Arizona Cattle Growers' Ass'n v. United States Fish & Wildlife

WARD LAW, Circuit Judge:

At issue in these consolidated cross-appeals is whether the United States Fish and Wildlife Service’s provision of Incidental Take Statements pursuant to the Endangered Species Act was arbitrary and capricious under Section 706 of the Administrative Procedure Act. In separate actions, the Arizona Cattle Growers’ Association (“ACGA”) challenged the Incidental Take Statements set forth in the Biological Opinions issued by the Fish and Wildlife Service in consultation with the Bureau of Land Management (ACGA I) and the United States Forest Service (ACGA II) in response to ACGA’s application for cattle grazing permits in Southeastern Arizona. In the district courts, each of the Incidental Take Statements was set aside, with one exception, as arbitrary and capricious actions by the Fish and Wildlife Service, due to insufficient evidence of a take.

We hold, based on the legislative history, case law, prior agency representations, and the plain language of the Endangered Species Act, that an Incidental Take Statement must be predicated on a finding of an incidental take. Further, the Fish and Wildlife Service acted in an arbitrary and capricious manner by…