The Ninth Circuit Court of Appeals has confirmed that the federal Endangered Species Act (ESA) prohibits the unpermitted “taking” of listed fish and wildlife species, but not listed plant species, which it protects other ways, and thus the ESA does not require the U.S. Fish and Wildlife Service (FWS) to include “incidental take statements” for listed plants in its “biological opinions” issued to other federal agencies (e.g., U.S. Army Corp of Engineers) on projects they propose to approve. [Center for Biological Diversity v. U.S. Bureau of Land Management, ___F.3d___, Case No. 14-15836, (9th Cir. 2016).]

In holding that the ESA’s incidental take provisions apply only to animals and not plants, the Ninth Circuit confirmed what the FWS has long maintained and several district courts have already ruled. The decision thus serves to support the FWS’s current practice and largely put an end to contrary claims by CBD and likeminded litigants.

(David Ivester)