In Karuk Tribe of California v. United States Forest Service, the Ninth Circuit Court of Appeals held that the receipt of a notice of intent from a private party is an “agency action,” triggering the consultation requirement of the Endangered Species Act. The miners sought review in the Supreme Court, and Pacific Legal Foundation, representing several mining groups, supported the miners’ petition with an amicus brief. PLF’s brief argued that the decision was inconsistent with National Association of Home Builders v. Defenders of Wildlife, a Supreme Court case holding that the ESA’s consultation requirement only applies when an agency exercises discretionary authority.
Unfortunately, the Supreme Court denied the cert petition this morning. As a result, the question of which private activities qualify as “agency actions” will likely be the subject of continuing controversy.