Arizona Cattle Growers' Association v. U.S. Fish and Wildlife Service 273 F.3d 1229 (9th Cir. 2001) The Bureau of Land Management (BLM) was issuing grazing permits on 1.6M acres of Federal land. Pursuant to §7 of the Endangered Species Act (ESA), the Fish and Wildlife Service (FWS) issued a Biological Opinion that the grazing was not likely to jeopardize the endangered species that lived on the land, or destroy a critical habitat. However FWS did issue Incidental Take Statements (ITSs) about a few species. An ITS lays out recommendations that should be followed to ensure that any incidental damage to the threatened species won't result in their jeopardy. In this case, FWS recommended limitations on what could be done with the land (aka habitat modification). While an ITS is just advisory, if people comply with the recommendations, and an endangered species is damaged, then the person is immune from liability. See ESA §7(b)(4)(B). In a separate case, the US Forest Service asked the FWS to comment on some land they were going to open for grazing, and FWS again issued some ITSs for a few species. In both cases, the FWS was sued by local cattle ranchers who wanted the permits, but did not want to comply with the restrictions in the ITSs. The ranchers argued that there was no evidence that any endangered species would be injured, so there was no reason to issue an ITS. The FWS argued that ESA §7 should be read to encompass situations in which harm was "possible" or "likely" in the future due to the proposed actions. There was evidence that there had once been endangered species there, and might come back if conditions were right. The Trial Court found for the cattle ranchers. FWS appealed. The Trial Court found that the definition of taking in ESA §7 should be the same as the definition in ESA §9. The Court looked to Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (515 U.S. 687 (1995)), which held that habitat modification does not constitute a harm unless it actually kills or injures wildlife. The Appellate Court affirmed. The Appellate Court found that there was no evidence that any endangered species would be damaged. In fact, FWS was unable to confirm whether the species they were protecting in the ITSs actually even lived on the land in question. The Court found that it was arbitrary and capricious to issue an ITS without a rational basis to conclude that a take would actually occur. The Court found that in situations where there was evidence of the existence of an endangered species, the FWS could not issue an ITS unless they had a sufficient connection between the proposed activity and the harm to the endangered species. In this case, the Court didn't see how grazing by cattle on land was going to affect a fish swimming in a nearby pond. In general, the courts give deference to Agencies because the Agencies are the ones with the experts. In this case, the Court second-guessed the FWS's opinion that there would be harm. Isn't that a violation of Chevron Doctrine? Under the decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council (467 U.S. 837 (1984)), the courts are to give a wide latitude to Administrative Agencies in how they interpret Statutes.