OREGON NATURAL RESOURCES COUNCIL v. ALLEN
The Ninth Circuit Court of Appeals today released an opinion in OREGON NATURAL RESOURCES COUNCIL v. ALLEN, No. 05-35830, an appeal in a civil action against the United States. The panel consisted of Alfred T. Goodwin, A. Wallace Tashima, and Susan P. Graber, Circuit Judges.
TASHIMA, Circuit Judge:
As a result of this court’s opinion in Gifford Pinchot Task Force v. United States Fish & Wildlife Service, 378 F.3d 1059 (9th Cir. 2004), the Fish and Wildlife Service (”FWS”) voluntarily reinitiated consultation with two federal agencies regarding the impact of a portion of a proposed timber harvest on the endangered northern spotted owl. The FWS accordingly withdrew its favorable Biological Opinion (”BiOp” or “2001 BiOp”) regarding that portion of the timber harvest, but did not withdraw the accompanying Incidental Take Statement, which would authorize the taking of “all” northern spotted owls associated with the full timber harvest. The Oregon Natural Resources Council and several other conservation groups (collectively, “ONRC”) challenge the validity of this Incidental Take Statement. We have jurisdiction under 28 U.S.C. § 1291. We hold that the Take Statement is invalid because: (1) the withdrawal of a portion of the BiOp leaves the Incidental Take Statement without an underlying factual predicate; (2) the Incidental Take Statement presents a nonnumerical measure of take without explaining why no number was provided; and (3) the Incidental Take Statement sets a measure of take that does not allow for reinitiation of consultation. I. BACKGROUND The Endangered Species Act (”ESA”), 16 U.S.C. §§ 15311544, evidences a congressional intent to afford endangered species the highest of priorities. TVA v. Hill, 437 U.S. 153, 194 (1978). “The plain intent of Congress in enacting this . . .