Summary of a Recent
Judicial Development in
Environmental Law

Incidental Take Permits for Live Trapping and Relocation
of a Threatened Species

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Wildearth Guardians v. U.S. Fish and Wildlife Service, --- F. Supp. 2d ----, 2009 WL 1078600 (D. Utah Apr. 22, 2009), the United States District Court for the District of Utah upheld the decision of the U.S. Fish and Wildlife Service (FWS) to issue incidental take permits for prairie dogs that were destroying a municipal golf course and nearby tribal property, because the FWS had appropriately concluded that the city's habitat conservation plan would sufficiently minimize and mitigate the impact of the take, and also held that the FWS was not required to include a numeric take limit on the permits themselves.

Background

The plaintiffs brought this action to challenge two permits issued by the FWS under the Endangered Species Act (ESA) authorizing Cedar City, Utah and the Paiute Indian Tribe to live trap and relocate prairie dogs that were damaging the Cedar City municipal golf course and adjacent lands owned by the Paiute Tribe. Id. at *1. Prairie dogs are a threatened species under the ESA, and it is illegal to "take" them, meaning "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" them. Id. (quoting 16 U.S.C. § 1532(19) (2006)). The definition of "harm" includes "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing . . . feeding or sheltering." Id. (quoting 50 C.F.R. § 17.3 (2009)). However, if a take is incidental to an otherwise lawful activity, one can obtain a permit to take a protected species under certain conditions. Id.

Cedar City and the Paiute Tribe developed a habitat conservation plan allowing the taking of prairie dogs in order to "minimize or negate" the "adverse human/prairie dog interaction." Id. at *2. The FWS found that the prairie dog colony located at the golf course was thriving due to artificial conditions such as unlimited food supply and lack of predators, and was not contributing to the overall survival of the species, and thus determined that the plan was not likely to jeopardize the species or destroy or adversely modify critical habitat. Id. Cedar City and the Paiute Tribe were granted a twenty-year incidental take permit allowing them to remove and relocate prairie dogs to an approved location. Id. at *3. Prior to granting the permits, the FWS thoroughly reviewed the plan and made the plan available for public comment. Id. at *4. In response to the plaintiffs' comments, the FWS agreed that lethal trapping was impermissible and removed it from the plan. Id. It subsequently issued a finding of no significant impact and a response to the public comments addressing other issues raised, and issued the permits. Id.

Arguments

The plaintiffs argued that the FWS failed to include a numeric take limit on the permits, and that its finding that the habitat conservation plan sufficiently minimized and mitigated the take's impact was arbitrary and capricious. Id.

Analysis and Holdings

Section 7 of the ESA requires the FWS to issue an incidental take statement when it issues a "no jeopardy" biological opinion specifying the impact or extent of the takings on the species. Id. at *6. The court pointed out, however, that this is distinct from an incidental take permit governed by section 10, and held that an incidental take permit is not required to include the specific numeric take amount. Id. Although the FWS itself had indicated in its habitat conservation plan handbook that it would require quantities on the permits, the court explained, "An agency manual, in contrast to a regulation, is not necessarily entitled to the force and effect of law," especially if the agency intended the manual to be advisory rather than mandatory, as was the case here. Id. at *6-7. The court further held that the FWS's decision that translocation of the prairie dogs to an approved site would "minimize and mitigate" the impacts of the taking was not arbitrary and capricious, because the FWS had considered all possible alternatives suggested by the plaintiffs and had articulated rational reasons for its decision. Id. at *8-10. Therefore, the court affirmed the FWS's issuance of the permits. Id. at *11.

The case was decided on April 22, 2009.