## Facts

- Federal land agencies sought to renew or issue livestock-grazing permits covering roughly 1.6 million acres of public land in southeastern Arizona.
- In ESA § 7 consultations, the U.S. Fish and Wildlife Service (FWS) issued biological opinions finding grazing was not likely to jeopardize listed species or adversely modify critical habitat, but included incidental take statements (ITSs) with mandatory terms and conditions.
- Ranching interests challenged the ITSs under the APA, arguing FWS lacked evidence that certain listed species occupied the relevant allotments or that grazing would cause an incidental “take.”
- For some species (including the razorback sucker), the administrative record contained no concrete evidence of presence on the affected lands; FWS relied on speculative habitat-modification theories.
- For another species (exemplified by the loach minnow), the record supported a plausible connection between grazing-related stream impacts and potential harm, but the ITS did not specify the amount or extent of take and used vague compliance triggers tied to generalized habitat “improvement.”
- The district courts set aside nearly all challenged ITSs as arbitrary and capricious; the agencies and an environmental intervenor appealed, and ranchers cross-appealed.

## Issues

1. Whether “take” in ESA § 7’s ITS context can be interpreted more broadly than “take” in ESA § 9, permitting ITSs based on mere possibilities of future harm.
2. Whether it is arbitrary and capricious to issue an ITS imposing binding terms and conditions without a rational basis in the record to conclude that incidental take will occur.
3. Whether an ITS satisfies ESA § 7 and the APA when it fails to specify the amount or extent of anticipated take and lacks a clear, objective exceedance trigger.

## Decision

- The Ninth Circuit largely affirmed the district courts’ invalidation of the ITSs.
- The court held that “take” has the same meaning in ESA §§ 7 and 9; FWS may not expand “incidental take” to cover any possible future harm untethered to the statutory standard.
- Except in rare circumstances (such as certain migratory-species situations), FWS acts arbitrarily and capriciously by issuing an ITS without a rational basis to conclude a take will occur incident to an otherwise lawful activity.
- ITSs based on speculative assumptions about species presence and unsupported predictions of take were arbitrary and capricious.
- Even where the record supported a plausible risk of harm, the ITS was invalid if it did not specify the anticipated amount or extent of take and did not provide a clear, measurable standard for when authorized take would be exceeded.

## Legal Principles

- The ESA uses a single substantive definition of “take”; agencies may not apply different meanings in §§ 7 and 9 to expand regulatory reach.
- Habitat modification constitutes “harm” only when it actually kills or injures wildlife; speculation about habitat effects, without a record basis for actual injury, cannot support a take finding.
- An ITS must be predicated on a finding of incidental take supported by a rational basis in the administrative record; otherwise it is arbitrary and capricious under APA § 706.
- ESA § 7 regulations require an ITS to specify the impact of incidental taking by stating the amount or extent of anticipated take and to include enforceable terms and conditions to minimize that impact.
- Vague, aspirational, or non-quantifiable triggers that prevent regulated parties from determining when take limits are exceeded are legally inadequate.

## Conclusion

The Ninth Circuit held that incidental take statements cannot be used to impose binding grazing restrictions absent record support that a statutory “take” will occur, and that any valid ITS must set a clear, measurable take limit and exceedance trigger consistent with the ESA’s uniform definition of “take” and the APA’s arbitrariness review.


Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229 (9th Cir. 2001)