28 Jan 2002 Cattle Growers’ Association Wins Suit Against Endangered Species Act Enforcement, by Gretchen Randall

BACKGROUND: Arizona rancher Jeff Menges and the Arizona Cattle Growers’ Association won an appeal against the U.S. Fish and Wildlife Service (USFWS) and the Bureau of Land Management (BLM) over “incidental takings” in an endangered species case. The Ninth Circuit Court of Appeals in San Francisco voted 3-0 to uphold lower court rulings that found that the USFWS imposed “terms and conditions on land use permits, where there either was no evidence that the endangered species existed on the land or no evidence that a take would occur if the permit were issued.”

TEN SECOND RESPONSE: Finally a federal court has agreed that enforcement of the Endangered Species Act is getting out of hand. The Fish and Wildlife Service and environmental groups should now follow the court’s ruling.

THIRTY SECOND RESPONSE: Common sense finally won and the court realized that before restrictions can be placed on land use, an endangered species must be found in the area. In the past, too many ranchers and other landowners have been denied use of their own land because there is a possibility an endangered species might wander onto their land. Environmental groups should let the agency do its work of protecting wildlife instead of having to spend its time and effort in courtrooms.

DISCUSSION: The federal agencies’ interpretation of the Endangered Species Act (ESA) resulted in closing 400,000 acres of federal land to grazing under the theory that grazing would harm the razorback sucker and pygmy owl. However, the lower court found that the USFWS in its Biological Opinion “failed to provide sufficient reason to believe that listed species exist in the allotments in question.” On December 17, 2001 the Appeals Court agreed with the lower court on all but one Biological Opinion in question.

The original lawsuit was filed by the Southwest Center for Biological Diversity, claiming that the grazing permitted on federal lands was harming habitat even though the endangered species were not currently found on those allotments. “The very absence of a species is an indication of ongoing harm due to habitat degradation,” according to Martin Taylor, coordinator of the Center’s grazing reform program.

FOR MORE INFORMATION: To read the decision by the Ninth Circuit Court, visit: http://caselaw.lp.findlaw.com/data2/circs/9th/9916102p.pdf.

To read a news story about the case from the January 28, 2002 Eastern Arizona Courier, visit:
http://www.eacourier.com/display/inn_news/news01.txt.