Ninth Circuit Court of Appeals Provides Guidance On Authorizing Incidental Take of Species Protected Under The Endangered Species Act

The United States Court of Appeals for the Ninth Circuit has invalidated a U.S. Fish and Wildlife Service (“FWS”) authorization to harm, or “take,” northern spotted owls for failure to comply with the Endangered Species Act (“ESA”). The court’s decision in Oregon Natural Resources Council v. Allen, Ninth Circuit Case No. 05-35830 (filed February 16, 2007), provides general guidance for such authorizations, called “Incidental Take Statements.”

The court held that Incidental Take Statements: (1) may not exceed the scope of the underlying Biological Opinion; (2) must provide numerical limits on the permitted taking of a species or explain why such a limit is impracticable; and (3) must include conditions that trigger reinitiation of consultation under section 7 of the ESA.


In 2001, the federal Bureau of Land Management and the U.S. Forest Service initiated formal ESA section 7 consultation with the FWS over numerous proposed timber sales on 64,000 acres of federal land in the Pacific Northwest. The FWS subsequently issued a Biological Opinion concluding that the harvest activities were not likely to jeopardize the existence of the spotted owl and were not likely to destroy or adversely modify the owls’ designated critical habitat, and issued an Incidental Take Statement. The Oregon Natural Resources Council and other environmental groups (collectively “ONRC”) challenged the validity of the Biological Opinion and Incidental Take Statement. The U.S. District Court granted judgment for the FWS in February 2004, and ONRC appealed.

While the ONRC case was pending on appeal, the Ninth Circuit decided Gifford Pinchot Task Force v. United States Fish & Wildlife Service, 378 F.3d 1059 (9th Cir. 2004), holding that the FWS had erred by finding adverse modification of the owls’ critical habitat only where proposed actions impair both the survival and recovery of a listed species. Because the Biological Opinion in the ONRC case had used the same erroneous standard, the case was remanded to the district court for reconsideration in light of Gifford Pinchot’s relevant holding.

In response to the Gifford Pinchot decision, the FWS withdrew a portion of its Biological Opinion for the timber harvest as invalid, and reinitiated consultation on the lands designated as northern spotted owl critical habitat, about 5,400 acres. The FWS did not withdraw its Incidental Take Statement for any of the timber harvest, however. The District Court held that the original Incidental Take Statement remained valid despite the partial withdrawal of the Biological Opinion, and again granted judgment in favor of the FWS. ONRC appealed again.

Withdrawal of a Material Portion of a Biological Opinion Renders the Underlying Incidental Take Statement Invalid. The Ninth Circuit held that the FWS may not withdraw a portion of its Biological Opinion yet leave the Incidental Take Statement unchanged. The court noted that it is the Biological Opinion that defines the scope of an action and conveys approval of that action through a “no jeopardy” opinion; an Incidental Take Statement provides the auxiliary framework for carrying out the approved action consistent with the findings in the Biological Opinion. The court found that the withdrawn portion of the Biological Opinion had materially changed its scope, leaving the original Incidental Take Statement broader than the project analyzed in the remaining, valid portions of the Biological Opinion. As a result, the unmodified Incidental Take Statement now allowed more take of spotted owls than justified by the still-operative portion of the Biological Opinion. In response, the court invalidated the original Incidental Take Statement, finding no rational connection between the authorization of take and the scope of the underlying Biological Opinion.

Incidental Take Statements Must Establish Numerical Limits of Take or Establish that Numerical Limits are Infeasible. The court analyzed the ESA, congressional records and its past decisions in determining that “the permissible level of take should be expressed as a specific number of individuals of the species.” The court also held that if some other measure of authorized take is used, the infeasibility of using a numerical standard must be shown. Here, the FWS had attempted to use acres of habitat lost as a surrogate for quantifying the number of individual owls that could be taken. But the Biological Opinion offered no explanation of why numerical data was unobtainable, and the FWS never stated that it could not update historic survey data to project the number of individual owl takings. Thus, the court concluded, the “FWS’s unexplained failure to comply with this requirement render[ed] the Incidental Take Statement invalid.”

Incidental Take Statements Must Provide for Reinitiation of Consultation. Lastly, the court found the Incidental Take Statement invalid because it allowed the take of “all spotted owls” associated with the project, an approach that precluded any reinitiation of consultation with the FWS. The court explained that one reason Congress preferred that allowable take be specified in terms of a numerical limitation is because Incidental Take Statements must set forth a “‘trigger’ that, when reached, requires the parties to re-initiate consultation.” Alternative measurement of take may be acceptable, but any surrogate to a numerical limitation “must be able to perform the functions of a numerical limitation.” The court explained that part of the function of the ESA and the FWS was to continually monitor the take of listed species to ensure that take levels during a particular action do not exceed original expectations. Thus, no matter what kind of take limitation the FWS chooses, “it cannot be so indeterminate as to prevent the Incidental Take Statement from contributing to the monitoring of incidental take by eliminating its trigger function.”


The court found three independent reasons for invalidating the Incidental Take Statement at issue in this case. To avoid those perils, federal agencies approving or carrying out projects, and applicants for federal project approvals, should bear in mind that the Incidental Take Statement is limited to the scope of the underlying Biological Opinion and the project that it analyzes. To be valid, Incidental Take Statements must be limited to the scope of the data and analyses in the Biological Opinion. Further, Incidental Take Statements ideally should provide a numerical limit on authorized take, to serve as a threshold that triggers reinitiation of consultation. If a numerical limit is infeasible, the Biological Opinion may substitute a surrogate measure of authorized take, so long as the reason for using a surrogate measure is clearly explained, and so long as the measure serves the take monitoring function and provides a trigger for reinitiating ESA section 7 consultation if actual take exceeds expectations.

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