Defenders of Wildlife v. Zinke, 15-55806

• Decision Date: 18 May 2017
• Docket Number: No. 15-55806,15-55806
• Parties: DEFENDERS OF WILDLIFE, Plaintiff-Appellant, v. Ryan ZINKE, Secretary, Department of the Interior; James W. Kurth, Acting Director, U.S. Fish and Wildlife Service; Michael D. Nedd, Acting Director, Bureau of Land Management, Defendants-Appellees, and Silver State South Solar, LLC; Silver State Solar Power South LLC, Intervenor-Defendants-Appellees, and First Solar, Inc.; Desert Stateline, LLC, Intervenor-Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

856 F.3d 1248

DEFENDERS OF WILDLIFE, Plaintiff-Appellant,

v.Ryan ZINKE, Secretary, Department of the Interior; James W. Kurth, Acting Director, U.S. Fish and Wildlife Service; Michael D. Nedd, Acting Director, Bureau of Land Management,^* Defendants-Appellees,andSilver State South Solar, LLC; Silver State Solar Power South LLC, Intervenor-Defendants-Appellees,

and

First Solar, Inc.; Desert Stateline, LLC, Intervenor-Defendants.

No. 15-55806

United States Court of Appeals, Ninth Circuit.

Submitted February 17, 2017, Pasadena, California

Filed May 18, 2017

Eric R. Giltzenstein (argued) and William N. Lawton, Meyer Glitzenstein & Eubanks, Washington, D.C., for Plaintiff-Appellant.

Varu 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 Defendants-Appellees.

George T. Caplan (argued), Los Angeles, California, for Intervenor-Defendants-Appellees.

Lori 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.

OPINION

M. SMITH, Circuit Judge:

This 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.

BACKGROUND

I. Statutory Framework

"The 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).

Section 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." Id.

But if 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).¹ "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. § 1536(a)(2).

If the 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).

If the 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. 1999) ).

II. The Desert Tortoise

The 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.

III...