9th Circuit Agrees With BLM: Incidental Take Statements Are Reserved For Fish and Wildlife


In Center for Biological Diversity, et al., v. Bureau of Land Management, the U.S. Court of Appeals for the Ninth Circuit held that the Bureau of Land Management (BLM) did not violate the Endangered Species Act (ESA) when its analysis of plans to expand access for off-road vehicles in the Imperial Sand Dunes Special Recreation Area (located in California) did not include a Biological Opinion with an “Incidental Take Statement” for the species of plant known as the Peirson’s milkvetch that is categorized as a “threatened species” under the ESA. Construing Sections 7 and 9 of the ESA, the Ninth Circuit agreed with BLM’s argument that Incidental Take Statements are reserved solely for fish and wildlife, and not plant species. When these sections of the law are read together, the Ninth Circuit concluded the ESA prohibits the taking of fish and wildlife only; therefore, the law does not require that the Biological Opinion contain an Incidental Take Statement for endangered plants. The remaining challenges were analyzed by the Ninth Circuit under the “arbitrary and capricious” rubric of the Administrative Procedures Act (APA), and were similarly rejected.

As background, parts of the Imperial Sand Dunes Planning Area have been set aside for the protection of plants and wildlife, as well as for outdoor recreation. BLM’s plans to expand access to off-road vehicles have been challenged by the Center for Biological Diversity (CBD) in a series of lawsuits, including the current litigation. In 2013, the CBD complained that the BLM violated the ESA when its latest Biological Opinion, mandated by the ESA, did not include an “Incidental Take Statement” for this threatened plant species, and that its latest management plans also violated the National Environmental Policy Act (NEPA), the Clean Air Act (CAA), the Federal Land Policy and Management Act, and the  APA.

Under the amended version of Section 7, the Fish and Wildlife Service “must issue an Incidental Take Statement if the [Biological Opinion] concludes no jeopardy to listed species or adverse modification of critical habitat will result from the proposed action, but the action is likely to result in incidental takings.” It requires BLM to issue an “Incidental Take Statement” that:

“(i)  specifies the impact of such incidental taking on the species,

(ii)  specifies those reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize such impact,

(iii)  in the case of marine mammals, specifies those measures that are necessary to comply with section 1371(a)(5) of this title with regard to such taking, and

(iv)  sets forth the terms and conditions (including, but not limited to, reporting requirements) that must be complied with by the Federal agency or applicant (if any), or both, to implement the measures specified under clauses (ii) and (iii).”

16 U.S.C. § 1536(b)(4)(C).

As noted above, BLM defended its action, taking the position that Incidental Take Statements are reserved solely for fish and wildlife. The Ninth Circuit affirmed the District Court’s ruling that the BLM complied with the ESA and other environmental statutes in its decision to open the Area for off-road vehicles.