## Facts

- A school district purchased a 73-acre site in northwest Tucson in 1994 to build a new high school for approximately 2,100 students.
- The cactus ferruginous pygmy owl was proposed for ESA listing in 1994 and formally listed as endangered in 1997.
- Environmental organizations sued, alleging that constructing the high school would cause a prohibited “take” under ESA § 9 through direct harm or habitat modification.
- The district court entered a temporary restraining order but, after a three-day bench trial, lifted the order and denied a permanent injunction, finding plaintiffs did not prove construction would result in a take.
- Plaintiffs appealed, challenging the take finding, arguing the district court should have required an ESA § 10 incidental-take permit, disputing exclusion of certain expert testimony, and seeking a new trial.

## Issues

1. Whether the district court clearly erred in finding plaintiffs failed to prove that school construction would result in a prohibited “take” of the pygmy owl under ESA § 9.
2. Whether a court may require a non-federal actor to obtain an ESA § 10 incidental-take permit absent proof of a take.
3. Whether the district court abused its discretion by excluding certain expert testimony offered to show harm.
4. Whether the district court abused its discretion in denying plaintiffs’ motion for a new trial.

## Decision

- The Ninth Circuit affirmed the judgment for the school district.
- The court held the district court did not clearly err in finding plaintiffs failed to prove that construction would “actually kill or injure” pygmy owls through habitat modification or otherwise.
- The court held an incidental-take permit was not required where a take was not proven on the record.
- The court held the challenged evidentiary exclusions were within the district court’s discretion.
- The court held denial of a new trial was not an abuse of discretion.

## Legal Principles

- ESA § 9 prohibits “take” of an endangered species; “take” includes “harm,” which may include habitat modification only when it actually kills or injures wildlife by significantly impairing essential behavioral patterns (e.g., breeding, feeding, or sheltering).
- A plaintiff seeking injunctive relief for an alleged take bears the burden to show more than generalized or speculative assertions of “potential” habitat; the evidence must connect the challenged activity to actual injury or a sufficiently certain risk of such injury to members of the species.
- Appellate review of take findings after a bench trial is for clear error, and credibility choices among competing experts are largely left to the trial court.
- A court will not compel a non-federal defendant to obtain an ESA § 10 incidental-take permit where the predicate showing of a take is not established.
- Evidentiary rulings and denial of a new trial are reviewed for abuse of discretion.

## Conclusion

The Ninth Circuit upheld denial of injunctive relief because plaintiffs did not prove that building the high school would cause an ESA-prohibited take of pygmy owls, and without that showing the school district could not be required to pursue an incidental-take permit; the district court’s evidentiary and post-trial rulings were also affirmed.


Defs. of Wildlife v. Bernal, 204 F.3d 920 (9th Cir. 2000)