ELR Citation: 42 ELR 20116
No(s). 05-16801 (9th Cir. Jun 1, 2012)

The Ninth Circuit held that the U.S. Forest Service violated the ESA when it failed to consult with federal wildlife agencies before approving four notices of intent (NOIs) to conduct mining activities in coho salmon critical habitat within the Klamath National Forest. The ESA requires consultation with the FWS or the NOAA Fisheries Service for any "agency action" that "may affect" a listed species or its critical habitat. Here, the Forest Service's approval of the NOIs is "agency action" because it made affirmative, discretionary decisions about whether, and under what conditions, to allow mining to proceed under the NOIs. The record also shows that the mining activities approved under NOIs satisfy the ESA's "may affect" standard, as the activities will occur in and along the Klamath River, which is critical habitat for threatened coho salmon. (Plaintiffs' counsel included Roger Flynn of the Western Mining Action Project in Lyons, Colo.).