Endangered Species Law & Policy

Last Thursday, a U.S. District Court for the Northern District of California held (pdf) that the incidental take requirements in section 7 of the Endangered Species Act (ESA) do not apply to listed plant species.

In Center for Biological Diversity v. Bureau of Land Management, No. C 03-02509 SI (N.D. Cal. Apr.3, 2014), environmental group plaintiffs challenged a biological opinion issued by the U.S. Fish and Wildlife Service (Service) to the Bureau of Land Management (BLM). BLM had engaged in section 7 consultation with the Service regarding BLM’s management of the Imperial Sand Dunes Recreation Area in southeast California, an area home to rare species that is often frequented by off-road vehicle enthusiasts. Specifically, BLM sought consultation for potential management impacts on Peirson’s milk-vetch (Astragalis magdalenae var. peirsonii), a threatened plant species. After consultation, the Service issued a biological opinion that did not contain an incidental take statement for Peirson’s milk-vetch.

Under section 7 of the ESA, if a biological opinion concludes that a federal action is not likely to jeopardize the continued existence of a listed species but that the action is likely to result in incidental take of that species, the agency issuing the biological opinion must include an incidental take statement covering that species. Usually, the required incidental take statement only covers animal species. In this case, the environmental groups argued that an incidental take statement must be issued for plants as well.

Noting that no court has ever held that section 7 requires an incidental take statement for listed plants, the court disagreed with the environmental groups. The court looked to the structure and legislative history of the ESA to support its conclusion. Specifically, the court noted that section 9 of the ESA only prohibits take of listed fish or wildlife, not plant species; the take provisions in section 10 likewise only apply to animals.