What legal issues are addressed in this case?

The case addresses whether "take" means the same thing in ESA Sections 7 and 9, whether the Service must issue an Incidental Take Statement in every no-jeopardy consultation, and what evidence the Service needs before it issues one under the arbitrary and capricious standard. It also addresses whether ecological conditions may stand in for a numerical take limit, and whether the Cow Flat condition was too vague. Finally, it addresses whether review may reach evidence outside the administrative record.

What rule did the court rely on in this case?

The court relied on APA § 706's arbitrary and capricious standard and on ESA Sections 7 and 9. The Service must articulate a rational connection between the facts in the record and its decision. An Incidental Take Statement is warranted only where a Section 9 take is anticipated. Take has one meaning under both sections, and the Service's contrary position fails Chevron because Congress's intent is clear. Terms setting the amount of take must be causally tied to take and clear enough to gauge compliance.

Would the case have come out differently if certain facts were changed?

Yes, the outcomes turn on the record evidence. The court upheld the Service's finding of take on the Cow Flat Allotment because loach minnow were documented there, cattle had access to occupied habitat, and the Service gave site-specific causal evidence. If the other allotments had shown the species present on the land, with evidence that grazing would actually kill or injure them, the statements would likely have survived. If Condition 1 had tied its triggers to detectable, causally linked habitat measures rather than a general requirement of ecological improvement, it would likely have been upheld.

Arizona Cattle Growers' Ass'n v. U.S. Fish and Wildlife Service

Court of Appeals for the Ninth Circuit - 273 F.3d 1229 (2001)

Main Takeaway

The Fish and Wildlife Service may impose Incidental Take Statement conditions on lawful land use only where the record gives it a rational basis to conclude that a take of a listed species will occur, and those conditions must be clear enough to permit compliance. Section 7 and Section 9 use one definition of "take," so speculation that a species could be harmed is not enough.

Issues

Does the Fish and Wildlife Service act arbitrarily and capriciously under the Administrative Procedure Act by issuing an Incidental Take Statement imposing terms and conditions on land use where the record does not show that a take of the listed species will occur, or where the terms of the statement are too vague to allow compliance?

Facts

The Arizona Cattle Growers' Association and rancher Jeff Menges sought cattle grazing permits on federal lands in southeastern Arizona. The permits implicated the Endangered Species Act, so the Bureau of Land Management and the Forest Service consulted with the Fish and Wildlife Service. In the first consultation (ACGA I), covering 288 allotments of nearly 1.6 million acres, the Service issued a Biological Opinion with ten Incidental Take Statements for species listed or proposed as endangered, including the razorback sucker and the cactus ferruginous pygmy-owl. The Service admitted there had been no reported razorback sucker sightings in the area since 1991, and surveys detected no pygmy-owls in 1997. In the second consultation (ACGA II), the Service examined 962 Forest Service allotments and issued Incidental Take Statements for 22. ACGA challenged six of them: Cow Flat, East Eagle, Montana, Sears-Club/Chalk Mountain, Sheep Springs, and Wildbunch. For most of these allotments, the record showed that the listed fish were not on the allotment, or were separated from it by distance or barriers, and the Service relied on the potential for harm. The Cow Flat Allotment included occupied loach minnow habitat in the Blue River. Its Incidental Take Statement defined the permissible take by whether ecological conditions improved under the proposed livestock management.

Procedural History

ACGA and Menges sued the Fish and Wildlife Service and the Bureau of Land Management in the District of Arizona (ACGA I), challenging the Incidental Take Statements in the Biological Opinion. The parties filed cross-motions for summary judgment. The district court (Ezra, C.J.) found ACGA had representational standing, held that issuing Incidental Take Statements for the razorback sucker and pygmy-owl was arbitrary and capricious, granted ACGA partial summary judgment, and entered final judgment after ACGA dismissed its remaining claims without prejudice. The government appealed and stayed that appeal pending the second action.

ACGA then challenged the Incidental Take Statements in the Forest Service Biological Opinion (ACGA II) in the District of Arizona. On cross-motions for summary judgment, the district court (Broomfield, J.) held that "take" has the same meaning in Sections 7 and 9 of the ESA. It set aside the statements for the East Eagle, Montana, Sears-Club/Chalk Mountain, Sheep Springs, and Wildbunch allotments as arbitrary and capricious, but upheld the statement for the Cow Flat Allotment. The government appealed the rulings on the East Eagle, Montana, Sears-Club/Chalk Mountain, and Wildbunch allotments, and ACGA cross-appealed the Cow Flat ruling. The Ninth Circuit consolidated the appeals.

Holding and Rationale

(Wardlaw, J.)

Yes. The Service acts arbitrarily and capriciously when it issues an Incidental Take Statement imposing conditions on land use without a rational basis to conclude that a take will occur, or when the statement's terms are too vague to permit compliance.

Congress spoke directly to the question, so Chevron deference does not apply. The ESA defines "take" identically in Sections 7 and 9. The 1982 amendment adding Section 7(b)(4) created the Incidental Take Statement as a safe harbor from Section 9 liability. Absent an actual or prospective Section 9 take, there is nothing to shelter, and a broader Section 7 definition would let the Service regulate otherwise lawful land use where no Section 9 liability could arise. Section 7(b)(4) conditions the statement on the Secretary's findings, and 50 C.F.R. § 402.14(g)(7) and (i)(1) require a statement only where take may occur. Therefore the Service need not issue an Incidental Take Statement in every no-jeopardy consultation. The contrary handbook guidance cannot override the statute and regulations. Absent rare circumstances such as migratory species, issuing a statement without a rational basis to find a take is arbitrary and capricious.

Review is confined to the administrative record. Reinitiating consultation under 50 C.F.R. § 402.16 handles changed circumstances, and the Service cannot defend its decision with later evidence.

Applied to the allotments, the razorback sucker and pygmy-owl statements (ACGA I) failed because the record contained only speculation that the species existed on the land. The Montana, Sears-Club/Chalk Mountain, East Eagle, and Wildbunch statements rested on the mere potential for harm, with no evidence that the species were present where livestock could reach them, or that habitat modification would actually kill or injure them.

The Cow Flat statement rested on solid findings because loach minnow occupy the allotment and the record contained site-specific causal evidence. However, its Condition 1, which treated take as exceeded if ecological conditions did not improve, was invalid. A numerical limit is not required, and ecological conditions may serve as a surrogate if causally linked to take. But Condition 1 lacked an articulated link to take and was so vague that neither ACGA nor the action agency could gauge compliance. The ACGA I decision is affirmed, and ACGA II is affirmed in part and reversed in part, because the Cow Flat statement is also invalid.