Submitted February 17, 2017 Pasadena, California
from the United States District Court for the Central
District of California D.C. No. 2:14-cv-01656-MWF-RZMichael
W. Fitzgerald, District Judge, Presiding.
R. Giltzenstein (argued) and William N. Lawton, Meyer
Glitzenstein & Eubanks, Washington, D.C., for
Chilakamarri (argued), J. David Gunter II, and Andrew C.
Mergen; John C. Cruden, Assistant Attorney General;
Environment and Natural Resources Division, United States
Department of Justice, Washington, D.C., for
T. Caplan (argued), Los Angeles, California, for
Potter and Nicholas Clabbers, Kaplan Kirsch & Rockwell
LLP, Denver, Colorado, for Amicus Curiae Clark County.
Before: MILAN D. SMITH, JR. and JOHN B. OWENS, Circuit
Judges, and EDWARD R. KORMAN, [**] District Judge.
panel affirmed the district court's summary judgment in
favor of the Secretary of the Department of the Interior and
other federal officials in an action brought by the Defenders
of Wildlife concerning the possible impacts of the Silver
State South solar project on the desert tortoise.
alleged that defendants violated the requirements of the
Endangered Species Act and the Administrative Procedures Act
by issuing a Biological Opinion analyzing the effect of the
Silver State South solar project on the desert tortoise that
was, among other things, arbitrary and capricious.
panel first rejected plaintiff's contention that the
Biological Opinion's determination that Silver State
South would not result in jeopardy to the desert tortoise
impermissibly relied upon unspecified remedial measures. The
panel held that: (1) the Biological Opinion did not rely on
mitigation measures to make its no jeopardy determination;
and (2) this Circuit's precedents do not require
mitigation measures to be identified or guaranteed when the
mitigation measures themselves may be unnecessary.
panel held that the Biological Opinion's determination
that Silver State South was "not likely to adversely
affect the critical habitat of the desert tortoise, "
which permitted the United States Fish and Wildlife Service
to forego an adverse modification analysis, was neither
arbitrary nor capricious.
panel held that the Biological Opinion's failure to
address the Fish and Wildlife Service's comments to a
Supplemental Environmental Impact Statement was not arbitrary
or capricious because the Supplemental Environmental Impact
Statement and the Biological Opinion evaluated substantially
panel held that because it could discern the Biological
Opinion's reasoning in concluding that Silver State South
would not have significant edge effects and the record
supports this conclusion, the Biological Opinion's
consideration of Silver State South's edge effects was
not arbitrary or capricious. The panel further held that the
Biological Opinion did not establish an impermissibly vague
trigger for reinitiating formal consultation over Silver
panel concluded that because the Biological Opinion was
neither legally nor factually flawed, the Bureau of Land
Management permissibly relied upon the Biological Opinion in
approving of the right-of-way for Silver State South.
SMITH, Circuit Judge.
case arises from the Bureau of Land Management (BLM)'s
approval of a right-of-way on federal lands in Nevada for the
construction of an industrial solar project, known as Silver
State South, and the project's possible impact on the
desert tortoise. Plaintiff Defenders of Wildlife (DOW)
contends that the Department of the Interior, the U.S. Fish
and Wildlife Service (FWS), and the BLM (collectively, the
Federal Defendants) violated the requirements of the
Endangered Species Act (ESA), 16 U.S.C. § 1531, et
seq., and the Administrative Procedures Act (APA), 5
U.S.C. § 706, by issuing a Biological Opinion (BiOp)
analyzing the effect of Silver State South on the desert
tortoise that was arbitrary, capricious, and an abuse of
discretion, and subsequently relying on the BiOp to grant the
right-of-way. The district court concluded that the BiOp
fully complied with both the ESA and APA, and granted summary
judgment for the Federal Defendants and Intervenor-Defendants
Silver State Solar Power South, LLC and Silver State South
Solar, LLC (collectively, Defendants). We affirm.
Endangered Species Act of 1973, 16 U.S.C. § 1531, et
seq., 'is a comprehensive scheme with the broad
purpose of protecting endangered and threatened
species.'" Conservation Cong. v. U.S. Forest
Serv., 720 F.3d 1048, 1050-51 (9th Cir. 2013) (quoting
Ctr. for Biological Diversity v. U.S. Bureau of Land
Mgmt., 698 F.3d 1101, 1106 (9th Cir. 2012)). The ESA
tasks the Secretary of the
Interior and the Secretary of Commerce with identifying and
maintaining a list of endangered and threatened species. 16
U.S.C. § 1533(a)(1)-(2). Endangered species are those
"in danger of extinction throughout all or a significant
portion of its range." Id. at § 1532(6).
Threatened species are those "likely to become an
endangered species within the foreseeable future."
Id. at § 1532(20). The Secretary of the
Interior is additionally charged with designating
"critical habitat" for each listed species.
Id. at § 1533(a)(3)(A)(i). Critical habitat is
defined as (a) "specific areas within the geographical
area occupied by the [endangered] species . . . on which are
found those physical or biological features (I) essential to
the conservation of the species and (II) which may require
special management considerations or protection, "
id. at § 1532(5)(A)(i), and (b) "specific
areas outside the geographical area occupied by the species .
. . [that] are essential for the conservation of the species,
" id. at § 1532(5)(A)(ii). However,
critical habitat generally does "not include the entire
geographical area which can be occupied by the threatened or
endangered species." Id. at § 1532(5)(C).
7(a)(2) of the ESA "affirmatively commands each federal
agency to 'insure that any action authorized, funded, or
carried out' by the agency 'is not likely to
jeopardize the continued existence of any endangered species
. . . or result in the destruction or adverse modification of
habitat of such species.'" Or. Nat. Res. Council
v. Allen, 476 F.3d 1031, 1033 (9th Cir. 2007) (quoting
16 U.S.C. § 1536(a)(2)). To comply with Section 7(a)(2),
an agency proposing an action (the action agency) must first
determine whether the action "may affect" an
endangered or threatened species or its critical habitat. 50
C.F.R. § 402.14(a) (2016). If the action agency
determines that its proposed action "may affect" an
endangered species or its critical habitat, the action agency
must initiate formal consultation with either the FWS or the
National Marine Fisheries Service (NMFS), as appropriate
(collectively, the consulting agency). Id. Under
certain circumstances, an action agency may bypass formal
consultation. For example, the ESA's implementing
regulations allow for informal consultation, "an
optional process that includes all discussions,
correspondence, etc., between [the action agency and the
consulting agency], designed to assist the [action] agency in
determining whether formal consultation . . . is
required." Id. at § 402.13(a). "If
during informal consultation it is determined by the [action]
agency, with the written concurrence of the [consulting
agency], that the action is not likely to adversely affect
listed species or critical habitat, the consultation process
is terminated, and no further action is necessary."
formal consultation is required, "the consulting agency
must prepare a biological opinion that advises the action
agency as to whether the proposed action, alone or 'taken
together with cumulative effects, is likely to jeopardize the
continued existence of listed species or result in the
destruction or adverse modification of critical
habitat.'" Conservation Cong., 720 F.3d at
1051 (quoting 50 C.F.R. § 402.14(g)(4)). Jeopardy to the
continued existence of a listed species (jeopardy)
"means to engage in an action that reasonably would be
expected, directly or indirectly, to reduce appreciably the
likelihood of both the survival and recovery of a listed
species in the wild by reducing the reproduction, numbers, or
distribution of that species." 50 C.F.R. § 402.02.
Destruction or adverse modification of critical habitat
(adverse modification) "means a direct or indirect
alteration that appreciably diminishes the value of critical
habitat for both the survival and recovery of a listed
species." Id. (2014). "Such alterations include, but are
not limited to, alterations adversely modifying any of those
physical or biological features that were the basis for
determining the habitat to be critical." Id. In
making these determinations, the biological opinion
"must state a rational connection between the facts
found and the decision made, " Gifford Pinchot Task
Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059,
1065 (9th Cir. 2004), and also rely on "the best
scientific and commercial data available." 16 U.S.C.
consulting agency determines that a proposed action
is likely to result in jeopardy or adverse
modification, the consulting agency must suggest
"reasonable and prudent alternatives, if any" that
avoid jeopardy or adverse modification. 50 C.F.R. §
402.14(h)(3). If there are no alternatives, then any
"take" of the listed species resulting from the
proposed action will violate Section 9 of the ESA, which
prohibits the taking of any member of an endangered or
threatened species. Ctr. for Biological Diversity,
698 F.3d at 1106-07 (citing 16 U.S.C. § 1538(a)(1)(B)).
Violations of Section 9 can result in "substantial civil
and criminal penalties, including imprisonment."
Id. at 1107 (internal quotation marks omitted).
consulting agency concludes that the proposed action is
not likely to result in jeopardy or adverse
modification, but the project nevertheless results in takings
of a listed species that "result from, but are not the
purpose of, carrying out" the requested agency action,
the consulting agency must include an incidental take
statement in the biological opinion. 50 C.F.R. § 402.02.
The incidental take statement "(1) specif[ies] the
impact of the incidental taking on the species; (2)
specif[ies] the 'reasonable and prudent measures'
that the FWS considers necessary or appropriate to minimize
such impact; (3) set[s] forth 'terms and conditions'
with which the action agency must comply to implement the
reasonable and prudent measures . . .; and (4) specif[ies]
the procedures to be used to handle or dispose of any animals
actually taken." Or. Nat. Res. Council, 476
F.3d at 1034 (citing 16 U.S.C. § 1536(b)(4) and 50
C.F.R. § 402.14(i)). Compliance with the terms of an
incidental take statement "exempts the action agency
from the prohibition on takings found in Section 9 of the
ESA." Nat'l Wildlife Fed'n v. Nat'l
Marine Fisheries Serv., 524 F.3d 917, 924-25 (9th Cir.
2008) (footnote omitted) (citing 16 U.S.C. § 1536(b)(4)
and ALCOA v. BPA, 175 F.3d 1156, 1159 (9th Cir.
The Desert Tortoise
desert tortoise is a reptile native to the Mojave and Sonoran
deserts in southern California, southern Nevada, Arizona, and
the southwestern tip of Utah. In 1990, the FWS listed the
desert tortoise as "threatened." See 55
Fed. Reg. 12, 178-01, 12, 179-80 (Apr. 2, 1990). In 1994, the
FWS divided the entire range of the desert tortoise into six
recovery units to "conserve the genetic, behavioral,
morphological, and ecological diversity necessary for
long-term sustainability of the entire [desert tortoise]
population." The FWS then designated a total of 6.4
million acres of land within the six recovery units as the
desert tortoise's critical habitat. 59 Fed. Reg. 5,
820-01, 5, 827 (Feb. 8, 1994). One of the six recovery units,
the Eastern Mojave Recovery Unit, is at issue here.
The Silver ...