1 of 15 documents united states code service

5. "Distinct population segment"

Section 1532(16) of Endangered Species Act, 16 USCS § 1532(16), does not require that interbreeding organisms be placed in same "distinct population segment." Modesto Irrigation Dist. v Gutierrez (2010, CA9 Cal) 619 F3d 1024, 71 Envt Rep Cas 1583, 40 ELR 20226.

Fish and Wildlife Service's policy for identification of "distinct population segments" (DPSs) is arbitrary, capricious, and abuse of discretion, where policy means there can only be one subspecies in DPSs, because that policy limits DPSs in manner which was not contemplated by Congress in enacting Endangered Species Act (16 USCS §§ 1531 et seq.), and is not supported by information in administrative record. Southwest Ctr. for Biological Diversity v Babbitt (1997, DC Ariz) 980 F Supp 1080, 45 Envt Rep Cas 2015.

It was not contrary to clear congressional intent for National Marine Fisheries Service and Fish and Wildlife Service (Services) to consider significance of distinct population segment (DPS) when determining whether that population was entitled to Endangered Species Act listing; term "distinct population segment" was ambiguous and, as Services concluded when promulgating DPS policy, DPS must be both discrete and significant because interests of conserving genetic diversity would not be well served by efforts directed at either well-defined but insignificant units or entities believed to be significant but around which boundaries cannot be recognized; therefore, DPS policy was not contrary to congressional intent regarding ESA and it was reasonable interpretation of ambiguous term. Ctr. for Biological Diversity v Lohn (2003, WD Wash) 296 F Supp 2d 1223, 58 Envt Rep Cas 1340, Vacated on other grounds, remanded (2007, CA9 Wash) 483 F3d 984, 64 Envt Rep Cas 1494, 37 ELR 20094, reh gr, op withdrawn on other grounds (2007, CA9 Wash) 511 F3d 960 and substituted op (2007, CA9 Wash) 511 F3d 960, 65 Envt Rep Cas 1676, 38 ELR 20001.

6. "Import"

"Import" under both Lacey Act (16 USCS § 3371) and Endangered Species Act (16 USCS § 1532) includes unscheduled landing in Miami of aircraft en route from Bolivia to Paris with cargo of caiman hides. United States v 3,210 Crusted Sides of Caiman Crocodilus Yacare (1986, SD Fla) 636 F Supp 1281, 16 ELR 20889.

Court of International Trade lacked jurisdiction over claims under 16 USCS § 1538(c), because Convention on International Trade in Endangered Species of Wild Fauna and Flora, Washington, D.C., art. II, para. 2(a), Aug. 3, 1973, T.I.A.S. No. 8249, 27 U.S.T. 1092, merely required regulation, not complete embargo of, imports of bigleaf mahogany. Native Fed'n of the Madre De Dios River & Tributaries v Bozovich Timber Prods. (2007) 31 CIT 585, 491 F Supp 2d 1174, 29 BNA Intl Trade Rep 1692, 37 ELR 20090.

7. "Significant portion of its range"

U.S. Fish and Wildlife Service's conclusion that three of lynx's four regions, which comprised three-quarters of lynx's historical regions and in two of which lynx was no longer viable, were collectively not significant portion of lynx's range was arbitrary and capricious and contrary to plain meaning of and broad purpose of Endangered Species Act, 16 USCS §§ 1531 et seq., to protect endangered and threatened species. Defenders of Wildlife v Norton (2002, DC Dist Col) 239 F Supp 2d 9, remanded (2004, App DC) 89 Fed Appx 273.

Secretary of Interior's interpretation of "significant portion of its range," as used in 16 USCS § 1532(6), was not reasonable because Secretary's conclusion that viability of two core populations in Eastern and Western distinct population segments made all other portions of gray wolf's historical or current range insignificant and unworthy of stringent protection was contrary to Endangered Species Act, 16 USCS §§ 1531-1543, and appellate court precedent. Defenders of Wildlife v Sec'y, United States DOI (2005, DC Or) 354 F Supp 2d 1156, 35 ELR 20033.

Final rule to reclassify and remove gray wolf from list of endangered and threatened wildlife in portions of conterminous U.S. issued by Fish and Wildlife Service made all other portions of wolf's historical or current range outside of core gray wolf populations insignificant and unworthy of stringent protection; Secretary of Department of Interior's conclusion that gray wolf was not at risk in significant portion of its range was contrary to plain meaning of Endangered Species Act (ESA), 16 USCS §§ 1531-1544, phrase "significant portion of its range," and therefore, was arbitrary and capricious application of ESA. Nat'l Wildlife Fed'n v Norton (2005, DC Vt) 386 F Supp 2d 553, 61 Envt Rep Cas 1822 (criticized in Ctr. for Biological Diversity v Norton (2005, DC NM) 411 F Supp 2d 1271).

In rejecting environmentalists' challenge to decision not to list Rio Grande cutthroat trout as endangered, court upheld Fish and Wildlife Service's interpretation of phrase "significant portion of range" in definition of "endangered" to mean portion that was so important to continued existence of species that threats to species in that area could have effect of threatening viability of species as whole. Ctr. for Biological Diversity v Norton (2005, DC NM) 411 F Supp 2d 1271.

In coalition's action challenging U.S. Fish and Wildlife Service's (FWS) decision to remove Yellowstone grizzly bear distinct population segment from list of threatened species under 16 USCS § 1533, FWS was entitled to summary judgment on claim that FWS failed to properly evaluate whether grizzlies were recovered across "significant portion of their range" for purposes of 16 USCS § 1532(20); FWS offered reasonable interpretation of ambiguous phrase "significant portion of its range." Greater Yellowstone Coalition, Inc. v Servheen (2009, DC Mont) 672 F Supp 2d 1105, 39 ELR 20214.

8. "Species"

Species can be extinct throughout significant portion of its range if there are major geographical areas in which it is no longer viable but once was; those areas need not coincide with national or state political boundaries, although they can. Defenders of Wildlife v Norton (2001, CA9 Cal) 258 F3d 1136, 2001 CDOS 6429, 2001 Daily Journal DAR 7927, 53 Envt Rep Cas 1297, 31 ELR 20846.

District court decision interpreting term "species" under 16 USCS §§ 1531(b) and 1532(16) of Endangered Species Act was irrelevant to interpreting meaning of term "stock" in 6 USCS § 1802(37) of Magnuson-Stevens Fishery Conservation and Management Act, 16 USCS §§ 1801 et seq; there was no basis for suggesting that "species" and "stock" had same definition. Or. Trollers Ass'n v Gutierrez (2006, CA9 Or) 452 F3d 1104, 36 ELR 20133, cert den (2007) 549 US 1338, 127 S Ct 2028, 167 L Ed 2d 762.

Policy on Consideration of Hatchery-Origin Fish, 70 Fed. Reg. 37,204 (June 28, 2005) (Hatchery Listing Policy) is consistent with both plain language of Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., and with statutory goal of preserving natural populations; ESA requires National Marine Fisheries Service to determine whether any species is endangered species or threatened species under 16 USCS § 1533(a)(1), and species, in turn, includes any subspecies of fish or wildlife or plants, and any distinct population segment under 16 USCS § 1532(16); consistent with plain language of ESA, Hatchery Listing Policy conducts status review of entire "species"--no more, and no less. Trout Unlimited v Lohn (2009, CA9 Wash) 559 F3d 946, 68 Envt Rep Cas 1904, 39 ELR 20061.

In listing steelhead as distinct species, separate from rainbow trout, National Marine Fisheries Service (NMFS) did not violate Endangered Species Act (ESA) because definition of "species" in 16 USCS § 1532(16) did not require NMFS to place interbreeding steelhead and rainbow trout in same "distinct population segment." Modesto Irrigation Dist. v Gutierrez (2010, CA9 Cal) 619 F3d 1024, 71 Envt Rep Cas 1583, 40 ELR 20226.

National Marine Fisheries Service's decision to close access to fisheries in particular area due to impacts on loggerhead and leatherback turtles was not inconsistent with 16 USCS § 1532(16) where agency's first biological opinion had referred to impacts on non-listed subpopulation, but second biological opinion clarified relationship between harm on that subpopulation and entire species of loggerhead turtles, which was listed under Endangered Species Act, 16 USCS §§ 1531 et seq. Blue Water Fishermen's Ass'n v Nat'l Marine Fisheries Serv. (2002, DC Mass) 226 F Supp 2d 330.

Species categorized as "endangered species" under Endangered Species Act, 16 USCS §§ 1531 et seq., are those that are in danger of extinction throughout all or significant portion of their range, and "threatened species" are those that are likely to become endangered species within foreseeable future. Am. Lands Alliance v Norton (2003, DC Dist Col) 242 F Supp 2d 1, 33 ELR 20137, reconsideration gr, vacated, in part on other grounds (2003, DC Dist Col) 360 F Supp 2d 1, injunction gr (2004, DC Dist Col) 2004 US Dist LEXIS 27533, dismd on other grounds (2004, App DC) 2004 US App LEXIS 15243.

In action by environmental organizations against Secretary of Interior, Bureau of Reclamation (BOR), Fish and Wildlife Service (FWS), and National Marine Fisheries Service (NMFS), alleging violation of consultation requirements of Endangered Species Act with regard to protected species in Colorado River Delta in Mexico, summary judgment was granted for Secretary of Interior, BOR, NWS, and NMFS under Fed. R. Civ. P. 56(c) where, although environmental organizations had standing to bring their action because they demonstrated that impacts on species in question had direct effect on their aesthetic, scientific, recreational, and economic interests, and their declarations were sufficiently detailed to show that their members suffered injury in fact to particularized interest, and that BOR's ongoing operations on lower Colorado River had and would continue to have significant impact on delta region and species in question, record contained no suggestion of way, with or without consultation, for BOR to ensure that more water reached species listed as endangered or threatened under 16 USCS § 1532 in Colorado River Delta, Law of River strictly limited BOR's authority to release additional waters to Mexico, 16 USCS § 1536(a)(2) did not loosen those limitations or expand BOR's authority, and BOR did not have discretion to manipulate water delivery in United States in order to create excess releases for Colorado River Delta. Defenders of Wildlife v Norton (2003, DC Dist Col) 257 F Supp 2d 53, 33 ELR 20162, app dismd (2003, App DC) 74 Fed Appx 63.

Fish and Wildlife Service's (FWS's) refusal to list westslope cutthroat trout as threatened or endangered species under Endangered Species Act, 16 USCS §§ 1532(6), 1532(20), 1533(c), was judicially upheld; its use of morphological rather than strictly genetic method and its inclusion of hybridized fish in its status review was not arbitrary under Administrative Procedures Act, 5 USCS § 706(2)(A), because FWS applied five factors of potential threat to species, including threat of hybridization, under 16 USCS § 1533(a)(1). Am. Wildlands v Kempthorne (2007, DC Dist Col) 478 F Supp 2d 92.

U.S. Fish and Wildlife Service did not violate Administrative Procedure Act, 5 USCS § 706, of when it reexamined its decision not to list Florida black bear as threatened or endangered under 16 USCS Endangered Species Act, §§ 1532 and 1533, because, on remand, agency was required to consider regulations and data available when decision was first made rather than later data; decision was not arbitrary or capricious where agency relied on best available scientific and commercial data available at time decision was first made and it was not necessary to analyze extent of habitat loss on private lands. Defenders of Wildlife v Kempthorne (2008, DC Dist Col) 535 F Supp 2d 121.

Lynx's status as threatened species, as defined in 16 USCS § 1532(20), as opposed to endangered species, as defined in 16 USCS § 1532(6), does not take it outside prohibitions against take, pursuant to 50 CFR § 17.31(a). Animal Welfare Inst. v Martin (2008, DC Me) 588 F Supp 2d 70, 69 Envt Rep Cas 1067, injunction den (2008, DC Me) 588 F Supp 2d 110, injunction den, motion den (2009, DC Me) 665 F Supp 2d 19, findings of fact/conclusions of law, injunction den (2009, DC Me) 668 F Supp 2d 254, 71 Envt Rep Cas 1154, affd (2010, CA1 Me) 623 F3d 19, 71 Envt Rep Cas 1705, 41 ELR 20001.

Endangered Species Act, 16 USCS §§ 1531 et seq., did not unambiguously preclude drawing distinctions between naturally-spawned and hatchery-born fish during any stage of listing process where nothing in definition of species set forth 16 USCS § 1532(16) or its legislative history spoke to issue, leaving gap for implementing agencies to fill. Cal. State Grange v Nat'l Marine Fisheries Serv. (2008, ED Cal) 620 F Supp 2d 1111, affd (2010, CA9 Cal) 619 F3d 1024, 71 Envt Rep Cas 1583, 40 ELR 20226.

9.--"Endangered"

On challenge by plaintiffs, fisherman and environmental groups, due to lack of genetic (introgression) data on hybridization, it was not unreasonable for defendants, heads of Department of Interior and U.S. Fish and Wildlife Service, to rely on morphological (characteristic) data to refuse to classify westslope cutthroat trout (WCT) as endangered or threatened under 16 USCS § 1532(6), (20),--even though some of those counted may have had introgression levels greater than 20%; under 16 USCS § 1533(b)(1)(A), listing determinations were to be made solely on best scientific and commercial data available and genetic data was not available for large majority of WCT populations. Am. Wildlands v Kempthorne (2008, App DC) 382 US App DC 78, 530 F3d 991, 67 Envt Rep Cas 1107, 38 ELR 20165.

Fish and Wildlife Service proposed rule to reclassify subpopulation of grizzly bears from "threatened" to "endangered" under 16 USCS § 1532(16) was not final agency action subject to judicial review, and, thus, environmental groups could not challenge Service's alleged combination of 2 subpopulations as single group, where Service did not rely on distinct population segment analysis in making listing decisions, and did not treat subpopulations as single population in later notices. Calton v Babbitt (2001, DC Dist Col) 147 F Supp 2d 4, 53 Envt Rep Cas 1157.

10.--"Threatened"

District court erred in granting summary judgment in favor of Secretary of Interior in action by conservation organizations that challenged Secretary's decision to withdraw rule proposing that flat-tailed horned lizard be listed as threatened species under Endangered Species Act (ESA), 16 USCS §§ 1532(20), and 1533; decision was arbitrary and capricious under 5 USCS § 706(2)(A) because Secretary improperly assessed significance of lizard's lost range based on unsupported finding that lizard populations persisted throughout most of species' current range. Tucson Herpetological Soc'y v Salazar (2009, CA9 Ariz) 566 F3d 870, 68 Envt Rep Cas 2131, 39 ELR 20107.

Under 16 USCS § 1532(16), National Marine Fisheries Service acted arbitrarily and capriciously when it decided to list only naturally spawning coho salmon as "threatened" and to exclude hatchery spawned coho salmon from listing protection, even if determined to be part of same distinct population segment as natural coho salmon populations, because they were not considered to be essential for recovery, inasmuch as Service relied on factors on which Congress did not intend it to rely when it made listing decision based on distinctions below that of subspecies or distinct population segment of species. Alsea Valley Alliance v Evans (2001, DC Or) 161 F Supp 2d 1154, 53 Envt Rep Cas 1490, app dismd (2004, CA9 Or) 358 F3d 1181, 57 Envt Rep Cas 2094.

Fish and Wildlife Service (FWS) was entitled to summary judgment in action under 16 USCS § 1540(g)(1)(A), which was filed by builder associations challenging FWS' designation of Central California population of California tiger salamander as "threatened" under Endangered Species Act because FWS articulated standard, which was five-factor threats analysis under 16 USCS § 1533(a)(1) and standard under 16 USCS § 1532(20), for ascertaining salamander's threatened status; listing was not rendered arbitrary and capricious under 5 USCS § 706(2)(A) just because threat estimates decreased as other facts, such as habitat loss and development risks, supported listing. Home Builders Ass'n v United States Fish & Wildlife Serv. (2007, ND Cal) 529 F Supp 2d 1110, affd (2009, CA9 Cal) 321 Fed Appx 704, 39 ELR 20086.

Fish and Wildlife Service's determination that listing of polar bear as threatened under 16 USCS § 1532 of Endangered Species Act created ban on import of sport-hunted polar bear trophies under 16 USCS §§ 1371 and 1372 of Marine Mammal Protection Act was final rule subject to review under 5 USCS § 704 because ruling definitively established that any application for permit under 16 USCS § 1374(c)(5) would not be granted. Polar Bear Endangered Species Act Listing & ? 4 Rule Litig. v Salazar (2009, DC Dist Col) 627 F Supp 2d 16, summary judgment proceeding, remanded (2010, DC Dist Col) 41 ELR 20008.

U.S. Fish and Wildlife Service's (FWS) decision to designate Distinct Population Segment (DPS) for Greater Yellowstone Area grizzly bear population and remove population from "threatened" species list under 16 USCS §§ 1532(20) and 1533 was arbitrary and capricious under 5 USCS § 706(2)(A); regulatory mechanisms relied upon by FWS were inadequate, and record did not support FWS's conclusion that whitebark pine declines did not pose threat to Yellowstone grizzly bear DPS. Greater Yellowstone Coalition, Inc. v Servheen (2009, DC Mont) 672 F Supp 2d 1105, 39 ELR 20214.

11. "Take"

Maintenance of animals in critical habitat of endangered species is violation of Endangered Species Act if those animals pose threat to endangered species by their destruction of natural habitat; such maintenance constitutes "taking" within meaning of 16 USCS § 1532. Palila v Hawaii Dep't of Land & Natural Resources (1981, CA9 Hawaii) 639 F2d 495, 15 Envt Rep Cas 1741, 11 ELR 20446.

Eliminating habitat of species can constitute "taking" that species for purposes of 16 USCS § 1538. Envtl. Prot. Info. Ctr. v Simpson Timber Co. (2001, CA9 Cal) 255 F3d 1073, 2001 CDOS 5730, 2001 Daily Journal DAR 7051, 53 Envt Rep Cas 2129, 31 ELR 20778.

Property owners identified no duty requiring federal authorities to act in manner under 16 USCS § 1532(19), Endangered Species Act, 16 USCS §§ 1531 et seq., that would likely redress their alleged injuries concerning beach erosion on Fire Island. N.Y. Coastal P'ship, Inc. v United States DOI (2003, CA2 NY) 341 F3d 112, cert den (2005) 546 US 820, 126 S Ct 352, 163 L Ed 2d 61.

Trial court properly granted summary judgment to federal forest service where environmental organization did not show that state livestock agency was violating any environmental laws despite restrictions imposed on permit issued to it by federal forest service so that state livestock agency could operate its bison capture facility in Montana; in particular, environmental organization did not show that Endangered Species Act, 16 USCS § 1538 (ESA) was violated because no causal connection had been shown between alleged harm and state livestock agency's actions, and, thus, no proven "taking" was established, and organization did not show that National Environmental Policy Act, 42 USCS § 4332, was violated because federal forest service took required "hard look" at environmental consequences of its actions, and its decision not to prepare supplemental analysis was not arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law. Cold Mt. v Garber (2004, CA9 Mont) 375 F3d 884, 58 Envt Rep Cas 1833, 34 ELR 20055.

District court's issuance of injunction pursuant to Endangered Species Act, 16 USCS §§ 1531-1544, was affirmed where National Wildlife Foundation had altered its own interpretation of statute significantly in its biological opinion concerning salmon and steelhead in Federal Columbia River Power System, and agency's interpretation was thus entitled to little deference. Nat'l Wildlife Fed'n v Nat'l Marine Fisheries Serv. (2005, CA9 Or) 418 F3d 971, amd on other grounds (2005, CA9 Or) 422 F3d 782, 60 Envt Rep Cas 1929, injunction gr, in part, on remand (2005, DC Or) 2005 US Dist LEXIS 39509, affd (2007, CA9 Or) 481 F3d 1224, 64 Envt Rep Cas 1353, 37 ELR 20079.

Environmental groups' Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., claims against development company were moot because Bald Eagle had been de-listed; therefore, no activities by company could constitute "take" of bald eagle within meaning of ESA. Ctr. for Biological Diversity v Marina Point Dev. Co. (2008, CA9 Cal) 535 F3d 1026, 67 Envt Rep Cas 1289, 38 ELR 20200, reprinted as amd, reh den, reh, en banc, den, costs/fees proceeding, remanded (2009, CA9 Cal) 560 F3d 903, amd on other grounds (2009, CA9 Cal) 566 F3d 794 and op withdrawn, amd on other grounds, petition den, as moot, remanded (2009, CA9 Cal) 560 F3d 903 and reprinted as amd, remanded (2009, CA9 Cal) 566 F3d 794.

Environmental group has failed to show likelihood of proving "take" of endangered species (red-cockaded woodpecker) to justify preliminary relief under 16 USCS § 1532(19) from government's cutting of pine trees in wilderness areas in order to prevent infestation of southern pine beetle, where any threat to woodpecker's habitat from cutting occurs primarily, if not exclusively, in breeding season which ended in mid-July, and where plaintiffs were only able to offer one siting of abandoned colony and there is no indication that cutting program was responsible for woodpecker's abandoning of this colony. Sierra Club v Block (1985, DC Dist Col) 614 F Supp 488, 15 ELR 20775.

Water district is enjoined from pumping water from river for irrigation during winter-run chinook salmon's peak downstream migration, where district's pumping has resulted in 97 percent reduction in fish's population, causing fish to be listed as endangered species under 16 USCS § 1533(a)(1), because pumping constitutes a taking of fish pursuant listed under 16 USCS § 1532(19) as force of district's pumps causes fish to be impinged on fish screen, entrained through the screen, or fall prey to predation by other fish in district's diversion channel. United States v Glenn-Colusa Irrigation Dist. (1992, ED Cal) 788 F Supp 1126, 22 ELR 20877.

Plan for mitigation of incidental taking of endangered species was upheld where Fish and Wildlife Service could rationally conclude that plan would improve habitat and enhance survival of species alleged to be at risk. Nat'l Wildlife Fed'n v Norton (2004, ED Cal) 306 F Supp 2d 920, 58 Envt Rep Cas 1618.

Leaseholders' citizen suit with respect to alleged take of endangered plover in violation of 16 USCS § 1532(19) was improper because leaseholders failed to provide requisite 60-day notice under 16 USCS § 1540(g) that they intended to sue state officers for taking plover in process of removing leaseholders' mobile homes; leaseholders' notice failed to even mention plover and, therefore, never provided State opportunity to rectify asserted Endangered Species Act, 15 USCS §§ 1531 et seq., violation with respect to plover. Pulaski v Chrisman (2005, CD Cal) 352 F Supp 2d 1105, affd (2005, CA9 Cal) 127 Fed Appx 993.

Where, in its application for incidental take permit, city's habitat conservation plan, which was submitted pursuant to 16 USCS § 1539(a)(2)(A), distinguished between "naturally occurring" vernal pools and "road rut" vernal pools, U.S. Fish and Wildlife Service (FWS) did not analyze, pursuant to § 1539(2)(B), impact of takings, pursuant to 16 USCS § 1532(19), of unnatural instances of vernal pool species; thus, FWS improperly authorized take of vernal pool species in those unnatural locations by authorizing city to take vernal pool species outside of jurisdictional wetlands; it was arbitrary to distinguish between vernal pools within or outside of U.S. Army Corps of Engineers' wetlands jurisdiction as basis for providing different levels of protections for endangered species that might inhabit or rely upon those bodies of water. Southwest Ctr. for Biological Diversity v Bartel (2006, SD Cal) 457 F Supp 2d 1070, injunction gr, summary judgment gr, in part, summary judgment den, in part, on other grounds, remanded (2006, SD Cal) 470 F Supp 2d 1118 (criticized on other grounds in Spirit of the Sage Council v Kempthorne (2007, DC Dist Col) 511 F Supp 2d 31, 66 Envt Rep Cas 1286, 37 ELR 20235) and app dismd, remanded (2011, CA9 Cal) 2011 US App LEXIS 950.

Where Asian elephants were listed as endangered under 16 USCS § 1533, circus owner's Asian elephants were not exempt from taking prohibition of 16 USCS § 1538, as defined by 16 USCS § 1532(19), because exemption was unambiguously applicable to other provisions; thus, disputed facts existed, precluding summary judgment, as to whether owner's treatment of elephants not subject to captive-bred wildlife permit constituted taking under Endangered Species Act. ASPCA v Ringling Bros. & Barnum & Bailey Circus (2007, DC Dist Col) 502 F Supp 2d 103, 66 Envt Rep Cas 1243.

Under 16 USCS § 1536(b)(3)(A), illegal take of species occurred when take of that species was result of action by person or agency, and in contrast, takes that resulted from acts of nature did not fall within prohibition of § 9 of Endangered Species Act and under 16 USCS § 1532(19) could not be blamed on Federal agency, and because rainfall and other precipitation caused natural filling of lakes in question and as lakes filled, surrounding areas flood which could cause take of listed species and their habitats, that was not illegal take not result of artificial breaching of sand bar between lakes and Pacific Ocean as permitted in defendant Army Corps of Engineers' permit and plaintiff water district's argument to contrary failed. Pac. Shores Subdivision Cal. Water Dist. v United States Army Corps of Eng'rs (2008, DC Dist Col) 538 F Supp 2d 242.

Even if lynx is harmlessly trapped, it has been subject to prohibited take under 16 USCS § 1532(19). Animal Welfare Inst. v Martin (2008, DC Me) 588 F Supp 2d 70, 69 Envt Rep Cas 1067, injunction den (2008, DC Me) 588 F Supp 2d 110, injunction den, motion den (2009, DC Me) 665 F Supp 2d 19, findings of fact/conclusions of law, injunction den (2009, DC Me) 668 F Supp 2d 254, 71 Envt Rep Cas 1154, affd (2010, CA1 Me) 623 F3d 19, 71 Envt Rep Cas 1705, 41 ELR 20001.

County dike district violated Endangered Species Act because reconstructing tidegates resulted in harm to threatened Chinook salmon, which constituted taking under 16 USCS §§ 1532(19) and 1538(a)(1)(B) in that taking prohibition was extended to salmon under 16 USCS § 1533(d). Swinomish Indian Tribal Cmty. v Skagit County Dike Dist. No. 22 (2008, WD Wash) 618 F Supp 2d 1262.

Where United States Fish and Wildlife Service issued incidental take permits to city and Indian tribe for relocation of Utah Prairie Dogs, "threatened" species, decision was upheld because (1) Service complied with its statutory requirement to include take amount in incidental take statement, (2) Service was not obligated to include take amount on permits, (3) Service considered and properly rejected buried-fences alternative, and (4) recovery site provided strong mitigation to loss of artificial habitat. WildEarth Guardians v United States Fish & Wildlife Serv. (2009, DC Utah) 622 F Supp 2d 1155.