In Center for Biological Diversity v U.S. Fish and Wildlife Service, Case No. 04-55084 (9th Cir., June 5, 2006), the Ninth Circuit Court of Appeals held that the United States Fish and Wildlife Service (“Service”) may authorize incidental take of species under the Endangered Species Act (“ESA”), even if those species are “fully protected” under California law. In doing so, the Ninth Circuit held that the Service may authorize “take” of an endangered species incidental to otherwise lawful activities, without determining that the activity is allowed under federal and state laws other than the ESA.

In Center for Biological Diversity, mining company CEMEX, Inc. entered into federal contracts with the Bureau of Land Management (“BLM”) to mine several million tons of sand and gravel from federal lands located in unincorporated Los Angeles County. The water required for the mining project was to be pumped from the nearby Santa Clara River, which serves as habitat for the unarmored threespine stickleback (“stickleback”). This pumping posed a potential threat to the stickleback in the summer months, when portions of the Santa Clara River typically dry out, trapping stickleback in isolated pools which eventually also dry out. Because of the mining project’s potential impact on the stickleback, the BLM initiated consultation with the Service. The Service issued its biological opinion in 1998, concluding that the project did not jeopardize the stickleback’s continued existence. The biological opinion also included an incidental take statement (“ITS”) for stickleback.

The Center for Biological Diversity (“CBD”) challenged the ITS on the grounds that the Service was required, prior to the issuance of the ITS, to ensure that its actions would not violate any federal or state law. Stickleback are “fully protected” species under the California Fully Protected Fish Statute (Cal. Fish & Game Code § 5515), and California law prohibits any take of stickleback whatsoever. Accordingly, CBD argued that the ITS violated Service regulations, which define “incidental take” as “takings that result from but are not the purpose of, carrying out an otherwise lawful activity” (50 CFR § 402.02). CBD claimed that because the take of stickleback would violate California law, the mining project was not an “otherwise lawful activity,” and the Service could not authorize any take of stickleback.

The Ninth Circuit, however, rejected CBD’s contention, holding that the Service was not required to ensure compliance with all other state and federal laws prior to issuing an ITS. The Court held that “there is simply no evidence that the Service has ever interpreted its regulatory definitions to impose a sweeping duty to require compliance with all other laws before issuing an ITS.” The Court also commented that “CBD’s proffered interpretation would require the Service to ensure compliance with a farrago of zoning laws and permitting requirements that are completely unrelated to preservation and conservation efforts,” placing an “enormous burden on the Service.”

The Ninth Circuit also rejected an argument by CBD that the Service violated the ESA by failing to complete designation of critical habitat for the stickleback. In 1980, the Service proposed critical habitat for the stickleback; however, in 2002, the Service published its finding that critical habitat should not be designated for the stickleback. The Ninth Circuit held that the Service’s failure to act on the proposed designation was a proper exercise of its discretion.

Melanie Tang
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630

Disclaimer: In our Newsletters and Bulletins, Briscoe Ivester & Bazel LLP intends to present general information to the public and does not intend to provide legal advice pertaining to a particular situation.


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