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Condition (b). Take permit requirement. <br /> To require an applicant to obtain a take permit, it must be established <br /> that a take will in fact result from a project. Neither staff nor the Department <br /> of Fish and Game has established that a take will result from this project. <br /> Under the California Endangered Species Act (CESA), take is defined as <br /> "hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, <br /> capture, or kill. (California Fish and Game Code § 86.) While in practice the <br /> Department of Fish and Game has interpreted the take prohibition in the <br /> CESA to include the destruction of nesting and foraging habitat necessary to <br /> maintain the species' reproductive efforts, neither staff nor the Department of <br /> Fish and Game has presented any evidence of such destruction resulting from <br /> this project. <br /> Cammurcesand <br /> se law has determined that a take of a species results when there is a <br /> t degradation of the habitat of a protected species. (Palila v. Hawaii <br /> and and Natural Resources, 471 F.Supp. 985 (D. Hawaii 1979) Affd, <br /> 95 (9th Cir. 1981).) Case law holds that the destruction andtion of an endangered species' habitat which detrimentally affects the <br /> onstitutes a taking. (Sierra Club v. Lyng, 694 F.Supp. 1260 (e.d. Tex. <br /> ase law and the Endangered Species Act do not hold that amotion of an area that results in creatin additional food sources and <br /> enhancing a potential habitat constitutes a take. Such a holding would defeat <br /> the very purpose of the Endangered Species Act. <br /> Biological information indicates that the Swainson's hawk is an <br /> opportunistic, selective forager. The hawk will not forage on fallow dirt <br /> when more suitable habitat exists. It is hard to believe that the hawk would <br /> prefer the 18 acre portion of Mr. Hardesty's property when the southern 32 <br /> acres and surrounding properties offer far more suitable habitat. Because this <br /> 18 acre portion is not suitable habitat, its conversion to a use that may in fact <br /> increase the amount of foraging habitat does not constitute a take. <br /> There has been no evidence to indicate that a take will result from this <br /> project. To require a condition to obtain a take permit without this evidence <br /> is inappropriate. We request that this condition be removed. <br /> —5- <br /> 4/12/93 <br /> File No. SA-92-0041/Hardesty <br />