On August 15, 2016, the U.S. Court of Appeals for the Ninth Circuit affirmed a lower court decision granting summary judgment to the Bureau of Land Management (“BLM”) and U.S. Fish and Wildlife Service (“USFWS”) on the issue of whether an incidental take statement is required for plant species.  In Center for Biological Diversity v. Bureau of Land Management, No. 14-15836, 2016 U.S. App. LEXIS 14949, the Center for Biological Diversity (“CBD”) challenged BLM’s adoption of a Recreational Area Management Plan (“Plan”) for off-road vehicles in the Imperial Sand Dunes Special Recreation Management Area (the “Dunes”) in Imperial County, California.  CBD argued, among other things, that USFWS violated the Endangered Species Act (“ESA”) by failing to include protected plant species in the incidental take statement issued for the Plan.  The Dunes is home to the Pierson’s milkvetch (Astragalus magdalenae var. peirsonii), a purple-flowered plant, and the desert tortoise (Gopherus agassizii), both of which are listed as threatened under the ESA.  After formal consultation under section 7 of the ESA, USFWS issued a biological opinion finding that the Plan was not likely to jeopardize the continued existence of milkvetch or desert tortoise.  USFWS’ biological opinion included an incidental take statement for desert tortoise, but not for Pierson’s milkvetch.

The district court held that USFWS is not required to include plant species in incidental take statements, because the ESA does not prohibit incidental “take” of plant species.  CBD appealed this ruling, and the Ninth Circuit affirmed the district court’s analysis, finding that the ESA is clear that the definition of “take” does not apply to plant species and therefore an incidental take statement is not required.

CBD also challenged the district court’s grant of summary judgment to BLM on the sufficiency of BLM’s air quality analysis under the National Environmental Policy Act, Clean Air Act, and Administrative Procedure Act.  The Ninth Circuit also affirmed the district court’s ruling that BLM’s analysis complied with all applicable laws, and that a difference of opinion over the methodology is insufficient to defeat an agency’s analysis.