No. 05-16801.

681 F.3d 1006 (2012)

KARUK TRIBE OF CALIFORNIA, Plaintiff-Appellant, v. UNITED STATES FOREST SERVICE; Margaret Boland, Defendants-Appellees, The New 49'ers, Inc.; Raymond W. Koons, Defendants-intervenors-Appellees.

United States Court of Appeals, Ninth Circuit.

Filed June 1, 2012.

Attorney(s) appearing for the Case

Roger Flynn and Jeffrey Charles Parsons , Western Mining Action Project, Lyons, CO, Lynne Saxton , Environmental Law Foundation, Oakland, CA, James R. Wheaton , Public Interest Law Office, Oakland, CA, for the plaintiff-appellant.

Lane N. McFadden and Brian C. Toth , U.S. Department of Justice, Washington, D.C., Barclay T. Samford , U.S. Department of Justice, Denver, CO, Charles Michael O'Connor , Office of the United States Attorney, San Francisco, CA, for the defendants-appellees.

Jason Craig Rylander , Defenders of Wildlife, Washington, D.C., for the amicus curiae.

Opinion by Judge WILLIAM A. FLETCHER; Dissent by Judge MILAN D. SMITH, JR.


W. FLETCHER, Circuit Judge:

We consider whether the U.S. Forest Service must consult with appropriate federal wildlife agencies under Section 7 of the Endangered Species Act ("ESA") before allowing mining activities to proceed under a Notice of Intent ("NOI") in critical habitat of a listed species. The ESA requires consultation with the Fish and Wildlife Service or the NOAA Fisheries Service for any "agency action" that "may affect" a listed species...

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