On May 18, 2017, the United States Court of Appeals for the Ninth Circuit affirmed the district court’s summary judgment decision in favor of the Secretary of the Department of the Interior and other federal officials in an action brought by an environmental organization concerning the possible impacts of a Nevada solar power facility on the federally listed desert tortoise (Gopherus agassizii).  The Court rejected plaintiff’s contentions that U.S. Fish and Wildlife Service (FWS) and Bureau of Land Management (BLM) approvals for the construction and operation of the project violated the requirements of the Endangered Species Act (ESA) and the Administrative Procedure Act and were arbitrary and capricious.

The Silver State South Solar Project (Project) is a 2,400-acre utility-scale solar power facility on federal land managed by BLM in the Ivanpah Valley.  The Project is located within the federally threatened desert tortoise Eastern Mohave Recovery Unit, one of four such units designated in the Desert Tortoise Recovery Plan. The Ivanpah Valley is identified as one of three areas of high-quality habitat within the Eastern Mohave Recovery Unit.  Critical habitat is designated for tortoise in the Ivanpah Valley; however, the Project site is not within the boundaries of designated critical habitat.

The plaintiff challenged FWS’s issuance of and BLM’s reliance upon a biological opinion that concluded the Project (i) was “not likely to adversely affect” the tortoise’s critical habitat and (ii) would not jeopardize the continued existence of the tortoise.  Specifically, the plaintiff challenged the Project’s acknowledged potential reduction in connectivity between tortoise critical habitat areas within the Ivanpah Valley, maintaining that such a reduction is incompatible with the findings in the biological opinion.

The Court first rejected plaintiff’s argument that merely by including the entire Ivanpah Valley, including designated critical habitat, within the Project’s “action area,” the biological opinion is required to analyze the Project’s effects on critical habitat:  “[T]he 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.”  The Court upheld FWS’s concurrence with BLM’s “not likely to adversely affect” tortoise critical habitat finding as consistent with the regulations governing consultation under section 7 of the ESA.

Next, the Court considered plaintiff’s allegations that reduced connectivity constitutes “adverse modification” of critical habitat.

As an initial matter, the Court found that the plain language of the ESA requires an adverse modification of critical habitat consists of two elements, (i) a “modification” of the habitat that is (ii) “adverse.”  The Court then examined the 1986 regulation defining “adverse modification,” invalidated by the Ninth Circuit in Gifford Pinchot Task Force v. U.S. Fish & Wildlife Service, 378 F.3d 1059 (9th Cir. 2004), and the 2016 replacement regulation, both of which require a “direct or indirect alteration” that “appreciably diminishes the value of the critical habitat.”

The Court ruled that under the statute and the regulations, there is “[a] threshold requirement that there must be an alteration to the critical habitat” in order to make a finding of adverse modification.  Consequently, the Court held that the Project’s reduced connectivity does not constitute adverse modification because the Project did not alter and would not result in an alteration to tortoise critical habitat; it is an impact on the species, and properly evaluated under the jeopardy prong of ESA section 7(a)(2).

The Court also found that FWS’s comments and recommendations on the draft National Environmental Policy Act document regarding the Project’s adverse impacts on recovery and connectivity within the Ivanpah Valley were not inconsistent with its no jeopardy/no adverse modification determinations in the biological opinion.