273 F.3d 1229 (9th Cir. 2001), 99-16102, AZ. Cattle Grower's Assoc. v. US. Fish & Wildlife

Docket Nº:99-16102, 99-16103, 00-15322 and 00-15511
Citation:273 F.3d 1229
Party Name:ARIZONA CATTLE GROWERS' ASSOCIATION, JEFF MENGES, PLAINTIFFS-APPELLEES-CROSS-APPELLANTS, v. UNITED STATES FISH AND WILDLIFE, BUREAU OF LAND MANAGEMENT, DEFENDANTS-APPELLANTS-CROSS-APPELLEES, AND SOUTHWEST CENTER FOR BIOLOGICAL DIVERSITY, DEFENDANT-INTERVENOR-APPELLANT.
Case Date:December 17, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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273 F.3d 1229 (9th Cir. 2001)

ARIZONA CATTLE GROWERS' ASSOCIATION, JEFF MENGES, PLAINTIFFS-APPELLEES-CROSS-APPELLANTS,

v.

UNITED STATES FISH AND WILDLIFE, BUREAU OF LAND MANAGEMENT, DEFENDANTS-APPELLANTS-CROSS-APPELLEES,

AND

SOUTHWEST CENTER FOR BIOLOGICAL DIVERSITY, DEFENDANT-INTERVENOR-APPELLANT.

Nos. 99-16102, 99-16103, 00-15322 and 00-15511

United States Court of Appeals, Ninth Circuit

December 17, 2001

Argued and Submitted March 14, 2001

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M. Alice Thurston (argued), United States Department of Justice, for the defendants-appellants-cross-appellees.

Lois J. Schiffer (on brief), Assistant Attorney General, Environment and Natural Resources Division, for the defendants-appellants-cross-appellees.

Samuel D. Rauch (on brief), United States Department of Justice, for the defendants-appellants-cross-appellees.

Ellen Durkee (on brief), United States Department of Justice, for the defendants-appellants-cross-appellees.

Norman D. James (argued), Fennemore Craig, for the plaintiffs-appellees-cross-appellants.

Jay L. Shapiro (on brief), Fennemore Craig, for the plaintiffs-appellees-cross-appellants.

Geoff Hickox (on brief), Kenna & Hickox, for the defendant-intervenor-appellant.

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M. Reed Hopper (on brief), Pacific Legal Foundation, for the amicus curiae.

Appeal from the United States District Court for the District of Arizona Robert C. Broomfield and David Alan Ezra, District Court Judges, Presiding. D.C. Nos. CV-97-02416-DAE, CV-99-0673-RCB

Before: Noonan, McKeown, and Wardlaw, Circuit Judges.

Wardlaw, Circuit Judge

At issue in these consolidated cross-appeals is whether the United States Fish and Wildlife Service's provision of Incidental Take Statements pursuant to the Endangered Species Act was arbitrary and capricious under Section 706 of the Administrative Procedure Act. In separate actions, the Arizona Cattle Growers' Association ("ACGA") challenged the Incidental Take Statements set forth in the Biological Opinions issued by the Fish and Wildlife Service in consultation with the Bureau of Land Management (ACGA I) and the United States Forest Service (ACGA II) in response to ACGA's application for cattle grazing permits in Southeastern Arizona. In the district courts, each of the Incidental Take Statements was set aside, with one exception, as arbitrary and capricious actions by the Fish and Wildlife Service, due to insufficient evidence of a take.

We hold, based on the legislative history, case law, prior agency representations, and the plain language of the Endangered Species Act, that an Incidental Take Statement must be predicated on a finding of an incidental take. Further, the Fish and Wildlife Service acted in an arbitrary and capricious manner by issuing Incidental Take Statements imposing terms and conditions on land use permits, where there either was no evidence that the endangered species existed on the land or no evidence that a take would occur if the permit were issued. We also find that it was arbitrary and capricious for the Fish and Wildlife Service to issue terms and conditions so vague as to preclude compliance therewith.

I. Background

A. ACGA I

Arizona Cattle Growers' Association and Jeff Menges, a rancher seeking a grazing permit on the lands at issue (collectively "ACGA"), sued the Fish and Wildlife Service and the Bureau of Land Management to challenge Incidental Take Statements issued by the Fish and Wildlife Service in a Biological Opinion for certain grazing lands. Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife Serv., 63 F.Supp.2d 1034 (D. Ariz. 1998) (Ezra, C.J., presiding) ("ACGA I"). Menges sought livestock grazing permits for land within the area supervised by the Bureau of Land Management's Saffold and Tucson, Arizona field offices, and the Association represented members who claimed to be harmed by the government action. The Bureau of Land Management's livestock grazing program for this area affects 288 separate grazing allotments that in total comprise nearly 1.6 million acres of land. The Fish and Wildlife Service's Biological Opinion, issued on September 26, 1997, analyzes twenty species of plants and animals and concludes that the livestock grazing program was not likely to jeopardize the continued existence of the species affected nor was likely to result in destruction or adverse modification of the designated or proposed critical habitat. The Fish and Wildlife Service did, however, issue Incidental Take Statements for various species of fish and wildlife listed or proposed as endangered.

ACGA's suit challenged both the Incidental Take Statements and their terms and conditions. The matter was adjudicated by way of cross-motions for summary judgment. ACGA's summary judgment

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motion focused on two of the ten Incidental Take Statements, those for the razorback sucker and the cactus ferruginous pygmy-owl. The district court first determined that ACGA enjoyed representational standing to sue for injuries relating to all allotments affected by the Incidental Take Statements. It then held that the Fish and Wildlife Service's issuance of an Incidental Take Statement for both the razorback sucker and the pygmy-owl was arbitrary and capricious, reasoning that the Fish and Wildlife Service "failed to provide sufficient reason to believe that listed species exist in the allotments in question." Id. at 1045. In light of this holding, the court did not reach ACGA's objections to the terms and conditions of the Incidental Take Statements. It therefore granted ACGA's motion for partial summary judgment, following which ACGA stipulated to dismissal without prejudice of the other claims. A final judgment setting aside the Incidental Take Statements for the pygmy-owl and razor-back sucker was entered. The Fish and Wildlife Service, together with the Bureau of Land Management, timely filed its notice of appeal. At the request of the Bureau of Land Management and the Fish and Wildlife Service, the parties agreed to stay the appeal pending judgment in the second action, ACGA II.

B. ACGA II

In ACGA II, ACGA1 challenged Incidental Take Statements set forth in a second Biological Opinion issued by the Fish and Wildlife Service that concerns livestock grazing on public lands administered by the United States Forest Service. Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife Serv., No. 99-0673 (D. Ariz. Dec. 14, 1999) (Broomfield, J., presiding) ("ACGA II"). The Fish and Wildlife Service examined 962 allotments, determining that grazing would have no effect on listed species for 619 of those allotments and cause no adverse effects for 321 of the remaining allotments, leaving 22 allotments. These allotments were each roughly 30,000 acres, but several of the allotments were significantly larger. In its Biological Opinion, the Fish and Wildlife Service concluded that ongoing grazing activities on 21 out of the 22 allotments at issue would not jeopardize the continued existence of any protected species or result in the destruction or adverse modification of any critical habitat. It determined, however, that ongoing grazing activities would incidentally take members of one or more protected species in each of the 22 allotments, and it issued Incidental Take Statements for each of those allotments. ACGA contested the issuance of Incidental Take Statements for six of the allotments: Cow Flat, East Eagle, Montana, Sears-Club/Chalk Mountain, Sheep Springs, and Wildbunch.

The parties filed cross-motions for summary judgment. Rejecting the government's arguments that the term"taking" should be interpreted more broadly in a Section 7 consultation case than in a Section 9 injunctive relief case, the district court held that the "the term `take' as used in Section 7(b)(4) of the Endangered Species Act ("ESA") has an identical meaning as when used in Section 9." With that interpretation in mind, the district court examined the Biological Opinion to determine whether the evidence relied upon by the Fish and Wildlife Service was rationally connected to its decision to issue Incidental Take Statements for the six allotments at issue. With respect to all but the Cow Flat Allotment, the district court held that the Fish and Wildlife Service acted arbitrarily and capriciously in issuing an Incidental Take Statement based on a Biological

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Opinion that fails to show a take was reasonably certain to occur. As to the Cow Flat Allotment, the district court found that based upon the evidence in the Biological Opinion, the Fish and Wildlife Service could reasonably determine that takings were likely to occur when livestock entered the river, and therefore upheld the Incidental Take Statement for that allotment. The court then ruled that neither the specificity of the anticipated take provision nor the "reasonable and prudent measures " condition was arbitrary and capricious. It therefore granted the Fish and Wildlife Service's motion for summary judgment as to the Cow Flat Allotment and ACGA's motion for summary judgment as to the East Eagle, Montana, Sears-Club/Chalk Mountain, Sheep Springs, and Wildbunch allotments.

The Fish and Wildlife Service appealed the district court's rulings only as they concerned the East Eagle, Montana, Sears-Club/Chalk Mountain and Wildbunch allotments. ACGA cross-appealed the district court's Cow Flat Allotment rulings.

II. Jurisdiction and Standing

Final agency actions are reviewable by federal courts under section 704 of the Administrative Procedure Act ("APA"), 5 U.S.C. §§§§ 551-559, 701-706 (1994 & Supp. IV 1998). The issuance of a Biological Opinion as well as an accompanying Incidental Take...

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