Arizona Cattle Growers' Association v. U.S. Fish and Wildlife Service
273 F.3d 1229 (9th Cir. 2001)
The Bureau of Land Management
(BLM) was issuing grazing permits on 1.6M acres of Federal land. Pursuant
to §7 of the Endangered
Species Act (ESA), the Fish and Wildlife Service (FWS) issued a
Biological Opinion that the grazing was not likely to
jeopardize the endangered species that lived on the land, or destroy a critical
habitat. However FWS did issue Incidental
Take Statements (ITSs) about a few
An ITS lays out
recommendations that should be followed to ensure that any incidental
damage to the threatened species won't result in their jeopardy. In this
case, FWS recommended limitations on what could be done with the land
(aka habitat modification).
While an ITS is just
advisory, if people comply with the recommendations, and an endangered
species is damaged, then the person is immune from liability.
See ESA §7(b)(4)(B).
In a separate case, the US
Forest Service asked the FWS to comment on some land they were going to
open for grazing, and FWS again issued some ITSs for a few species.
In both cases, the FWS was
sued by local cattle ranchers who wanted the permits, but did not want to
comply with the restrictions in the ITSs.
The ranchers argued that there
was no evidence that any endangered species would be injured, so there
was no reason to issue an ITS.
The FWS argued that ESA
§7 should be read to encompass
situations in which harm was "possible" or "likely"
in the future due to the proposed actions.
There was evidence that
there had once been endangered species there, and might come back if
conditions were right.
The Trial Court found for the
cattle ranchers. FWS appealed.
The Trial Court found that
the definition of taking in ESA
§7 should be the same as the definition in ESA §9.
The Court looked to Babbitt
v. Sweet Home Chapter of Communities for a Great Oregon (515 U.S. 687 (1995)), which held that
habitat modification does not constitute a harm unless it actually kills
or injures wildlife.
The Appellate Court affirmed.
The Appellate Court found
that there was no evidence that any endangered species would be damaged.
In fact, FWS was unable to confirm whether the species they were
protecting in the ITSs actually even lived on the land in question.
The Court found that it was
arbitrary and capricious to issue an ITS without a rational basis to
conclude that a take would actually occur.
The Court found that in
situations where there was evidence of the existence of an endangered
species, the FWS could not issue an ITS unless they had a sufficient
connection between the proposed activity and the harm to the endangered
In this case, the Court
didn't see how grazing by cattle on land was going to affect a fish
swimming in a nearby pond.
In general, the courts give
deference to Agencies because the Agencies are the ones with the experts.
In this case, the Court second-guessed the FWS's opinion that there would
be harm. Isn't that a violation of Chevron Doctrine?
Under the decision in Chevron
U.S.A. Inc. v. Natural Resources Defense Council (467 U.S. 837 (1984)), the courts are to give
a wide latitude to Administrative Agencies in how they interpret