ELR Citation: ELR 20144
No(s). s. 05-35178, -35208 (9th Cir. Jul 24, 2006)

The court holds that an agency's duty to consult under §7 of the Endangered Species Act (ESA) arises only for affirmative actions. The phrase "failure to act" is absent from ESA §7(a)(2), which refers to "agency action" as "any action authorized, funded, or carried out by such agency." This stands in marked contrast to other sections of the ESA, which explicitly refer to an agency’s failure to act. Moreover, this position is consistent with prior cases of the circuit. Consequently, the Bureau of Land Management's (BLM's) failure to regulate certain vested rights-of-way held by private landowners in central Idaho to divert water for irrigation uses does not constitute "action authorized, funded, or carried out" by BLM so as to require consultation under the ESA.