Defenders of Wildlife v. Zinke
Docket: 15-55806
Opinion Date: May 18, 2017
Judge: Milan D. Smith

Areas of Law: Environmental Law, Government & Administrative Law

Plaintiff filed suit challenging the 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. The Ninth Circuit affirmed the district court's grant of summary judgment to defendants and its conclusion that the Biological Opinion (BiOp) analyzing the effect of Silver State South on the desert tortoise fully complied with the Endangered Species Act (ESA), 16 U.S.C. 1531 et seq., and the Administrative Procedure Act (APA), 5 U.S.C. 706. The panel held that the BiOp's "no jeopardy" determination was neither arbitrary nor capricious; 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; the BiOp's failure to address the FWS comments to the SEIS was not arbitrary or capricious; the BiOp's consideration of Silver State South's edge effects was not arbitrary or capricious; the BiOp does not rely on an impermissibly vague "new information" reinitiation trigger; and thus the BLM permissibly relied upon the BiOp in approving of the right-of-way for Silver State South.

Court Description: 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 DEFENDERS OF WILDLIFE V. ZINKE 3 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 4 DEFENDERS OF WILDLIFE V. ZINKE 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.

Source: http://law.justia.com/cases/federal/appellate-courts/ca9/15-55806/15-55806-2017-05-18.html


John Stewart
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