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Arizona Cattle Growers' Ass'n v. U.S. Fish & Wildlife Serv.

Citation: 32 ELR 20392
No. Nos. 99-16102 et al., 273 F.3d 1229/(9th Cir., 12/17/2001)

The court holds that the U.S. Fish and Wildlife Service (FWS) acted in an arbitrary and capricious manner by issuing incidental take statements imposing terms and conditions on grazing permits sought by a cattle growers' association where there was either no evidence that the endangered species existed on the land or no evidence that a take would occur if the permit were issued. The court first holds that contrary to the FWS' argument, the definition of "incidental take" set forth in § 7 of the Endangered Species Act (ESA) should not be construed more broadly than "take" under ESA § 9 even though the two sections serve different purposes. The court also holds that except in rare circumstances such as those involving migratory species, it is arbitrary and capricious to issue an incidental take statement when the FWS has no rational basis to conclude that a take will occur incident to an otherwise legal activity. The ESA does not dictate that the FWS must issue an incidental take statement irrespective of whether any incidental taking will occur. Rather, an incidental take statement must be predicated on a finding of an incidental take. The court then holds that because the FWS' speculation that certain species exist on the property at issue was not supported by the record and because there was little factual support for its conclusion that an incidental take was anticipated, the FWS was arbitrary and capricious in issuing incidental take statements for those species. However, the FWS was not arbitrary and capricious in issuing an incidental take statement for one of the species because the FWS articulated a rational connection between harm to the species and the land grazing activities at issue. Nevertheless, the court holds that the FWS' failure to properly specify the amount of anticipated take in the incidental take statement for that species and its failure to provide a clear standard for determining when the authorized level of take has been exceeded was arbitrary and capricious.

Counsel for Plaintiffs
Norman D. James
Fennemore & Craig
Two N. Central Ave., Ste. 2200, Phoenix AZ 85004
(602) 257-8700

Counsel for Defendants
M. Alice Thurston
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Wardlaw, J. Before Noonan and McKeown, JJ.