Case No. 3:07-cv-08164-DGC Grand Canyon Trust v. U.S. Bureau of Reclamation December 7 2007

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ii u I I 1-1 n 1 1 1 Under section 7(a)(2) of the ESA, a federal agency cannot undertake any action that 2 is "likely to jeopardize the continued existence" of any listed species or "result in the 3 destruction or adverse modification of critical habitat. 16 U.S.C. § 1536(a)(2). To ensure 4 compliance with these prohibitions, the "action agency" must consult with the FWS upon 5 proposing to authorize, fund, or carry out an action that may affect a species or its critical 6 habitat. Id. At the conclusion of the consultation process, FWS provides the action agency 7 with a "biological opinion" as to whether jeopardy or adverse modification is likely to 8 occur due to the action and, if so, sets forth the "reasonable and prudent alternatives" that 9 could avoid such ESA violations. Id. § 1536(b)(3)(A). FWS must use the best scientific 10 and commercial data available in assessing the proposed action under these standards and 11 drafting a biological opinion. Id. § 1536(a)(2). The agencies must reinitiate consultation 12 when (1) the action changes in a manner that was not considered by the FWS during the 13 initial consultation, (2) the amount or extent of "take" is higher than expected, (3) the 14 manner or extent of the action's effects were not previously considered, or (4) if a new 15 species is listed or critical habitat designated that may be affected by the identified action. 16 50 C.F.R. § 402.16. 17 Section 9(a)(1) of the ESA makes it unlawful for anyone to "take" a threatened or 18 endangered species of fish or wildlife. 16 U.S.C. § 1538(a)(1)(B) & (G); 50 C.F.R. § 19 17.31(a). Congress broadly defined "take" to mean "harass, harm, pursue, hunt, shoot, 20 wound, kill, trap, capture, or collect." 16 U.S.C. § 1532(19). The term "harm" is further 21 defined to include "significant habitat modification or degradation where it actually kills or 22 injures wildlife by significantly impairing essential behavioral patterns, including breeding, 23 feeding or sheltering." 50 C.F.R. § 17.3. 24 Congress created two "incidental take" exceptions to section 9's take prohibition. In 25 addition to ESA section 10 incidental "take permits," which do not cover federal agencies, 26 Congress also created incidental "take statements" for federal agencies. 16 U.S.C. § 27 1536(o)(2). As part of the section 7 consultation process, FWS provides a "take statement" 28 to an action agency, but only after finding the agency's action does not result in jeopardy or Memorandum in Support of Pls.' 3 Motion for Summary Judgment