## Facts

- The Utah prairie dog was listed as a threatened species under the Endangered Species Act (ESA).
- Prairie dog colonies occupied Cedar City’s municipal golf course and nearby land owned by the Paiute Indian Tribe of Utah, totaling about 18 acres.
- In 1994, the U.S. Fish and Wildlife Service (FWS) developed procedures for relocating Utah prairie dogs from private lands to address land-use conflicts.
- In 2003, Cedar City and the Paiute Tribe submitted a Habitat Conservation Plan (HCP) seeking ESA § 10 incidental-take permits to trap and relocate a certain number of prairie dogs annually from the golf course and tribal lands.
- The HCP identified Wild Pea Hollow as the permanent mitigation site, where about 19 acres were already occupied by prairie dogs and an additional 198 acres were described as potentially suitable habitat if revegetated.
- FWS concluded the action was not likely to jeopardize the continued existence of the species, reasoning that the golf-course colony was isolated from other colonies and contributed little to genetic mixing.
- FWS also found the HCP’s mitigation measures would adequately offset the loss of habitat on the golf course and tribal land.
- By 2005, FWS had information indicating the Wild Pea Hollow population had been steadily increasing since 1998.
- In January 2007, FWS issued 20-year incidental-take permits to Cedar City and the Tribe and released a Biological Opinion and Incidental-Take Statement supporting the permits.
- Later in 2007, the Wild Pea Hollow prairie dog population crashed, and revegetation occurred more slowly than expected due largely to prolonged drought.
- WildEarth Guardians sued under the Administrative Procedure Act (APA), challenging the issuance of the two incidental-take permits and arguing that the HCP did not adequately mitigate the relocation’s impacts on the threatened prairie dog.

## Issues

1. Whether FWS acted arbitrarily or capriciously under the APA by approving the HCP and issuing ESA § 10 incidental-take permits despite claims that the plan did not minimize and mitigate the impacts of take to the maximum extent practicable.
2. Whether FWS’s Biological Opinion and Incidental-Take Statement were arbitrary or capricious, including whether the agency reasonably supported its no-jeopardy conclusion given the assumptions about mitigation at Wild Pea Hollow.

## Decision

- The court upheld FWS’s issuance of the incidental-take permits and sustained the Biological Opinion and Incidental-Take Statement.
- Applying the APA’s deferential arbitrary-and-capricious standard, the court declined to substitute its judgment for FWS’s scientific and technical judgments where the agency explained its reasoning and the administrative record supported it.
- The court accepted FWS’s rationale that the golf-course colony was relatively isolated and that the HCP’s mitigation measures tied to Wild Pea Hollow provided a reasonable basis for approving the permits and for reaching a no-jeopardy determination.
- The court held that post-decision developments (including the 2007 population crash at Wild Pea Hollow and slower revegetation during drought) did not, by themselves, make the earlier permitting decision unlawful when the decision was evaluated on the record before the agency at the time.
- Summary judgment was entered for FWS, and WildEarth Guardians was denied relief.

## Legal Principles

- Under the APA, a court sets aside agency action only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; the agency must consider the relevant factors and explain a rational connection between the facts found and the choice made.
- In ESA cases, agencies must use the best scientific and commercial data available, and courts generally defer to reasoned agency judgments on disputed scientific questions when supported by the record.
- ESA § 10 allows issuance of incidental-take permits only if the applicant submits an HCP and the agency finds, among other things, that impacts of take will be minimized and mitigated to the maximum extent practicable and that the taking will not appreciably reduce the likelihood of the species’ survival and recovery in the wild.
- A court reviewing an ESA permitting decision assesses the agency’s reasoning based on the information in the administrative record at the time of the decision; later ecological changes do not automatically invalidate an earlier analysis.
- For ESA § 7 consultation materials such as a Biological Opinion and Incidental-Take Statement, the agency must reasonably evaluate the species’ status, the environmental baseline, and the effects of the action, and must explain any no-jeopardy conclusion and any authorized take with enforceable terms and conditions.

## Conclusion

WildEarth Guardians v. United States Fish and Wildlife Service upheld FWS’s approval of an HCP and issuance of 20-year incidental-take permits authorizing the trapping and relocation of threatened Utah prairie dogs from a municipal golf course and tribal lands to mitigation habitat at Wild Pea Hollow, holding that the agency’s no-jeopardy and mitigation determinations were reasonably explained and supported by the administrative record and were not rendered unlawful solely by adverse conditions that arose after permit issuance.


WildEarth Guardians v. United States Fish and Wildlife Service, 622 F. Supp. 2d 1155 (2009)