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Under Section 7 of the Endangered Species Act, the Forest Service has a duty to consult a designated agency before approving a Notice of Intent for mining activity that could potentially affect a listed species.

The Karuk Tribe sought injunctive and declaratory relief under Section 7 of the Endangered Species Act against the United States Forestry Service (USFS) for approving four Notices of Intent (NOI) for gold mining by suction dredging in the Klamath River that runs through southern Oregon and northern California with a “threatened” species of Coho salmon. The district court denied the Tribe’s motion for summary judgment and ruled in favor of the USFS. The Ninth Circuit affirmed the district court’s ruling. The Ninth Circuit agreed to rehear the case en banc. The Court first ruled that while the Tribe’s current claims were potentially moot, because of the repeatable nature of the mining dispute, the claims were not moot. The Tribe argued that under Section 7, the USFS was obligated to consult with the Fish and Wildlife Service or the NOAA Fisheries Service before approving any NOI because a NOI is agency action that “may affect” a listed species. The Court found that a NOI by definition requires agency action because granting or rejecting any type of permit is inherently affirmative action and creating criteria for different areas of the river is discretionary. The court held that Congress intended the term “may affect” to apply broadly to any effect on a listed species, rejecting the argument that likelihood of effect is a relevant factor in determining “may affect.” Finally, the Court ruled that because the Tribe showed that Coho salmon could be affected by dredging, the USFS had a duty to consult with a designated agency before approving or denying any NOI. REVERSED and REMANDED.