Oregon Natural Resources Council v. Allen

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OREGON NATURAL RESOURCES 
COUNCIL; KLAMATH SISKIYOU
WILDLANDS CENTER; CASCADIA
WILDLANDS PROJECT; SISKIYOU
REGIONAL EDUCATION PROJECT;
FRIENDS OF THE LIVING OREGON
WATERS; NATIONAL CENTER FOR No. 05-35830
CONSERVATION SCIENCE AND POLICY,
Plaintiffs-Appellants,  D.C. No.
CV 03-0888 PA
v. OPINION
DAVID B. ALLEN, in his official
capacity as Regional Director for
the United States Fish and
Wildlife Service’s Pacific Region;
U.S. FISH & WILDLIFE SERVICE,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Argued and Submitted
July 28, 2006—Portland, Oregon
Filed February 16, 2007
Before: Alfred T. Goodwin, A. Wallace Tashima, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Tashima
1903
1906 OREGON NATURAL RESOURCES v. ALLEN
COUNSEL
Kristen L. Boyles, Earthjustice, Seattle, Washington, for the
plaintiffs-appellants.
R. Justin Smith, U.S. Department of Justice, Environment and
Natural Resources Division, Washington, D.C., for the
defendants-appellees.
OREGON NATURAL RESOURCES v. ALLEN 1907
Mark C. Rutzick, Portland, Oregon, for amicus curiae Ameri-
can Forest Resource Council.
OPINION
TASHIMA, Circuit Judge:
As a result of this court’s opinion in Gifford Pinchot Task
Force v. United States Fish & Wildlife Service, 378 F.3d 1059
(9th Cir. 2004), the Fish and Wildlife Service (“FWS”) volun-
tarily reinitiated consultation with two federal agencies
regarding the impact of a portion of a proposed timber harvest
on the endangered northern spotted owl. The FWS accord-
ingly withdrew its favorable Biological Opinion (“BiOp” or
“2001 BiOp”) regarding that portion of the timber harvest, but
did not withdraw the accompanying Incidental Take State-
ment, which would authorize the taking of “all” northern spot-
ted owls associated with the full timber harvest. The Oregon
Natural Resources Council and several other conservation
groups (collectively, “ONRC”) challenge the validity of this
Incidental Take Statement. We have jurisdiction under 28
U.S.C. § 1291. We hold that the Take Statement is invalid
because: (1) the withdrawal of a portion of the BiOp leaves
the Incidental Take Statement without an underlying factual
predicate; (2) the Incidental Take Statement presents a non-
numerical measure of take without explaining why no number
was provided; and (3) the Incidental Take Statement sets a
measure of take that does not allow for reinitiation of consul-
tation.
I. BACKGROUND
The Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-
1544, evidences a congressional intent to afford endangered
species the highest of priorities. TVA v. Hill, 437 U.S. 153,
194 (1978). “The plain intent of Congress in enacting this
1908 OREGON NATURAL RESOURCES v. ALLEN
statute was to halt and reverse the trend toward species extinc-
tion, whatever the cost.” Id. at 184. To accomplish this ambi-
tious goal, the ESA sets forth a comprehensive program to
limit harm to endangered species within the United States.
Section 9 of the ESA establishes a blanket prohibition on the
taking1 of any member of a listed endangered species. 16
U.S.C. § 1538(a)(1)(B). Section 7 affirmatively commands
each federal agency to “insure that any action authorized,
funded, or carried out” by the agency “is not likely to jeopar-
dize the continued existence of any endangered species . . . or
result in the destruction or adverse modification of habitat of
such species.” 16 U.S.C. § 1536(a)(2). However, § 7 carves
out limited exceptions for federal agencies and certain
statutorily-defined “applicants,” allowing those contemplating
action that may harm endangered species to obtain a limited
exemption from penalties under certain circumstances.2 16
U.S.C. § 1536(a)-(c), (o); 50 C.F.R. § 402.02.
Under § 7, if any listed (or proposed listed) species may be
present in the area of the proposed action, the federal agency
(the “action agency”) must conduct a biological assessment in
order to determine the likely effect of its proposed action on
the species. 16 U.S.C. § 1536(c)(1); see also 50 C.F.R.
1
The ESA defines the term “take” as “to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct.” 16 U.S.C. § 1532(19). “Harm,” in this context, is “an act
which actually kills or injures wildlife. Such act may include significant
habitat modification or degradation where it actually kills or injures wild-
life by significantly impairing essential behavioral patterns, including
breeding, feeding or sheltering.” 50 C.F.R. § 17.3; Babbitt v. Sweet Home
Chapter of Cmtys. for a Greater Or., 515 U.S. 687, 691 (1995).
2
Section 10 of the ESA also authorizes the issuance of incidental take
permits to private parties. 16 U.S.C. § 1539. Historically, however, only
a small number of § 10 permits actually issue. See Ramsey v. Kantor, 96
F.3d 434, 442 n.15 (9th Cir. 1996). Section 7 also establishes a limited
procedure by which agencies may attempt to exempt a project from the
ESA by applying to the Endangered Species Committee. See 16 U.S.C.
§ 1536(e)-(p); see generally Portland Audubon Soc’y v. Endangered Spe-
cies Comm., 984 F.2d 1534 (9th Cir. 1993) (discussing Committee’s role).
OREGON NATURAL RESOURCES v. ALLEN 1909
§ 402.02. If the action agency concludes that its proposed
action may affect listed species or critical habitat, it must ini-
tiate consultation with the FWS or the National Marine Fish-
eries Service. See 50 C.F.R. § 402.14.
In 2001, the Bureau of Land Management and the Forest
Service (“agencies”) desired to conduct approximately 75
timber sales on 64,006 acres of federally-managed land in the
Pacific northwest, primarily within the Rouge River Basin in
Oregon. These forests also house the northern spotted owl,
strix occidentalis caurina, a listed threatened species. See 50
C.F.R. § 17.11(h). The agencies conducted a biological
assessment of the proposed sales and concluded that the sales
may affect the northern spotted owl, as well as three other
listed species. The agencies initiated formal consultation with
the FWS.
During the consultation process, the FWS assessed the pro-
posed action for its potential to harm the spotted owl and
other endangered species and their critical habitat. See 50
C.F.R. § 402.14(g). The FWS summarized its findings in a
BiOp, issued in October 2001. See 50 C.F.R. § 402.14(g)-(h).
The BiOp found that the proposed timber harvest would
remove 22,227 acres of forest designated as spotted owl suit-
able habitat (i.e., habitat suitable for nesting, roosting and/or
foraging). The timber harvest would impact 10,443 acres of
spotted owl critical habitat,3 removing or downgrading 5,383
3
The FWS has designated a total of approximately 6.9 million acres of
forest lands as the northern spotted owl’s “critical habitat,” i.e.:
(i) the specific areas within the geographical area occupied by the
species . . . on which are found those physical or biological fea-
tures (I) essential to the conservation of the species and (II)
which may require special management consideration or protec-
tion; and (ii) specific areas outside the geographical area occu-
pied by the species . . . upon a determination . . . that such areas
are essential for the conservation of the species.
16 U.S.C. § 1532(5)(A); see Endangered and Threatened Wildlife and
Plants; Determination of Critical Habitat for the Northern Spotted Owl, 57
Fed. Reg. 1,796, 1,809 (Jan. 15, 1992).
1910 OREGON NATURAL RESOURCES v. ALLEN
acres of nesting, roosting, and foraging critical habitat,
degrading 2,168 acres of nesting, roosting, and foraging criti-
cal habitat, removing 563 acres of dispersal4 critical habitat
and degrading 2,329 acres of dispersal critical habitat. Never-
theless, the BiOp concluded, the anticipated harvest “[was]
not likely to jeopardize the existence of the spotted owl . . .
and [was] not likely to destroy or adversely modify desig-
nated critical habitat for the spotted owl.”
When the FWS concludes that an action will not jeopardize
the existence of a listed species or adversely modify its habi-
tat, but the project is likely to result in incidental takings of
listed species, the FWS must provide a written statement with
the BiOp that authorizes such takings. 16 U.S.C. § 1536(b)(4),
(o); Ariz. Cattle Growers’ Ass’n v. U. S. Fish & Wildlife, 273
F.3d 1229, 1233 (9th Cir. 2001). The Incidental Take State-
ment must: (1) specify the impact of the incidental taking on
the species; (2) specify the “reasonable and prudent mea-
sures” that the FWS considers necessary or appropriate to
minimize such impact; (3) set forth “terms and conditions”
with which the action agency must comply to implement the
reasonable and prudent measures (including, but not limited
to, reporting requirements); and (4) specify the procedures to
be used to handle or dispose of any animals actually taken. 16
U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i). As long as any
takings comply with the terms and conditions of the Inciden-
tal Take Statement, the action agency is exempt from penal-
ties for such takings. 16 U.S.C. § 1536(o)(2). Thus, a BiOp
with a no-jeopardy finding effectively green-lights the pro-
posed action under the ESA, subject to the Incidental Take
Statement’s terms and conditions. See Bennett v. Spear, 520
U.S. 154, 169-71 (1997) (noting that, while a BiOp is techni-
4
According to the FWS, dispersal habitat consists of trees of adequate
size and canopy closure to protect owls from predators as they move
within their range. 57 Fed. Reg. at 1,798. Although it may be marginal or
unsuitable for nesting, roosting or foraging, dispersal habitat serves to link
owl subpopulations and blocks of owl nesting habitat. Id.
OREGON NATURAL RESOURCES v. ALLEN 1911
cally advisory only, an agency disregards the BiOp “at its
own peril”).
However, the ESA’s implementing regulations require the
agencies completing the project to report back to the FWS on
the action’s progress and its impact on the species “[i]n order
to monitor the impacts of incidental take.” 50 C.F.R.
§ 402.14(i)(3). The agency must immediately reinitiate con-
sultation with the FWS if the amount or extent of incidental
taking is exceeded. 50 C.F.R. §§ 402.14(i)(4), 402.16(a).5
The 2001 BiOp’s accompanying Incidental Take Statement
authorized the “incidental take of all spotted owls associated
with the removal and downgrading of 22,227 acres of suitable
spotted owl habitat.” The Reasonable and Prudent Measures
include the following statement: “The Service believes that
the following reasonable and prudent measures are necessary
and appropriate to minimize the impacts of incidental take of
the spotted owl . . . [:] Provide appropriate amounts of spotted
owl dispersal and suitable habitat in a condition and distribu-
tion that facilitates spotted owl movement across the land-
scape.” The Terms and Conditions specify procedures for
handling species specimens and require that certain of the
timber harvest projects be reviewed for consistency with the
BiOp. The Terms and Conditions also require the agencies to
report annually on the “actual impacts of the proposed proj-
ects,” and state that “[i]f take is exceeded, consultation will
have to be reinitiated.”
5
The action agency must also reinitiate consultation with the FWS if:
(1) new information reveals effects of the action that may affect listed spe-
cies or critical habitat in a manner or to an extent not previously consid-
ered; (2) a modification to the action affects listed species or critical
habitat in a way that was not considered in the BiOp; or (3) newly listed
species or newly designated critical habitat may be affected by the identi-
fied action. 50 C.F.R. § 402.16(b)-(d).
1912 OREGON NATURAL RESOURCES v. ALLEN
II. PROCEEDINGS BELOW
In 2003, ONRC commenced this action, challenging the
validity of the BiOp and the Incidental Take Statement. The
district court granted defendants’ motion for summary judg-
ment in February 2004, and ONRC appealed.
While this case was pending on appeal, we decided Gifford
Pinchot. We held that the definition of “destruction or adverse
modification” of critical habitat employed by the FWS in
assessing jeopardy to the northern spotted owl violated the
ESA. Gifford Pinchot, 378 F.3d at 1069-75. The definition
in use “set[ ] the bar too high” by finding adverse modifica-
tion only where proposed actions impacted “both the survival
and recovery of a listed species.” Id. at 1069 (emphasis
added). We ordered this case remanded to the district court
for consideration in light of Gifford Pinchot’s relevant hold-
ings. See Or. Natural Res. Council v. Allen, 124 Fed. App’x
555 (9th Cir. Mar. 9, 2005).
The FWS subsequently acknowledged that Gifford Pinchot
rendered a portion of the 2001 BiOp invalid. It voluntarily
reinitiated consultation on the land designated as northern
spotted owl critical habitat, represented by the FWS to be
5,383 acres. Based on this action, the district court found that
the only live issue presented was the continuing validity of the
Incidental Take Statement. The district court concluded that
the original Incidental Take Statement remained valid despite
the partial withdrawal of the BiOp, and again granted sum-
mary judgment in favor of the FWS. ONRC again appeals the
validity of the Incidental Take Statement, arguing that: (1) the
FWS’ voluntary reinitiation of consultation on some of the
timber sales approved by the BiOp renders the Incidental
Take Statement invalid; and (2) the Incidental Take Statement
fails to quantify adequately the authorized take of northern
spotted owls or explain why no number was provided.
OREGON NATURAL RESOURCES v. ALLEN 1913
III. ANALYSIS
A. Standard of Review
The BiOp and its accompanying Incidental Take Statement
represent final agency action subject to judicial review. Ben-
nett, 520 U.S. at 177-78. As the ESA does not itself specify
a standard of review of its implementation, we apply the gen-
eral standard of review of agency action established by the
Administrative Procedure Act (“APA”). See id.; 5 U.S.C.
§§ 701-706. The Incidental Take Statement is thus subject to
review under the arbitrary and capricious standard found in
the APA. See 5 U.S.C. §§ 704, 706. We review the district
court’s grant of summary judgment de novo. N. Alaska Envtl.
Ctr. v. Kempthorne, 457 F.3d 969, 975 (9th Cir. 2006). Thus,
we must determine whether there is a rational connection
between the facts found and the choices made by the FWS
and whether it has committed a clear error of judgment. Ariz.
Cattle Growers’ Ass’n, 273 F.3d at 1243.
Review under the arbitrary and capricious standard is to be
“narrow,” but “searching and careful.” Marsh v. Or. Natural
Res. Council, 490 U.S. 360, 378 (1989). The Supreme Court
has explained that an agency action is arbitrary and capricious
if “the agency has . . . entirely failed to consider an important
aspect of the problem.” Motor Vehicle Mfrs. Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). A court
cannot, however, substitute its judgment for that of the agency
or merely determine that it would have decided an issue dif-
ferently. Marsh, 490 U.S. at 377.
B. Withdrawal of a Material Portion of the BiOp
Renders the Incidental Take Statement Invalid.
ONRC contends that reinitiating consultation on the portion
of the timber sales impacting northern spotted owl critical
habitat materially changed the scope of the BiOp, necessitat-
ing a new Incidental Take Statement. We agree. Even a cur-
1914 OREGON NATURAL RESOURCES v. ALLEN
sory review of the regulations governing formal consultation
demonstrates that Incidental Take Statements supplement
BiOps, and were not meant to stand alone.
[1] The FWS must issue an Incidental Take Statement if the
BiOp concludes no jeopardy to listed species or adverse mod-
ification of critical habitat will result from the proposed
action, but the action is likely to result in incidental takings.
16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i); Ariz. Cattle
Growers’ Ass’n, 273 F.3d at 1242. Both the BiOp and the
Incidental Take Statement must be formulated by the FWS
during the formal consultation process; indeed, the regulations
specifically require the FWS to provide the Incidental Take
Statement “with the biological opinion.” 50 C.F.R.
§ 402.14(g), (i)(1).
The Incidental Take Statement must be associated with an
underlying BiOp because the Incidental Take Statement’s pri-
mary function is to authorize the taking of animals incidental
to the execution of a particular proposed action. The approval
is effectively conveyed through the BiOp’s “no jeopardy”
determination. See 50 C.F.R. § 402.14(g)-(h); Bennett, 520
U.S. at 169-71. Without the “no jeopardy” determination con-
tained in the underlying BiOp, the Incidental Take Statement
potentially pre-authorizes take for an action that could subse-
quently be determined to jeopardize the existence of an
endangered species. Such a result would be contrary to the
ESA’s fundamental purpose and scheme. See 16 U.S.C.
§§ 1531(b)-(c), 1538(a)(1)(B).
Moreover, under the ESA’s implementing regulations, in
order to be considered a proper taking, the taking must be
incidental to the purpose of the action. 50 C.F.R. § 402.02;
see also 16 U.S.C. § 1536(b)(4) (providing for authorization
of takings incidental to approved agency actions). Without
understanding the scope and purpose of the action itself —
information contained in the BiOp — there is no way to know
whether the take being authorized is properly “incidental.”
OREGON NATURAL RESOURCES v. ALLEN 1915
[2] The facts of this case acutely demonstrate the Incidental
Take Statement’s necessarily auxiliary nature. Here, the 2001
BiOp initially approved timber sales impacting 22,227 acres
of suitable habitat for the northern spotted owl. The FWS has
withdrawn its approval of the logging of at least 5,383 acres
of critical habitat. However, the accompanying Incidental
Take Statement — contained within the 2001 BiOp — autho-
rized the taking of all spotted owls associated with the
removal or downgrading of 22,227 acres of suitable spotted
owl habitat, which may include most or all of the critical habi-
tat acreage at issue. Thus, as it stands, the Incidental Take
Statement is now broader than the project and allows for the
take of more spotted owls than are affected by the remaining
portions of the BiOp. Allowing the Incidental Take Statement
to stand alone would also presuppose the reapproval of the
timber harvest on spotted owl critical habitat, even though the
FWS has acknowledged that the action’s propriety must be
reevaluated in the light of the proper definition of destruction
or adverse modification of critical habitat.
[3] Because there is no rational connection between the
authorization of take and the scope of the underlying pro-
posed action, we conclude that the Incidental Take Statement
is arbitrary and capricious. See Ariz. Cattle Growers’ Ass’n,
373 F.3d at 1243.
C. The Incidental Take Statement Is Invalid Because
the FWS Failed to Establish that it Could Not Set
a Numerical Measure of Take.
Congress has clearly declared a preference for expressing
take in numerical form, and an Incidental Take Statement that
utilizes a surrogate instead of a numerical cap on take must
explain why it was impracticable to express a numerical mea-
sure of take. Because the Incidental Take Statement at issue
contains no numerical cap on take and fails to explain why it
does not, it violates the ESA.
1916 OREGON NATURAL RESOURCES v. ALLEN
[4] Section 7 of the ESA requires Incidental Take State-
ments to specify the “impact” of the incidental takings on the
species. 16 U.S.C. § 1536(b)(4)(i). In its discussion of
§ 7(b)(4), Congress indicated that it preferred the Incidental
Take Statement to contain a numerical value: “Where possi-
ble, the impact should be specified in terms of a numerical
limitation on the Federal agency or permittee or licensee.”
H.R. Rep. No. 97-567, at 27 (1982), reprinted in 1982
U.S.C.C.A.N. 2807, 2827. Congress recognized, however,
that a numerical value would not always be available: “The
Committee recognizes . . . it may not be possible to determine
the number of eggs of an endangered or threatened fish which
will be sucked into a power plant when water is used as a
cooling mechanism. The Committee intends only that such
numbers be established where possible.” Id.
[5] Accordingly, we have recognized that the permissible
level of take ideally should be expressed as a specific number.
See Ariz. Cattle Growers’ Ass’n, 273 F.3d at 1249 (referenc-
ing, as examples of numerical limitations, several cases in
which the Incidental Take Statements stated the specific num-
ber of species members that would be affected). Further, if it
does employ some other measure, “the Fish and Wildlife Ser-
vice must establish that no such numerical value could be
practically obtained.” Id. at 1250.
[6] Contrary to the FWS’ argument, “quantifying” take in
terms of habitat acreage lost is simply not the type of numeri-
cal limitation on take contemplated by Congress or this
court’s precedent. Moreover, the BiOp offers no explanation
of why the FWS was unable numerically to quantify the level
of take of northern spotted owls. The BiOp’s appendix
declares that “spotted owl survey data are currently out-of-
date and surveys have been discontinued or reduced.” The
FWS, however, never states that it is not possible to update
the survey data in order to estimate the number of takings,
only that it has not actually done the surveys. This does not
establish the numerical measure’s impracticality. We there-
OREGON NATURAL RESOURCES v. ALLEN 1917
fore conclude that the FWS’ unexplained failure to comply
with this requirement renders the Incidental Take Statement
invalid. See id.; cf. Ctr. for Biological Diversity v. Bureau of
Land Mgmt., 422 F. Supp. 2d 1115, 1137-38 (N.D. Cal. 2006)
(finding that the FWS did not adequately establish that no
numerical value of take of desert tortoises could practically be
obtained where Incidental Take Statement relied on fact that
the Service simply had not estimated the number of desert tor-
toises in the action area); Natural Res. Def. Council, Inc. v.
Evans, 279 F. Supp. 2d 1129, 1184-85 (N.D. Cal. 2003)
(rejecting Incidental Take Statement that failed to quantify
numerically the authorized incidental take of some twenty
endangered species and offered no evidence that it was
impractical to obtain such numerical estimates).
D. The Incidental Take Statement Does Not Provide
for Reinitiation of Consultation.
[7] As discussed above, Congress preferred take “be speci-
fied in terms of a numerical limitation.” H.R. Rep. No. 97-
567, at 27 (1982). A surrogate is permissible if no number
may be practically obtained. The chosen surrogate, however,
must be able to perform the functions of a numerical limita-
tion. In particular, Incidental Take Statements “set forth a
‘trigger’ that, when reached, results in an unacceptable level
of incidental take, invalidating the safe harbor provision [of
the ESA], and requiring the parties to re-initiate consultation.”
Ariz. Cattle Growers’ Ass’n, 273 F.3d at 1249. Because it
would allow the take of “all spotted owls” associated with the
project, the Incidental Take Statement would not allow for
reinitiation of consultation and is therefore not a proper surro-
gate.
[8] We have previously invalidated Incidental Take State-
ments that could not adequately trigger reinitiation of consul-
tation. For example, in Arizona Cattle Growers’ Ass’n, we
invalidated an Incidental Take Statement because it did not
contain measurable guidelines to determine when incidental
1918 OREGON NATURAL RESOURCES v. ALLEN
take would be exceeded. See id. at 1249-51. In that case, the
FWS formally consulted with the Bureau of Land Manage-
ment regarding the proposed issuance of grazing permits. Id.
at 1233-34. The FWS issued a BiOp containing several Inci-
dental Take Statements. One Incidental Take Statement, not-
ing that it would “be difficult to detect” incidental takings of
loach minnows from a particular allotment, instead attempted
to define the threshold of impermissible take using habitat
characteristics. Id. at 1248. The Incidental Take Statement
stated that it would consider the permissible level of take to
be exceeded if “[e]cological conditions do not improve under
the proposed livestock management” plan. Id. The Incidental
Take Statement then listed various components of the ecologi-
cal landscape, the “improvement” of which would count as
improving “ecological conditions.” Id. at 1249.
We explained that ecological conditions could be used as
a surrogate for defining the amount or extent of take if the
conditions were linked to the take of the protected species. Id.
at 1250. If, however, the FWS chooses to employ a non-
numerical surrogate, the surrogate must not be so general that
the applicant or the action agency cannot gauge its level of
compliance. Id. at 1250-51. The Incidental Take Statement
faltered because its directive to “improve” ecological condi-
tions was too vague for the permit applicant or the Bureau of
Land Management to measure its performance. Id. at 1250.
Instead, the Take Statement purported to charge the applicant
with the general ecological improvement of 22,000 acres of
land. Id. at 1251. Because it did not set a clear standard for
determining when the authorized level of take had been
exceeded, we held the Incidental Take Statement to be arbi-
trary and capricious. Id.; see also Natural Res. Def. Council,
Inc., 279 F. Supp. 2d at 1185-87 (rejecting Incidental Take
Statement which purported to set the impermissible level of
take at “any individual” because, inter alia, such a take state-
ment could not trigger reinitiation of consultation, as it was
extremely unlikely that the taking of a single marine animal
would actually be detected); Nat’l Wildlife Fed’n v. Nat’l
OREGON NATURAL RESOURCES v. ALLEN 1919
Marine Fisheries Serv., 235 F. Supp. 2d 1143, 1160 (W.D.
Wash. 2002) (finding that plaintiffs were likely to succeed on
their claim that an incidental take surrogate that, “in effect,
amounts to the project’s required work conditions,” was
invalid).
[9] The Incidental Take Statement in this case suffers from
the same infirmity as the Incidental Take Statement in Ari-
zona Cattle Growers’ Ass’n in that it too fails to set forth a
trigger that would invalidate the safe harbor provision and
reinitiate the consultation process. Here, the authorized level
of take, “all spotted owls associated with the removal and
downgrading of 22,227 acres of suitable spotted owl habitat,”
cannot be reached until the project itself is complete. Even if
the actual number of takings of spotted owls that occurred
during the project was considerably higher than anticipated,
the Incidental Take Statement would not permit the FWS to
halt the project and reinitiate consultation. Instead, the per-
missible level of take is coextensive with the project’s own
scope.6 The Incidental Take Statement and BiOp are rendered
tautological, they both define and limit the level of take using
the parameters of the project.7
6
Indeed, as discussed above, it actually exceeds the scope of the project,
as the BiOp has been withdrawn with respect to the portion of the pro-
posed harvest within the northern spotted owl’s critical habitat.
7
This shortfall is exacerbated by the Incidental Take Statement’s failure
to provide any meaningful measures to attempt to minimize incidental tak-
ings associated with the project. As a part of a take statement, the FWS
must specify “those reasonable and prudent measures that the [Service]
considers necessary or appropriate to minimize such impact.” 16 U.S.C.
§ 1536(b)(4)(ii); see also 50 C.F.R. § 402.14(i)(1)(ii). The measures may
not alter the project’s scope, but should be “minor changes” to the project
aimed at minimizing take, as required by § 7 of the ESA. 50 C.F.R.
§ 402.14(i)(2). The FWS Section 7 Consultation Handbook provides as
examples concrete activities that may allow those implementing the proj-
ect to reduce the number of animals taken, such as education of employees
about the species, reduction of predation of the species, removal or avoid-
ance of the species, or monitoring. Final ESA Section 7 Consultation
Handbook, March 1998 at 4-50.
1920 OREGON NATURAL RESOURCES v. ALLEN
The FWS argues that, despite our holding in Arizona Cattle
Growers’ Ass’n, Incidental Take Statements need not allow
for reinitiation of consultation. Instead, Incidental Take State-
ments serve only to lift § 9’s bar on take. This interpretation
of § 7(b)(4) ignores the limited nature of the take statement’s
exemption from penalty. Further, it reads out the statutory and
regulatory provisions for and congressional expectations of
the monitoring of incidental take during the project.
As discussed above, § 9 of the ESA issues a blanket prohi-
bition on the taking of any member of a listed species. 16
U.S.C. § 1538(a)(1)(B). Section 7 and its implementing regu-
lations affirm that this prohibition applies to federal agencies,
and provide carefully limited exemptions. 16 U.S.C.
§ 1536(o)(2). Throughout the biological assessment and for-
mal consultation process, it is incumbent upon the agency to
show that the project will not jeopardize or adversely affect
the critical habitat of any listed species. See 50 C.F.R.
§§ 402.12, 402.14. Generally, the project may be exempt from
the blanket prohibition on takings only if it does not place any
listed species in jeopardy and does not adversely modify
listed species’ critical habitat. 16 U.S.C. §§ 1536(b)(4), (o)(2).
The exemption from liability for take is further limited by
the ESA’s implementing regulations. “Incidental take” must
be truly incidental and may not be the purpose of the action.
50 C.F.R. § 402.02. The take must be in compliance with the
terms and conditions of the Incidental Take Statement. 50
C.F.R. § 402.14(i)(5). Finally, the action agency must reiniti-
Here, the Incidental Take Statement sets out only one Reasonable and
Prudent Measure related to the spotted owl. It states that, to minimize take,
a reasonable and prudent measure would be to “[p]rovide appropriate
amounts of spotted owl dispersal and suitable habitat in a condition and
distribution that facilitates spotted owl movement across the landscape.”
We are unable to extract any meaning from this sentence; neither the For-
est Service, the Bureau of Land Management, nor the prospective loggers,
will be able magically to “provide” habitat for the spotted owls.
OREGON NATURAL RESOURCES v. ALLEN 1921
ate consultation with the FWS if: (1) new information reveals
effects of the action that may affect listed species or critical
habitat in a manner or to an extent not previously considered;
(2) a modification to the action affects listed species or critical
habitat in a way that was not considered in the BiOp; or (3)
newly listed species or newly designated critical habitat may
be affected by the identified action. 50 C.F.R. § 402.16(b)-(d).
Thus, the ESA and its regulations seek to circumscribe and
limit the Incidental Take Statement’s exemption from liabil-
ity.
The regulations governing Incidental Take Statements also
provide for ongoing monitoring of incidental take by the
action agency and the FWS. 50 C.F.R. § 402.14(i)(3) instructs
the action agency or applicant to monitor the impacts of inci-
dental take by reporting on the project’s impact on the species
“as specified in the incidental take statement.” The regulation
further instructs the action agency to reinitiate consultation
immediately if the amount or extent of specified take is
exceeded in the course of the action. 50 C.F.R. § 402.14(i)(4).
The FWS’ own Consultation Handbook terms this point “re-
initiation level.” Final ESA Section 7 Consultation Handbook,
March 1998 at 4-47. Thus, “[t]he terms of an Incidental Take
Statement do not operate in a vacuum. To the contrary, they
are integral parts of the statutory scheme, determining, among
other things, when consultation must be reinitiated.” Ariz.
Cattle Growers’ Ass’n, 273 F.3d at 1251.
Finally, the House Committee Report regarding the addi-
tion of § 7(b)(4) shows that, contrary to the FWS’ argument,
Congress anticipated that Incidental Take Statements would
allow for reinitiation of consultation: “If the specified impact
on the species is exceeded, the Committee expects that the
Federal agency or permitee or licensee will immediately reini-
tiate consultation since the level of taking exceeds the impact
specified in the initial Section 7(b)(4) statement.” H.R. Rep.
No. 97-567, at 27 (1982).
1922 OREGON NATURAL RESOURCES v. ALLEN
Authorizing the take of “all spotted owls,” without any
additional limit, is inadequate because it prevents the action
agencies from fulfilling the monitoring function the ESA and
its implementing regulations clearly contemplate. The FWS’
interpretation of the function of an Incidental Take Statement
reads out of the statute the possibility of a revived consulta-
tion, rendering the monitoring and reinitiation provisions of
the regulations meaningless. Its interpretation would imper-
missibly expand the Incidental Take Statement’s liability
exemptions beyond the scope that has been established by
Congress and by the ESA’s implementing regulations.
[10] The FWS strenuously argues that its decision to
employ habitat as a surrogate for take is entitled to Chevron
deference and may not be disturbed by the Court. See Chev-
ron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837 (1984). We agree that the FWS, in fashioning a new Inci-
dental Take Statement, may, in its discretion, certainly rely on
a surrogate method, such as habitat, to determine the timber
harvest’s impact on the spotted owl. The salient point here,
however, is that no matter what kind of limitation on take the
FWS chooses to place in the Incidental Take Statement, it
cannot be so indeterminate as to prevent the Take Statement
from contributing to the monitoring of incidental take by
eliminating its trigger function.
IV. CONCLUSION
[11] We conclude that the Incidental Take Statement at
issue in this case is arbitrary and capricious on several counts.
First, because the underlying BiOp has been withdrawn, the
Incidental Take Statement lacks a rational basis. Second, the
Take Statement fails to provide a numerical limit on take
without explaining why such a limit is impracticable to obtain
and employ. Third, this Circuit has previously invalidated
Incidental Take Statements that could not adequately trigger
reinitiation of consultation. The Incidental Take Statement as
currently drafted could never trigger the reinitiation of consul-
OREGON NATURAL RESOURCES v. ALLEN 1923
tation because, by definition, the permissible take level is
coextensive with the scope of the project.
[12] For all these reasons, we reverse the judgment of the
district court and remand to the district court with instructions
to grant summary judgment in favor of plaintiffs regarding the
invalidity of the Incidental Take Statement.
REVERSED and REMANDED with instructions.