When authorizing an "incidental take" of listed
species, the U.S. Fish and Wildlife Service ("FWS") and
the National Marine Fisheries Service have long struggled with
methods for establishing numerical take limits for some species
where take levels are not readily measured. The confusion
over when a surrogate approach might be appropriate, and how such
an approach should be applied, has led to the call for
administrative reform. In May 2011, FWS confirmed that it
intended to advance a series of administrative reforms to the
Endangered Species Act ("ESA"), including introducing
"greater flexibility in the quantification of anticipated
incidental taking," which would "reduce the burden of
developing and implementing biological opinions without any loss of
While the overall process of reforming the administration of the
ESA has moved forward, no clear proposals have been issued on the
use of a surrogate approach.
In the meantime, several recent court decisions within the Ninth
Circuit have addressed this issue. In one of these cases,
which involved a challenge to the operation of the Glen Canyon Dam,
the FWS used an Incidental Take Statement that relied on
non-numeric take limits for impacts on the endangered humpback
chub. In particular, FWS found that the best available
science did not support a numeric incidental take limit for
juvenile chub, which are difficult to detect. Instead, FWS
decided to use a surrogate limit based on the number of adult fish
that were present and could be impacted. FWS explained that
impacts to juvenile fish could be reasonably extrapolated based on
the expected impacts on adult fish populations and that there was
no risk to the species' recovery. The federal district
court in Arizona upheld this approach. The Ninth Circuit recently
affirmed, but did not reach the merits of the issue, instead ruling
that the plaintiff's challenge to the Incidental Take Statement
Click here to view our recent update regarding
Grand Canyon Trust v. U.S. Bureau of Reclamation, No. 11-16326
(9th Cir. Aug. 13, 2012).
The Ninth Circuit directly addressed the use of a surrogate
approach in its August 21 opinion in Center for Biological
Diversity v. Salazar. In that case, the court rejected
the plaintiffs' challenge to the Biological Opinion issued for
FWS regulations under the Marine Mammal Protection Act
("MMPA") that authorized oil and gas exploration
activities affecting polar bears and walruses off the coast of
Alaska. Under the MMPA, FWS was required to find that only a
"small number" of mammals would be harmed and that the
effect on the species would be negligible. But FWS was not
required to place a numeric value on what constitutes a "small
number" of affected mammals.
In its Biological Opinion, FWS relied on its findings under the
MMPA and did not establish a numeric take limit. The Ninth
Circuit, while noting that a numeric take limit was preferable
under the ESA, ruled that FWS adequately explained why such a limit
was not possible, due to the dynamic and unpredictable nature of
sea ice habitats. The court also ruled that there was an adequate
trigger for re-initiating consultation, such as if FWS determined
that the exploration activities were in fact causing more than a
negligible impact on listed species.
The surrogate approach has now been sanctioned by the Ninth
Circuit, but what works in specific situations will vary. The
Center for Biological Diversity v. Salazar decision makes
it clear that FWS must adequately justify both the decision to use
a non-numeric approach and the viability of the particular approach
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