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9th Circuit Rejects Fish & Wildlife's Handling of Incidental Take Permits

The Ninth U.S. Circuit Court of Appeals has reined in the U.S. Fish & Wildlife Service's ability to issue "incidental take statements" under the Endangered Species Act. In a grazing case from Arizona, the court ruled that the Service can prepare the statements only when it is likely that a private landowner's activity will "take" an endangered species. The court also concluded that the Service's preparation of incidental take statements in a variety of grazing permit cases was arbitrary and capricious. In the one instance when the Service's preparation of an incidental take statement was justified, the court found that the statement itself was flawed. The case was filed by the Arizona Cattle Growers' Association in response to the Fish & Wildlife Service's action on applications by a variety of the association's members for grazing permits on federal "allotments" from the Bureau of Land Management. The Service concluded that the issuance of the permits was not likely to jeopardize the survive of 20 different endangered species and further concluded that the grazing would not adversely affect the species' critical habitat. Nevertheless, the Service did proceed to issue Incidental Take Statements for the 20 species an action that imposed additional responsibilities upon applicants. Under Section 7 of the Endangered Species Act, an incidental take statement is an advisory opinion which specifies the impact of "incidental takes" that is, a "taking" of endangered species in the process of engaging in otherwise lawful activities. It also specifies conditions that the applicant must follow. The conditions contained in an incidental take permit are part of the "safe harbor" provisions of the Endangered Species Act. Following the permit conditions protects the applicant from prosecution under Section 9 of the Endangered Species Act (the prohibition on incidental take without a permit); ignoring the permit conditions subjects the applicant to potential penalties under the ESA. In two separate U.S. District Court opinions in Arizona, federal judges ruled that in order to issue an incidental take permit, the Service had to provide evidence of a listed species' existence on the land and show that "a take has occurred or is reasonably certain to occur." Before the Ninth Circuit, the Fish & Wildlife Service put forth a new argument: that it should be permitted to issue an incidental take permit "whenever there is any possibility, no matter how small, that a listed species will be taken." The cattle growers association argued that the Ninth Circuit should not consider this argument because it was put forth for the first time on appeal. The Ninth Circuit considered the merits of the new argument anyway but ruled against the Fish & Wildlife Service and for the cattle growers. "As we believe that Congress has spoken to the precise question at issue, we must reject the agency's interpretation of the ESA as contrary to clear congressional intent," wrote Judge Kim McLane Wardlaw for a three-judge panel of the Ninth Circuit. Wardlaw went on to say that "the plain language of the ESA does not dictate that the Fish & Wildlife Service must issue an Incidental Take Statement irrespective of whether any incidental takings will occur." Quoting the legislative history from the House debate over the "safe harbor" provision in 1982, Wardlaw wrote: "If the sole purpose of the Incidental Take Statement is provide shelter from Section 9 penalties, as previously noted, it would be nonsensical to require the issuance of an Incidental Take Statement when no takings cognizable under Section 9 are to occur." She further criticized the Fish & Wildlife Service's internal handbook as misinterpreting the law. The court found that the Service's issuance of an incidental take statement was "arbitrary and capricious" in the case of six of the seven permits contained in the underlying two lawsuits. In the seventh case involving the loach minnow and spikedace (two species of endangered fish), and grazing allotments along the Blue River in Apache-Sitgreaves National Forest the Ninth Circuit found that the Service had made a case that the species could be harmed by the grazing and the issuance of an Incidental Take Statement was therefore justified. However, the court concluded that the Service's implementation of the Incidental Take Statement in that case was arbitrary and capricious because the service did not "properly specify the amount of anticipated take" and failed "to provide a clear standard for determining when the authorized level of take had been exceeded." The Cases: Arizona Cattle Growers' Association v. U.S. Fish & Wildlife Service, Nos. 99-16102, 99-16103, 00-15322, 00-1511, 01 CDOS 10416. Filed December 17, 2001. The Lawyers: For Arizona Cattle Growers Association: Jay Shapiro and Norman James, Fennemore Craig, (602) 916-5366. For U.S.: Fish & Wildlife Service: Lois J. Schiffer and M. Alice Thurston, Department of Justice Environment and Natural Resources Division, (202) 514-2000.
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