intent (“NOIs”) and

Plans of Operation (“PoOs”). The district court granted judgment in 2005, but briefing on appeal was stayed by agreement

of the parties until we decided a case involving suction dredge

mining in the Siskyou National Forest in Oregon. Siskiyou

Regional Educ. Project v. U.S. Forest Service, 565 F.3d 545

(9th Cir. 2009). 

The Tribe prevailed in the district court in this case in its

challenge to the Forest Service’s approval of large-scale suction dredge mining under PoOs. By stipulation filed in the

district court in April 2005, the Forest Service defendants

agreed that “each of the challenged PoOs were approved

without compliance with the ESA, NEPA, and their implementing regulations.” That is, the Forest Service agreed that

4674 KARUK TRIBE v. USFS
it had to prepare appropriate documents under NEPA and to

consult with the appropriate federal agencies under the ESA

before approving any PoO.

However, the district court agreed with the Forest Service

that compliance with NEPA and the ESA was not required for

suction dredge mining allowed under approved NOIs. On

appeal, the Tribe does not contend that the Forest Service

must comply with NEPA before approving an NOI. But it

does contend that the Forest Service must consult with appropriate federal agencies under Section 7(a)(2) of the ESA

before approving an NOI. For the reasons that follow, I

strongly agree with the Tribe.

II. Regulation of Suction Dredge Mining

An approved NOI is required for any suction dredge mining that “might cause significant disturbance of surface

resources.” 36 C.F.R. § 228.4(a) (emphasis added). An

approved PoO is required for suction dredge mining that “will

likely cause significant disturbance of surface resources.” Id.

§ 228.4(a)(3) (emphasis added). That is, an approved NOI is

required for all suction dredge mining for which the likelihood of a “significant disturbance of surface resources” falls

between “might cause” and “will likely cause.” 

The Department of Agriculture defines “surface resources”

as including underwater “fisheries . . . habitat.” Id. § 228.8(e).

See 70 Fed. Reg. at 32718 (“Section 228.8 characterizes fisheries habitat as a ‘National Forest surface resource[.]’ . . .

Fisheries habitat, of course, can consist of nothing other than

water, streambeds, or other submerged lands.”).

The Department recognizes that the effects of suction

dredge mining vary substantially from one site to another. It

wrote in a 2005 commentary:

The environmental impacts of operating suction

dredges, even small ones, are highly site-specific

KARUK TRIBE v. USFS 4675
depending on the circumstances and resource conditions . . . . Given this variability, the Department

believes that, insofar as suction dredge operations

are concerned, the need for the prior submission of

a notice of intent to operate or for the prior submission and approval of a proposed plan of operations

must be evaluated on a site-specific basis. 

70 Fed. Reg. at 32720.

The Department has made clear, in a response to a comment directed to 36 C.F.R. § 228.4(a), that an NOI for suction

dredge mining is not a “regulatory instrument,” but rather

“simply . . . a notice given to the Forest Service by an operator which describes the operator’s plan to conduct operations

on NFS lands.” Id. at 32728; 36 C.F.R. § 228.4(a)(2) (“The

District Ranger will, within 15 days of a notice of intent to

operate, notify the operator if approval of a plan of operations

is required before the operations may begin.”). However, in

that same response, the Department also made clear that

requirements for NOIs vary substantially depending on the

site:

[T]here can be no definitive answer to the question

of what level of activity requires the submission of

a notice of intent to conduct operations. As previously mentioned . . . , given the variability of the

lands within the NFS subject to the United States

mining laws, identical operations could have vastly

different effects depending upon the conditions of

the lands and other surface resources which would

be affected by those mining operations. . . . [I]n

many cases the need for the submission of a notice

of intent to operate must be determined based upon

a case-by-case evaluation of the proposed operations and the kinds of lands and other surface

resources involved.

4676 KARUK TRIBE v. USFS
70 Fed. Reg. at 32728 (emphasis added). 

The majority writes that the Forest Service decision to

allow mining to proceed under an NOI is “most accurately

described as a decision not to act.” This is a critical point, and

the majority is wrong. The Forest Service makes an actual

decision whether to allow suction dredging to proceed pursuant to an NOI. As I will describe in detail below, there are

seven NOIs in the record in this case. One was withdrawn. Of

the remaining six, the Forest Service acted affirmatively to

approve four and to deny two. There is no non-withdrawn

NOI in the record that the Forest Service did not act affirmatively to approve or deny. The miners whose NOIs were

approved each received a letter from the Forest Service District Ranger stating that “You may begin your mining operations when you obtain all applicable state and federal permits”

(emphasis added). No miner was allowed to engage in suction

dredge mining under an NOI unless that NOI had been explicitly approved by the Forest Service.

III. Notices of Intent

The term “Notice of Intent” is not specific to mining laws.

It is a generic term used in a number of different statutory

regimes. The discretion available to an agency in approving

or denying an NOI varies depending on the statute and the

implementing regulations under which the NOI is submitted.

We described one such regime in Environmental Defense

Center, Inc. v. Environmental Protection Agency, 344 F.3d

832, 853-54 (9th Cir. 2003). We explained in our opinion that

the EPA regulated stormwater discharges under the Clean

Water Act. Some types of discharges were governed by a

“general permit” that allowed applicants to submit short NOIs

certifying that they would comply with the terms of the general permit. Id.; see also Texas Indep. Prod. & Royalty Owners Ass’n v. EPA, 410 F.3d 968, 979 (7th Cir. 2005). The EPA

provided applicants with a simple form NOI for that purpose.2

2The current general permit and form NOI are available at

http://www.epa.gov/npdes/pubs/cgp2008_finalpermit.pdf. The NOI form

and instructions are found at Appendix E. 

KARUK TRIBE v. USFS 4677
Envtl. Def. Ctr., 344 F.3d at 853. We wrote that “because

th[is] NOI represents no more than a formal acceptance of

terms elaborated elsewhere,” the operator could begin discharges after submitting an NOI without waiting for a

response from the EPA. Id.

But not all NOIs for stormwater discharges are ministerial

and non-discretionary. Plaintiffs in Environmental Defense

Center challenged a different sort of NOI from the one just

described. The challenged NOI allowed discharges from small

municipal storm systems. Each operator of these small systems was required to submit an NOI that included an “individualized pollution control program” addressing six criteria.

Because the information required in this NOI was quite

detailed, we held that this NOI was functionally identical to

a permit application. Id. This NOI “crosse[d] the threshold

from being an item of procedural correspondence to being a

substantive component of a regulatory regime.” Id. at 855.

As is evident from Environmental Defense Center, the

mere label “Notice of Intent” does not allow us to determine

how much agency discretion is involved in allowing an operator to proceed under an NOI. To make that determination, we

must examine the actual practice of the agency with respect

to the particular NOI at issue.

IV. Consultation under the Endangered Species Act

Section 7(a)(2) of the ESA requires consultation prior to

any “agency action” that “may affect” a listed species or its

habitat:

Each Federal agency shall, in consultation with and

with the assistance of the Secretary, 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 threat4678 KARUK TRIBE v. USFS
ened species or result in the destruction or adverse

modification of habitat of such species which is

determined by the Secretary, after consultation as

appropriate with affected States, to be critical[.]

16 U.S.C. § 1536(a)(2) (emphasis added).

Regulations implementing Section 7 provide:

Each Federal agency shall review its actions at the

earliest possible time to determine whether any

action may affect listed species or critical habitat. If

such a determination is made, formal consultation is

required[.]

50 C.F.R. § 402.14(a) (emphasis added). 

I discuss the “agency action” and “may affect” requirements in turn.

A. “Agency Action”

Congress intended the term “agency action” to have a

broad definition. “[T]here is little doubt that Congress

intended to enact a broad definition of agency action in the

ESA[.] . . . Following the Supreme Court’s lead in [Tennessee

Valley Authority v. Hill, 437 U.S. 153 (1978)], we have also

construed ‘agency action’ broadly.” Pacific Rivers Council v.

Thomas, 30 F.3d 1050, 1054, 1055 (9th Cir. 1994) (statutory

citations omitted); see also Western Watersheds Project v.

Matejko, 468 F.3d 1099, 1108 (9th Cir. 2006) (“[T]he term

‘agency action’ is to be construed broadly[.]”); Natural Res.

Def. Council v. Houston, 146 F.3d 1118, 1125 (9th Cir. 1998).

The regulations defining “agency action” make clear the

breadth of the term: 

Action means all activities or programs of any kind

authorized, funded, or carried out, in whole or in

KARUK TRIBE v. USFS 4679
part, by Federal agencies in the United States or on

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). “Section 7 and the

requirements of this part apply to all actions in which there is

discretionary Federal involvement or control.” Id. at § 402.03

(emphasis added). The question before us is whether Forest

Service approval of the NOIs at issue was an “action[ ] in

which there is discretionary Federal involvement or control,”

such that the Forest Service’s approval was “agency action”

within the meaning of Section 7.

This circuit has a well-established body of law on discretion and agency action under Section 7 of the ESA. In Turtle

Island v. National Marine Fisheries Service, 340 F.3d 969

(9th Cir. 2003), we held that Section 7 required the Fisheries

Service to consult within its own agency when issuing fishing

permits under the High Seas Fishing Compliance Act (“the

Compliance Act”). Because the Fisheries Service had discretion whether to issue the permits, the issuance of the permits

was agency action. The Service was therefore required to consult under Section 7. We wrote, “Whether the Fisheries Service must condition permits to benefit listed species is not the

question before this court, rather, the question before us is

whether the statutory language of the Compliance Act confers

4680 KARUK TRIBE v. USFS
sufficient discretion to the Fisheries Service so that the

agency could condition permits to benefit listed species. We

hold that the statute confers such discretion.” Id. at 977

(emphasis in original).

In National Wildlife Federation v. National Marine Fisheries Service, 524 F.3d 917 (9th Cir. 2008), we reviewed a

biological opinion prepared as part of the consultation process

under Section 7. We wrote, “When an agency, acting in furtherance of a broad Congressional mandate, chooses a course

of action which is not specifically mandated by Congress and

which is not specifically necessitated by the broad mandate,

that action is, by definition, discretionary and is thus subject

to Section 7 consultation.” Id. at 929. In Washington Toxics

Coalition v. Environmental Protection Agency, 413 F.3d 1024

(9th Cir. 2005), we held that the EPA had to consult with the

National Marine Fisheries Service under Section 7 before

approving pesticides under the Federal Insecticide, Fungicide,

and Rodenticide Act (“FIFRA”). We wrote, “EPA retains discretion to alter the registration of pesticides for reasons that

include environmental concerns. Therefore, EPA’s regulatory

discretion is not limited by FIFRA in any way that would bar

an injunction to enforce the ESA.” Id. at 1033 (statutory citation omitted). 

In Natural Resources Defense Council v. Houston, 146

F.3d 1118 (9th Cir. 1998), we held that the Bureau of Reclamation had to consult with the National Marine Fisheries Service under Section 7 before renewing contracts with farmers

for water from the federal Central Valley Project because

“there was some discretion available to the Bureau during the

negotiation process” leading up to the renewals. Id. at 1126.

Finally, in Pacific Rivers Council v. Thomas, 30 F.3d 1050

(9th Cir. 1994), we held that the Forest Service was required

to consult under Section 7 before allowing projects under the

Land and Resource Management Plans for particular national

forests.

KARUK TRIBE v. USFS 4681
If an agency performs an act that does not involve the exercise of discretion, that act is not “agency action” within the

meaning of Section 7. For example, in National Association

of Home Builders v. Defenders of Wildlife, 551 U.S. 644

(2007), the Supreme Court held that the EPA was required

only to find that nine statutory criteria specified in the Clean

Water Act (“CWA”) had been satisfied before transferring

regulatory authority to a state. Under the CWA, the EPA had

no discretion, once these criteria were satisfied, to take any

action that would benefit or protect any listed species under

the ESA. The Court wrote, “[T]he ESA’s requirements would

come into play only when an action results from the exercise

of agency discretion. This interpretation [of the CWA and the

ESA] harmonizes the statutes by giving effect to the ESA’s

no-jeopardy mandate whenever an agency has discretion to do

so, but not when the agency is forbidden from considering

such extrastatutory factors.” Id. at 665.

If an agency only has discretion that is unrelated to protecting a listed species, an act by that agency is not “agency

action” within the meaning of Section 7. For example, in

Sierra Club v. Babbitt, 65 F.3d 1502 (9th Cir. 1995), the

Bureau of Land Management (“BLM”) had entered into an

agreement granting a logging company the right to build new

logging roads on BLM land subject to BLM approval under

specified criteria. None of the criteria was relevant to the protection of protected species under the ESA. Therefore, there

was no “agency action” under Section 7: “[W]e conclude that

where, as here, the federal agency lacks the discretion to

influence the private action, consultation would be a meaningless exercise; the agency simply does not possess the ability

to implement measures that inure to the benefit of the protected species.” Id. at 1509; see also Envtl. Prot. Info. Ctr. v.

Simpson Timber Co., 255 F.3d 1073, 1081 (9th Cir. 2001)

(“[N]owhere in the various permit documents did the FWS

retain discretionary control to make new requirements to protect species that subsequently might be listed as endangered

or threatened.”).

4682 KARUK TRIBE v. USFS
Sometimes an earlier act dictates later agency actions such

that a later act involves no discretion and therefore does not

require consultation. For example, in Western Watersheds

Projects v. Matejko, 468 F.3d 1099 (9th Cir. 2006), private

parties had been granted vested rights to divert water for irrigation long before the passage of the ESA. The Bureau of

Land Management (“BLM”) announced that it would not

interfere with those previously vested rights. We held that so

long as the private parties limited their activities to those consistent with their vested rights they did not have to notify the

BLM of their activities, and the BLM did not have the ability

to regulate their activities. Under these circumstances, we

concluded that the BLM had not undertaken any discretionary

“agency action” that would have required it to consult under

Section 7. Id. at 1107-08.

An out-of-circuit example is Texas Independent Producers

and Royalty Owners Ass’n v. EPA, 410 F.3d 964 (7th Cir.

2005), in which the EPA consulted under the ESA before

exercising its discretion to grant a “general permit” authorizing private operators to discharge stormwater under the Clean

Water Act. Id. at 979. The operators then filed individual

NOIs to discharge in accordance with the conditions of the

general permit. Id. at 968. The Seventh Circuit held that the

EPA did not have to consult on the individual NOIs because

it had already consulted under the ESA before granting the

general permit. The terms of the general permit dictated the

manner in which stormwater would be discharged, thereby

eliminating any discretion by the EPA in approving or denying an individual NOI.

B. “May Affect”

An agency is required to consult when its action “may

affect” listed species or designated critical habitat. 50 C.F.R.

§ 402.14(a). An agency can avoid the obligation to consult

only if it determines that its action will have “no effect” on

listed species or designated critical habitat. Thomas, 30 F.3d

KARUK TRIBE v. USFS 4683
at 1054 n.8. Once an agency has determined that its action

“may affect” listed species or critical habitat, the agency may

proceed with formal consultation or may choose instead to

consult informally with the appropriate agency. If the consulting agency determines during informal consultation that the

proposed action is “not likely to adversely affect any listed

species or critical habitat,” formal consultation is not required

and the process ends. 50 C.F.R. § 402.14(b)(1). Thus, actions

that have any chance of affecting listed species or critical habitat — even if it is later determined that the actions are “not

likely” to do so — require an agency at least to consult informally.

We have previously explained that “may affect” is a “relatively low . . . threshold” for triggering consultation. California ex rel. Lockyer v. U.S. Dep’t of Agric., 575 F.3d 999, 1018

(9th Cir. 2009). “ ‘Any possible effect, whether beneficial,

benign, adverse or of an undetermined character, triggers the

formal consultation[.]’ ” Id. at 1019 (quoting 51 Fed. Reg.

19926, 19949 (June 3, 1986)) (emphasis in Lockyer). The

Secretaries of Interior and Commerce have explained that “the

threshold for formal consultation must be set sufficiently low

to allow Federal agencies to satisfy their duty to ‘insure’ ”

that their actions do not jeopardize listed species or critical

habitat under section 7(a)(2). 51 Fed. Reg. at 19949. 

In response to concerns that the “may affect” standard is

too burdensome, the Secretaries explained that the availability

of informal consultations mitigates any burden on the affected

agencies. Id. at 19950. The Secretaries therefore rejected the

suggestion that the consultation requirement should be triggered on a higher showing than the low “may affect” threshold. Id. at 19949.

V. Discussion

A. Challenged Notices of Intent

Four NOIs are challenged in this appeal. All four are for

suction dredge mining in the Happy Camp District of the

4684 KARUK TRIBE v. USFS
Klamath National Forest. As noted above, an approved NOI

is required for all suction dredge mining for which the likelihood of a “significant disturbance of surface resources” falls

between “might cause” and “will likely cause.” 36 C.F.R.

§ 228.4(a). “Surface resources” includes “fisheries habitat.”

Id. § 228.8(e). The Klamath River system is critical habitat

for the listed coho salmon. 

Before the 2004 dredging season, the Forest Service had

issued a two-page generic handout requiring information from

operators who sought to engage in suction dredge mining pursuant to an NOI:

Describe what you plan to do. Include when and how

you will be operating, the proposed start-up date, and

the expected duration of the activities. List other

details such as the number of people involved in the

operation, equipment you intend to use (sizes, capacity, frequency of use), depth of proposed suction

dredging or excavation, how waste material will be

handled, what vegetation will be removed, the size

of area to be disturbed, quantity of material to be

removed, housing or camping facilities to be used,

and the method for sewage and waste disposal. 

In preparation for the 2004 season, Happy Camp District

Ranger Alan Vandiver decided that he needed more information than required by the handout. He was particularly concerned with the effect of suction dredge mining on the critical

habitat of listed coho salmon. Vandiver consulted with biologists Bill Bemis and Jon Grunbaum, who are employees of

the Forest Service, not the Fish and Wildlife Service or the

National Marine Fisheries Service. 

Vandiver wrote the following memorandum on May 24,

2004:

On April 20th a meeting was held in Orleans to

discuss possible fisheries issues relating to dredging.

KARUK TRIBE v. USFS 4685
A number of opinions were shared on the possible

effects. . . .

Following the Orleans meeting I asked our District Fisheries biologists, Bill Bemis and Jon Grunbaum, to develop recommendations, for my

consideration, for the upcoming dredging season.

They were not able to come to agreement on a list

of fisheries recommendations. Their opinions varied

widely on the effect of dredge operations on fisheries. I identified three key fisheries issues specific

to the Happy Camp District[:] cold water refugia

areas in the Klamath River, the intensity of dredge

activities and the stability of spawning gravels in

some portions of Elk Creek. These issues I used to

help develop a threshold for determining a significant level of surface disturbance. I felt it was important from a cumulative effects standpoint to

determine a threshold of dredge density on the

streams, as well as identify the critical cold water

refugia areas. . . .

. . . I discussed at length with Bill [Bemis] and Jon

[Grunbaum] the effect on fisheries if the dredge

activity was concentrated or dispersed over the

length of the river. Concentrated use would result in

longer river stretches without dredge activity and

therefore less possible impacts to fisheries in the longer stretches. Distributed use would result in dispersed possible effects over the entire length of the

river. . . . Considering the limited dredge operations

in cold water refugia areas and the limited dredge

access, I developed a threshold of 10 dredges per

mile on the Klamath River and 3 dredges per mile on

the Klamath tributaries. My thinking was the larger

Klamath River, excluding the cold water refugia,

could accommodate more dredge density with less

impact than the smaller tributaries. . . .

4686 KARUK TRIBE v. USFS
On May 17, 2004 I met with members of the New

49’ers, the Karuk Tribe and our District fisheries

biologists to discuss the upcoming dredge season.

We discussed the key issues with respect to fisheries

including cold water refugia areas in the Klamath

River, the intensity of dredge activities and the stability of spawning gravels in the portion of Elk

Creek from the East Fork of Elk Creek to Cougar

Creek. See notes for May 17th for more detail.

The first of the NOIs challenged in this appeal was submitted by a recreational mining group called the “New 49’ers.”

The New 49’ers own numerous mining claims in the Happy

Camp District. On May 17, 2004, District Ranger Vandiver

met with two representatives of the New 49’ers. Based on his

earlier consultation with Bemis and Grunbaum, Vandiver

instructed the New 49’ers on “three primary issues.”

First, Vandiver instructed the New 49’ers that cold water

refugias must be maintained within 500 feet of the mouths of

twenty-two named creeks that fed into the Klamath River.

Second, he instructed them that tailings piles must be raked

back into the “dredge holes in critical spawning areas” of Elk

Creek “in a timely manner as operations proceed, but no later

than the end of the season.” Third, he instructed them that

there could be no more than ten dredges per mile on the

Klamath River, and no more than three dredges per miles on

Klamath tributaries.

On May 24, 2004, a week after their meeting with Vandiver, the New 49’ers submitted a detailed eight-page singlespaced NOI for suction dredge mining in the Happy Camp

District during the 2004 season. The NOI proposed mining on

approximately 35 miles of the Klamath River and its tributaries. The NOI estimated that each dredge would move an

average of one quarter of a cubic yard of material per day. In

accordance with Vandiver’s instructions, the NOI specified

that no dredging would occur in specified cold water refugia

KARUK TRIBE v. USFS 4687
in the summer and early fall, that dredging holes would be

filled in coho salmon spawning grounds on Elk Creek, and

that dredge density would not exceed ten dredges per mile on

the Klamath River and three dredges per mile on its tributaries. 

On May 25, Vandiver sent the New 49’ers a letter approving their NOI. On May 26, Bemis sent a “Note to the File”

stating:

The Notice of Intent (NOI) for the new 49’ers this

year has an intensity of approximately 40 dredges

over the 35 miles of the Klamath covered by their

claims. They have agreed to a density of no more

than 10 dredges in any one-mile at anytime. The new

49’ers have agreed to avoid the area around tributaries to the Klamath Rivers. The club has agreed to

pull back dredging tailings in a critical reach within

Elk Creek. These agreements and others explained in

the NOI should reduce the impacts to anadromous

fisheries on the Happy Camp Ranger District.

The second NOI was submitted by Nida Johnson, an individual miner who planned to mine thirteen claims. She submitted the NOI on May 29, 2004, noting that it was the “result

of a meeting at the Happy Camp U.S.F.S. May 25, 2004.” She

explained that she was processing ore with dredges with four

and five inch intake pipes. She wrote that “[d]redge tailings

piles in Independence Cr[eek] will be leveled.” In an attachment, she wrote: 

As recommended by the Forest Service, no dredging

will be conducted on the Klamath River within 500

feet above and below the mouth of Independence

Creek between June 15th and October 15th. I totally

disagree with these distances and believe that dredging is actually beneficial to fish survival, but I am

4688 KARUK TRIBE v. USFS
willing to follow these recommendations in order to

continue with my mining operations.

Vandiver approved the NOI on June 14. 

The third NOI was submitted by Robert Hamilton, an individual miner who planned to mine on four claims. He submitted his NOI on May 11, 2004. He stated that he planned to use

a four-inch suction dredge for about two weeks during July.

Under the heading “precautions,” he wrote that he would limit

dredge density to three per mile, and that “[t]ailings will be

returned to dredge hole if possible in shallow areas or spread

over large area in deep areas.” Vandiver approved the NOI on

June 15. 

The fourth NOI was submitted by Ralph Easley, an individual miner who planned to mine on a single claim. He submitted his NOI on June 14. He stated that he planned to use a

four inch suction dredge from the beginning of July to the end

of September. He stated that the “[d]redge tailings will be

raked back into dredge holes.” Vandiver approved the NOI on

June 15. 

In addition to the four NOIs specifically at issue in this

appeal, the record contains information about NOIs for suction dredging in two other districts of the Klamath National

Forest—the Orleans and the Scott River Districts. Examination of these two NOIs provides important information about

the Forest Service’s practices with respect to section dredge

mining pursuant to NOIs.

First, on April 26, 2004, the New 49’ers submitted a

detailed eight-page single-spaced NOI for suction dredge

mining in the Orleans District. On May 13, Acting Forest

Supervisor William Metz refused to approve the NOI. Metz

wrote:

There is an important cold water refugia at the

mouth of Wooley Creek that was discussed on the

KARUK TRIBE v. USFS 4689
April 23, 2004 field trip as needing protection. This

was not mentioned in your NOI. Protection of this

refugia is critical to the survival of migrating anadromous fish.

Metz wrote further:

Due to the anadromous fisheries in the lower Salmon

River the stability of spawning gravels for fish redds

[spawning nests] is a major concern. Redds can be

lost if loose tailings piles erode away by stream

course action while eggs are still present. Your NOI

and the California Fish and Game Suction Dredge

regulations fall short of addressing mitigations for

this issue.

On May 24, the New 49’ers submitted a revised NOI for

mining in the Orleans District. Dave McCracken, General

Manager of the New 49’ers, wrote in a cover letter to the

NOI, “If this Notice does not adequately address your concerns than [sic] I would suggest that we arrange an on-theground meeting at the earliest possible time.” Then, anticipating that Metz would still not approve the NOI, the New 49’ers

withdrew the revised NOI on May 29. McCracken wrote to

Metz: 

From the substantial amount of dialog we have had

with your office, other District offices, the Supervisor’s office, Karuk Tribal leaders, active members of

the Salmon River Restoration Council and others

within local communities over the past several

months, it has become increasingly clear that there

are too many sensitive issues for us to try and manage a group mining activity along the Salmon River

at this time.

Second, on April 28, 2004, the New 49’ers submitted a

detailed seven-page single-spaced NOI for suction dredge

4690 KARUK TRIBE v. USFS
mining in the Scott River District. The NOI proposed an estimated fifteen dredges along fifteen miles of “stream course,”

with “[d]ensities of above five dredges per 100 yards . . . not

anticipated.” The NOI for the Scott River District made a general commitment concerning mining in cold water refugias at

the mouths of tributaries. After giving an example of a

refugia, the NOI stated, “The 49’ers are committed to working with the Forest Service and [Department of Fish and

Game] to identify these areas . . . and to adjust their operation

to prevent disturbance and stress to these fish during critical

time periods.” Unlike the NOIs for mining in the Happy

Camp and Orleans Districts, the NOI for the Scott River District made no provision for raking tailings piles back into

dredge holes. On May 10, District Ranger Ray Haupt refused

to approve the NOI, but for reasons unrelated to protection of

fisheries. Haupt wrote,

I am unable to allow your proposed mining operations for the SRRD [Scott River Ranger District]

under a NOI because of your bonded campsite which

allows your club members to camp (occupancy) longer than the 14 day camping limit. Your current Plan

of Operations allows for extended camping (longer

than 14 days) for your members, while they are

actively engaged in mining. I am approving your

mining operations for 2004 under a Plan of Operations with the following conditions . . . . 

None of the conditions in the Plan of Operations related to

specific cold water refugia or tailings piles.

In total, there are seven NOIs in the record. Four of them

are for suction dredge mining in the Happy Camp District. All

four of these NOIs were approved by the Forest Service

because they complied with the criteria formulated by District

Ranger Vandiver for the protection of the critical habitat of

the listed coho salmon. A fifth NOI was submitted for suction

dredge mining in the Orleans District. That NOI was denied

KARUK TRIBE v. USFS 4691
by the Forest Service because it did not comply with criteria

for the protection of critical fisheries habitat. A revised NOI

was then submitted, but it was withdrawn in anticipation of its

being denied. Finally, a seventh NOI was submitted for suction dredge mining in the Scott River District. That NOI was

denied by the Forest Service for reasons unrelated to fisheries

habitat.

The Forest Service took affirmative action on all of the six

NOIs that were not withdrawn. The Forest Service approved

four of them and denied two of them. In no case did the Forest

Service take “no action,” as the majority opinion erroneously

contends.

B. Consultation under Section 7(a)(2)

As noted above, two criteria must be met before consultation is required under Section 7(a)(2) of the ESA. Those

criteria are: (1) there must be a proposed “agency action,” and

(2) the proposed agency action “may affect” a listed species

or its habitat. I conclude that each of these criteria have been

satisfied.

1. Agency Action

The Forest Service takes “agency action” under Section

7(a)(2) of the ESA in deciding whether to approve or deny

NOIs for suction dredge mining if it exercises discretion in

making that decision. 16 U.S.C. § 1536(a)(2); 50 C.F.R.

§ 402.03 (Section 7 “appl[ies] to all actions in which there is

discretionary Federal involvement or control”).

I conclude that the Forest Service exercised discretion in

three ways in approving or denying NOIs for suction dredge

mining in the Klamath National Forest. Because the Forest

Service exercised discretion in approving or denying these

NOIs, it took “agency action” within the meaning of Section

7(a)(2).

4692 KARUK TRIBE v. USFS
First, the Forest Service exercised discretion in formulating

criteria for the protection of critical habitat of listed coho

salmon. Those criteria governed the approval or denial of

NOIs for suction dredge mining. As described in detail above,

District Ranger Vandiver of the Happy Camp District prepared for the 2004 mining season by meeting with Forest Service biologists Bemis and Grunbaum. After consulting with

them, Vandiver formulated criteria for protecting critical habitat from the effects of suction dredge mining conducted pursuant to NOIs. He specified by name each of the tributaries

to the Klamath River that provided cold-water refugias that

should be protected; he specified the maximum number of

dredges per mile on the river and on its tributaries; and he

required that tailings be raked back into dredge holes. 

Once Vandiver had exercised his discretion to formulate

these specific criteria, they became conditions with which any

would-be miner submitting an NOI in the Happy Camp District had to comply. For example, Nida Johnson’s NOI indicated that she would respect a cold-water refugia by

refraining from dredging within 500 feet of the mouth of

Independence Creek. But she made clear that she was doing

so only because of the condition imposed by Vandiver, and

that, absent compliance with that condition, she would not be

allowed to engage in mining:

I totally disagree with these distances and believe

that dredging is actually beneficial to fish survival,

but I am willing to follow these recommendations in

order to continue with my mining operations.

Similarly, a week after Vandiver had communicated the

criteria to the New 49’ers, that group submitted an eight-page

single-spaced NOI for suction dredge mining in the Happy

Camp District that complied with the criteria. Vandiver

approved the NOI the next day. 

In one sense, Vandiver is to be commended. He recognized

the danger that suction dredge mining posed to the critical

KARUK TRIBE v. USFS 4693
habitat of coho salmon, and he consulted with Forest Service

biologists Bemis and Grunbaum in formulating protective

criteria for approving mining under NOIs. The problem is that

Vandiver failed to consult with employees of the required

agencies. The ESA requires Vandiver consult with the Fish

and Wildlife Service and the National Marine Fisheries Service, not merely within his own agency. Therefore, Vandiver’s consultation with Forest Service biologists Bemis and

Grunbaum did nothing to comply with Section 7.

Second, the Forest Service exercised discretion in refusing

to approve a detailed NOI submitted by the New 49’ers for

suction dredge mining in the Orleans District. Acting Forest

Supervisor Metz refused to approve the NOI because, in his

view, it provided insufficient protection of fisheries habitat:

first, a cold-water refugia at the mouth of a particular creek

was not mentioned in the NOI; second, there was insufficient

mitigation of the dangers posed by loose tailings piles left by

the dredges. The New 49’ers submitted a new NOI, but then

withdrew it five days later. The New 49’ers’ representative

wrote that despite a “substantial . . . dialog,” the Forest Service’s protective conditions meant that “there are too many

sensitive issues for us to try and manage a group mining

activity along the Salmon River at this time.” 

Third, the Forest Service exercised discretion when its

employees applied different criteria for the protection of fisheries habitat in different districts of the Klamath National Forest. District Ranger Vandiver developed and applied very

specific protective criteria for granting or denying NOIs in the

Happy Camp District. Different protective criteria for NOIs

were developed and applied in the Scott River District. There

is nothing in the record to tell us how the criteria were developed in the Scott River District. But it is clear from the record

that those criteria were different, at least in their application,

from those in the Happy Camp District. The New 49’ers submitted an NOI to District Ranger Haupt in the Scott River

District that complied in full with one of the criteria applied

4694 KARUK TRIBE v. USFS
in the Happy Camp District by specifying the maximum number of dredges per mile. The NOI complied, to some degree,

with a second Happy Camp criterion by committing to “work-

[ing] with” the Forest Service to identify cold-water refugia.

But the NOI did not promise to observe any particular coldwater refugia and did not promise to stay a specified distance

from any creek mouth. Finally, the NOI did not comply at all

with the third Happy Camp criterion, for it did not mention

raking tailings piles back into dredge holes. Scott River District Ranger Haupt denied the NOI for reasons unrelated to

these three criteria, and he did not include these criteria in the

Plan of Operations. 

A discretionary decision is one that is not dictated or controlled by precise rules or regulations. District Rangers Vandiver and Haupt each formulated and applied their own,

differing criteria in deciding whether to grant or deny NOIs

for suction dredge mining in their districts. In neither district

were those criteria dictated or controlled by precise rules or

regulations. See 70 Fed. Reg. at 32720, 32724 (explaining that

NOIs must be evaluated on a site-specific basis, and that there

is no “universal definition” of “significant disturbance”). This

difference in formulating and applying criteria is the very definition of the exercise of discretion.

In every instance in the record before us, except one in

which the NOI was withdrawn, the Forest Service affirmatively acted. In each of those instances, it either approved or

denied the NOI in which suction dredge mining was proposed. In each instance, the Forest Service took some kind of

discretionary action. Those actions were “agency actions”

within the meaning of Section 7 of the ESA. 

2. “May Affect” Listed Species or Habitat

Section 7 and an implementing regulation require consultation whenever an agency action “may affect . . . critical habitat” of a listed species. 50 C.F.R. § 402.14(a). An NOI is

KARUK TRIBE v. USFS 4695
required whenever proposed suction dredge mining “might

cause significant disturbance of surface resources.” 36 C.F.R.

§ 228.4(a). “Surface resources” include fisheries habitat. Id. at

§ 228.8(e). The Klamath River system is a “critical habitat”

for listed coho salmon.

Whether suction dredge mining under NOIs “may affect”

“critical habitat” can almost be resolved as a textual matter,

without the necessity to consult the factual record. That is, by

definition, suction dredge mining under an NOI “might cause

significant disturbance” of fisheries habitat in the Klamath

River system. If the phrase “might cause significant disturbance” of “fisheries habitat” is given an ordinary meaning, it

follows almost automatically that suction dredge mining pursuant to an NOI “may affect” critical habitat of the coho

salmon. Indeed, the Forest Service does not dispute that suction dredge mining in the Klamath River system pursuant to

NOIs “may affect” the listed coho salmon and its critical habitat.

However, the New 49’ers contend that the record “is

devoid of any evidence whatsoever that the four challenged

suction dredge mining activities ‘may affect’ the coho salmon

‘species’ listed in Northern California.” The New 49’ers make

two arguments in support of their contention. Neither argument withstands scrutiny.

First, the New 49’ers argue that there is no evidence “that

even a single member of any listed species would be ‘taken’

by reason” of the suction dredge mining at issue. “Take” has

a particular definition under the ESA. 16 U.S.C. § 1532(19)

(“The term ‘take’ means to harass, harm, pursue, hunt, shoot,

wound, kill, trap, capture, or collect, or to attempt to engage

in any such conduct.”); Babbitt v. Sweet Home Chapter of

Cmty. for a Great Or., 515 U.S. 687, 691 (1995). Even if it

is true (which I will assume arguendo) that suction dredge

mining does not effectuate a “taking” of coho salmon under

the ESA, this has no bearing on whether such mining “may

4696 KARUK TRIBE v. USFS
affect” the salmon or its critical habitat under 50 C.F.R.

§ 402.14(a).

Second, the New 49’ers argue that Vandiver’s consultation

process within the Forest Service, and its resulting guidelines,

“assured” that there would be “no impact whatsoever on listed

species.” This argument cuts against rather than in favor of

the New 49’ers. The fact that District Ranger Vandiver formulated his own criteria to mitigate effects of suction dredging on the coho salmon and their critical habitat does not

mean that the “may affect” standard was not met. Indeed, the

fact that Vandiver consulted with Forest Service biologists in

an attempt to reduce any adverse impact on coho salmon and

their habitat suggests exactly the opposite.

A review of the record reveals abundant evidence that suction dredging under NOIs in the Happy Camp District “may

affect” coho salmon and their critical habitat. Coho salmon in

the Klamath River system were listed as “threatened” in 1997,

and the river was listed as “critical habitat” two years later. 62

Fed. Reg. 24588, 24588 (May 6, 1997); 64 Fed. Reg. 24049

(May 5, 1999). In listing the salmon, the National Marine

Fisheries Service noted that its population was “very

depressed.” 62 Fed. Reg. at 24588. The Fisheries Service concluded that “human-induced impacts,” including overharvesting, hatchery practices, and habitat modification including

mining had played a significant role in the decline, and had

“reduced the coho salmon populations’ resiliency” in the face

of natural challenges. Id. at 24591-92. The Fisheries Service

also concluded that “existing regulatory mechanisms are

either inadequate or not implemented well enough to conserve” the salmon. Id. at 24588.

The record also includes information that Forest Service

biologist Grunbaum provided on the effects of suction dredge

mining at a meeting of Forest Service personnel on April 20,

2004. Grunbaum wrote that relatively few studies of suction

dredging had been performed, but “the majority . . . showed

KARUK TRIBE v. USFS 4697
that suction dredging can adversely affect aquatic habitats and

biota.” The effects varied across ecosystems; in some, “dredging may harm the population viability of threatened species.”

Grunbaum summarized specific potential adverse effects.

First, “[e]ntrainment by suction dredge can directly kill and

indirectly increase mortality of fish — particularly un-eyed

salmonid eggs and early developmental stages.” Second, disturbance from suction dredging can kill the small invertebrates that larger fish feed on, or alter the invertebrates’

environment so that they become scarce. Third, destabilized

streambeds can “induc[e] fish to spawn on unstable material,”

and fish eggs and larvae can be “smothered or buried.”

Fourth, because the streams the salmon occupy are already at

“near lethal temperatures,” even “minor” disturbances in the

summer can harm the salmon. Fifth, juvenile salmon could be

“displaced to a less optimal location where overall fitness and

survival odds are also less.” Finally, a long list of other factors — disturbance, turbidity, pollution, decrease in food base,

and loss of cover associated with suction dredging — could

combine to harm the salmon. 

I therefore conclude that the suction dredge mining challenged in this case “may affect” the listed coho salmon and

its critical habitat.

C. Burden on the Forest Service

The burden imposed upon the Forest Service by the obligation to consult under Section 7 of the ESA is not great.

Indeed, District Ranger Vandiver has already consulted with

Forest Service biologists Bemis and Grunbaum in formulating

the detailed criteria for suction dredge mining NOIs in the

Happy Camp District of the Klamath National Forest. That

consultation could not satisfy Section 7 because Bemis and

Grunbaum work for the Forest Service rather than the Fish

and Wildlife Service or the National Marine Fisheries Service. But if Vandiver had consulted with employees of those

agencies, that consultation could have satisfied Section 7. If,

4698 KARUK TRIBE v. USFS
after engaging in that consultation, Vandiver had formulated

sufficiently detailed coho-protective criteria based on the

views of the Fish and Wildlife Service and the National

Marine Fisheries Service, any NOIs approved using those

criteria would not have required the exercise of further discretion and therefore would not have required further consultation. See Texas Indep. Producers, 410 F.3d at 979; Envtl. Def.

Ctr., 344 F.3d at 853. Of course, Vandiver formulated his

criteria for NOIs only for the Happy Camp District. But there

is no reason why the Forest Service could not consult with the

Fish and Wildlife Service and the National Marine Fisheries

Service to formulate comparable criteria for all of the districts

in the Klamath National Forest, with the result that any individual NOI approved under those criteria would not require

further consultation.

Conclusion

By definition, suction dredge mining pursuant to an NOI is

mining that “might cause” ”significant disturbance of surface

resources,” including the surface resource of “fisheries habitat.” The Forest Service does not dispute that such mining

“may affect” critical habitat of coho salmon in the Klamath

River system within the meaning of Section 7 of the ESA.

The Forest Service therefore has an obligation under Section

7 to consult with the relevant agencies at some point in the

process of allowing such mining.

The Forest Service had several available choices. It could

have consulted under Section 7 when it promulgated the regulation for dredge mining under NOIs. That is, it could have

consulted when it set the threshold criterion for an NOI as

mining that “might cause significant disturbance of surface

resources” including fisheries habitat. Or it could have consulted under Section 7 when it formulated habitat-protective

criteria for approving NOIs. That is, it could have consulted

when District Ranger Vandiver formulated his criteria for

approving the NOIs for the Happy Camp District. Or, finally,

KARUK TRIBE v. USFS 4699
in the absence of criteria such as those formulated for the

Happy Camp District, it could have consulted under Section

7 with respect to each individual NOI. 

The one choice that was not available to the Forest Service

was never to consult. Yet that is the choice the Forest Service

made. In making that choice, the Forest Service violated Section 7 of the ESA.

I respectfully but emphatically dissent from the conclusion

of the majority to the contrary. 

4700 KARUK TRIBE v. USFS