Home » Case Summaries » 2017 » Defenders of Wildlife v. Zinke, 856 F.3d 1248 (9th Cir. 2017).

 
 

Defenders of Wildlife v. Zinke, 856 F.3d 1248 (9th Cir. 2017).

 

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Plaintiff, the non-profit group Defenders of Wildlife, brought suit against the United States Fish and Wildlife Service (FWS) and the Bureau of Land Management (BLM) (collectively, Defendants), alleging violations of the Endangered Species Act[1] (ESA) and the Administrative Procedure Act[2] (APA) regarding a Biological Opinion (BiOp) analyzing the effect of an industrial solar project on a species of desert tortoise. The project developers[3] proceeded as intervenors in the action. Plaintiff sued to enjoin construction of a specific portion of the solar project, and the parties cross-moved for summary judgment. The lower court found in favor of the government. The United States Court of Appeals for the Ninth Circuit reviewed the lower court’s grant of summary judgment[4] de novo, analyzing the government’s actions under the arbitrary, capricious, and abuse of discretion standard.[5]

Native to the Mojave and Sonoran deserts in southern California, southern Nevada, Arizona, and the southwestern tip of Utah, the desert tortoise is listed as “threatened.” The entire habitat range of the desert tortoise is divided into six recovery units, 6.4 million acres of which is critical habitat. At issue in this case is the Eastern Mojave Recovery Unit.

In 2008, NextLight Renewable Power, LLC sought right-of-way to construct two solar power facilities, Silver State North (SSN) and Silver State South (SSS), to be built on unincorporated land in the Ivanpah Valley. In 2012, the BLM issued a Supplemental Environmental Impact Statement (SEIS) that evaluated three proposed layouts for the SSS facility. The Nevada field office of FWS recommended that the BLM reject all three layouts, expressing concern over SSS’s potential impact on habitat fragmentation and genetic isolation of the desert tortoise, and the reduction in the width of the corridor between SSN and the Lucy Gray Mountains, an area important to the population connectivity[6] of the tortoise.

On February 11, 2013, the BLM initiated a formal consultation under the ESA for SSS. The consultation process, involving FWS and Silver State Solar Power South, LLC, a wholly owned subsidiary of the original applicant company, resulted in a new proposal that was authorized by the BLM in 2014, which reduced the project size and left a larger corridor. The SSS applicants agreed to fund a monitoring program in cooperation with the United States Geological Survey (USGS), that would track the effects of the SSS project on population connectivity.

On September 20, 2013, FWS released their BiOP, which was a formal review of the BLM approved plan, including the USGS cooperative plan. The BiOp designated the entire Ivanpah Valley as the “action area”[7] under review due to the potential effects on connectivity and came to several conclusions. First, SSS would not likely adversely affect the critical habitat of the desert tortoise, otherwise known as a “no adverse modification” determination. Second, SSS was unlikely to appreciably diminish the reproduction, numbers, or distribution of the desert tortoise in the action area, otherwise known as the “no jeopardy” determination. FWS also expressed some uncertainty about the effects of the reduced width of the corridor, but noted this would simply trigger re-initiation for corrective action. Third, the BiOp concluded that SSS would not appreciably impede the long-term recovery of the desert tortoise. In February of 2014, the BLM issued their Record of Decision and granted the right-of-way for SSS. The record specifically approved the plan for SSS that the BLM considered.

The court considered the various parts of the BiOp, dividing their analysis into four main sections. First, the court analyzed the no jeopardy determination in the BiOp. Plaintiff objected to the no jeopardy determination, arguing that it impermissibly relied upon unspecified remedial measures. The court disagreed, reasoning that the no jeopardy finding did not rely on remedial or mitigation measures at all, as FWS expressly stated it was uncertain if the reduced width of the corridor would cause genetic or demographic instability. The court also stated that agencies may make decisions in the face of uncertainty and are not required to fill in scientific gaps; they may simply rely on the best information available at the time. The court further indicated that no precedent requires any mitigation measure to be identified or guaranteed if mitigation itself may be unnecessary. The court ultimately found that the BiOp’s no jeopardy determination was neither arbitrary nor capricious.

Second, the court turned to the no adverse modification decision, dividing their analysis into two primary subsections. Subsection one was an examination of Plaintiff’s contention that the Defendants were required to analyze whether SSS would adversely modify the critical habitat within the valley. Plaintiff also contended that the inclusion of the critical habitat in the action area of the BiOp is a finding that the critical habitat would be affected. The ESA requires a BiOp to analyze the effects of proposed actions on listed species or critical habitats,[8] including indirect or direct effects on those things within the action area.[9] Both the BLM and FWS concluded, by informal consultation, that SSS would be unlikely to adversely affect any critical habitat. The court explained that no formal consultation is required if both the action agency and the consulting agency determine through informal consultation that the action is not likely to adversely affect the listed species. The court additionally noted that the entire Ivanpah Valley was designated as the action area due to the potential effect of SSS on connectivity, not the critical habitat unit.

Subsection two considered Plaintiff’s contention that reduced connectivity is an adverse modification of a critical habitat and that the BiOp thus was obligated to perform an adverse modification analysis. Plaintiff argued that reduction in connectivity constitutes an adverse modification because it impacts a critical habitat’s recovery value. The current regulatory language promulgated by FWS defines adverse modification of a critical habitat as “a direct or indirect alteration that appreciably diminishes the value of the critical habitat for both the survival and recovery of a listed species.”[10] The parties relied on different versions of the regulations. Defendants argued that the adverse modification of a habitat required two subparts: 1) modification of habitat (a change in the habitat), and 2) that the change be adverse. Defendants also argued that a change in connectivity was a change in the species, not the habitat. Conversely, Plaintiff argued that any action that adversely impacted the recovery value of a critical habitat constituted an adverse modification, relying on the phrase “result in” within section 7 of the ESA[11] to argue that Congress intended FWS to focus on consequences. The court sided with Defendants, breaking analysis of an adverse modification into two parts, relying on both the definitions in the code[12] and the regulation commentary.[13] After deciding to analyze adverse modification in this way, the court concluded that reduced connectivity could not constitute adverse modification because the construction of SSS would not have resulted in any alteration to the critical habitat. The court noted that the corridor was not itself part of the critical habitat, and construction would not have taken place in any part of the valley which did contain critical habitat. Again, the court found the BiOp’s determination of no adverse modification was neither arbitrary nor capricious.

The third section of the analysis concerned allegedly inconsistent positions in the BiOp. Divided into two parts, the court first examined FWS Nevada field office’s comments to the SEIS. Plaintiff argued that the BiOp was arbitrary and capricious because FWS’s comments on the BLM draft SEIS were not addressed in the BiOp. These comments included recommendations on corridor width, connectivity, and impacts on recovery. The court disagreed with Plaintiff, noting that “[a]gencies are entitled to change their minds.”[14] The court went on to explain that the determination of a local agency later overruled by a higher level within the agency does not make the decision-making process arbitrary or capricious. Further, only under certain circumstances would the agency’s prior factual findings be considered relevant data that should have been satisfactorily explained. The court’s decision in this subsection hinged on the fact that FWS did not make any factual or scientific findings in its comments on the SEIS, and that the BiOp examined a substantially different plan.

The second part of the court’s analysis of the allegedly inconsistent positions in the BiOp was Plaintiff’s allegation that the BiOp contained an internal inconsistency with regard to the necessary width of the corridor. The BiOp found that the corridor would need to be a minimum of 1.4 miles wide to accommodate a tortoise’s lifetime utilization area, and the effective width of the corridor was likely less than the measured width. First, the court dispensed with Plaintiff’s notion that 1.4 miles is the width necessary to maintain connectivity, noting the BiOp considered 1.4 miles an estimation that provided a means to characterize a potential minimum width, but that the actual linkage-width would be highly dependent on site-specific details, particularly based on edge effects reducing the effective width of the corridor. The court concluded that while an edge effect might reduce the effective width of the corridor at a single point below 1.4 miles, that fact was not inconsistent with the BiOp’s determination that connectivity would not be disrupted. The court also found ample evidence in the record to show that the BiOp considered what effects the edge effects would have and included measures to mitigate those effects. The court stated that because it could discern the BiOp’s reasoning in concluding that there would be no significant edge effects, the decision was not arbitrary or capricious.

The fourth finding the court made was in its analysis of Plaintiff’s claim that the BiOp established an impermissibly vague trigger for reinitiating formal consultation. The reinitiation component of the BiOp hinged on the findings of the USGS monitoring program, where reinitiation of formal consultation would occur if the USGS monitoring survey found changes in demographic and genetic stability related to the SSS project. Plaintiff argued that reinitiation triggers must have clear criteria that do not give unfettered discretion to federal agencies. The court disagreed with Plaintiff’s argument, stating that the agency did not have to identify ex-ante standards for determining how information will be evaluated based on the “new information” reinitiation trigger in the ESA.[15] Further, the court noted that the BiOp did in fact include criteria, specifically the initial measurement by the USGS and then subsequent taking of measurement and comparisons with the initial measurement.

In sum, the court affirmed the grant of summary judgment by the lower court in full, stating that the BiOp was neither factually nor legally flawed, and that the BLM permissibly relied upon the BiOp in approving the SSS right-of-way.

Footnotes    (↵ returns to text)

  1. 16 U.S.C. §§ 1531–1544 (2012).
  2. 5 U.S.C. § 706(2)(A) (2012).
  3. Silver State South Solar, LLC; Silver State Solar Power South, LLC; First Solar, Inc.; and Desert Stateline, LLC.
  4. Defs. of Wildlife v. Jewell, No. CV 14-1656-MWF (RZX), 2015 WL 12732431, at *15 (C.D. Cal. Mar. 30, 2015).
  5. 5 U.S.C. § 706(2)(A).
  6. Connectivity is “the degree to which population growth and vital rates are affected by dispersal” and “the flow of genetic material between two populations.” Defenders of Wildlife v. Zinke, 856 F.3d 1248, 1254 (2017). Connectivity “promotes stability in a species.” Id.
  7. The Code of Federal Regulations defines an action area as “any area that might be affected by the project.” 50 C.F.R. § 402.02 (2012).
  8. Id. § 402.14(h)(2).
  9. Id. § 402.02.
  10. Id.
  11. ESA, 16 U.S.C. § 1536(a)(2), (4) (2012).
  12. Id.
  13. Interagency Cooperation—Endangered Species Act of 1973; as Amended; Definition of Destruction or Adverse Modification of Critical Habitat, 81 Fed. Reg. 7214, 7216 (Feb. 11, 2016).
  14. Butte Envtl. Council v. U.S. Army Corps of Eng’rs, 620 F.3d 936, 946 (9th Cir. 2010).
  15. 50 C.F.R. § 402.16(b) (2017).
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