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Environmental Law

: ESA Blawg

Federal Court in Utah upholds incidental take of golf course prairie dog population

By Keith Rizzardi

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Wildearth Guardians v. U.S. Fish & Wildlife Service, No. 2:07-cv-00837 CW (D. Utah, April 22, 2009)

INTRODUCTION. In this action, Plaintiffs challenge two permits issued by the United States Fish and Wildlife Service under the Endangered Species Act ("ESA"). The permits authorize Cedar City, Utah and the Paiute Indian Tribe to live trap and relocate Utah Prairie Dogs that are damaging the Cedar City municipal golf course and adjacent lands owned by the Paiute Tribe... This matter is before the court to review the administrative action of the Service. WildEarth Guardians seeks revocation of the permits on the basis that (1) the Service failed to include a numeric take limit on the permits themselves, and (2) the Service's actions were arbitrary and capricious when it found that the Habitat Conservation Plan ("HCP") sufficiently minimizes and mitigates the take's impact.

FACTUAL BACKGROUND. Unfortunately, when Utah Prairie Dogs (photo above by Jess Alford from WildEarth Guardians) have been relocated from private land to public land, historically only about ten percent have survived. Through the translocation program, however, the number of "prairie dog colonies on public land has increased" over the years... Iron County, Utah has an HCP, which allows the permanent or non-permanent take of a certain number of Utah Prairie Dogs per year. The Golf Course was permitted to use the nonpermanent take provisions of the Iron County HCP in an attempt to control the prairie dog population on the Golf Course... The Golf Course colony is unnaturally large due to artificial conditions, such as an "unlimited food supply and lack of predators." Because of development around the Golf Course, the colony is "fragmented and becoming more isolated." The colony therefore does not contribute to genetic mixing of the species... The Service determined that the proposed HCP was "not likely to jeopardize the continued existence of the Utah Prairie Dog, and is not likely to destroy or adversely modify designated critical habitat." In making this determination, the Service considered the mitigation factors proposed by the applicants. It particular, Iron County purchased "a 303 acre parcel of land surrounded by BLM lands ." It then agreed, upon issuance of the permits, to put this land into a conservation easement for purposes of preserving a permanent prairie dog habitat. The land is known as Wild Pea Hollow and it is adjacent to other public lands that support a prairie dog colony. This land provides the potential for genetic mixing between colonies.

OPINION AND ANALYSIS RE: INCIDENTAL TAKE STATEMENT: WildEarth Guardians asserts the take permits must be vacated because the Service failed to include a take limit on the permits... (But) It is well established that population counts for Utah Prairie Dogs are generally unreliable and experience confirms that such counts at the Golf Course and Paiute lands have been unreliable. Thus, where the intent was to relocate the entire population, including a specific take limit would have added a complication and unnecessary restriction should the site population exceed the take limit. The Service did provide an estimate in the incidental take statement on the number of prairie dogs to be moved. That is all that could reasonably be required given the uncertainty of the population count and the objective to move the entire colony. While under other circumstances it may be appropriate to require a take limit on a permit, the court holds that under the circumstances of this case, the Service was not obligated to include a take amount on the permits.

OPINION AND ANALYSIS RE: MITIGATION AND MINIMIZATION: WildEarth Guardians further contends that the HCP does not sufficiently minimize or mitigate the impact on the Utah Prairie Dogs. As stated above, the Service must find that "the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of he taking." What constitutes the "maximum extent practicable" is not defined in statute. The Service, however, has interpreted the statute to mean mitigation that "is rationally related to the level of take under the plan," and courts have agreed with this interpretation. In conjunction with this finding, the Service also must determine that the take "will not appreciably reduce the likelihood of the survival and recovery of the species in the wild." ... Wild Pea Hollow is a natural habitat that provides possible connectivity between prairie dog colonies and the potential for genetic mixing. It also fulfills two main objectives under the Recovery Plan, namely, establishing prairie dogs on public lands and restoring suitable habitat on public lands. Based on these considerations, the Service concluded the HCP adequately minimized and mitigated the impact on the prairie dogs. The court rejected WildEarth Guardians claims: (1) rejecting claims regarding a Failure to Use Buried Fences, the Court held that "the Service articulated a rational connection between the facts found and the decision made." (2) Rejecting claims regarding an alleged Failure to Establish a Viable Habitat Before Translocation, the Court held that the Service did not make a clear error in judgment." Finally, (3) rejecting claims regarding Inadequate Translocation Procedures, the Court held that the permit conditions were adequate, and "the Service's decision was not arbitrary and capricious."

KEITHINKING: Because they authorize the take -- even death -- of endangered and threatened species, HCPs will always be controversial. This case reflects the traditional conflict between species habitat and human land use, but in the less traditional (but increasingly common!) context of public recreation and a golf course. As usual, the issue is fact specific, and the nature of the mitigation in this case, specifically, the creation of conservation lands and habitat adjacent to other public lands that already support a prairie dog colony, and that allow potential for genetic mixing between colonies, is especially significant. See news stories, including the Deseret News,

Full post as published by ESA Blawg on May 18, 2009 (boomark / email).