On April 17, 2015, the United States Court of Appeals for the Tenth Circuit affirmed a district court decision upholding the U.S. Fish and Wildlife Service’s (FWS) approval of a roadway project in the Rocky Flats area of Denver, Colorado. WildEarth Guardians v. U.S. Fish and Wildlife Service, Nos. 12-1508 and 12-1509, slip. op. (10th Cir. Apr. 17, 2015) (pdf). The Rocky Flats, comprised of approximately 6,200 acres in Colorado, was previously used by the Department of Energy to manufacture components of nuclear weapons. The land became polluted by various hazardous materials, which largely remained unaddressed until Congress passed the Rocky Flats Act (Act) in 2001. Pursuant to the Act, the land was subject to a large-scale cleanup, and ultimately transferred to FWS. Working with a consortium of local governments, FWS approved a project involving the dedication of certain lands as a National Wildlife Refuge, with other lands – approximately 100 acres – to be developed as a roadway in the Denver metropolitan area.

Plaintiffs challenged FWS’s approval of the roadway project, arguing, among other things, that FWS violated the Endangered Species Act (ESA) by failing to issue an incidental take statement (ITS) with respect to the threatened Preble’s Meadow Jumping Mouse. Pursuant to section 7 of the ESA, FWS issued two biological opinions concluding that the proposed roadway would not jeopardize the continued existence of the mouse or adversely modify its critical habitat. Plaintiffs argued FWS was also required by law to issue an ITS as part of the section 7 consultation process.

The Tenth Circuit rejected plaintiffs’ assertion, finding FWS was “not legally required” to issue an ITS for the project because it concluded in the biological opinions that the proposed project “will not result in incidental take” of the mouse. Citing Ninth and Eleventh Circuit precedent, the court reasoned that the plain terms of the statute and regulations suggest that, at least where there is no evidence that a take may occur, FWS need not issue an ITS. However, the court declined to “definitively” rule on this point, finding evidence in the record that FWS had in fact issued an ITS as part of the biological opinions issued for the project.