Ninth Circuit Upholds Use of Surrogate Approach in Incidental Take Statement

by Perkins Coie

When authorizing an “incidental take” of listed species, the U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service have long struggled with methods for establishing numerical take limits for some species where take levels are not readily measured.  The confusion over when a surrogate approach might be appropriate, and how such an approach should be applied, has led to the call for administrative reform.  In May 2011, FWS confirmed that it intended to advance a series of administrative reforms to the Endangered Species Act (“ESA”), including introducing “greater flexibility in the quantification of anticipated incidental taking,” which would “reduce the burden of developing and implementing biological opinions without any loss of conservation benefits.”

While the overall process of reforming the administration of the ESA has moved forward, no clear proposals have been issued on the use of a surrogate approach. 

In the meantime, several recent court decisions within the Ninth Circuit have addressed this issue.  In one of these cases, which involved a challenge to the operation of the Glen Canyon Dam, the FWS used an Incidental Take Statement that relied on non-numeric take limits for impacts on the endangered humpback chub.  In particular, FWS found that the best available science did not support a numeric incidental take limit for juvenile chub, which are difficult to detect.  Instead, FWS decided to use a surrogate limit based on the number of adult fish that were present and could be impacted.  FWS explained that impacts to juvenile fish could be reasonably extrapolated based on the expected impacts on adult fish populations and that there was no risk to the species’ recovery.  The federal district court in Arizona upheld this approach. The Ninth Circuit recently affirmed, but did not reach the merits of the issue, instead ruling that the plaintiff’s challenge to the Incidental Take Statement was moot.  Click here to view our recent update regarding Grand Canyon Trust v. U.S. Bureau of Reclamation, No. 11-16326 (9th Cir. Aug. 13, 2012). 

The Ninth Circuit directly addressed the use of a surrogate approach in its August 21 opinion in Center for Biological Diversity v. Salazar.  In that case, the court rejected the plaintiffs’ challenge to the Biological Opinion issued for FWS regulations under the Marine Mammal Protection Act (“MMPA”) that authorized oil and gas exploration activities affecting polar bears and walruses off the coast of Alaska.  Under the MMPA, FWS was required to find that only a “small number” of mammals would be harmed and that the effect on the species would be negligible.  But FWS was not required to place a numeric value on what constitutes a “small number” of affected mammals. 

In its Biological Opinion, FWS relied on its findings under the MMPA and did not establish a numeric take limit.  The Ninth Circuit, while noting that a numeric take limit was preferable under the ESA, ruled that FWS adequately explained why such a limit was not possible, due to the dynamic and unpredictable nature of sea ice habitats. The court also ruled that there was an adequate trigger for re-initiating consultation, such as if FWS determined that the exploration activities were in fact causing more than a negligible impact on listed species.

The surrogate approach has now been sanctioned by the Ninth Circuit, but what works in specific situations will vary.  The Center for Biological Diversity v. Salazar decision makes it clear that FWS must adequately justify both the decision to use a non-numeric approach and the viability of the particular approach selected.

DISCLAIMER: 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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