On December 17, 2001, the Ninth Circuit issued its opinion in Arizona Cattle Growers Association v. United States Bureau of Land Management, (CV-97-02416-DAE/CV-99- 0673-RCB (9th Cir, December 17, 2001) (ACG). This opinion, addressing the scope of federal authority to issue Incidental Take Statements (ITS) under the Endangered Species Act (ESA), is important to both government and private sector practitioners. The case bears especially close notice for those dealing with state, local and regional government application of the ESA in the context of Oregon's land use system, especially those situations where the ESA is applied under Statewide Planning Goal 5. The Ninth Circuit determined it was arbitrary and capricious for the federal government to (1) issue an ITS not predicated on an actual "take," (2) impose land use conditions under the ESA where there was no evidence that the species occupied the territory at issue or that a take would occur if the land use permit (here grazing permits) were issued, and (3) issue an ITS that included terms that were "so vague as to preclude compliance therewith."
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