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

The Arizona Cattle Growers Association (ACGA) (plaintiff) sought permits for livestock grazing on public lands. As part of the consultation process required by § 7 of the Endangered Species Act (ESA), the United States Fish and Wildlife Service (FWS) (defendant) issued biological opinions regarding the impact of the grazing on protected species. The biological opinions included incidental take statements (ITSs) that imposed conditions on the incidental taking of various species. The FWS interpreted a taking under § 7 to encompass possible or likely harm to a species. This interpretation was more expansive than the FWS’s interpretation of a taking under § 9, which penalized ESA violations. The FWS created ITSs for certain species of fish, including the razorback sucker and the loach minnow. However, the FWS lacked evidence of the razorback sucker’s presence on the public lands, and based the ITS on speculation that grazing would cause habitat modification. Although the FWS based the loach minnow’s ITS on evidence that livestock could trample the species’ habitat, the FWS did not specify the amount or extent of a potential taking under the ESA. The FWS also failed to provide a clear standard for determining that an excess take had occurred, stating vaguely that a failure to improve ecological conditions could result in an excess take. The ACGA challenged the FWS’s ITSs in district court. The district court applied a reasonable-certainty standard and found that the issuance of an ITS without demonstrating a take to a reasonable certainty was arbitrary and capricious. The district court granted the ACGA’s motion for partial summary judgment. The FWS appealed.