Arizona Cattle Growers' Ass'n v. United States Fish & Wildlife

Rule of Law:

Under the Endangered Species Act, the U.S. Fish and Wildlife Service acts in an arbitrary and capricious manner when it issues an Incidental Take Statement without a rational basis to conclude that a take will occur, or when the terms and conditions of such a statement are too vague to be complied with.

Facts:

• The Arizona Cattle Growers’ Association (ACGA) sought federal permits for its members to graze cattle on public lands managed by the Bureau of Land Management and the U.S. Forest Service.
• The U.S. Fish and Wildlife Service (FWS) conducted consultations under the Endangered Species Act to assess the impact of the proposed grazing.
• The FWS issued Biological Opinions which concluded that the grazing was not likely to jeopardize the continued existence of several endangered species.
• Despite the 'no jeopardy' findings, the FWS issued Incidental Take Statements (ITS) that placed restrictive terms and conditions on the grazing permits for various species, including the razorback sucker and cactus ferruginous pygmy-owl.
• For several of the allotments, the FWS's own Biological Opinions noted that there had been no recent sightings or confirmed presence of the protected species in the specific grazing areas.
• In some instances, protected species were present only in areas that were fenced off from livestock or separated from grazing pastures by significant natural barriers, such as 1,000 feet of dry streambed.
• For one location, the Cow Flat Allotment, the FWS documented the presence of the loach minnow in a river to which cattle had direct access.
• The ITS for the Cow Flat Allotment contained a condition stating that a take would be exceeded if 'ecological conditions do not improve,' without providing specific metrics for measurement.

Procedural Posture:

• The Arizona Cattle Growers' Association (ACGA) filed two separate lawsuits against the U.S. Fish and Wildlife Service (FWS) in the U.S. District Court for the District of Arizona.
• In the first case (ACGA I), concerning Bureau of Land Management lands, the parties filed cross-motions for summary judgment.
• The district court (a court of first instance) in ACGA I granted partial summary judgment for ACGA, setting aside two Incidental Take Statements as arbitrary and capricious. The FWS, as appellant, appealed this decision.
• In the second case (ACGA II), concerning U.S. Forest Service lands, the parties also filed cross-motions for summary judgment.
• The district court in ACGA II granted summary judgment for ACGA on five allotments but granted summary judgment for the FWS on the Cow Flat Allotment.
• The FWS, as appellant, appealed the district court's rulings against it, and ACGA, as cross-appellant, appealed the ruling in favor of the FWS for the Cow Flat Allotment.
• The U.S. Court of Appeals for the Ninth Circuit (an intermediate appellate court) consolidated the appeals from both district court cases for review.