In a recent decision out of Oregon, a United States District Court found that plaintiffs do not need to prove a likelihood of future take to prevail on a Section 9 claim. Stout v. U.S. Forest Service, ECF No. 112 (D. Or. April 24, 2012). Plaintiffs, ranchers who had been partially enjoined from grazing on certain banks because of potential impacts to threatened Middle Columbia River steelhead (MCR steelhead), filed an action against the U.S. Forest Service and U.S. Fish and Wildlife Service alleging, among other claims, that the Forest Service had taken steelhead in violation of Section 9 by allowing too many wild horses in the Murderer's Creek Wild Horse Territory in the Malheur National Forest. While the Court eventually held that because of disputed issues of material fact neither party was entitled to summary judgment on the Section 9 claim, the Court resolved two key legal issues in plaintiffs' favor, including the above.
In 1971, Congress enacted the Wild Horses Act. Under the Act, the Forest Service was tasked with managing wild free-roaming horses and burros by establishing wild horse territories, developing management plans for each territory, determining an appropriate management level (AML) of wild horses in each territory, and maintaining a current inventory of wild free-roaming horses and burros.
In 1975, it was estimated that 174 horses resided in Murderer's Creek. Subsequently, the Forest Service, along with the Bureau of Land Management, adopted a management plan that established an AML of between 60 and 70 horses. In 1984, the agencies updated the plan and revised the AML to an average of 100 horses, with a not to exceed level of 140 horses. In 2006, the census data revealed that there were approximately 436 horses in Murderer's Creek. In 2007, the agencies adopted a second management plan for Murderer's Creek, establishing an AML of 50 to 140 horses.
In its ruling on the cross-motions for summary judgment, the Court acknowledged that in order to prevail on the Section 9 claim, the plaintiffs must prove by a preponderance of the evidence that the Forest Service's failure to control the wild horse population has resulted in take of MCR steelhead. The Court also found, however, that this did not mean that plaintiffs must prove a likelihood of future harm. The Court explained that while the relative likelihood of future harm is a factor courts must consider in tailoring the scope of any injunctive relief that is issued, to "require a citizen plaintiff to prove that 'take' is likely to occur in the future tips the balance away from the preservation of species and would thwart Congress' overriding purpose of providing 'a means whereby the ecosystem upon which endangered species and threatened species depend may be conserved' and of providing 'a program for the conservation of such . . . species.'" Further, with respect to the standard and scope of review for the Section 9 claim, the Court held, contrary to the Forest Service's arguments, that the matter would be reviewed de novo and that both parties would be allowed to submit extra record evidence.
In a recently issued 
