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Ninth Circuit Rejects Center for Biological Diversity’s Interpretation of Fish and Wildlife Regulations Defining Incidental Take

By: Paul S. Weiland

In a case of first impression, the U.S. Court of Appeals for the Ninth Circuit rejected environmental groups’ efforts to establish the U.S. Fish and Wildlife Service ("Service") as a regulatory czar with responsibility to determine whether actions subject to consultation under the Endangered Species Act are consistent with all applicable legal requirements.  Center for Biological Diversity v. U.S. Fish and Wildlife Service, Ninth Cir. Case No. 04-55084 (9th Cir. June 5, 2006).  The Court held that the Service may allow "take" of an endangered species incidental to otherwise lawful activities without making a determination that the activity in question is allowed under federal and state law other than the Endangered Species Act.

Under section 7(a)(2) of the Endangered Species Act, federal agencies, in consultation with the Fish and Wildlife Service, must ensure that actions that they authorize, fund, or carry out do not jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.  This consultation requirement yields a biological opinion including a determination regarding jeopardy to the species and destruction of adverse modification to its critical habitat.  In the event that the proposed action is not likely to jeopardize the species but may result in the incidental take of the species, the Service may issue an incidental take statement with the biological opinion.  An incidental take statement immunizes the action agency or applicant from the take prohibition contained in section 9 of the Endangered Species Act, provided any take that occurs is consistent with terms and conditions in the biological opinion and incidental take statement.

The Center for Biological Diversity ("CBD") argued that the Service cannot issue an incidental statement unless it first determines that the action will comply with all applicable legal requirements.  CBD based this argument on its own interpretation of Service regulations that define "incidental take" as "takings that result from, but are not the purpose of, carrying out an otherwise lawful activity."  50 C.F.R. 402.02.  CBD argued that the Service erred by issuing an incidental take statement for the unarmored threespine stickleback, which is a fully protected species under California law.[1]

The Ninth Circuit rejected CBD’s argument and agreed with the United States that the regulatory language cited by CBD is included in the regulations to emphasize that an incidental take statement does not relieve the action agency of its responsibility to comply with all legal requirements other than the section 9 take prohibition.  The decision clarifies that the Service is only responsible for determining the legality of actions it reviews under the Endangered Species Act.  The Ninth Circuit refused to accept CBD’s contention that the Service has a sweeping duty "to ensure compliance with a farrago of zoning laws and permitting requirements that are completely unrelated to preservation and conservation efforts."  The court concluded that "[s]uch a requirement would impose an enormous burden on the Service."  It also would have had significant adverse implications for action agencies and applicants for federal permits, such as Clean Water Act section 404 permits.  For this reason, the Ninth Circuit’s decision should be welcome news to any organization that is subject to the take and consultation requirements of the ESA.

Paul Weiland counsels clients and litigates environmental matters in trial and appellate courts under a variety of statutes, including the Endangered Species Act and National Environmental Policy Act.  He participated in CBD v. FWS (the case discussed in this e-alert) in his former capacity as a trial attorney in the Law and Policy Section, Environmental and Natural Resources Division of the U.S. Department of Justice.  He can be reached at (949) 833-7800 or

[1] California’s fully protected species laws prohibit the take of certain species and do not contain a permitting exception, but the term "take" has different meanings under federal and state law.

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