Karuk Tribe v. United States Forest Service, 640 F.3d 979

ESA §7 requires interagency consultation for federal actions likely to affect listed species or critical habitat.
Forest Service uses a three-tier system: de minimis activities, Notice of Intent (NOI) for possible disturbance, and Plan of Operations (Plan) for likely significant disturbance.
NOI is a preliminary notification, not an authorization, used to decide if a Plan is needed.
Tribe challenges the USFS’s NOIs for suction dredge mining in the Klamath National Forest as ESA section 7 failures.
District Ranger Vandiver and other FS personnel established site-specific criteria to protect coho salmon habitat; the petitioners filed ESA challenges to NOI approvals.
We analyze whether NOI decisions constitute ‘agency action’ and whether NOIs may affect listed species, triggering consultation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does NOI approval constitute agency action under §7?	Tribe contends NOI approvals are agency action enabling private mining.	USFS argues NOI is a ministerial notification not entitling action; Plan triggers are needed for regulation.	No agency action; NOI is not authorization.
Whether NOI may affect listed species or critical habitat	NOIs may affect Coho salmon habitat; thus ESA §7 applies.	NOI is a precautionary step; based on preexisting mining rights, it does not trigger consultation.	NOIs may affect habitat; requires consultation if action is agency action.
Can discretionary FS decisions on NOIs trigger §7 when FS lacks cross-agency approval power?	FS discretion over NOI/Plan could condition actions for species benefit.	Discretion is internal and does not empower action; inaction after NOI does not constitute action.	Discretion over NOI/Plan does not alone create §7 action if not coupled with affirmative authorization.
Is the impact threshold for NOIs consistent with ESA purposes and prior caselaw	The NOI process undermines ESA goals by avoiding consultation.	NOSI scheme aligns with statutory intent to avoid unnecessary regulation and protect habitat only where necessary.	NOI framework aligns with ESA as non-action unless Plan is required.

Western Watersheds Project v. Matejko, 468 F.3d 1099 (9th Cir. 2006) (inaction by agency not action triggering §7)
Turtle Island Restoration Network v. Nat’l Marine Fisheries Service, 340 F.3d 969 (9th Cir. 2003) (agency discretion to condition permits may trigger §7)
Sierra Club v. Babbitt, 65 F.3d 1502 (9th Cir. 1995) (agency lacks discretion to influence private action => no §7 action)
Marbled Murrelet v. Babbitt, 83 F.3d 1068 (9th Cir. 1996) (informal advice not §7 action if no enforceable conditions)
Sierra Club v. Penfold, 857 F.2d 1307 (9th Cir. 1988) (BLM notice mining analogous to NOIs; not major action)
Cal. Sportfishing Protection Alliance v. FERC, 472 F.3d 593 (9th Cir. 2006) (comparable NEPA/ESA considerations in regulatory schemes)
National Wildlife Federation v. National Marine Fisheries Service, 524 F.3d 917 (9th Cir. 2008) (agency discretion triggers §7 consultation when action is discretionary)
Natural Resources Defense Council v. Houston, 146 F.3d 1118 (9th Cir. 1998) (agency discretion in contract renegotiations may require §7 consults)
Texas Independent Producers & Royalty Owners Ass’n v. EPA, 410 F.3d 964 (7th Cir. 2005) (general permit context and discretionary necessity for §7)