Defenders of Wildlife v. Ryan Zinke, 856 F.3d 1248

Background

BLM approved a right-of-way for the Silver State South solar project in Ivanpah Valley, Nevada; project construction is complete. The area lies within the desert tortoise’s Eastern Mojave Recovery Unit but outside designated critical habitat.
FWS issued a Biological Opinion (BiOp) finding Silver State South "not likely to adversely affect" the desert tortoise’s critical habitat and "not likely to jeopardize" the species, while acknowledging uncertainty about effects on population connectivity and genetic/demographic stability.
The BiOp relied on mitigation measures (tortoise translocation, fencing, funding conservation) and a USGS/BLM-funded monitoring study to detect any future demographic or genetic changes and to trigger reinitiation of formal consultation if needed.
Defenders of Wildlife (DOW) sued under the ESA and APA, arguing the BiOp was arbitrary and capricious because it (a) depended on unspecified future remedial measures for its no-jeopardy finding, (b) failed to analyze adverse modification of critical habitat given likely reduced connectivity, (c) ignored inconsistent FWS SEIS comments and failed to quantify edge effects, and (d) adopted an impermissibly vague reinitiation trigger.
The district court granted summary judgment to the Federal Defendants and project intervenors; the Ninth Circuit affirmed, holding the BiOp complied with ESA/APA standards and BLM permissibly relied on it.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the BiOp’s no-jeopardy conclusion impermissibly relied on unspecified future remedial measures	BiOp depended on the ability to detect impacts and implement unspecified remedial actions, so the no-jeopardy finding is invalid	FWS did not rely on mitigation for the no-jeopardy conclusion; uncertainty about effects permitted use of best available science without guaranteed mitigation	Held: No-jeopardy determination not arbitrary; agency permissibly concluded no jeopardy despite uncertainty and need for monitoring
Whether the BiOp must perform an adverse-modification analysis because action area includes critical habitat	Inclusion of critical habitat in action area concedes an effect and triggers adverse-modification analysis	Inclusion of critical habitat in action area does not automatically require adverse-modification analysis; both agencies determined action unlikely to affect critical habitat	Held: No adverse-modification analysis required; FWS/BLM permissibly concluded project not likely to adversely affect critical habitat
Whether reduced connectivity (narrowed corridor) constitutes adverse modification of critical habitat	Narrowing corridor would diminish critical habitat’s recovery value and thus is adverse modification	Adverse modification requires an alteration to the habitat itself; reduced connectivity affects the species, not the critical-habitat features, and project did not alter designated critical habitat	Held: Reduced connectivity does not constitute adverse modification because project did not alter critical-habitat areas or primary constituent elements
Whether FWS’s earlier SEIS comments and later BiOp are inconsistent or inadequately explained	Earlier FWS field-office recommendations (wider corridor) conflicted with BiOp conclusions, requiring explanation	Agencies may change positions; SEIS comments were recommendations and pertained to different project alternatives; no conflicting factual findings required reconciliation	Held: No arbitrary change; BiOp need not address SEIS comments as inconsistent data
Whether the reinitiation trigger (monitoring showing changes "related" to project) is impermissibly vague	Trigger lacks criteria to determine when changes are "related" to Silver State South, so reinitiation standard is vague	Regulations require reinitiation when new information reveals effects not previously considered; BiOp provided monitoring design, baseline comparisons, and statistical significance (alpha=0.05) as criteria	Held: Trigger not unconstitutionally vague; BiOp provided sufficient criteria and monitoring methodology to identify "related" changes

Key Cases Cited

Conservation Cong. v. U.S. Forest Serv., 720 F.3d 1048 (9th Cir. 2013) (describing ESA framework and Section 7 duties)
Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101 (9th Cir. 2012) (agency obligations under ESA consultation process)
Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059 (9th Cir. 2004) (invalidating narrow regulatory definition of adverse modification)
Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917 (9th Cir. 2008) (requirements for incidental take statements and mitigation specificity)
San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581 (9th Cir. 2014) (deference to agency scientific judgments amid uncertainty)
Friends of the Wild Swan v. Weber, 767 F.3d 936 (9th Cir. 2014) (inclusion of critical habitat in action area does not automatically trigger adverse-modification analysis)
Butte Envtl. Council v. U.S. Army Corps of Eng’rs, 620 F.3d 936 (9th Cir. 2010) (adverse modification inquiry focuses on constituent elements of critical habitat)
Humane Soc’y of U.S. v. Locke, 626 F.3d 1040 (9th Cir. 2010) (agency must reconcile or explain apparent conflicts with earlier factual findings)
Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007) (agencies may change positions; higher-level reversal not necessarily arbitrary)
Pyramid Lake Paiute Tribe of Indians v. U.S. Dep’t of Navy, 898 F.2d 1410 (9th Cir. 1990) (agency may rely on a non-flawed biological opinion)