This decision is largely viewed as an expansion of agency
activities subject to ESA section 7 consultation. While only
directly applicable in the Ninth Circuit, the decision has several
potential significant implications:
Thousands of agency decisions not previously considered to be
"agency action" for purposes of section 7 consultation
must now be considered "agency action," and thus subject
to formal section 7 ESA consultation. Formal consultation is a
time-intensive process involving agency review and preparation of a
biological opinion, a process that takes, at a minimum, 135 days.
These decisions largely fall into areas involving mining, water
rights, and forestry, and will likely significantly delay agency
This delay will be compounded in light of the Services'
ongoing budgetary restrictions and administrative burden imposed by
the Fall 2011 settlement between USFWS and environmental
organizations that requires USFWS to make listing decisions for
hundreds of species on a court-imposed timeline.
Due to the potential for significant impacts within and beyond
the Ninth Circuit, and apparent conflict with established precedent
in the Ninth and other circuits, this case is a prime candidate for
U.S. Supreme Court review.
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