Lead Opinion
Opinion by Judge Trott; Dissent by Judge Pregerson.
OVERVIEW
Sierra Club and other environmental organizations filed suit against the Secretary of the Interior Bruce Babbitt (“Secretary”) seeking to enjoin Seneca Sawmill Company’s (“Seneca”) construction of a logging road on right-of-way crossing Bureau of Land Management (“BLM”) forestland. Sierra Club alleged the BLM failed to comply with the procedural commandments of the National Environmental Protection Act of 1969 (“NEPA”), 42 U.S.C. § 4321 et seq. and the Endangered Species Act of 1973 (“ESA”), 16 U.S.C. § 1531 et seq. before allowing Seneca to begin its road construction project. On cross-motions for summary judgment, the district court ruled in favor of the BLM and Seneca on Sierra Club’s NEPA claim, but granted Sierra Club’s motion on the ESA claim. The district court enjoined further right-of-away construction until either the BLM or Seneca complied with the ESA’s requirements. All parties timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand.
BACKGROUND
A. The Statutory Framework
1. The Endangered Species Act
In an effort to prevent the extinction of various fish, wildlife, and plant species, Congress in section 4 of the ESA, 16 U.S.C. § 1533(a), directed the Secretary to list endangered and threatened species and to designate habitat critical to the survival of those species. Once a species has been afforded protection under section 4, federal agencies must comply with the procedural and substantive requirements contained in section 7 of the ESA, 16 U.S.C. § 1536. The purpose of section 7 is to avoid agency activities that will unfavorably affect a listed species. Thus, a federal agency is prohibited from authorizing, funding, or carrying out any action that is likely to jeopardize the continued existence of a protected species or adversely modify its critical habitat. 16 U.S.C. § 1536(a)(2). To accomplish the goal of this substantive requirement, section 7(a)(2) of the ESA imposes a procedural duty on federal agencies to consult with the U.S. Fish and
Additional section 7 substantive duties require an agency actively to utilize its authority to conserve a listed species, 16 U.S.C. § 1536(a)(1), and to avoid taking
2. The National Environmental Policy Act
Congress, through NEPA, imposed procedural requirements on federal agencies designed to force an agency to consider the environmental consequences of its proposed activity. Thus, NEPA requires a federal agency to produce an environmental impact statement (“EIS”) when proposing to engage in an action that will significantly affect the human environment. 42 U.S.C. § 4332(2)(C). Usually, unless a proposed action falls within a categorical exclusion, or the proposal is one which normally requires an EIS, the agency will prepare an environmental assessment (“EA”) to determine whether an EIS is necessary. 40 C.F.R. § 1501.4. If an EA indicates a proposed action will significantly affect the human environment, an EIS is required. 42 U.S.C. § 4332(2)(C). Otherwise, the agency may issue a finding of no significant impact (“FONSI”) and then execute the action.
B. Facts and Prior Proceedings
This suit involves BLM land that is part of a checkerboard pattern of alternating public and private forestland ownership. To facilitate federal access to the public lands, in 1895 Congress authorized the Secretary to enter into reciprocal right-of-way agreements with private property owners.
Before beginning new road construction, the agreement required Woolley to submit a map of the project to the BLM for its approval. If within 30 days of the map’s submission the BLM did not notify Woolley that the proposed route 1) was not the most direct, 2) would substantially interfere with existing or planned facilities, or 3) would result in excessive soil erosion the agreement deemed the project to have been “approved,” and Woolley was free to construct the proposed road. Specifically, the agreement pro
Construction may be commenced after the expiration of a thirty (30) day period following the filing of such map unless in the intervening period the landowner shall object to such construction. The landowner may object to the proposed construction only if (1) it does not constitute the most reasonably direct route for the removal of forest products from the lands of the road builder, taking into account the topography of the area, the cost of road construction and the safety of use of such road, (2) the proposed road will substantially interfere with existing or planned facilities or improvements on the lands of the landowner, or (3) would result in excessive erosion to lands of the landowner.
(Emphasis added.)
In November, 1989, Woolley assigned its rights and duties under the right-of-way agreement to Seneca. The BLM approved the assignment on April 30,1991, after Seneca agreed to conduct its operations under the permit so as to comply with all water quality standards, all pesticide use standards, and “[a]ll other applicable State and Federal environmental laws, regulations and standards.” If Seneca’s operations failed to conform with this “environmental stipulation,” the agreement allowed the BLM to “discontinue all construction or other operations under [the] permit upon written notice from the Authorized Officer that such operations or any part thereof are in violation of this provision.”
Pursuant to the right-of-way agreement, on September 20, 1990 Seneca submitted a plat to the BLM displaying its proposal to construct an 810 foot long logging road across BLM land, and requested BLM “approval.”
After the biologist announced his recommendation, the Regional Solicitor of the Department of Interior issued an opinion on the relationship between preexisting reciprocal right-of-way agreements and the ESA. It was the Regional Solicitor’s opinion that the BLM did not possess the discretion under the agreements to influence for the benefit of the threatened spotted owl the design of the right-of-way construction. The Regional Solicitor also opined that the addition of an environmental stipulation did not “create additional discretion concerning the permittee’s basic right to construct a road over BLM land.” Accordingly, the Regional Solicitor concluded that section 7(a)(2) consultation would “serve little purpose ... when the only areas of control remaining to the BLM are not material to the welfare of the species.” The opinion suggested that, consistent with an agency’s duty to conserve protected species, the BLM alert private parties undertaking right-of-way construction that their activities may result in an incidental taking.
On May 5,1991, the BLM issued a FONSI after determining an EIS was unnecessary because the road construction would “not have any significant impacts on the human environment.” The BLM then notified Seneca on June 5, 1991 that in accordance with the right-of-way agreement it approved the road construction, but warned Seneca that a taking of a threatened or endangered species without a section 10(a) incidental take permit violated federal environmental law and could lead to the discontinuance of construction under the 1991 stipulation. Subsequently, the BLM’s wildlife biologist amended his pri- or recommendation, and concluded that al
Seneca began constructing the road in the fall of 1991, but before its completion Sierra Club filed suit against the BLM in federal district court seeking a temporary restraining order to halt the project. Seneca intervened and subsequently consented to a preliminary injunction prohibiting all road construction and timber harvest.
Sierra Club claims the BLM violated the ESA by failing to consult with the FWS concerning the effects of Seneca’s road construction on the threatened spotted owl and its critical habitat. Sierra Club also claims the BLM violated NEPA by preparing an inadequate EA and by failing to prepare an EIS. On cross-motions for summary judgment, the district court granted BLM and Seneca’s motion on the NEPA claim, but granted Sierra Club’s motion on the ESA claim. The district court determined that the EA prepared by the BLM met the procedural requirements of NEPA. However, the district court concluded that under section 7(a)(2) of the ESA it was necessary for the BLM to consult with the FWS in order to determine whether Seneca was required to obtain a section 10(a) incidental take permit. Accordingly, the district court enjoined further road construction until either the BLM initiated consultation with the FWS or Seneca obtained a ESA section 10(a) incidental take permit. All the parties appeal.
STANDARD OF REVIEW
A grant of summary judgment is reviewed de novo. Jesinger v. Nevada Fed. Credit Union,
“An agency’s interpretation of a statute that the agency is charged with administering is entitled to substantial deference, and an agency’s interpretation of its regulations is controlling if not plainly erroneous or inconsistent with the regulations.” Norfolk Energy, Inc. v. Hodel,
DISCUSSION
A. The ESA Claim
All the parties now agree that the district court erred in concluding the BLM possessed the statutory power and duty to require Seneca to obtain a section 10(a) incidental take permit. The only issue remaining, therefore, is whether the BLM’s failure to consult with the FWS on Seneca’s right-of-way construction was a violation of the consultation provisions of section 7.
Sierra Club claims the BLM, by permitting Seneca to construct a logging road across BLM forestland, has engaged in an action that triggers the agency’s duty under section 7(a)(2) to consult with the FWS.
On the other hand, the BLM contends the procedural requirements of section 7(a)(2) do not apply to this case because the relevant agency action occurred prior to the passage of the ESA when, in 1962, the BLM granted right-of-way across its lands as part of the reciprocal right-of-way agreement. Relying on the opinion of the Department of Interi- or’s Regional Solicitor, the BLM asserts its current, limited discretion to modify or deny Seneca’s road construction project does not constitute an authorization, funding, or carrying out of an action within the meaning of section 7. Similarly, the BLM contends the 1991 environmental stipulation does not broaden its discretion as that agreement pro
1. The Preexisting Right-of-Way Agreement
Within the limitations prescribed by the Constitution, Congress undoubtedly has the power to regulate all conduct capable of harming protected species. However, Congress chose to apply section 7(a)(2) to federal relationships with private entities only when the federal agency acts to authorize, fund, or carry out the relevant activity. 16 U.S.C. § 1536(a)(2) (referring to such acts as an “agency action”). The intent of Congress, while clear enough from the plain language of the statute, has been confirmed by the administering agency’s interpretation of section 7(a)(2), and by case law applying that section.
The regulations implementing section 7(a)(2) define “action” to mean “all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies,” and offer as examples “the granting of licenses, contracts, leases, easements, right-of-way, permits, or grants-in-aid.”
The instant case, however, presents a different question: To what extent does section 7 apply where the BLM granted right-of-way by contract to a private entity before passage of the ESA and the agency’s continuing ability to influence the private conduct is limited to three factors unrelated to the conservation of the threatened spotted owl.
The BLM’s inability to influence Seneca’s right-of-way project is what sets this ease apart from Pacific Rivers. In Pacific Rivers we rejected an attempt by the United States Forest Service to interpret “agency action” as encompassing Land and Resource Management Plans (“LRMPs”) only at the time of their adoption.
In contrast, the fixed agreement in this case has none of the indicia of the LRMPs under review in Pacific Rivers: the right-of-way was granted prior to the enactment of the ESA and there is no further action relevant to the threatened spotted owl that the BLM can take prior to Seneca’s exercise of their contractual rights. In light of the statute’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.
Sierra Club contends the BLM’s duty under section 7(a)(1), 16 U.S.C. § 1536(a)(1), to conserve listed species is additional authority for inferring Congress’s intent to void preexisting agreements.
2. The Assignment and Environmental Stipulation
Sierra Club argues that even if the BLM is precluded from acting under the original right-of-way agreement, the addition of the environment stipulation at the time of the assignment to Seneca in 1991 compels the BLM to comply with section 7(a)(2).
8. The BLM’s “Actions”
Finally, Sierra Club contends Seneca’s right-of-way construction was, in fact, authorized by federal agency action. Specifically, Sierra Club points to the BLM letter approving the project, the BLM’s preparation of an EA, and the sale of the right-of-way timber to Seneca. As discussed above, we are unable to identify any statutory authority allowing the BLM to burden Seneca’s activities under the right-of-way agreement unless and until Seneca violates an environmental provision. Therefore, a BLM “action” will implicate section 7(a)(2) only if it legitimately authorizes Seneca’s activity.
The BLM did issue a letter to Seneca “approving” its proposal. However, in the letter, the BLM specifically reiterates its limited discretion. Because the right-of-way agreement severely circumscribes the BLM’s ability to disapprove of Seneca’s project, the issuance of an “approval” letter cannot be construed as an authorization within the meaning of section 7(a)(2).
For the same reason, the BLM’s preparation of an EA cannot be considered an authorization when Seneca already possessed the right to perform the activity. The BLM contends it adopted the EA format for the limited purpose of determining whether Seneca’s proposal implicated one of the three factors allowing for disapproval. It follows from our discussion above that these three factors are the only conditions the BLM properly could consider.
Finally, Sierra Club argues that the BLM should have consulted with the FWS before allowing Seneca to harvest right-of-way timber in critical habitat. See 16 U.S.C. § 1586(a)(2). The BLM, however, asserts the agreement provided for the automatic sale of the right-of-way timber as part of the private entity’s right to construct the road. This interpretation is not controverted by Sierra Club and is supported by the language of the document.
4. Summary
In sum, we hold that Congress did not intend for section 7 to apply to an agreement
Our decision is reinforced by a consideration of the ESA as a whole. Not surprisingly, in its effort to stem the tide of species extinction, Congress required more of federal agencies than private entities. See 16 U.S.C. § 1536 (requiring federal agencies to conserve species, to consult, to refrain from adversely modifying critical habitat). These discrete burdens properly fall on a private entity only to the extent the activity is dependent on federal authorization. However, Congress also sought to promote the goals of the Act by prohibiting private actions that “take” protected species. 16 U.S.C. § 1538(a). Congress has therefore indicated that when a wholly private action threatens imminent harm to a listed species the appropriate safeguard is through section 9, 16 U.S.C. § 1538, and not section 7, 16 U.S.C. § 1536. The ESA’s citizen suit provision, 16 U.S.C. § 1540(g), allows private plaintiffs, like Sierra Club, to enjoin private activities that are reasonably certain to harm a protected species.
B. The NEPA Claim
To a large extent, our decision concerning Sierra Club’s ESA claim dictates the resolution of the NEPA claim. Both of the statutes’ procedural requirements are triggered by a discretionary federal action. If anything, case law is more forceful in excusing nondiscretionary agency action or agency “inaction” from the operation of NEPA. See, e.g., Sierra Club v. Penfold,
Sierra Club counters the above cases with Sierra Club v. Hodel,
Sierra Club attempts to analogize the Ho-del ease to the present situation by asserting that section 7(a)(1) of the ESA, 16 U.S.C. § 1536(a)(1), imposes a mandatory duty on the BLM to conserve protected species and therefore, a NEPA analysis must be performed to identify alternatives that minimize the impact on endangered and threatened species. However, as we have discussed, section 7(a)(1) does not confer additional statutory authority on the BLM allowing it to regulate Seneca’s project for the benefit of a protected species. Section 7(a)(1) specifically states that agencies shall “utilize their authorities ... for the conservation of endangered species and threatened species.” 16 U.S.C. § 1536(a)(1). While the BLM is under a duty to conserve protected species, it lacks the power to implement alternatives modifying Seneca’s road construction.
The BLM’s inability meaningfully to influence Seneca’s right-of-way construction leads us to conclude that the procedural requirements of NEPA do not apply to this ease.
CONCLUSION
The district court’s grant of summary judgment on Sierra Club’s NEPA claim in favor of the BLM and Seneca is affirmed. We reverse the district court’s decision on Sierra Club’s ESA claim, and remand for consideration consistent with this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED.
Each party shall bear its own costs.
Notes
. The acting agency must consult with the National Marine Fisheries Service (“NMFS”) in those cases where the affected species is within NMFS’s purview. 50 C.F.R. § 402.01(b).
. “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." 16 U.S.C. § 1532(19).
. An incidental taking is a taking of a protected species "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. § 1539(a)(1)(B).
.As the district court explained: "A reciprocal right-of-way agreement is an exchange of grants between the United States and a private landowner, called a permittee. Under these agreements, each party may use the other's existing roads and may construct roads over the other’s land."
. Seneca later voluntarily changed the location of the proposed road so that it crossed only 410 feet of BLM land.
. Seneca contends BLM's conduct is inaction and therefore section 7(a)(2) does not apply. In light of our decision, we do not address this argument.
. Sierra Club claims that because the precise location of the right-of-way construction was not identified in the original agreement, Seneca's right-of-way application to the BLM comes within this regulatory provision. Sierra Club, however, reads out the requirement that the BLM engage in an action that authorizes, funds, or carries out the activity. Seneca possesses a preexisting right to construct a road across designated BLM forestland. The BLM’s ability to influence the road’s location is limited to notifying Seneca that the chosen route is not the most direct, that it would interfere with a BLM facility, or that it would cause excessive erosion. None of these factors are relevant to the protection of the threatened spotted owl.
.Sierra Club does not seriously contest this interpretation of the right-of-way agreement. Because the agreement identifies both the nature and scope of the right-of-way grant in "clear and explicit terms,” Knoxville Water Co. v. City of Knoxville,
. Sierra Club argues that the Regional Solicitor's opinion should be discounted because it ignores the BLM's internal guidelines contained in the BLM’s manual handbook and the BLM's Rose-burg final EIS. Both the cited documents contain statements that the BLM readily acknowledges to be true: If the BLM enters into a post-ESA right-of-way agreement or retains the discretion to authorize the private entity’s activity, the BLM must comply with the ESA. These accurate statements of the law do not contradict the Solicitor's analysis.
. The dissent "believe[s] that the BLM retained discretion to influence the roadway project for the benefit of the spotted owl,” but does not identify the precise source of the BLM’s "retained discretion.” The right-of-way agreement allows the BLM to object to Seneca’s project in three limited instances, none of which are in issue here and, in any event, are conditions unrelated to the protection of a protected species. Thus, the BLM lacks authority under the agreement to modify the road construction project for the benefit of the threatened spotted owl.
A “may affect” determination does not provide statutory authority to regulate Seneca’s private activity. To the contrary, a "may affect” finding is only a preliminary step in a procedural process that is designed to identify federal actions that in fact are likely to jeopardize the continued existence of a protected species, 16 U.S.C. § 1536(a)(2); 50 C.F.R. §§ 402.10-402.16; Pacific Rivers,
. Section 7(a)(1) requires a federal agency to utilize its authority in furtherance of the purposes of the ESA by carrying out programs for the conservation of protected species.
. Sierra club does not legally challenge the BLM's approval of the right-of-way assignment to Seneca. Accordingly, we do not decide whether, and to what extent, the BLM is required to comply with NEPA and section 7(a)(2) of the ESA when approving such an assignment.
Sierra Club does argue that the BLM's failure to include language in the agreement allowing for section 7(a)(2) compliance requires this court to read the environmental stipulation as if it did provide for consultation. This remarkable proposition is unsupported by legal authority. Sierra
. The environmental stipulation allows the BLM to "discontinue all construction or other operations under [the] permit upon written notice from the Authorized Officer that such operations or any part thereof are in violation” of an environmental law or standard.
. Even without the environmental stipulation, Seneca's operations are subject to all applicable environmental regulations and laws. See Peterson v. United States Dep't of Interior,
. The dissent suggests that the BLM’s remedial contract right pursuant to the environmental stipulation, together with a section 9 violation, constitutes an agency action. We respectfully disagree.
The section 7 consultation procedures are not relevant to the enforcement of section 9. See 16 U.S.C. § 1538(a)(1). If Seneca violates section 9, or any other environmental standard, the BLM need not consult with the FWS before exercising its right under the environmental stipulation to terminate the offending project. Indeed, section 7(a)(1) would appear to require the BLM to utilize its authority under the stipulation to suspend an activity that would result in a taking. 16 U.S.C. § 1536(a)(1). Sierra Club, however, abandoned its taking claim, and there is no evidence in the record establishing a section 9 violation.
.The 1962 right-of-way agreement states: “Pri- or to the construction of a road on the lands of the other party, the timber on the right-of-way shall be cruised and paid for.”
. The Act confers the same ability on the Attorney General. 16 U.S.C. § 1540(e)(6).
Dissenting Opinion
dissenting:
The issue we must resolve in this case is whether the Bureau of Land Management (“BLM”) had discretion to control — for the benefit of the threatened spotted owl — Seneca Sawmill’s construction of a road on BLM land. If the BLM had such discretion, then before approving Seneca’s road construction the BLM was obligated under section 7 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1536, to consult with the Fish and Wildlife Service (“FWS”) before authorizing any “action” that “may affect” the threatened spotted owl. Under the regulations promulgated by the Secretary of the Interior, the section 7 consultation requirement applies “to all actions in which there is discretionary Federal involvement or control.” 50 C.F.R. § 402.03 (emphasis added).
The majority opinion defers to the conclusion reached by the Regional Solicitor of the Department of the Interior who reviewed this very question. The Regional Solicitor concluded that the BLM did not retain discretion under the right-of-way agreements to influence — for the benefit of the spotted owl — the construction of roads on BLM land. The Regional Solicitor also concluded that the addition of the environmental stipulation did not give the BLM any additional discretion over permittees’ rights to construct roads on BLM land. The environmental stipulation authorized the BLM to halt construction of the roadway if Seneca violates any environmental law. I am disinclined to accept such a categorical denial of the existence of agency discretion.
The majority opinion cites Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, — U.S. -, -,
“[Tjhere is little doubt that Congress intended to enact a broad definition of agency action in the ESA.” Pacific Rivers Council v. Thomas,
Instead of deferring to the findings of the Regional Solicitor, we should instead follow the canon of statutory construction which requires us to “reject administrative constructions which are contrary to clear congressional intent.” I.N.S. v. Cardoza-Fonseca,
Here, the Regional Solicitor’s conclusion that the BLM did not retain discretion to influence — for the benefit of the spotted owl — the permittees’ construction of roads under the right-of-way agreements thwarts Congress’s explicit instruction that “agency action” be read broadly. Unlike the view expressed in the majority opinion, I believe that the BLM retained discretion to influence the roadway project for the benefit of the spotted owl. The BLM had the right under the contract to review the location of the proposed road and object if it concluded that the planned road was not the most direct and reasonable route. Moreover, under the stipulation, the BLM could halt the project if it believed that Seneca’s construction would be likely to violate section 9 of the ESA or any other environmental law. The authority to review the project pursuant to the contract or stop it until the conditions of the environmental stipulation are met plainly constitutes “discretion,” albeit limited.
The dictionary definition of “discretion” is “the power or right to decide or act according to one’s own judgment.” The Random House College Dictionary 379 (1980). Both the contractual review and the environmental stipulation must then require the BLM to consult with FWS to assess whether a “taking” will occur and to discontinue Seneca’s construction if such is the case, or pursue any viable alternative which can be worked out given the terms of the contract.
At the very least, because the BLM had to review the planned project to determine whether it could ascertain any objections, its “approval” constitutes agency action for purposes of triggering the Act. Here, the BLM wildlife biologist concluded in his amended report that Seneca’s proposed construction “may affect” the threatened spotted owl.
Therefore, I would affirm the ruling of the district court on the Sierra Club’s ESA claim on the basis that under the contract and the environmental stipulation, the BLM retained some discretion to control Seneca’s construction project for the benefit of the spotted owl. Because the BLM retained some discretion, its approval and countenance of the project is an action which may affect the owl; therefore, consultation with FWS is required to ensure that even such limited discretion is exercised in the best interest of the endangered species.
. The implementing regulations of section 7 of the ESA require federal agencies to consult with the appropriate federal fish and wildlife agency— in this case the FWS — whenever their actions "may affect” an endangered or threatened species. See 50 C.F.R. § 402.14(a).