Section 9(g) Litigation: "Take" Cases & Permitting Agencies

Editor's Note: With Endangered Species Act 4(d) rule "take" prohibitions now in effect for a number of northwest salmon and steelhead (see Filippi, Insiders #237,#239 & #251), numerous local and state entities are grappling with a range of compliance issues. This article examines the potentially expansive reach of ESA liability with regard to such entities. Pursuant to section 9(g) of the ESA, local and state governments have been heldliable under the ESA for authorizing third parties to engage in activities that result in the take of threatened and endangered species. The court cases reviewed below provide examples of how courts in the past have addressed ESA liability of permit issuing agencies. At the same time, the cases also provide some explanation to those seeking certain permits as to why a government entity might demand from the permit-seeker ashowing of compliance with the ESA (either under section 4(d),section 7, or section 10), before it will issue a permit.

The Endangered Species Act (the "ESA") prohibits any person from "taking" listed species. 16 USCA 1538 (1994). "Take" is defined in section 3 of the ESA as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect" or to attempt to engage in any of these activities. The U.S. Fish and Wildlife Service defines "harm" within the definition of "take" as "an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." 50 C F R § 17.3 (1999). Further, the National Marine Fisheries Service ("NMFS") recently adopted a definition of "harm" that includes "significant habitat modification or degradation where it actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including breeding, spawning, rearing, migrating, feeding or sheltering."

Liability for a take may not always rest with the entity directly responsible for the action. A series of recent cases demonstrates that governmental entities (federal, state, or local) that license or regulate conduct that results in harm to listed species can be indirectly liable for take. Many of these cases have been decided pursuant to section 9(g) of the ESA, which provides that "it is unlawful for any person subject to the jurisdiction of the United States to attempt to commit, solicit another to commit, or cause to be committed, any offense" prohibited by the ESA.

The following is a summary of the case law in which a governmental entity was held responsible for taking a threatened or endangered species by authorizing a third party to engage in an activity:

• Palila v. Hawaii Department of Land and Natural Resources, 639 F2d 495 (9th Cir 1981). The Sierra Club sued the Hawaii Department of Land and Natural Resources, alleging the state was liable for a taking of the Palila bird. The Ninth Circuit affirmed the district court's summary judgment in favor of the plaintiffs.

  The Palila bird is an endangered bird found only in Hawaii. The state agency maintained herds of feral sheep and goats for sport hunting purposes within the Palila's critical habitat, and grazing by the sheep and goat populations destroyed the Palila habitat. The district court concluded that the harm created by the game animals was an unlawful taking of the Palila. Palila v. Hawaii Department of Land and Natural Resources, 471 F Supp 985, 995 (D Hawaii 1979). The Ninth Circuit upheld this finding and ordered the state to remove the sheep and goats from the habitat area. A mitigation plan proposed by the state that would have fenced off portions of the birds' habitat and allowed some sheep and goats to remain in the area was rejected by the appeals court. Instead, "complete eradication of the feral animals is necessary to prevent harm to the Palila." 639 F2d at 498.

• National Wildlife Federation v. Hodel, 15 Envtl L Rep 20891 (ED Cal 1985). The U.S. Fish & Wildlife Service authorized hunting of migratory birds with lead shot in certain areas of five states. The plaintiff environmental groups sued the agency seeking an injunction because the use of lead shot was found to be harmful to bald eagles. Bald eagles can be killed or injured by lead poisoning when they eat other migratory birds that have been shot with the lead pellets. The district court issued the requested injunction after concluding that the defendant's authorization of lead shot for hunting constituted a taking under section 9. As a result of the injunction, lead shot hunting was prohibited in the disputed areas for the 1985-86 hunting season.

• Sierra Club v. Lyng, 694 F Supp 1260 (ED Tex 1988). Environmental groups sought an injunction against the U.S. Forest Service, claiming the practice of clear-cutting in Texas forests resulted in taking of the red-cockaded woodpecker, an endangered species. The court issued a permanent injunction requiring the U.S. Forest Service to cease clear-cutting (even-aged management) and to institute a program of selective cutting (uneven-aged management) within 1,200 meters of any colony of woodpeckers. Id. at 1278.

  The district court closely examined forest management practices in Texas and the causes of decline of the woodpecker population and concluded that the U.S. Forest Service's actions constituted a taking under the ESA. "[B]ased on the findings of this court, one cannot escape the conclusion that the Forest Services' practices have harmed the birds within the meaning of the regulations, in a number of different ways, evidenced by the precipitous decline in the woodpecker populations in recent years." Id. at 1271. The taking of the woodpecker was a direct result of U.S. Forest Service practices. "This is not a situation where the recovery of the species is impaired by the agency's practices, but rather the agency's practices themselves have caused and accelerated the decline of the species." Id.

  On appeal (Sierra Club v. Yeutter, 926 F2d 429 (5th Cir 1991)), the Fifth Circuit affirmed the district court's finding that the U.S. Forest Service's even-aged management practices violated section 9 of the ESA. The court of appeals did, however, limit the scope of the district court's injunction.

• Defenders of Wildlife v. Administrator, EPA, 882 F2d 1294 (8th Cir 1989). The Eighth Circuit found the Environmental Protection Agency (the "EPA") liable for take of the endangered black-footed ferret due to its pesticide registration program. The court reached this conclusion even though the agency was not actually responsible for distributing and using the pesticides that harmed the ferrets.

  The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) forbids the use of strychnine, a pesticide, unless the EPA registers it. Strychnine is used to kill nonlisted rodents, but there was evidence before the court that the poison also killed ferrets. Environmental groups sued the agency, alleging that continued registration of strychnine resulted in harm to protected species. The Eighth Circuit affirmed the district court's holding that the EPA had violated the take prohibition of section 9. "Consequently, the EPA's decision to register pesticides containing strychnine or to continue these registrations was critical to the resulting poisoning of the endangered species. We thus conclude the EPA's registrations constituted takings of endangered species." Id. at 1301.

• Strahan v. Coxe, 127 F3d 155 (1st Cir 1997). The First Circuit upheld a district court finding that the State of Massachusetts was liable under the ESA for authorizing a private activity, commercial fishing. Environmental groups alleged the state violated the ESA by permitting gillnet and lobster pot fishing. At the trial, the district court found that endangered Northern Right whales became entangled in the fishing gear and concluded that the state was liable for a take under the ESA for permitting the fishing practices. 939 F Supp 963, 984 (D Mass 1996). In affirming the lower court, the court stated "[A] governmental third party pursuant to whose authority an actor directly exacts a taking of an endangered species may be deemed to have violated the provisions of the ESA." 127 F3d at 163.

  On appeal, the state relied on common law tort principles of causation by arguing its licensing was not the proximate cause of the taking. Id. at 163-64. The court found instead that the licensing activity was an indirect cause of the taking of whales and that the principle of "indirect causation" was consistent with the common-law interpretation of "cause." Id. at 164. The court also rejected the state's analogy that permitting of fishing gear was no different than the licensing of drivers or cars. The state had argued that it could no more be liable for the take of whales by its licensing of fishing than it could be liable when a car is used to break the law. Id. at 163-64.

• United States v. Town of Plymouth, 6 F Supp2d 81 (D Mass 1998). The district court granted a request for preliminary injunction sought by the U.S. Fish & Wildlife Service to prevent the Town of Plymouth, Massachusetts from allowing off-road vehicles along Plymouth Long Beach. The beach provided habitat to the piping plover, a threatened species, and the court found sufficient evidence of harm to the birds and their habitat by off-road vehicles. The vehicles were prohibited on the beach until the town implemented guidelines issued by the federal and state government to protect the plover.

• Loggerhead Turtle v. County Council of Volusia County, 148 F3d 1231 (11th Cir 1998). The plaintiffs sought injunctive relief against Volusia County, a coastal county in northeast Florida, to protect the loggerhead sea turtle, a threatened species, and the green sea turtle, an endangered species. Female turtles come ashore in the spring to deposit their eggs in the sand. Several months later, the hatchling turtles emerge from their shells at night and march toward the brightest light on the beach. On undeveloped beaches, the brightest light will be the reflection of the moon off the water, but on developed beaches, the brightest light can be inland. Id. at 1235. The plaintiffs alleged that Volusia County's refusal to ban or effectively regulate beachfront driving and artificial lighting along the coast amounted to a taking under section 9 of the ESA.

  The district court granted a preliminary injunction that prohibited beachfront driving during nesting season. However, the court dismissed the suit as moot after Volusia County obtained an incidental take permit ("ITP") from the U.S. Fish & Wildlife Service. The plaintiffs appealed the dismissal. On appeal, the Eleventh Circuit addressed two important issues: (1) Did the ITP exempt Volusia County from liability for takes attributed to beachfront lighting and (2) did the plaintiffs have standing to sue for takes that occurred in nearby beaches, such as Daytona Beach?

  Volusia County's ITP authorized takes resulting from beachfront driving. The ITP addressed artificial lighting only in the context of mitigation measures that the County was required to implement pursuant to the permit. The court was thus faced with an issue of first impression as to whether Volusia County could be exempt from liability for takes that resulted from activities performed as mitigation measures under an ITP. Id. at 1242. The court closely examined the activities authorized by the ITP as well as the language of the mitigation section and concluded that the absence of express authority to take through beachfront lighting was dispositive. Id. The court held that the district court erred in dismissing the plaintiffs' claims.

  The court then addressed whether the plaintiffs had standing to bring claims for takes that occurred in nonparty municipalities. The court concluded that Volusia County had sufficient legal authority to regulate lighting in the adjacent jurisdictions. First, the county charter required Volusia County to set minimum standards for the protection of the environment throughout the county, including separate municipalities. Id. at 1247. The court then cited Strahan v. Coxe and Defenders of Wildlife in holding that a governmental entity may be liable for take resulting from its regulatory actions. Id. at 1251. Thus the plaintiffs were permitted to proceed with their case against Volusia County for "lighting-related harm in Daytona Beach, Daytona Beach Shores, Ormond Beach and New Smyrna Beach - even though the actions or inactions of those parties not before the court may be another cause of the harm." Id. at 1253.

• Greater Ecosystem Alliance v. Lydig, No. C94-1536C (WD Wash Mar 5,1996) (unpublished). Environmental groups sued members of the Washington Fish and Wildlife Commission for violation of the ESA. The groups claimed that the Commission's black bear hunting regulations, which authorized hunting with hounds and bait in certain forests, amounted to a taking of the endangered grizzly bear.

  The plaintiffs advanced several arguments in support of their taking claim. First, allowing bait and hound hunting aids poachers because "it renders these types of poachers indistinguishable from law-abiding black bear hunters until after a grizzly has been killed." Second, allowing bait and hound hunting can lead to accidental killing of grizzlies because hunters could mistake them for black bears or choose to kill a grizzly drawn by the bait. Finally, allowing the use of hounds increases the risk of disturbance of grizzlies. The district court agreed with these arguments and concluded that the evidence presented by the plaintiffs demonstrated "an incontrovertible link between bait hunting and illegal takings of grizzly bears."

  One federal case reached the opposite conclusion as the above cases.

• Strahan v. Linnon, 967 F Supp 581 (D Mass 1997), aff'd without opinion 187 F3d 623 (1st Cir 1998). The pro se plaintiff sued the U.S. Coast Guard alleging violations of the ESA, the National Environmental Policy Act, the Marine Mammal Protection Act, and the Administrative Procedure Act, claiming the agency inadequately addressed the impact of its activities on various endangered marine mammals, especially the Northern Right whale. Id. at 588-89. Among the ESA claims, the plaintiff alleged the U.S. Coast Guard had taken Northern Right whales in violation of section 9 both directly by Coast Guard vessels and indirectly by non-Coast Guard vessels that received Certificates of Documentation from the agency.

  The U.S. Coast Guard admitted to taking two Northern Right whales and one humpback whale by its own vessels during the previous seven years. Based on this admission, the court refused to issue a declaratory judgment requested by the plaintiff. Id. at 600. The court also refused to issue an injunction to prevent future takes because it found that new procedures implemented by the Coast Guard were sufficient to prevent any future take. The court also rejected the plaintiff's argument that the agency was liable for indirect take by vessels to which it had issued Certificates of Documentation. The court cited an earlier order in holding that the agency's issuance of the certification was not a discretionary duty and therefore did not trigger the ESA. Id. at 601-02. "The Coast Guard is required to issue Certificates of Documentation and Inspection if the specific statutory and regulatory criteria, which make no reference to environmental concerns, are met." Id. at 621. Given the nondiscretionary nature of the certification, section 9 take liability could not attach to the Coast Guard.

Published Nov. 1, 2000 in Issue 259 of Oregon Insider, a twice-monthly environmental management and regulatory update. David Light, Editor, Oregon Insider, Phone: 541/ 343-8504, epi@rio.com.