A new District of Arizona ruling is a reminder that Endangered Species Act (ESA) compliance turns not only on whether an agency reaches a “no jeopardy” conclusion, but also on whether the conditions attached to that conclusion can actually be monitored and enforced.
In Center for Biological Diversity v. Moore, the court reviewed the U.S. Fish and Wildlife Service’s (FWS) 2021 biological opinion for the U.S. Forest Service’s ongoing livestock grazing program across the Coronado National Forest. The program covers 177 allotments across more than 1.46 million acres, and the Forest Service’s biological assessment found likely adverse effects to several listed species, including the Sonora chub, Chiricahua leopard frog, and yellow-billed cuckoo. The court upheld FWS’s no-jeopardy findings, including its treatment of recovery and climate-related evidence, giving deference to the agency’s technical judgment under the Administrative Procedure Act’s arbitrary-and-capricious standard.
But the court found the incidental take statements for the chub and frog failed to meet ESA Section 7 requirements. ESA regulations allow agencies to use habitat or ecological surrogates as a substitute for the “take” of a species when counting individual animals is impracticable. However, the surrogate must show a causal link, explain why an individual take cannot be measured, and set a clear exceedance trigger. The court found the chub standards too disconnected from species impacts and the frog standards too vague about who determines causation and how. The court invited the parties to brief the appropriate remedy, with briefing due by mid-September.
The practical takeaway extends beyond grazing. For energy, mining, infrastructure, and real estate projects on federal or federally connected lands, ESA consultation must translate biological risk into objective, species-linked compliance triggers. A biological opinion may survive jeopardy scrutiny, but a weak incidental take statement can still create litigation risk and operational uncertainty.
