Can the U.S. Fish and Wildlife Service's issuance of Incidental Take Statements under the Endangered Species Act be challenged as arbitrary and capricious under the Administrative Procedure Act?

The Arizona Cattle Growers' Association (ACGA) contested Incidental Take Statements issued by the U.S. Fish and Wildlife Service for cattle grazing permits in Southeastern Arizona. These statements covered several endangered species, including the razorback sucker, cactus ferruginous pygmy-owl, Sonora chub, Gila topminnow, loach minnow, and spikedace. The Fish and Wildlife Service issued these statements for some allotments despite lacking evidence of the species' presence in those areas.

The Incidental Take Statements imposed conditions on land use permits, even in instances where there was no clear evidence that a take would occur if the permit was granted. This action by the Fish and Wildlife Service led to the ACGA's legal challenge, questioning the basis and appropriateness of issuing such statements without sufficient evidence of species presence or potential harm.

ACGA filed two separate lawsuits challenging the Incidental Take Statements issued by the Fish and Wildlife Service. In the first case (ACGA I), the district court ruled in favor of ACGA, setting aside the Incidental Take Statements for the razorback sucker and pygmy-owl as arbitrary and capricious. In the second case (ACGA II), the district court partially ruled in favor of ACGA by setting aside Incidental Take Statements for several allotments, but upheld the statement for the Cow Flat Allotment.

Following these decisions, the Fish and Wildlife Service appealed the district court's rulings on certain allotments. ACGA then cross-appealed the Cow Flat Allotment ruling. Subsequently, both cases were consolidated and brought before the 9th Circuit Court of Appeals for review.

(Wardlaw, J.)

Yes. The U.S. Fish and Wildlife Service's issuance of Incidental Take Statements under the Endangered Species Act can be challenged as arbitrary and capricious under the Administrative Procedure Act. Incidental Take Statements must be predicated on a finding of an actual incidental take. Issuing such statements without evidence that endangered species exist on the land or that a take would occur if a permit were issued is arbitrary and capricious. This principle stems from the fundamental requirement that agency actions must be based on reasoned decision-making and supported by substantial evidence. The Administrative Procedure Act provides the legal framework for challenging agency actions that fail to meet this standard.

Furthermore, the terms and conditions within Incidental Take Statements must be sufficiently specific to allow for compliance. Vague or ambiguous conditions that preclude meaningful compliance render the statement arbitrary and capricious. This requirement ensures that regulated parties have clear guidance on how to avoid violating the Endangered Species Act and allows for effective enforcement of the Act's provisions. The specificity requirement also serves the broader purpose of ensuring that the protective measures outlined in the statements are actually effective in mitigating harm to endangered species.

The arbitrary and capricious standard applies not only to the decision to issue an Incidental Take Statement but also to the content of the statement itself. Even if the issuance of a statement is justified, the individual terms and conditions within it must still withstand scrutiny under the Administrative Procedure Act. This nuanced approach recognizes that agency actions can be partially valid and partially flawed, allowing courts to address specific deficiencies without necessarily invalidating the entire agency action.