Defenders of Wildlife v. Zinke

In 2008, NextLight Renewable Power, LLC (NextLight) sought approval from the Bureau of Land Management (BLM) (defendant) for a right-of-way on federal lands to construct two solar-power facilities in Nevada: Silver State North (North) and Silver State South (South). The proposed project sites were within an area designated by the Fish and Wildlife Service (FWS) (defendant) as relevant for protecting the desert tortoise, a threatened species. However, the sites were outside the desert tortoises’ designated critical habitat. The proposed South site was in a corridor that provided connectivity between desert-tortoise populations, which benefitted the overall stability of the species. The BLM approved a right-of-way for North but deferred approval for South pending further consultation with the FWS. In 2013, the BLM initiated formal consultation with the FWS and a NextLight subsidiary under the Endangered Species Act (ESA). The consultation resulted in a new proposal for South that reduced the proposed site size and left a substantial, though narrower, corridor. NextLight also agreed to fund a monitoring study to track demographic and genetic changes in the region’s desert-tortoise population. The FWS issued a biological opinion (BiOp) concluding that the new South proposal was not likely to adversely affect the desert tortoise’s critical habitat or jeopardize the species by appreciably diminishing the desert tortoises’ reproduction, numbers, or distribution. Although the BiOp expressed uncertainty about whether the narrowed corridor would impact the desert tortoises’ demographic or genetic stability, the BiOp noted that the monitoring study would track changes and allow mitigation measures to be taken if needed. The BLM subsequently granted a right-of-way for South. Defenders of Wildlife (DOW) sued the FWS, the BLM, and various federal officials (collectively, the federal defendants), asserting that the BiOp was arbitrary and capricious and that the BLM had improperly relied on the BiOp in granting the right-of-way. DOW asserted that the BiOp’s conclusion that South would not jeopardize the desert-tortoise species impermissibly relied on unspecified remedial actions. DOW also asserted that the BiOp had not fully analyzed whether there would be an adverse modification of the desert tortoises’ critical habitat. The district court granted summary judgment for the federal defendants, and DOW appealed.