Western Watersheds Project v. Matejko , 456 F.3d 922 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WESTERN WATERSHEDS PROJECT; 
COMMITTEE FOR IDAHO’S HIGH
DESERT,
Plaintiffs-Appellees,
v.
GEORGE MATEJKO, Supervisor,
Salmon-Challis National Forest;
UNITED STATES FOREST SERVICE; No. 05-35178
RENEE SNYDER, BLM Challis Field  D.C. No.
Office Manager; BUREAU OF LAND CV-01-00259-BLW
MANAGEMENT; DAVID KROSTING,
BLM Salmon Field Office
Manager,
Defendants,
and
STATE OF IDAHO,
Defendant-Intervenor-Appellant.

8183
8184 WESTERN WATERSHEDS v. MATEJKO
WESTERN WATERSHEDS PROJECT; 
COMMITTEE FOR IDAHO’S HIGH
DESERT,
Plaintiffs-Appellees,
v.
GEORGE MATEJKO, Supervisor,
Salmon-Challis National Forest; No. 05-35208
UNITED STATES FOREST SERVICE;
RENEE SNYDER, BLM Challis Field  D.C. No.
CV-01-00259-BLW
Office Manager; BUREAU OF LAND
MANAGEMENT; DAVID KROSTING, OPINION
BLM Salmon Field Office
Manager,
Defendants-Appellants,
and
STATE OF IDAHO,
Defendant-Intervenor.

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, District Judge, Presiding
Argued and Submitted
October 21, 2005—Seattle, Washington
Filed July 24, 2006
Before: Betty B. Fletcher and M. Margaret McKeown,
Circuit Judges, and Samuel P. King,* District Judge.
*The Honorable Samuel P. King, Senior United States District Judge
for the District of Hawaii, sitting by designation.
WESTERN WATERSHEDS v. MATEJKO 8185
Opinion by Judge King
WESTERN WATERSHEDS v. MATEJKO 8187
COUNSEL
David C. Shilton, United States Department of Justice, Envi-
ronmental & Natural Resources Division, Washington, D.C.,
for the defendants-appellants.
Clay R. Smith, Deputy Attorney General, Natural Resources
Division, Boise, Idaho, for the defendant-intervenor-
appellant.
Laurence J. Lucas, Boise, Idaho, for the plaintiffs-appellees.
L. Michael Bogert, Perkins Coie, Boise, Idaho, for amicus
curiae Western Urban Water Coalition, Denver Water Board,
Metropolitan Water District of Southern California, and City
of Tucson Water Department.
Robin L. Rivett, Sacramento, California, for amicus curiae
Pacific Legal Foundation.
OPINION
KING, District Judge:
Section 7(a)(2) of the Endangered Species Act (ESA), codi-
fied at 16 U.S.C. § 1536(a)(2), requires consultation with the
Secretary of the Interior or Secretary of Commerce if there is
“any action authorized, funded, or carried out by” a federal
agency (here, the Bureau of Land Management (BLM)) that
could jeopardize any endangered or threatened species, or
destroy or adversely modify habitat of such species. This
appeal presents the question of whether the BLM’s failure to
regulate certain vested rights-of-way held by private landown-
ers to divert water for irrigation uses constitutes “action
authorized, funded, or carried out” by the BLM so as to
require consultation. The district court required the BLM to
8188 WESTERN WATERSHEDS v. MATEJKO
consult; it found the BLM had discretion to regulate the diver-
sions and that its failure to exercise such discretion consti-
tuted “action.” We conclude that the duty to consult is
triggered by affirmative actions; because there was no such
“action” here, there was no corresponding duty to consult.
Accordingly, we reverse.
BACKGROUND
I.
Western Watersheds Project and Committee for Idaho’s
High Desert (collectively, Western Watersheds) filed this
action in 2001 against the BLM and its regional officials, as
well as the Fish and Wildlife Service (FWS), seeking declara-
tory and injunctive relief regarding hundreds of river and
stream “diversions” (e.g., dams and pipes) on public lands in
the Upper Salmon River basin of central Idaho.1 Western
Watersheds challenges the BLM’s acquiescence in selected
diversions for agricultural and other irrigation uses by private
parties holding vested rights-of-way to divert water. It appears
undisputed for purposes of this appeal that the diversions
could jeopardize threatened species of fish.
Only count four (violation of section 7(a)(2) of the ESA) of
the first amended complaint against the BLM is at issue on
appeal; the parties agreed to litigate a set of six “test-case”
diversions and focus on the legal issue of whether the BLM
has a duty to consult under section 7(a)(2). The State of Idaho
intervened and, along with the BLM, is an appellant.2
At issue are rights-of-way held by private parties to access
and use water as “recognized and acknowledged by the local
customs, laws, and the decision of courts” pursuant to the Act
1
The primary claims against the FWS settled.
2
This opinion refers generally to the separate arguments of the BLM
and the State of Idaho collectively as those of the BLM.
WESTERN WATERSHEDS v. MATEJKO 8189
of July 26, 1866, 14 Stat. 253, codified at 43 U.S.C. § 661
(repealed in part Oct. 21, 1976) (the 1866 Act). Section 9 of
the 1866 Act (also known as Revised Statute (R.S.) 2339 and
R.S. 2340) provides in pertinent part as follows:
Whenever, by priority of possession, rights to the
use of water for mining, agricultural, manufacturing,
or other purposes, have vested and accrued, and the
same are recognized and acknowledged by the local
customs, laws, and the decisions of courts, the pos-
sessors and owners of such vested rights shall be
maintained and protected in the same; and the right
of way for the construction of ditches and canals for
the purposes herein specified is acknowledged and
confirmed; . . . .
All patents granted, or preemption or homesteads
allowed, shall be subject to any vested and accrued
water rights, or rights to ditches and reservoirs used
in connection with such water rights, as may have
been acquired under or recognized by this section.
Id. (emphasis added).
The 1866 Act embraced a doctrine of prior appropriation
and a general policy of deference to state and local law
regarding water rights. See Hunter v. United States, 388 F.2d
148, 151 (9th Cir. 1967).
Similarly, the Act of March 3, 1891, 26 Stat. 1095, codified
in pertinent part at 43 U.S.C. § 946 (repealed Oct. 21, 1976)
(the 1891 Act), provided for a vested federal right-of-way for
irrigation upon approval of a map by the Secretary of the Inte-
rior. Utah Power & Light Co. v. United States, 243 U.S. 389,
406-07 (1917). Like the 1866 Act rights-of-way, rights vested
under the 1891 Act are perpetual unless the use changes. See
Kern River Co. v. United States, 257 U.S. 147, 151-52 (1921)
(“The approval, once given, could not be recalled . . . [unless
8190 WESTERN WATERSHEDS v. MATEJKO
by] a suit in equity . . . in the event the grantee ceased to use
or retain the land for the purpose indicated in the act.”) (cita-
tions omitted).
“The effect of these acts is not limited to rights acquired
before 1866. They reach into the future as well, and approve
and confirm the policy of appropriation for a beneficial use,
as recognized by local rules and customs, and the legislation
and judicial decisions of the arid-land states, as the test and
measure of private rights in and to the nonnavigable waters on
the public domain.” Hunter, 388 F.2d at 152 (quoting
California-Oregon Power Co. v. Beaver Portland Cement
Co., 295 U.S. 142, 154-55 (1935)). That is, rights-of-way
could be acquired well after 1866 and 1891. See, e.g., Grind-
stone Butte Project v. Kleppe, 638 F.2d 100, 101 (9th Cir.
1981) (discussing irrigation rights-of-way approved in 1974
under the 1891 Act); Adams v. United States, 3 F.3d 1254,
1256 & 1260 (9th Cir. 1993) (affirming district court’s hold-
ing that landowners possessed vested water rights-of-way
under the 1866 Act, which were asserted in 1965 to 1968).
The six test-case diversions at issue here are on three
streams or rivers in central Idaho: two on Big Timber Creek,
three on the Pahsimeroi River, and one on Mahogany Creek.
The Big Timber Creek’s diversions are a “pipe diversion” and
a “Carey Act diversion.” The “pipe diversion” was estab-
lished under the 1866 Act. The “Carey Act diversion” was
apparently established under the 1891 Act. The three diver-
sions on the Pahsimeroi River were vested under the 1866
Act. The diversion on Mahogany Creek is also from the 1866
Act. So, of the six test-case diversions, five were acquired
under the 1866 Act and one under the 1891 Act. The district
court assumed the diversions were 1866 Act rights-of-way for
purposes of making its legal rulings.3
3
Western Watersheds questions whether the test-case diversions really
are 1866 Act rights, but our review is limited to the district court’s legal
conclusions.
WESTERN WATERSHEDS v. MATEJKO 8191
II.
In 1976, Congress changed the statutory regime regarding
rights-of-way by enacting the Federal Land Policy Manage-
ment Act (FLPMA), 43 U.S.C. §§ 1701-1784 (1976). Effec-
tive October 21, 1976, the FLPMA replaced a “tangled array
of laws granting rights-of-way across federal lands,” with a
single method for establishing a right-of-way over public
lands. United States v. Jenks, 22 F.3d 1513, 1515 (10th Cir.
1994). Most important for present purposes, however, Con-
gress specifically chose to preserve vested rights such as those
under the 1866 and 1891 Acts. Section 509(a) of the FLPMA
provides:
Nothing in this subchapter shall have the effect of
terminating any right-of-way or right-of-use hereto-
fore issued, granted, or permitted. However, with the
consent of the holder thereof, the Secretary con-
cerned may cancel such a right-of-way or right-of-
use and in its stead issue a right-of-way pursuant to
the provisions of this subchapter.
43 U.S.C. § 1769(a). See also 43 U.S.C. § 1701 historical note
(a) (“[Section 701 of the FLPMA] provided that Nothing in
this Act . . . , or in any amendment made by this Act, shall
be construed as terminating any valid lease, permit, patent,
right-of-way, or other land use right or authorization existing
on the date of approval of this Act . . .”) and (h) (“All actions
by the Secretary concerned under this Act shall be subject to
valid existing rights.”).
In turn, the BLM issued a policy statement in 19834 declar-
4
The policy statement was issued after case law had determined (con-
trary to the BLM’s position at the time) that acts such as the 1891 Act, and
a similar 1901 Act, did not supercede or amend the 1866 Act. See Grind-
stone Butte, 638 F.2d at 103; Hyrup v. Kleppe, 406 F. Supp. 214, 217 (D.
Colo. 1976).
8192 WESTERN WATERSHEDS v. MATEJKO
ing that “Ditches and canals constructed on public lands on or
before October 21, 1976, under the authority of the 1866 Act
will be recognized as an authorized use of the public land and
no further action is required by either the holder of the vested
water right or the [BLM].” It went on to guide that “any con-
struction activities taking place after passage of FLPMA that
significantly alter the alignment or relocate the existing facil-
ity require a right-of-way grant under Title V of FLPMA.”
(Emphasis in original).
The BLM promulgated consistent regulations in 1986 that
provided:
Rights-of-way grants issued on or before October
21, 1976.
A right-of-way grant issued on or before October
21, 1976, pursuant to then existing statutory author-
ity is covered by the provisions of this part unless
administration of this part diminishes or reduces any
rights conferred by the grant or the statute under
which it was issued, in which event the provision of
the grant or the then existing statute shall apply.
43 C.F.R. § 2801.4 (2004) (emphasis added).
Holder activity.
....
(b) Any substantial deviation in location or
authorized use by the holder during construction,
operation or maintenance shall be made only with
prior approval of the authorized officer[.]
43 C.F.R. § 2803.2(b) (2004) (emphasis added).
After the district court issued its decision, the BLM com-
pleted major amendments to its rights-of-way regulations,
WESTERN WATERSHEDS v. MATEJKO 8193
effective June 21, 2005. See 70 Fed. Reg. 20970 (April 22,
2005). Among the many changes, the BLM issued a new reg-
ulation regarding the scope of its authority, similar to section
2801.4 quoted above:
The regulations in this part apply to:
....
(3) Grants issued on or before October 21, 1976,
under then existing statutory authority, unless appli-
cation of these regulations would diminish or reduce
any rights conferred by the original grant or the stat-
ute under which it was issued. Where there would be
a diminishment or reduction in any right, the grant
or statute applies.
43 C.F.R. § 2801.6 (2005) (emphasis added); 70 Fed. Reg. at
21062.
The new regulations also replaced section 2803.2(b) with a
section requiring a right-of-way holder to obtain BLM’s
approval before beginning a use or activity that “requires a
substantial deviation from the grant.” 43 C.F.R. § 2807.11(b)
(2005); 70 Fed. Reg. at 21075. It continues: “You must obtain
BLM’s approval before you begin any activity that is a sub-
stantial deviation.” Id.
Another new statement specifies that the BLM’s regula-
tions “do not apply to . . . Reservoirs, canals, and ditches con-
structed under the authority of [section 9 of the 1866 Act].”
43 C.F.R. § 2801.6(b)(6) (2005); 70 Fed. Reg. at 21062. The
BLM did this “to clarify that the right-of-way regulations do
not apply to existing rights for private reservoirs, ditches, and
canals established prior to FLPMA under the Mining Act of
July 26, 1866. We think this clarification will be helpful in
eliminating any confusion associated with the previous regu-
8194 WESTERN WATERSHEDS v. MATEJKO
latory language found in former section 2801.4.” 70 Fed. Reg.
at 20979. In so doing, it gave the following rationale:
This final rule therefore reflects long-standing law
and BLM’s historical practice by clarifying that
1866 Act rights-of-way are not subject to regulation
so long as a right-of-way is being operated and
maintained in accordance with the scope of the origi-
nal rights granted. Because rights-of-way under the
1866 Act are perpetual and do not require renewal,
no authorization under FLPMA exists or is required
in the future. Therefore, unless a right-of-way holder
undertakes activities that will result in a substantial
deviation in the location of the ditch or canal, or a
substantial deviation in the authorized use, no oppor-
tunity exists for BLM to step in and regulate a right-
of-way by imposing terms and conditions on the
right-of-way’s operation and maintenance. Simply
stated, there is no current BLM authorization to
which such terms and conditions could be attached.
Therefore, Title V of FLPMA and BLM’s right-of-
way regulations do not apply to these rights-of-way.
This does not mean, however, that BLM cannot
take action to protect the public lands when a holder
of an 1866 Act right-of-way undertakes activities
that are inconsistent with the original right-of-way.
In such a situation, if the right-of-way holder does
not approach BLM for a FLPMA permit authorizing
such activities, FLPMA and BLM’s trespass regula-
tions provide BLM with the discretion to take an
enforcement action against the right-of-way holder.
70 Fed. Reg. at 20980.
III.
Section 7(a)(2) of the ESA requires a federal agency to ini-
tiate consultation as follows:
WESTERN WATERSHEDS v. MATEJKO 8195
Each Federal Agency shall, in consultation with
and with the assistance of the Secretary, insure that
any action authorized, funded, or carried out by such
agency . . . is not likely to jeopardize the continued
existence of any endangered species or threatened
species or result in the destruction or adverse modifi-
cation of [critical] habitat of such species[.]
16 U.S.C. § 1536(a)(2) (emphasis added).
In turn, FWS and NMFS (National Marine Fisheries Ser-
vice) regulations provide:
Action means all activities or programs of any
kind authorized, funded, or carried out, in whole or
in part, by Federal agencies in the United States or
upon the high seas. Examples include, but are not
limited to: (a) actions intended to conserve listed
species or their habitat; (b) the promulgation of regu-
lations; (c) the granting of licences, contracts, leases,
easements, rights-of-way, permits, or grants-in-aid;
or (d) actions directly or indirectly causing modifica-
tions to the land, water, or air.
50 C.F.R. § 402.02 (2005).
In particular, a regulation states that “Section 7 and the
requirements of this Part apply to all actions in which there
is discretionary Federal involvement or control.” 50 C.F.R.
§ 402.03 (2005) (emphasis added).
IV.
After narrowing the scope of the litigation by designating
the six test-case diversions, the parties filed cross-motions for
summary judgment. The district court ruled in favor of West-
ern Watersheds, determining that the BLM had discretion to
impose conditions on the test-case diversions. It concluded
8196 WESTERN WATERSHEDS v. MATEJKO
that the ESA “requires the BLM to consult with the appropri-
ate federal fish and wildlife agency over its decision not to
impose conditions on certain water diversions.” The court
gave the term “action” in section 7(a)(2) “an expansive defini-
tion,” and found an agency decision to “ignore actions by oth-
ers” to be such action. It reasoned:
There is no principled distinction between (1) a
BLM decision to operate diversions across its lands
that may affect Bull Trout; (2) a BLM decision to
award a permit to a rancher who operates diversions
across public lands that may affect Bull Trout; and
(3) a BLM decision to ignore a rancher who operates
diversions across public lands that may affect Bull
Trout.
The district court also found the BLM’s 1986 regulations
and 1983 instruction memorandum to “constitute a continuing
agency action — a decision not to impose conditions on
diversions arising under the Act of 1866.” In so holding, the
court reasoned that the BLM had discretion to impose condi-
tions on diversions arising under the 1866 Act. Such discre-
tion meant that section 7(a)(2) applied under 50 C.F.R.
§ 402.03 (“Section 7 and the requirements of this Part apply
to all actions in which there is discretionary Federal involve-
ment or control”). Not only was the BLM required to consult
under the ESA, the court went on to conclude “the BLM
failed to perform a mandatory duty” and could be compelled
to perform it under the Administrative Procedure Act (APA),
5 U.S.C. § 706(1).
That is, the district court found the required action in the
BLM’s continued application of the BLM’s regulatory inter-
pretations made some 20 years ago — regulations requiring
a “substantial deviation in either location or intended use” by
the private users, 43 C.F.R. § 2803.2 (2004), before regula-
tory power arose.5 The district court reasoned that the BLM
5
As set forth earlier, the BLM rights-of-way regulations were amended
wholesale effective June 21, 2005 — after the district court’s decision.
WESTERN WATERSHEDS v. MATEJKO 8197
could have chosen to regulate the rights-of-way at issue, and
thus had “discretionary federal involvement.” It found the
BLM “acted” either (1) by not exercising its residual discre-
tion to regulate the rights-of-way, or (2) by continuing to fol-
low the restrictive regulations themselves.
Following the grant of partial summary judgment in favor
of Western Watersheds, the court entered an injunction order-
ing the BLM to initiate consultation within 180 days for three
of the test-case diversions, and within 270 days for the
remaining test-case diversions. The BLM and intervenor State
of Idaho timely appealed from this injunction under 28 U.S.C.
§ 1292(a)(1).
STANDARD OF REVIEW
The Court reviews the decision to grant a permanent
injunction for an abuse of discretion. Biodiversity Legal
Found. v. Badgley, 309 F.3d 1166, 1176 (9th Cir. 2002).
However, the rulings of law relied upon by the district court
are reviewed de novo. Id.
Judicial review of administrative decisions under the ESA
is governed by the APA. “Under the APA, a court may set
aside an agency action if the court determines that the action
was ‘arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with the law.’ ” Turtle Island Restoration
Network v. Natl Marine Fisheries Serv., 340 F.3d 969, 973
(9th Cir. 2003) (citation omitted).
Among other things, the BLM promulgated an even clearer regulatory
statement in 43 C.F.R. § 2801.6(b)(6) (“[BLM regulations do not apply to]
Reservoirs, canals, and ditches constructed under the authority of [section
9 of the 1866 Act]”). See 70 Fed. Reg. at 20980 (“1866 Act rights-of-way
are not subject to regulation so long as a right-of-way is being operated
and maintained in accordance with the scope of the original rights grant-
ed”).
8198 WESTERN WATERSHEDS v. MATEJKO
DISCUSSION
[1] The appeal turns on whether the BLM’s failure to exer-
cise any discretion it might have had to regulate the diversions
at issue in this appeal constitutes a BLM “action” that “autho-
rizes, funds, or carries out” the diversions. The question is
whether such a failure to exercise discretion (assuming the
BLM had discretion) is an “agency action” for purposes of
section 7(a)(2), so as to require consultation.
[2] Our answer is no. We start with the plain language of
section 7(a)(2), which refers to “agency action” as “any action
authorized, funded, or carried out by such agency.” Of partic-
ular significance is the affirmative nature of these words —
“authorized, funded, carried” — and the absence of a “failure
to act” from this list. This stands in marked contrast to other
sections of the ESA, which explicitly refer to an agency’s fail-
ure to act. See, e.g., § 1540(g)(1)(C) (authorizing citizen suits
“where there is alleged a failure of the Secretary to perform
any act or duty . . . which is not discretionary[.]”) (emphasis
added).6
Both sides look to the ESA regulations for support. The
regulations define “action” to mean “all activities or programs
of any kind authorized, funded, or carried out, in whole or in
part, by Federal agencies in the United States . . . [.]” 50
C.F.R. § 402.02 (2004) (emphasis added). Western Water-
sheds emphasizes “of any kind” and argues that a decision not
to regulate fits such broad language. In response, the BLM
points to the examples given in the regulation, which are affir-
mative — e.g., “the promulgation of regulations” and “the
granting of . . . rights-of-way.” Id.
6
The actions cannot be the private diversions themselves. The statute
plainly refers to “agency action”; it says “any action authorized, funded,
or carried out by such agency (hereinafter in this section referred to as an
‘agency action’) is not likely to jeopardize . . . [.]” 16 U.S.C. § 1536(a)(2).
WESTERN WATERSHEDS v. MATEJKO 8199
Although the term “agency action” is to be construed
broadly, see Natural Res. Def. Council v. Houston, 146 F.3d
1118, 1125 (9th Cir. 1998), Ninth Circuit cases have empha-
sized that section 7(a)(2) consultation stems only from “affir-
mative actions.” This point was recently reiterated in
Defenders of Wildlife v. EPA, 420 F.3d 946 (9th Cir. 2005).
Defenders of Wildlife repeatedly emphasized that section
7(a)(2) consultation stems from “affirmative” actions only. It
found a duty to consult under section 7(a)(2) in an EPA deci-
sion to approve a transfer of a Clean Water Act permitting
program from federal to state control. Most important for
present purposes, the opinion studied section 7(a)(2), ana-
lyzed Ninth Circuit case law, and emphasized (over and over)
that “action” under section 7(a)(2) must be “affirmative.” Id.
at 967 (“section 7(a)(2) specifies that agencies must when act-
ing affirmatively refrain from jeopardizing listed species”)
(emphasis in original).
[3] Interpreting section 7(a)(2), the opinion explained that
“the [ESA] confers authority and responsibility on agencies to
protect listed species when the agency engages in an affirma-
tive action that is both within its decisionmaking authority and
unconstrained by earlier agency commitments.” Id. (emphasis
added). The “language does indicate that some agency actions
are not covered — those the agency does not ‘authorize[ ],
fund[ ], or carr[y] out.’ ” Id. (emphasis and alterations in orig-
inal). It restates the question as whether agencies must “pro-
tect listed species from the impact of affirmative federal
actions.” Id. at 970 (emphasis added). It characterizes section
7(a)(2) as “a do-no-harm directive pertaining to affirmative
agency action with likely adverse impact on listed species.”
Id. (emphasis added). It held that the approval of the transfer
of Clean Water Act permitting authority triggered section
7(a)(2)’s “consultation requirement and its mandate that agen-
cies not affirmatively take actions that are likely to jeopardize
listed species.” Id. at 971 (emphasis added). In short, Defend-
ers of Wildlife provides that “inaction” is not “action” for sec-
tion 7(a)(2) purposes. That is, even assuming the BLM could
8200 WESTERN WATERSHEDS v. MATEJKO
have had some type of discretion here to regulate the diver-
sions (beyond a “substantial deviation”), the existence of such
discretion without more is not an “action” triggering a consul-
tation duty.
This position is consistent with prior cases. See Sierra Club
v. Babbitt, 65 F.3d 1502, 1511 (9th Cir. 1995) (reasoning that
“a BLM ‘action’ will implicate section 7(a)(2) only if it legiti-
mately authorizes [private] activity” and concluding that the
BLM’s issuance of an “approval” letter for a road right-of-
way could not be construed as an “authorization” triggering
a duty to consult); and Marbled Murrelet v. Babbitt, 83 F.3d
1068, 1074-75 (9th Cir. 1996) (finding section 7(a)(2) inappli-
cable where the responding agency “merely provided advice”
on how to avoid a “take” but did not act to “authorize, fund
or carry out” challenged tree-harvesting operations).
The BLM’s challenged “action” stands in marked contrast
to cases involving truly “affirmative” actions. See Turtle
Island Restoration Network, 340 F.3d at 977 (holding that
section 7(a)(2) applies to the “continued issuance of fishing
permits”) and Houston, 146 F.3d at 1125-26 (reasoning that
section 7(a)(2) applies to negotiating and executing water
contracts, where agency was not bound to reaffirm previously
negotiated terms).
[4] Here, the BLM did not fund the diversions, it did not
issue permits, it did not grant contracts, it did not build dams,
nor did it divert streams.7 Rather, the private holders of the
vested rights diverted the water, beginning a long time ago.
The BLM did not affirmatively act and was “not an entity
responsible for [the challenged] decisionmaking.” Defenders
of Wildlife, 420 F.3d at 968 (citing Washington Toxics Coal.
v. Envtl. Prot. Agency, 413 F.3d 1024, 1033 (9th Cir. 2005)).
7
In contrast, the record indicates that when the BLM directly funded a
diversion in 1999, it formally consulted with the FWS.
WESTERN WATERSHEDS v. MATEJKO 8201
Western Watersheds would find “affirmative” action in the
BLM’s continuing decision not to enforce its regulatory dis-
cretion. In this regard, 50 C.F.R. § 402.03, provides “Section
7 and the requirements of this Part apply to all actions in
which there is discretionary Federal involvement or control.”
Assuming the BLM had some “discretionary” authority over
1866 and 1891 rights-of-way, the “action” is — according to
Western Watersheds — the act of continuing to follow a pol-
icy expressed in then-existing BLM regulations promulgated
in 1986 (43 C.F.R. § 2803.2(b) (2004)), which restrict the
BLM’s power unless there is a “substantial deviation in loca-
tion or authorized use” of a vested right-of-way.
[5] It is true that “[w]here the challenged action comes
within the agency’s decisionmaking authority and remains so,
it falls within section 7(a)(2)’s scope.” Defenders of Wildlife,
420 F.3d at 969 (emphasis added). However, there is no “on-
going agency action” where the agency has acted earlier but
specifically did not retain authority or was otherwise con-
strained by statute, rule, or contract. For example, in Environ-
mental Protection Info. Ctr. v. Simpson Timber Co., 255 F.3d
1073, 1082 (9th Cir. 2001), the Ninth Circuit found no sec-
tion 7(a)(2) consultation requirement where the FWS had
already issued a permit but had not retained discretion to
amend it to protect endangered species. There was no “ongo-
ing agency involvement” because the FWS had not “retained
the power to ‘implement measures that inure to the benefit of
the protected species.’ ” Id. at 1080 (quoting Sierra Club v.
Babbitt, 65 F.3d 1502, 1509 (9th Cir. 1995)). In Sierra Club,
section 7(a)(2) did not apply because — like here — the BLM
had “no ability to influence” a project based on a right-of-way
granted before the ESA was enacted. 65 F.3d at 1509.
On the other hand, there was such “continuing decision-
making authority” in Washington Toxics, where the EPA had
a continuing duty “to register pesticides, alter pesticide regis-
trations, and cancel pesticide registrations” under the Federal
Insecticide, Fungicide and Rodenticide Act. 413 F.3d at 1033.
8202 WESTERN WATERSHEDS v. MATEJKO
“Ongoing agency action” also existed in Pacific Rivers Coun-
cil v. Thomas, 30 F.3d 1050, 1053 (9th Cir. 1994), where the
Forest Service maintained continuing authority under a com-
prehensive and long term management plan, that was still in
effect. And in Turtle Island Restoration Network, the Ninth
Circuit found the requisite residual discretionary authority
where the NMFS had retained discretion in its previously-
granted fishing permits specifically to protect species. 340
F.3d at 977. In those types of cases, there is a duty to consult.
[6] Here, even if the BLM could have regulated the diver-
sions to protect endangered species, it did not retain such dis-
cretion. As the 1983 instruction memorandum, the 1986
regulations, and the recently-enacted 2005 regulatory amend-
ments make clear, the only discretion the BLM retained is to
regulate the pre-1978 diversions if there is a “substantial devi-
ation in use or location.” The BLM has the ability to institute
enforcement or trespass actions if a right-of-way holder “sub-
stantially deviates” and does not obtain BLM approval. See 43
U.S.C. § 1733 and 43 C.F.R. § 2808.11 (2005); 70 Fed. Reg.
at 21078. It also has the ability to institute an ESA § 9 (16
U.S.C. § 1538) “taking” action to prevent harm. But even this
power is not ongoing “discretionary involvement or control”
within the meaning of 50 C.F.R. § 402.03. See Marbled Mur-
relet, 83 F.3d at 1074 (“there is no evidence that the USFWS
had any power to enforce those conditions other than its
authority under section 9 of the ESA, and this is not enough
to trigger ‘federal action’ under section 7”). In short, the BLM
has no retained power to “inure to the benefit of the protected
species.” Sierra Club, 65 F.3d at 1509.8
8
This is not to say that the BLM could not have had discretionary
authority or power to regulate the rights-of-way in the manner advanced
by Western Watersheds, and still be consistent with the FLPMA. We need
not decide that question. In some respects the 1983 policy statement and
1986 and 2005 regulations clarify that the BLM does have power —
despite section 509(a) of the FLPMA, 43 U.S.C. § 1769(a) — to regulate
pre-FLPMA rights of way if a user “substantially deviates” from a vested
WESTERN WATERSHEDS v. MATEJKO 8203
[7] This is not a lawsuit to “compel agency action” under
§ 706(1) of the APA. Nor can this be a suit challenging
BLM’s general policies on when or how to regulate pre-
FLPMA rights-of-way because such a “programmatic chal-
lenge” to agency policy is improper. Lujan v. Nat’l Wildlife
Federation, 497 U.S. 871, 891 (1990) (“Under the terms of
the APA, the respondent must direct its attack against some
particular ‘agency action’ that causes it harm”). A “failure to
regulate” claim must be based upon a clearly imposed duty to
take some discrete action. Southern Utah Wilderness Alliance
v. Norton, 542 U.S. 55, 64 (2004). Rather, this is a narrow suit
(at least the single count now on appeal) limited to attempting
to compel the BLM to initiate consultation under section
7(a)(2) of the ESA. We conclude that such a challenge fails.9
CONCLUSION
Because the test-case diversions did not result from affir-
mative BLM actions authorizing, funding, or carrying out the
activity, there is no duty to consult. Even if the BLM could
have retained the power to regulate the pre-FLPMA diver-
use. But even if the BLM could have had greater discretion, it did not
retain authority beyond “substantial deviations” in use. That is, even if the
FLPMA could be interpreted to have allowed the BLM some discretion to
regulate pre-FLPMA rights-of-way, the BLM did not retain such authority
(other than for “substantial deviations”). Thus, there is no “ongoing
agency action.”
9
As both sides acknowledge, Western Watersheds or others can file an
action under section 9 of the ESA (16 U.S.C. § 1538) against particular
diversions to halt “takings” of threatened species, if the diversions jeopar-
dize fish or their critical habitat — something Western Watersheds did
earlier against the same type of diversions at issue here. Of course, such
section 9 suits differ from the type of agency enforcement contemplated
by Western Watersheds. Our review, however, is limited to the statutory
question under section 7(a)(2).
8204 WESTERN WATERSHEDS v. MATEJKO
sions, its determination made years ago to limit such power
is not an “ongoing agency action.”
REVERSED.