In a very significant decision, the Ninth Circuit Court of Appeals has held that the U.S. Fish and Wildlife Service may authorize the incidental take of species under federal law that are "fully protected" under California law. This decision resolves a long-standing question whether the Service may authorize such take in light of language in the Service’s regulations allowing incidental take that results from "an otherwise lawful activity." Some have argued that the Service may not authorize incidental take of "fully protected species" because take – incidental or not – of any such species is prohibited under California law. The Ninth Circuit ruled otherwise and upheld the Service’s issuance of an incidental take statement for a project in southern California.
In Center for Biological Diversity v. United States Fish and Wildlife Service, Case No. 04-55084 (9th Cir. June 5, 2006), the Bureau of Land Management awarded a contract to a mining company to mine several million tons of sand and gravel from the Santa Clara River in Southern California. Because of the project’s potential impact to the endangered unarmored threespine stickleback, the BLM initiated formal consultation with the Service pursuant to Section 7 of the Endangered Species Act. The Service issued a biological opinion, which concluded that the project was "not likely to jeopardize the continued existence of the stickleback" and authorized incidental take of the stickleback.
The Center for Biological Diversity filed suit against the Service, alleging that the Service violated the Endangered Species Act. Among other things, the Center argued the Service was required to complete critical habitat designation it had proposed for the stickleback in 1980. The court disagreed and upheld the Service’s decision not to designate critical habitat for the stickleback.
More significantly, the court also considered the Center’s challenge to the Service’s incidental take statement for the stickleback. Citing the Service’s definition of incidental take as "takings that result from, but are not the purpose of, carrying out an otherwise lawful activity," the Center argued that no incidental take statement can be issued unless the Service ensures compliance with all federal and state laws. According to the Center, the Service was unable to issue an incidental take statement for the stickleback because the State of California prohibits any take, incidental or not, of the stickleback as a "fully protected species" pursuant to Section 5515 of the California Fish & Game Code. The Center alleged that any take of the stickleback would therefore violate California law, and as such, the project could not be considered an "otherwise lawful activity" eligible for incidental take authorization.
The court disagreed with this line of argument, noting that the Center’s interpretation would impose upon the Service an unreasonable "sweeping duty to require compliance with all other laws before issuing" an incidental take statement. As the court explained: "[The Center’s] proffered interpretation would require the Service to ensure compliance with a farrago of zoning laws and permitting requirements that are completely unrelated to preservation and conservation efforts." The court therefore concluded that the Service is not required to ensure compliance with federal and state law before it issues an incidental take statement.
This decision is significant in that it offers much needed guidance on the relationship between the federal Endangered Species Act incidental take provisions and the absolute protections afforded to "fully protected species" under California’s Fish & Game Code. Center for Biological Diversity v. United States Fish and Wildlife Service establishes that the Service may issue incidental take statements for the take of "fully protected species," notwithstanding the state’s absolute prohibition of take of such species.
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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