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April 15, 2015  |  Written by Jason T. Canger

Federal District Court Finds Federal Wildlife Agencies May Consider Only the Applicant’s Own Specific Conservation Efforts Before Issuing an ESA Incidental Take Permit

On April 3, 2015, the U.S. District Court for the Northern District of California invalidated an Endangered Species Act (ESA) incidental take permit (ITP) where it found the U.S. Fish and Wildlife Service (FWS) improperly “credited” the permit applicant with the conservation efforts of a non-applicant.  Klamath-Siskiyou Wildlands Ctr. v. Nat’l Oceanic & Atmospheric Admin., Case No. 13-cv-03717-NC (N.D. Cal. Apr. 3, 2015).  Section 9 of the ESA, 16 U.S.C. § 1538, generally prohibits the take of animal species listed as endangered or threatened.  However, under Section 10, a project proponent may apply for a permit to take listed species provided that the taking is incidental to an otherwise lawful activity.  In order to obtain an ITP, the applicant must prepare a habitat conservation plan (HCP) that specifies, among other things, the steps the applicant will take to minimize and mitigate the incidental take of listed species.  FWS must find the applicant will, to the maximum extent practicable, minimize and mitigate the proposed incidental take before issuing the permit.

In 2009, FWS issued an ITP to a timber company after determining that the conservation measures proposed in its HCP would sufficiently minimize and mitigate the incidental take of Northern Spotted Owls.  As minimization and mitigation measures, the company’s HCP proposed developing owl conservation areas within the forest to protect the species’ nesting, roosting, and foraging habitats.  However, the applicant itself owned land in a “checkerboard” pattern, interspersed with federal land, and the assumed range of individual owls (owl circles) encompassed neighboring federal lands managed by the U.S. Forest Service as part of the Northwest Forest Plan, which provides conservation benefits.  Thus, land dedicated by the company itself for the owl conservation areas amounted to only a fraction of the total acreage providing conservation benefits to members of the species.  The plaintiff conservation organizations challenged the ITP, claiming that FWS improperly relied on the conservation activities of the U.S. Forest Service in determining that the timber company satisfied the minimization and mitigation requirement and issuing the incidental take of Northern Spotted Owls.

The district court agreed with plaintiffs.  The court found that the plain language of Section 10 requires FWS to find that an applicant will minimize and mitigate the impacts of its incidental take before issuing a permit.  It disagreed that the FWS had considered only the applicant’s action where such actions were given more value in the permitting analysis due to presumed conservation activities on adjacent federal land.  Thus, the district court found it arbitrary and capricious that FWS attributed the entire conservation value of the proposed owl conservation areas to the timber company where significant conservation value was, functionally, associated with U.S. Forest Service land.  Moreover, the timber company had no authority to control the U.S. Forest Service’s use or activities on the parcels included in the owl conservation areas; consequently, the court found that FWS improperly determined that the timber company could ensure the implementation of its habitat conservation plan over the life of the permit as required by Section 10.

In the remainder of the opinion, the district court addressed issues that plaintiffs raised under Section 7 of the ESA and the under the National Environmental Policy Act.

For more information about this case, please contact Jason Canger atjcanger@somachlaw.com.

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