Defenders of Wildlife v. Sally Jewell, et al

Filing

FILED OPINION (MILAN D. SMITH, JR., JOHN B. OWENS and EDWARD R. KORMAN) AFFIRMED. Plaintiff shall bear costs on appeal. Fed. R. App. P. 39(a)(2). Judge: MDS Authoring, FILED AND ENTERED JUDGMENT. [10439115]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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,

No. 15-55806
D.C. No.
2:14-cv-01656MWF-RZ
OPINION

and
SILVER STATE SOUTH SOLAR, LLC;
SILVER STATE SOLAR POWER SOUTH
LLC,
Intervenor-Defendants-Appellees,
and
FIRST SOLAR, INC.; DESERT
STATELINE, LLC,
Intervenor-Defendants.
We substitute Ryan Zinke for Sally Jewell, James W. Kurth for
Daniel M. Ashe, and Michael D. Nedd for Neil Kornze as DefendantsAppellees pursuant to Fed. R. App. P. 43(c)(2).
*

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DEFENDERS OF WILDLIFE V. ZINKE
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted February 17, 2017
Pasadena, California
Filed May 18, 2017
Before: MILAN D. SMITH, JR. and JOHN B. OWENS,
Circuit Judges, and EDWARD R. KORMAN,** District
Judge.
Opinion by Judge Milan D. Smith, Jr.
SUMMARY ***
Endangered Species Act

The 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.
Plaintiff alleged that defendants violated the
requirements of the Endangered Species Act and the
The Honorable Edward R. Korman, United States District Judge
for the Eastern District of New York, sitting by designation.
**

This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
***

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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.
The 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.
The 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.
The 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 different plans.
The 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

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arbitrary or capricious. The panel further held that the
Biological Opinion did not establish an impermissibly vague
trigger for reinitiating formal consultation over Silver State
South.
The 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.
COUNSEL
Eric R. Giltzenstein (argued) and William N. Lawton, Meyer
Glitzenstein & Eubanks, Washington, D.C., for PlaintiffAppellant.
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 DefendantsAppellees.
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.

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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
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

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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

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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

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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
This definition of adverse modification governed at the time the
BiOp was issued. For the current governing definition and a discussion
of the change, see infra Section II.b.
1

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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)).
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 longterm 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.

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The Silver State South Project

In 2008, NextLight Renewable Power, LLC submitted
right-of-way applications to the BLM for the construction of
two solar power facilities, Silver State North and Silver State
South. It proposed to locate both project sites on
unincorporated public lands in the Ivanpah Valley.
Although the proposed project sites fell within the Eastern
Mojave Recovery Unit, both were outside the designated
critical habitat for the desert tortoise within this recovery
unit. However, Silver State South would be located within
a corridor between Silver State North and the Lucy Gray
Mountains, which is currently the geographical linkage that
provides “the most reliable potential for continued
population connectivity [of the desert tortoise] throughout
the Ivanpah Valley.” Connectivity is the “degree to which
population growth and vital rates are affected by dispersal”
and “the flow of genetic material between two populations.”
Connectivity promotes stability in a species by “providing
an immigrant subsidy that compensates for low survival or
birth rates of residents” and “increasing colonization of
unoccupied” habitat.
In October 2010, the BLM approved the application for
Silver State North but deferred approval of the application
for Silver State South. The BLM explained that the deferral
of Silver State South was in part due to the “higher density
of [desert] tortoise that reside in that portion of the project
area,” which “requires additional wildlife consideration and
potentially further consultation with the [FWS].”
In October 2012, the BLM issued a draft Supplemental
Environmental Impact Statement (SEIS) that evaluated three
alternative layouts for Silver State South. In response to the
SEIS, the Nevada field office of the FWS recommended that
the BLM reject all three layouts and choose a “No Action”

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alternative. The FWS expressed concern over Silver State
South’s potential impact on habitat fragmentation and
genetic isolation of the desert tortoise and noted that the
proposed layouts would reduce the existing width of the
corridor between Silver State North and the Lucy Gray
Mountains to .02 miles, .03 miles, or 1 mile. In the
alternative, the FWS recommended that the BLM create a
new proposal that would keep the corridor “wide enough to
accommodate multiple desert tortoise ranges, spanning up to
several times the desert tortoise lifetime utilization area.”
The FWS also recommended the adoption of additional
mitigation measures to offset any reductions in the linkage
and monitoring studies to track impact on population
demographics and genetic stability.
On February 11, 2013, the BLM initiated formal
consultation under the ESA for Silver State South. The
consultation process among the BLM, the FWS, and Silver
State Solar Power South, LLC, a wholly owned subsidiary
of the original applicant for the Silver State South project,
resulted in a new proposal (the BLM-preferred alternative)
that was authorized by the BLM in 2014. The BLMpreferred alternative reduced the size of the project from
3,881 acres to 2,427 acres, and left a 3.65 mile long corridor
between Silver State South and the Lucy Gray Mountains
with a width ranging from 1.39 to 2 miles. The BLMpreferred alternative also incorporated measures to minimize
adverse effects on the desert tortoise, such as the
translocation of desert tortoises found within the project site,
and measures to offset the loss of the desert tortoise habitat,
primarily consisting of the Silver State South applicants
funding the BLM’s conservation activities.
Of particular importance to this case, the Silver State
South applicants agreed to fund a monitoring program

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jointly developed by the U.S. Geological Survey and the
BLM (the USGS monitoring study) that would track the
regional desert tortoise populations for changes in
demographic and genetic stability. The study would monitor
the effects of Silver State South on connectivity by taking an
initial set of measurements that would establish baseline
conditions that could then be compared to subsequent data
over time and across sites. Changes “that rise to the level of
significance (alpha = 0.05) would likely indicate changes in
demographic and genetic stability,” which could require the
BLM to re-initiate formal consultation under the ESA.
The Biological Opinion
On September 30, 2013, the FWS issued the BiOp,
which formally reviewed the BLM-preferred alternative.
The BiOp selected the entire Ivanpah Valley as the “action
area” 2 for Silver State South, because of the “potential
effects . . . on connectivity for the desert tortoise within the
entire valley.”
The BiOp first concluded that Silver State South would
be “not likely to adversely affect the critical habitat of the
desert tortoise,” because “the proposed actions would not
occur within the boundaries of critical habitat of the desert
tortoise or directly or indirectly affect the primary
constituent elements of critical habitat” (“no adverse
modification” determination).
The BiOp next concluded that Silver State South was
unlikely to appreciably diminish the reproduction, numbers,
“Action area means all areas to be affected directly or indirectly by
the Federal action and not merely the immediate area involved in the
action.” 50 C.F.R. § 402.02.
2

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or distribution of the desert tortoise in the action area (“no
jeopardy” determination). The BiOp found no long term
effects on the reproductive rates of tortoises that live
adjacent to the project site or of tortoises that would be
translocated. It estimated that few tortoises would be
harmed or killed because of the proposed translocation of
tortoises found in the project site and fencing to be built
around Silver State South. It also acknowledged that the
habitat loss of 2,388 acres “will reduce connectivity between
the southern and northern ends of Ivanpah Valley,” but
explained that the proposed mitigation measures would
“offset, to some degree, the decrease in the width of the
linkage.” The BiOp therefore expressed “uncertain[ty] as to
whether the reduced width of the corridor between the Silver
State South Project and the Lucy Gray Mountains would
cause demographic or genetic instability.” But, the BiOp
reasoned, should Silver State South ultimately degrade
connectivity, the USGS monitory survey would be able to
detect any change and “the long generation time [of the
tortoise] and re-initiation requirements of section 7(a)(2)
would enable [the BLM] to undertake correction actions on
the ground to bolster connectivity.”
The BiOp also concluded that Silver State South would
not appreciably impede the long-term recovery of the desert
tortoise, but acknowledged that the project was likely to
reduce connectivity within the Ivanpah Valley, which would
temporarily impede recovery.
However, the BiOp
concluded that the project was “not likely to appreciably
diminish the likelihood of recovery” because “at least one
desert tortoise’s lifetime utilization area would remain in the
corridor after construction of the product.” In addition,
“[t]his corridor, combined with the increased level of
management proposed by the [BLM] . . . has the potential to
increase the density of desert tortoises in the region to a

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degree that may mitigate the loss of habitat.” The BiOp
again noted that the USGS monitoring study would detect
any changes to connectivity, which would allow for
imposition of remedial measures.
The BLM Approval of the Right-of-Way for
Silver State South
In February 2014, the BLM issued a Record of Decision,
and granted the requested right-of-way for Silver State
South. The Record of Decision specifically approved the
BLM-preferred alternative for Silver State South and noted
that the “reasonable and prudent measures contained in the
[BiOp]
significantly
minimize
and/or
mitigate
environmental damage and protect resources.” Construction
of Silver State South has now been completed.
Procedural History
On March 6, 2014, DOW sued the Federal Defendants to
enjoin construction of Silver State South. Silver State Solar
Power South, LLC and Silver State South Solar, LLC,
another subsidiary of the original project applicant,
subsequently intervened as defendants. The district court
denied DOW’s request for a preliminary injunction,
concluding that DOW could not show a likelihood of success
on the merits of their claim that the BiOp’s “no jeopardy”
determination was arbitrary or capricious. Defs. of Wildlife
v. Jewell, No. CV 14-1656-MWF, 2014 WL 1364452, at *14
(C.D. Cal. Apr. 2, 2014).
The parties subsequently cross-moved for summary
judgment. The district court denied DOW’s motion and
granted summary judgment for the various Defendants. In
doing so, the district court first concluded that the BiOp’s
“no adverse modification” determination was neither

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arbitrary nor capricious because (1) adverse modification is
an alteration to a critical habitat’s primary constituent
elements, and “gene flow” is not a primary constituent
element of the desert tortoise’s critical habitat, (2) mere
inclusion of critical habitat in the identified “action area” for
Silver Lake South is not a finding of adverse modification,
and (3) adverse effects on connectivity are not modifications
to critical habitat and should instead be analyzed under the
jeopardy-to-the-species analysis. The district court next
concluded that the BiOp’s “no jeopardy” determination was
neither arbitrary nor capricious, because (1) the BiOp
permissibly made a “no jeopardy” determination based on
equivocal evidence that the reduced corridor was unlikely to
jeopardize the desert tortoise’s recovery, (2) the USGS
monitoring study was a sufficiently specific and certain
mitigation measure, and (3) the USGS monitoring study
provided a sufficiently clear trigger for reinitiating formal
consultation under Section 7(a)(2) of the ESA. The district
court therefore concluded that the BiOp fully complied with
both the ESA and the APA, and that the BLM permissibly
relied upon the BiOp in authorizing Silver State South.
DOW timely appealed on May 28, 2015.
STANDARD OF REVIEW
We review de novo a district court’s grant of summary
judgment. San Luis & Delta-Mendota Water Auth. v. Jewell,
747 F.3d 581, 601 (9th Cir. 2014).
“Agency decisions under ESA are governed by the
Administrative Procedure Act, which requires an agency
action to be upheld unless it is found to be ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.’” Pac. Coast Fed’n of Fishermen’s
Ass’ns, Inc. v. Nat’l Marine Fisheries Serv., 265 F.3d 1028,
1034 (9th Cir. 2001) (quoting 5 U.S.C. § 706(2)(A)). An

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agency action is arbitrary and capricious “only if the agency
relied on factors Congress did not intend it to consider,
entirely failed to consider an important aspect of the
problem, or offered an explanation that runs counter to the
evidence before the agency or is so implausible that it could
not be ascribed to a difference in view or the product of
agency expertise.” Conservation Cong, 720 F.3d at 1054
(internal quotation marks omitted).
ANALYSIS
Jeopardy Analysis
DOW first argues that the BiOp’s determination that
Silver State South would not result in jeopardy to the desert
tortoise impermissibly relied upon unspecified remedial
measures. DOW cites the BiOp’s conclusion, which states:
To summarize, we concluded that the
proposed actions are not likely to appreciably
diminish
reproduction,
numbers,
or
distribution of the desert tortoise in the action
area, or to appreciably impede long-term
recovery of the desert tortoise. Integral to
that conclusion is our expectation that the
reduction in the width of habitat east of the
Silver State South Project is either unlikely to
degrade demographic or genetic stability in
Ivanpah Valley or that we will be able to
detect degradation of those values and
implement remedial actions, if necessary.
(Emphasis added). DOW interprets this second sentence to
indicate that the BiOp’s “no jeopardy” determination was
dependent on the ability to detect future demographic or
genetic degradation and implement remedial measures.

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And, because the BiOp did not identify specific remedial
actions to combat these future effects, DOW argues that
BiOp’s “no jeopardy” determination was arbitrary and
capricious.
DOW’s objection to the BiOp’s “no jeopardy”
determination fails for two reasons. First, the BiOp did not
rely on mitigation measures to make its “no jeopardy”
determination. Throughout the BiOp, the FWS expressly
stated that it was uncertain if the reduced width of the
corridor between Silver State South and the Lucy Gray
Mountains would cause genetic or demographic instability.
This uncertainty reflected the lack of a scientific consensus
regarding the requisite corridor width necessary to support
connectivity for the desert tortoise. In the face of such
uncertainty, the FWS permissibly concluded that the reduced
width of the corridor would not result in jeopardy. Although
the ESA requires the FWS to make its determinations with
the “best scientific data . . . available,” 16 U.S.C.
§ 1533(b)(2), “the ESA accepts agency decisions in the face
of uncertainty.” Ariz. Cattle Growers’ Ass’n v. Salazar, 606
F.3d 1160, 1164 (9th Cir. 2010); see also San Luis & DeltaMendota Water Auth., 747 F.3d at 633 (“It is not our job to
task the FWS with filling the gaps in the scientific evidence.
We must respect the agency’s judgment even in the face of
uncertainty.” (internal quotation marks omitted)). “This
standard does not require that the FWS act only when it can
justify its decision with absolute confidence.” Ariz. Cattle
Growers, 606 F.3d at 1164. The FWS therefore permissibly
concluded that the proposed action would not result in
jeopardy to the desert tortoise in spite of the uncertainty of
the effect of Silver State South on the connectivity within the
corridor.

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Second, our precedents do not require mitigation
measures to be identified or guaranteed when the mitigation
measures themselves may be unnecessary. We have held
that an action agency may consider the impact of mitigation
measures on a proposed action only when the measures are
the result of “specific and binding plans” and show “a clear,
definite commitment of resources,” Nat’l Wildlife Fed’n,
524 F.3d at 936, but our precedents imposing this
requirement all involve mitigation measures aimed at
“certain immediate negative effects,” id.; see also Sierra
Club v. Marsh, 816 F.2d 1376, 1388 (9th Cir. 1987)
(requiring the FWS to reinitiate formal consultation after the
FWS concluded that a highway construction project would
adversely affect bird habitat and the county’s preservation of
marshland was “necessary to mitigate” the “effects of the
project,” but the county subsequently failed to acquire the
marshland), abrogated on other grounds as recognized in
Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d
1075, 1088–91 (9th Cir. 2015). Thus, our precedents require
an agency to identify and guarantee mitigation measures that
target certain or existing negative effects. However, DOW
cites no authority for the proposition that an agency must
similarly identify and guarantee mitigation measures that
target uncertain future negative effects. As aptly noted by
the district court, “[t]he FWS cannot be expected to respond
to data that is not yet available to surmise potential
mitigation actions that are not needed under the agency’s
current interpretation of the data.”
Here, although the BiOp repeatedly emphasized that
monitoring would allow the FWS to detect any future
genetic or demographic degradation and implement
responsive mitigation measures, the BiOp ultimately found
these potential harms to be uncertain. As such, even the
sentence of the BiOp upon which DOW relies acknowledges

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that the need for future mitigation measures is similarly
uncertain, by explaining that the implementation of remedial
actions will only be done “if necessary.” Because the BiOp
did not rely upon these potential remedial measures to target
a certain or existing harm that would be caused by Silver
State South, the BiOp was not obligated to identify or
guarantee these future remedial measures. Accordingly, the
BiOp’s “no jeopardy” determination was neither arbitrary
nor capricious.
Adverse Modification Analysis
The BiOp concluded that Silver State South would be
“not likely to adversely affect critical habitat of the desert
tortoise,” because “the proposed actions would not occur
within the boundaries of critical habitat of the desert tortoise
or directly or indirectly affect the primary constituent
elements of critical habitat.” The BiOp therefore did not
analyze whether Silver State South would adversely modify
the critical habitat within the Ivanpah Valley. DOW
challenges the failure to do so on two grounds.
Inclusion of Critical Habitat in the “Action
Area”
DOW first contends that the BiOp’s inclusion of critical
habitat within Silver State South’s “action area” expressly
conceded that there would be an effect on critical habitat,
which should have obligated the FWS to conduct an adverse
modification analysis in the BiOp. The ESA’s implementing
regulations require biological opinions to analyze “effects of
the [proposed] action on listed species or critical habitat,” 50
C.F.R. § 402.14(h)(2), and “[e]ffects of the action refers to
the direct and indirect effects of an action on the species or
critical habitat” within the relevant “action area,” id. at
§ 402.02. The regulations then define “action area” as “all

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areas to be affected directly or indirectly by the Federal
action and not merely the immediate area involved in the
action.” Id. The BiOp selected the Ivanpah Valley as the
“action area” for Silver State South, and DOW notes that the
Ivanpah Valley Critical Habitat Unit (CHU) is within the
Ivanpah Valley. DOW insists that the BiOp’s inclusion of
Ivanpah Valley CHU in the action area is a finding that
critical habitat would be affected by Silver State South.
We rejected a similar argument in Friends of the Wild
Swan v. Weber, 767 F.3d 936 (9th Cir. 2014). There, we
concluded that the consulting agency need not conduct an
adverse modification analysis in spite of the biological
opinion’s inclusion of critical habitat within the action area.
Id. at 950. Because both the consulting and action agencies
had agreed that the projects at issue were unlikely to affect
the critical habitat, “[t]his informal consultation satisfied the
requirements of the ESA and no formal consolation was thus
required.” Id. (citing 50 C.F.R. § 402.13). Friends of the
Wild Swan illustrates the proposition that the inclusion of
critical habitat in a biological opinion’s action area does not
automatically trigger the duty to conduct an adverse
modification analysis; the relevant inquiry remains whether
the proposed action is “likely to adversely affect” critical
habitat.
50 C.F.R. § 402.14(b)(1); see also id.
§ 402.14(g)(4).
Here, both the BLM and the FWS concluded that Silver
State South would be unlikely to adversely affect any critical
habitat through informal consultation. As mentioned above,
no formal consultation is required if both the action agency
and the consulting agency determine, the latter in writing,
through informal consultation that the action is “not likely to
adversely affect listed species or critical habitat.” Id.
§ 402.13(a). The BLM made this determination in a

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biological assessment dated February 11, 2013. The FWS
reached an identical conclusion in the BiOp itself. Because
the BLM and the FWS were in agreement, the FWS had no
obligation to conduct an adverse modification analysis
pursuant to formal consultation in the BiOp. In any event,
the BiOp also explained that its inclusion of the entire
Ivanpah Valley in the action area was due to the potential
effect of Silver State South “on connectivity for the desert
tortoise within the entire valley,” not any potential effect on
the Ivanpah Valley CHU.
Reduced Connectivity as an
Modification” of Critical Habitat

“Adverse

Although the construction of Silver State South was not
to occur on any critical habitat, DOW argues that the BiOp
was obligated to perform an adverse modification analysis
because evidence in the record indicated that the
construction of Silver State South would narrow the corridor
between two critical habitats, and thus adversely affect the
connectivity of the desert tortoise. DOW contends that this
reduction in connectivity constitutes adverse modification of
critical habitat because it is an impact to the critical habitat’s
recovery value.
During the period of time in which the BLM, the FWS,
and Silver State South applicants engaged in the Section 7
consultation process that resulted in the BiOp, the ESA’s
implementing regulations defined “destruction or adverse
modification of critical habitat” as “a direct or indirect
alteration that appreciably diminishes the value of critical
habitat for both the survival and recovery of a listed species”
(the 1986 regulation). 50 C.F.R. § 402.02 (2014). The 1986
regulation further explained that “[s]uch alterations include,
but are not limited to, alterations adversely modifying any of
those physical or biological features that were the basis for

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determining the habitat to be critical.” Id. However, on
February 11, 2016, the FWS and the NMSF published a final
rule amending the definition of adverse modification (the
2016 regulation) that became effective on March 14, 2016.
81 Fed. Reg. 7,214-01, 7,225-26 (Feb. 11, 2016). The 2016
regulation now defines adverse modification as “a direct or
indirect alteration that appreciably diminishes the value of
critical habitat for the conservation of a listed species.”
50 C.F.R. § 402.02 (2016). And “[s]uch alterations may
include, but are not limited to, those that alter the physical or
biological features essential to the conservation of a species
or that preclude or significantly delay development of such
features.” Id. This amendment was a direct result of our
decision in Gifford Pinchot Task Force v. U.S. Fish &
Wildlife Service, 378 F.3d 1059 (9th Cir. 2004). 81 Fed.
Reg. 7,214-01, 7,215. There, we found the 1986 regulation
to be invalid insofar as it limited adverse modifications to
actions that “appreciably diminish[] the value of critical
habitat for both the survival and recovery” of habitat.
Gifford Pinchot Task Force, 378 F.3d at 1069 (quoting
50 C.F.R. § 402.02). We explained that this definition
“read[] the ‘recovery’ goal out of the adverse modification
inquiry” altogether, “[b]ecause it is logical and inevitable
that a species requires more critical habitat for recovery than
is necessary for the species survival, the regulation’s
singular focus becomes ‘survival.’” Id. We emphasized that
the text of the ESA evinced congressional intent to view
“conservation,” which incorporates “recovery,” and
“survival” as “distinct, though complementary, goals, and
the requirement to preserve critical habitat is designed to
promote both conservation and survival.” Id. at 1070. We
therefore concluded that “[w]here Congress in its statutory
language required ‘or,’ the agency in its regulatory definition
substituted ‘and.’” Id.

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The parties each rely on different versions of the
regulation to argue whether reduced connectivity can
constitute adverse modification. Defendants first emphasize
that the plain language of Section 7 of the ESA requires
agencies to ensure that none of their actions “result in the
destruction or adverse modification of habitat.” 16 U.S.C.
§ 1536(a)(2). Defendants argue that the phrase “adverse
modification of habitat” itself imposes two requirements:
there must be (1) a “modification of habitat,” which
Defendants interpret to mean “some change to the habitat
itself,” that is (2) “adverse.” Second, Defendants insist that
a change in the desert tortoise’s connectivity is an effect on
the “species” and not a change to the “habitat.” Third,
Defendants cite our precedents and other ESA implementing
regulations that frame adverse modification inquiry as one
based on alterations to the “primary constituent elements” of
the critical habitat. See e.g., Butte Envtl. Council v. U.S.
Army Corps of Eng’rs, 620 F.3d 936, 948 (9th Cir. 2010)
(characterizing adverse modification as “[a]dverse effects on
. . . constituent elements or segments of critical habitat”
(quoting U.S. Fish & Wildlife Serv. & Nat’l Marine
Fisheries Serv., Endangered Species Consultation
Handbook: Procedures for Conducting Consultation and
Conference Activities Under Section 7 of the Endangered
Species Act 4-43 (1998)); 50 C.F.R. § 17.94 (“All Federal
agencies must insure that any action authorized, funded, or
carried out by them is not likely to result in the destruction
or adverse modification of the constituent elements essential
to the conservation of the listed species within these defined
Critical Habitats.”). Critical habitats are comprised of
primary constituent elements, which are listed in the critical
habitat designations. 50 C.F.R. § 424.12(b). Defendants
argue that reducing connectivity would not affect any of the
desert tortoise’s primary constituent elements, which
includes “[s]ufficient space to . . . provide for . . . gene

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flow,” but not connectivity as a whole. 59 Fed Reg. 5,820,
5,822. Finally, Defendants contend that the 2016 regulation
does not alter the requirement that adverse modification
requires some modification to the habitat itself.
In contrast, DOW argues that any action that adversely
impacts the “recovery” value of critical habitat can constitute
an adverse modification. DOW also cites to the language of
Section 7 of the ESA, but instead argues that the ESA’s use
of the phrase “result in” indicates “clear congressional intent
to require FWS to focus on the consequences of federal
actions.”
Next, DOW contends that Defendants’
interpretation of adverse modification cannot be squared
with the FWS’s interpretation of adverse modification as
embodied by the 2016 regulation. First, DOW argues that
the 2016 regulation’s definition of adverse modification as
an alteration “that appreciably diminishes the value of
critical habitat for the conservation of a listed species”
supports DOW’s argument that the adverse modification
inquiry must focus on the impact of the proposed agency’s
action on critical habitat’s recovery value as opposed to
whether there was an alteration to the habitat itself. Second,
DOW argues that the 2016 regulation’s interpretation of the
phrase “may include, but not limited to” supports a broad
conception of what constitutes an alteration of critical
habitat. In the supplementary information accompanying the
publication of the 2016 regulation (2016 regulation
commentary), the FWS and the NMFS explained that this
phrase “emphasizes that the types of direct or indirect
alterations that appreciably diminish the value of critical
habitat for listed species include not only those that affect
physical or biological features, but also those that affect the
value of critical habitat itself.” 81 Fed. Reg. 7,214, 7,219.
This phrase therefore encapsulates “impacts to an area of
critical habitat itself that are not impacts to features,” such

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as “those that would impede access to or the use of the
habitat.” Id.
We agree with Defendants that the plain language of the
ESA requires that an adverse modification of critical habitat
consists of two elements: (1) a “modification” of the habitat
that is (2) “adverse.” 16 U.S.C. § 1536(a)(2). Both the 1986
and 2016 definitions reflect that understanding by defining
adverse modification as a “direct or indirect alteration” that
“appreciably diminishes the value of the critical habitat.”
50 C.F.R. § 402.02 (2014) (emphasis added); 50 C.F.R.
§ 402.02 (2016) (same). This interpretation of adverse
modification is further confirmed by the 2016 regulation
commentary, which describes the adverse modification
analysis as follows:
[The FWS] will generally conclude that a
Federal action is likely to “destroy or
adversely modify” designated critical habitat
if the action results in an alteration of the
quantity or quality of the essential physical or
biological features of designated critical
habitat, or that precludes or significantly
delays the capacity of that habitat to develop
those features over time, and if the effect of
the alteration is to appreciably diminish the
value of critical habitat for the conservation
of the species.
81 Fed. Reg. 7214-01, 7216 (emphasis added). DOW’s
interpretation of “adverse modification” focuses solely on
the effect of the proposed agency action, and thus improperly
reads the “alteration” requirement out of the ESA’s
implementing regulations altogether. Furthermore, DOW’s
reliance on the 2016 regulation commentary’s explanation

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of the phrase “may include, but are not limited to” is
misplaced. This phrase merely clarifies the types of impacts
on the critical habitat that can result in adverse modification;
it does not speak to the threshold requirement that there must
be an alteration to the critical habitat that creates these
impacts to begin with. See 81 Fed. Reg. 7,214, 7,219.
With this proper understanding of “adverse
modification” in mind, we conclude that reduced
connectivity resulting from the narrowing of the corridor
between Silver State South and the Lucy Gray Mountains
cannot constitute adverse modification because the
construction of Silver State South would not have resulted in
any alteration to the critical habitat of the desert tortoise. It
is undisputed that the corridor itself is not critical habitat and
the construction of Silver State South would not have taken
place on any critical habitat within the Ivanpah Valley. Nor
can reduced connectivity itself serve as the alteration;
reduced connectivity can lead to a change in the desert
tortoise’s genetic health, which is an alteration to the species,
not its critical habitat.
Accordingly, the BiOp’s
determination that Silver State South was “not likely to
adversely affect the critical habitat of the desert tortoise,”
which permitted the FWS to forego an adverse modification
analysis, was neither arbitrary nor capricious.
Inconsistent Positions in the BiOp
The FWS’s SEIS Comments
DOW next contends that the BiOp was arbitrary and
capricious because it failed to address the FWS Nevada field
office’s comments on the BLM’s draft SEIS pertaining to
adverse impacts on recovery, connectivity of critical habitat,
and recommended corridor-width. DOW notes that the
FWS’s comments on the SEIS specifically recommended

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that the corridor between Silver State South and the Lucy
Gray Mountains “should be wide enough to accommodate
multiple desert tortoise ranges, spanning up to several times
the desert tortoise lifetime utilization area.” DOW argues
that because the FWS also authored the BiOp, which
permitted the corridor’s narrowest point to be slightly less
than a single lifetime utilization area, the FWS was obligated
to address this inconsistency in the BiOp.
“Agencies are entitled to change their minds.” Butte
Envtl. Council, 620 F.3d at 946. Thus, “the fact that a
preliminary determination by a local agency representative
is later overruled at a higher level within the agency does not
render the decisionmaking process arbitrary and capricious.”
Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S.
644, 659 (2007); see also Friends of the Earth v. Hintz,
800 F.2d 822, 834 (9th Cir. 1986) (finding that agency’s
approval of a permit despite earlier criticism because “[the
agency’s] ultimate decision was not a reversal but simply the
culmination of over a year and a half of investigations,
meetings, and reports”). However, an agency also “must
examine the relevant data and articulate a satisfactory
explanation for its action including a rational connection
between the facts found and the choice made.” Humane
Soc’y of U.S. v. Locke, 626 F.3d 1040, 1051 (9th Cir. 2010)
(emphases and internal quotation marks omitted). Under
certain circumstances, an agency’s prior factual findings or
conclusions may be “relevant data” such that an agency must
“articulate a satisfactory explanation” when it changes its
mind. See id.
Humane Society of the United States v. Locke illustrates
this principle. There, we held that the NMFS did not
adequately explain its finding that a sea lion predation rate
of 1 percent would have a significant negative impact on the

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decline or recovery of salmon “given earlier factual findings
by NMFS that fisheries that cause similar or greater
mortality among [the salmon population] are not having
significant negative impacts.” Id. at 1048. We noted that
the fishery environmental assessments were “in apparent
conflict with NMFS’s finding in this case . . . yet the agency
has not offered a rationale to explain the disparate findings.”
Id. at 1049. We acknowledged that agencies do not have a
“duty to identify and any potential tensions between current
and earlier factual determinations in marginally related
administrative actions,” but explained that the impact of
fisheries compared to that of sea lion predation “ha[d]
occupied the center of this controversy from the start.” Id.
at 1051. The prior fishery environmental assessments were
therefore “relevant data” which required a “satisfactory
explanation.” Id.
Locke is distinguishable from the circumstances here in
two ways. First, the FWS comments on the SEIS did not
make any factual or scientific findings. Although the FWS
recommended that any alternative plan preserve a corridor
between Silver State South and the Lucy Gray Mounts
“spanning up to several times the desert tortoise lifetime
utilization area,” the FWS did not conclude that anything
less would affirmatively result in a loss of connectivity,
jeopardy, or adverse modification. The FWS comments on
the SEIS therefore made no findings with respect to Silver
State South, let alone any “[d]ivergent” findings that
required a response in the BiOp. Id. at 1049. Second, the
SEIS (and by extension, the FWS’s comments on the SEIS)
evaluated three proposed plans for Silver State South that
differed significantly from the BLM-preferred alternative
analyzed in the BiOp. The BLM-preferred alternative
reduced the size of the project from 3,881 acres to 2,427
acres, increased the width of the corridor between Silver

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State South and the Lucy Gray Mountains at its narrowest
point from 100 feet to 1.39 miles (with the corridor
maintaining an average width of 1.4 miles), and also
incorporated mitigation measures recommended by the FWS
in their comments on the SEIS to minimize adverse effects
to the desert tortoise and offset the loss of desert tortoise
habitat. Thus, even if the FWS’s comments on the SEIS
were construed to have made factual or scientific findings,
they would not be inconsistent with the FWS’s conclusions
regarding Silver State South in the BiOp because the SEIS
and the BiOp evaluated substantially different plans.
Accordingly, the BiOp’s failure to address the FWS
comments to the SEIS was not arbitrary or capricious.
Edge Effects
DOW additionally contends that the BiOp contained an
internal inconsistency regarding the necessary width of the
corridor: The BiOp recognized that the corridor “would
need to be at least 1.4 miles wide to accommodate the width
of a single desert tortoise’s lifetime utilization area,” and
subsequently acknowledged that because of edge effects
“the effective width of the corridor to the east of the project
site is likely less than the measured distance,” but never
reconciled these two findings. DOW argues that the BiOp’s
failure to quantify the extent of the edge effects or make an
express finding that edge effects would not be significant to
this corridor was arbitrary and capricious.
As an initial matter, DOW misconstrues the BiOp as
concluding that a corridor width of at least 1.4 miles is
necessary to maintain connectivity in the Ivanpah Valley.
The BiOp acknowledged that the 1.4 miles estimation
“provides a means for characterizing the potential minimum
width of a linkage” required to maintain connectivity, but
explained that “the actual linkage-width needed will be

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highly dependent on the actual site-specific configuration
and size of desert tortoise home ranges in that area, the
terrain within the linkage, and the degree to which threats,
other constrictions, and edge effect will disrupt the linkage.”
That edge effects may have reduced the width of the corridor
below 1.4 miles at a single point thus does not create an
internal inconsistency with the BiOp’s conclusion that the
corridor width of the approved plan for Silver State South
would not disrupt the connectivity of the corridor.
Furthermore, the record supports the BiOp’s conclusion
that edge effects created by Silver State South were unlikely
to be significant because the “edge effects of a solar plant
likely extend less into adjacent habitat . . . and [] edge effects
likely do not emanate from the Lucy Gray Mountains.”
Although the BiOp’s explanation of this issue is conclusory,
there is sufficient evidence in the record from we can
“discern [the FWS’s] reasoning.” San Luis & DeltaMendota Water Auth., 747 F.3d at 604–06 (even an
“unpolished” or “largely unintelligible” biological opinion
should be upheld if it is “adequately supported by the record”
and the court can “discern the agency’s reasoning”). The
record included evidence that desert tortoises were
burrowing near Silver State North and other existing solar
projects in the Ivanpah Valley, which corroborates the
BiOp’s explanation that solar plants result in minimal edge
effects. The mitigation measures incorporated by the BiOp
also included measures to minimize edge effects, such as the
use of “[a]uthorized biologists or desert tortoise monitors
[to] flag all desert tortoise burrows for avoidance in areas
adjacent to work areas.” Because we can discern the BiOp’s
reasoning in concluding that Silver State South would not
have significant edge effects and the record supports the
BiOp’s conclusion, the BiOp’s consideration of Silver State
South’s edge effects was not arbitrary or capricious.

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Trigger for Reinitiation of Formal Consultation
Lastly, DOW alleges that the BiOp established an
impermissibly vague trigger for reinitiating formal
consultation over Silver State South. DOW contends that
reinitiation triggers must provide “clear criteria” that do not
give “unfettered discretion” to federal agencies. Although
the BiOp explained that the FWS would reinitiate formal
consultation with the BLM if the USGS monitoring survey
found “changes in demographic and genetic stability [that]
are related to the Silver State South,” DOW claims that this
is insufficient because the BiOp does not identify criteria for
determining whether changes are “related” to Silver State
South.
We disagree. The ESA’s implementing regulations
require an action agency to reinitiate formal consultation
with the consulting agency when “new information reveals
effects of the action that may affect listed species or critical
habitat in a manner or to an extent not previously
considered” (the “new information” reinitation trigger).
50 C.F.R. § 402.16(b).
Neither the ESA nor its
implementing regulations require the action agency to
identify ex-ante standards for determining whether
information is “new” or explaining how “new information”
will be evaluated. 3 In the absence of such authority, the
3
The cases that DOW cites for the proposition that reinitiation
triggers must provide “clear standard[s]” involve reinitiation in the
“incidental take” context. E.g., Ariz. Cattle Growers, 273 F.3d at 1249–
51. Incidental take statements must “set forth a ‘trigger’ that, when
reached, results in an unacceptable level of incidental take, invalidating
the safe harbor provision [of the ESA], and requiring the parties to reinitiate consultation.” Id. at 1249. The requirement that an “incidental
take” trigger provide clear standards for determining when it has been
met thus reflects a consequence that is not implicated by the “new

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BLM instead exceeded its obligations under the ESA by
explaining how it would determine when results from the
USGS monitoring survey would require reinitiation of
formal consultation.
Moreover, the BiOp provided clear criteria for
determining whether any future demographic or genetic
changes identified by the USGS monitoring survey are
“related” to Silver State South. The USGS monitoring
survey will first conduct initial sampling to establish
baseline conditions from different monitoring plots and will
then compare this information to subsequent data over time
and across plots. The BiOp also explained that changes “that
rise to the level of significance (alpha = 0.05) would likely
indicate changes in demographic and genetic stability,”
which would then constitute new information if related to
Silver State South. The BiOp therefore does not rely on an
impermissibly vague “new information” reinitiation trigger.
The BLM’s Reliance on the BiOp
Because the BiOp was neither legally nor factually
flawed, the BLM permissibly relied upon the BiOp in
approving of the right-of-way for Silver State South. See
Pyramid Lake Paiute Tribe of Indians v. U.S. Dep’t of Navy,
898 F.2d 1410, 1415–16 (9th Cir. 1990).

information” trigger: The “new information” trigger merely requires
reinitiation of formal consultation, while the “incidental take” trigger
requires not only reinitiation of formal consultation, but also revokes an
action agency’s or project applicant’s immunity from penalties under
Section 9 of the ESA. See id. To the extent that DOW asks us to import
the “clear standard” requirement from “incidental take” triggers into the
“new information” trigger context, we decline to do so because of this
substantive difference.

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CONCLUSION
For the foregoing reasons, the district court’s grant of
summary judgment to the Defendants is AFFIRMED.
Plaintiff shall bear costs on appeal. Fed. R. App. P. 39(a)(2).