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NO. 2:14-CV-1656-MWF-RZ Motion for a TRO and/or Preliminary Injunction- 1

Donald B. Mooney (CA Bar # 153721) dbmooney@dcn.org Law Office of Donald B. Mooney 129 C Street, Suite 2 Davis, CA 95616 530-758-2377 530-758-7169 (fax) Howard M. Crystal (D.C. Bar No. 446189) hcrystal@meyerglitz.com Eric R. Glitzenstein (D.C. Bar No. 358287) eglitzenstein@meyerglitz.com Pro Hac Vice applications pending Meyer Glitzenstein & Crystal 1601 Connecticut Ave., N.W., Suite 700 Washington, D.C., 20009 Telephone: (202) 588-5206 Counsel for Plaintiff Defenders of Wildlife UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Western Division) DEFENDERS OF WILDLIFE, Plaintiff, vs. SALLY JEWELL, Secretary, Department of the Interior, DANIEL M. ASHE, Director, U.S. Fish and Wildlife Service, NEIL KORNZE, Director, Bureau of Land Management, Defendants. FIRST SOLAR, INC., a Delaware corporation; DESERT STATELINE LLC, a Delaware limited liability corporation; and SILVER STATE SOLAR POWER SOUTH, LLC, a Delaware limited liability corporation, Intervenors. NO. 2:14-CV-1656-MWF-RZ NOTICE OF MOTION AND MOTION FOR A TEMPORARY RESTRAINING ORDER AND/OR A PRELIMINARY INJUNCTION HEARING: March 31, 2014 TIME: 10:00 A.M. COURTROOM: 1600 – 16th Fl. JUDGE: Hon. Michael F. Fitzgerald

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THE ABOVE-ENTITLED COURT AND TO ALL PARTIES HEREIN: PLEASE TAKE NOTICE that on Monday, March 31, 2014, at 10:00 a.m. in the courtroom of the Honorable Michael W. Fitzgerald of the United States District Court, Central District of California, plaintiff Defenders of Wildlife will move for a temporary restraining order (“TRO”) and/or a preliminary injunction (1) enjoining First Solar Companies (“First Solar”) from any activities on the planned sites for the Stateline and Silver State South solar facilities and (2) staying all approvals issued by the Bureau of Land Management (“BLM”) to allow these or other site activities, pending the Court’s resolution of this matter on the merits. Notice of this motion and all supporting materials has been provided to counsel for the Federal Defendants and First Solar Companies by electronic transmission and

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overnight (Federal Express) mail. The present motion is necessary because BLM has issued, or is anticipated imminently to issue, rights-of-way and “notices to proceed” authorizing First Solar to begin activities, including tortoise exclusionary fencing and the translocation of Tortoises, from the project sites.1 First Solar has agreed to suspend those activities until April 3, 2014, on the condition that Defenders files any motion for
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The right-of-way for Silver State South was signed on March 17, 2014, and the other right-of- way is anticipated shortly. See http://www.blm.gov/nv/st/en/fo/lvfo/blm_programs/energy/Silver_State_Solar_S outh.html; see also Stipulation on Intervention (DN 15) at 1 and 2 (discussing timing for rights-of-way).

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immediate relief no later than March 19, 2014, and seeks a hearing date on March 31, 2014. Plaintiff’s motion for a TRO and/or a preliminary injunction are supported by the accompanying Memorandum of Points and Authorities, and the supporting declarations of Dr. Glenn R. Stewart, Dr. Barry Sinervo, Jeffrey B. Aardahl, Brendan Hughes, and D’Anne Albers, and accompanying exhibits, all filed herewith, along with such oral argument as may be heard by this Court, and any other files or records in this proceeding. Dated: March 19, 2014 Respectfully submitted, /s/ Donald B. Mooney Donald B. Mooney (CA Bar # 153721) dbmooney@dcn.org Law Office of Donald B. Mooney 129 C Street, Suite 2 Davis, CA 95616 530-758-2377 530-758-7169 (fax) Howard M. Crystal (D.C. Bar No. 446189) hcrystal@meyerglitz.com Eric R. Glitzenstein (D.C. Bar No.358287) eglitzenstein@meyerglitz.com Pro Hac Vice applications pending MEYER GLITZENSTEIN & CRYSTAL 1601 Connecticut Ave., N.W., Suite 700 Washington, D.C., 20009 Telephone: (202) 588-5206 Facsimile: (202) 588-5049 Attorneys for Plaintiff

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NO. 2:14-CV-1656-MWF-RZ Pl. Mem. In Support Of Mot. For A TRO And/Or A Prelimary Injunction

Donald B. Mooney (CA Bar # 153721) dbmooney@dcn.org Law Office of Donald B. Mooney 129 C Street, Suite 2 Davis, CA 95616 530-758-2377 530-758-7169 (fax) Howard M. Crystal (D.C. Bar No. 446189) hcrystal@meyerglitz.com Eric R. Glitzenstein (D.C. Bar No. 358287) eglitzenstein@meyerglitz.com Pro Hac Vice applications pending Meyer Glitzenstein & Crystal 1601 Connecticut Ave., N.W., Suite 700 Washington, D.C., 20009 Telephone: (202) 588-5206 Counsel for Plaintiff Defenders of Wildlife UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Western Division) DEFENDERS OF WILDLIFE, Plaintiff, vs. SALLY JEWELL, Secretary, Department of the Interior, DANIEL M. ASHE, Director, U.S. Fish and Wildlife Service, NEIL KORNZE, Director, Bureau of Land Management, Defendants, FIRST SOLAR, INC., a Delaware corporation; DESERT STATELINE LLC, a Delaware limited liability corporation; and SILVER STATE SOLAR POWER SOUTH, LLC, a Delaware limited liability corporation, Intervenors. NO. 2:14-CV-1656-MWF-RZ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER AND/OR A PRELIMINARY INJUNCTION HEARING: March 31, 2014 TIME: 10:00 A.M. COURTROOM: 1600 – 16th Fl. JUDGE: Hon. Michael F. Fitzgerald

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TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ................................................................................... iii GLOSSARY .............................................................................................................. v INTRODUCTION ..................................................................................................... 1 BACKGROUND ....................................................................................................... 4 A. B. C. D. E. F. The Endangered Species Act................................................................. 4 The Imperiled Desert Tortoise .............................................................. 5 The Ivanpah Valley ............................................................................... 7 Existing Threats to Desert Tortoise Habitat and Habitat Corridors ..... 8 The Two Additional Projects At Issue. ................................................. 9 The Administrative Process For Federal Approval............................. 10

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ARGUMENT ........................................................................................................... 11 I. Defenders Is Likely To Succeed On The Merits. .......................................... 11 A. Defenders Is Likely To Succeed In Demonstrating The FWS's Analysis Of The Projects’ Impacts On Habitat Linkages Is Arbitrary And Capricious. ................................................................................... 11

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1.

The Service First Determined That Silver State South Should Not Proceed. ................................................................. 11 The Service Reversed Course Without Explanation. ............... 13

2. B.

Defenders Is Likely To Succeed In Demonstrating The FWS’s Analysis Of Tortoise Relocation Impacts Is Arbitrary And Capricious. ............................................................... 18 Defenders Is Likely To Succeed In Demonstrating That The FWS Has Failed To Address The Overall Take Of Tortoises in The Valley. ................................................................................................. 20

C.

II. III.

Defenders and Its Members Will Suffer Irreparable Harm. .......................... 21 The Remaining Factors Also Support An Injunction. ................................... 24

CONCLUSION ........................................................................................................ 25
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TABLE OF AUTHORITIES CASES Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) ...........................................................................11 Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995) ............................................................................................4 Bennett v. Spear, 520 U.S. 154, 176 (1997) .......................................................................... 17, 18 Defenders of Wildlife v. Babbitt, 130 F. Supp. 2d 121 (D.D.C. 2001) ............................................................. 3, 21 Humane Soc. of U.S. v. Locke, 626 F.3d 1040 (9th Cir. 2010) ................................................................... passim Humane Soc'y of the United States v. Gutierrez, 527 F.3d 788 (9th Cir. 2008) ...............................................................................3 Humane Soc'y v. Gutierrez, 523 F.3d 990 (9th Cir. 2008) .............................................................................24 Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29 (1983) ............................................................................................15 Nat’l Asssn of Homebuilders v. Defenders of Wildlife, 551 U.S. 644, 659 (2007) .................................................................................16 National Wildlife Fed. v. Nat'l Marine Fisheries Svc., 422 F.3d 782 (9th Cir. 2005) ...................................................................... 21, 23

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Pl. Mem. In Support Of Mot. For A TRO And/Or A Prelimary Injunction

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Native Ecosystems Council v. Dombeck, 304 F.3d 886, 900-903 (9th Cir. 2002) .............................................................21 San Luis & Delta-Mendota Water Auth. v. Salazar, 693 F. Supp. 2d 1145, 1149-50 (E.D. Cal. 2010) .............................................22 Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944 (9th Cir. 2003) .............................................................................16 Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir. 1987) .................................................................... 16, 23 South Fork Bank Council v. Dep't of the Interior, 588 F.3d 718 (9th Cir. 2009) .............................................................................24 Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978) .................................................................................. passim Washington Toxics Coal. v. EPA, 413 F.3d 1024 (9th Cir. 2005) ...........................................................................16 Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) ...................................................................................... passim STATUTES 5 U.S.C. § 706 ............................................................................................................2 16 U.S.C. § 1532(19) .................................................................................................5 16 U.S.C. § 1533(f) ....................................................................................................6 16 U.S.C. § 1536(a)(2) ...............................................................................................5 16 U.S.C. § 1538(a)(1) .................................................................................................
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GLOSSARY Aardahl Dec. BA Bi-Op BLM Defenders Dr. Stewart Dec. Dr. Sinervo Dec EIS Ex. FWS Ivanpah Bi-Op Declaration of Jeffrey Aardahl, including exhibits Biological Assessment Biological Opinion U.S. Bureau of Land Management Defenders of Wildlife Declaration of Dr. Glenn Stewart Declaration of Dr. Barry Sinervo Environmental Impact Statement Exhibits to filed declarations U.S. Fish and Wildlife Service The FWS;s June 10, 2011 Biological Opinion on the Ivanpah Solar Project Rec. Plan ROD Silver State South Review 2011 Desert Tortoise Recovery Plan Record of Decision Nov. 16, 2012 FWS Comments on the Draft EIS For The Silver State South Solar Project The FWS’s September, 30, 2013 Biological Opinion on the Silver State South and Stateline Solar Projects Supplemental EIS U.S. Geological Survey
Pl. Mem. In Support Of Mot. For A TRO And/Or A Prelimary Injunction - v

SSS Bi-Op

SEIS USGS

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INTRODUCTION This case concerns two massive new solar facilities – (a) “Silver State South,” near Primm, Nevada, and (b) “Stateline,” less than three miles away in California – that First Solar Companies (“First Solar”) intend to construct on Bureau of Land Management (“BLM”) lands in the crucial but dwindling Ivanpah Valley habitat of the imperiled Mojave Population of the Desert Tortoise (hereafter “Tortoise”). These facilities will be adjacent to recently built solar projects – the “Ivanpah Generating Station” and “Silver State North” – that, taken together with myriad other activities in the Valley, have already removed thousands of acres of habitat, and seriously constricted critical habitat linkages for the species. In addition to the loss of thousands of acres of additional occupied habitat

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and the undisputed “take” of hundreds of additional adult Tortoises (and killing of more than 2,000 smaller Tortoises, hatchlings, and eggs) the projects will also impair the last effective Tortoise habitat corridor in the Ivanpah Valley, between Silver State North and the Lucy Gray Mountains, constricting that corridor to less than 1.4 miles – below the minimum width that the U.S. Fish and Wildlife Service (“FWS”) has itself recognized is necessary. See Declaration of Jeffrey Aardahl (“Aardahl Dec.”) Ex. 1 at 1 and 3 (site maps). As a result, these projects pose enormous risks to the survival and recovery of the Tortoise in Ivanpah Valley, and, in turn, the species as a whole.

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By this motion Plaintiff Defenders of Wildlife (“Defenders”) seeks a Temporary Restraining Order and/or a Preliminary Injunction preventing work on the two sites until this case can be resolved on the merits. As explained below, Plaintiff meets the standards for an emergency injunction given the likelihood of success on the merits, the irreparable harm absent the relief sought, the equities, and the public interest. See Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 (2008). On the merits, to comply with the Administrative Procedure Act, 5 U.S.C. § 706, an agency must provide a “reasoned explanation” for its decision-making. Humane Soc. of U.S. v. Locke, 626 F.3d 1040, 1053 (9th Cir. 2010). Here, in formal comments, the FWS unequivocally urged BLM to reject Silver State South

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“to avoid impacting the narrow linkage that currently exists.” Nov. 16, 2012 FWS “Review of the Silver State South” (“Silver State South Review”) at 5 (Aardahl Dec. Ex. 2). The agency explained that although “[a] single desert tortoise utilizes a lifetime utilization area approximately 1.4 miles wide,” this is an insufficient width for the species, which requires “multiple lifetime utilization areas . . . to find mates, reproduce (demographics), and maintain populations during years of low habitat quality, periodic fire, and disease outbreak.” Id. at 2 (emphasis added). Inexplicably, however, in the FWS’s September, 2013 Biological Opinion (“SSS Bi-Op”) for the two solar facilities – upon which BLM has just relied in issuing a separate NEPA Record of Decision (“ROD”) for each project – the FWS
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authorized Silver State South, which will leave the less than 1.4 mile corridor the FWS previously deemed to be unacceptable. Sept. 30, 2013 SSS Bi-Op (Aardahl Dec. Ex. 3); Silver State South Record of Decision (Feb. 14, 2014) (“ROD”) (Aardahl Dec. Ex. 4); Stateline ROD (Feb. 14, 2014) (Aardahl Dec. Ex. 5). Indeed, while the earlier official comments explained that the maintenance of this specific corridor “was a key reason why we concluded that connectivity” in the Valley “would still be maintained” despite construction of the nearby Ivanpah Solar Energy Generation Station, Silver State South Review at 2 (emphasis added), the Bi-Op ignores these prior agency comments entirely. Defenders will therefore likely prevail on the merits on this issue and others, including the failure meaningfully to consider the further dangers posed by

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translocating Tortoises into the overly constricted remaining corridor, and the failure to consider the overall take of Tortoises in the Ivanpah Valley. See Defenders of Wildlife v. Babbitt, 130 F. Supp. 2d 121, 126 (D.D.C. 2001). Defenders and its members also face irreparable harm. Absent an injunction First Solar will begin to “take” hundreds of Tortoises during drought conditions, killing all juvenile and hatchling Tortoises, consigning translocated tortoises to death or at least significant additional stress, and destroying the last remaining effective habitat corridor in Ivanpah Valley. These activities, in turn, threaten irreparable harm to the Tortoise population in the Valley, and, in light of the vital importance of that population to the species as a whole, this is a case in which the
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fate of an entire species may well hang in the balance. See Declarations of Dr. Glenn Stewart (“Dr. Stewart Dec.”) and Dr. Barry Sinervo (“Dr. Sinervo Dec.”).1 The balance of hardship and public interest also weigh heavily in favor of a temporary injunction. There is no urgent need to translocate Tortoises now, in drought conditions that will only exacerbate translocation impacts, Dr. Stewart Dec. ¶ 18; Aardahl Dec. ¶ 13, and private financial interests do not weigh heavily, if at all, where the fate of an imperiled species may be at stake. See TVA v. Hill, 437 U.S. 153, 193-95 (1978). BACKGROUND A. The Endangered Species Act In order to “halt and reverse the trend towards species extinction, whatever

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the cost,” Babbitt v. Sweet Home Chap. for a Great Or., 515 U.S. 687, 699 (1995) (citations omitted), Congress passed the ESA to provide significant protections to species – like the Tortoise – listed under the Act. As the Supreme Court has emphasized, in the ESA Congress made it “abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities . . . .” Hill, 437 U.S. at 194 (emphasis added).
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Dr. Stewart, retired from Cal. State Polytechnic, has more than forty years of experience researching and studying species such as the Tortoise, and has published numerous reports and papers on the species. Dr. Stewart Dec. ¶¶ 1-4; Dr. Sinervo, a professor at UC Santa Cruz, also has extensive experience with the Tortoise, and has recently completed extensive research concerning the coming impacts of climate change on the species. Dr. Sinervo Dec. ¶¶ 1-6. Jeffrey Aardahl worked on public lands and species protection for the federal government for over thirty years. Aardahl Dec. ¶¶ 1-2.

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Two interrelated ESA provisions are implicated here. ESA Section 9, and implementing regulations, prohibit the “take” of any protected animal, 16 U.S.C. § 1538(a)(1); 50 C.F.R. §§ 17.21, 17.31 – broadly defined to include “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or [ ] attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). ESA Section 7 requires that, “in consultation with and with the assistance of the [FWS],” each federal agency shall “insure that any action authorized, funded or carried out by such agency . . . is not likely to jeopardize the continued existence of any [protected] species . . . .” 16 U.S.C. § 1536(a)(2). Where a private party requires federal authorization – as First Solar does here – the authorizing agency (here, BLM) engages in a “formal consultation” with the FWS. Id.

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That consultation, beginning with a “Biological Assessment” (“BA”), must rely on “the best scientific and commercial data available,” 16 U.S.C. § 1536(a)(2), and culminates in a “Biological Opinion” (“Bi-Op”) determining whether the project, considered along with the other activities and threats to the species, is “likely to jeopardize the continued existence of” the species. Id. § 1536(a)(2); see also 50 C.F.R. Part 402. B. The Imperiled Desert Tortoise The Mojave population of the desert tortoise (Gopherus agassizii), encompassing tortoises north and west of the Colorado River, was listed as a threatened species in 1990. 55 Fed. Reg. 12,178 (1990). Over a lifetime one
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Tortoise may roam more than 1.5 square miles, and make forays of more than 7 miles. 2011 Tortoise Recovery Plan (“Rec. Plan”) at 10 (Aardahl Dec. Ex. 6 (excerpts)). The species also experiences high mortality early in life, requires 13 to 20 years for sexual maturity, and has low reproductive rates. Id. at 32. Given these factors, in its 2011 Recovery Plan for the Tortoise (pursuant to 16 U.S.C. § 1533(f)) the FWS emphasized the need to preserve the species’ remaining habitat. Id. at viii (emphasis added); id. at 32. Thus, as the Bi-Op at issue here explains, “absent the conservation of large areas of suitable habitat within each recovery unit, we cannot conserve all of the genetic and morphological variations and differences in behavior and ecology that comprise the desert tortoise as a species.” SSS Bi-Op at 51.

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Applying the best scientific information available, the FWS has explained that while over a lifetime an individual Tortoise inhabits a utilization area of approximately 1.4 miles, SSS Bi-Op at 52, “[m]ultiple lifetime utilization areas are necessary” in any given area to provide a sufficient habitat linkage for Tortoises to “find mates, reproduce, and maintain populations during years of low habitat quality, periodic fire, and disease outbreaks.” Silver State South Review at 2 (emphasis added); see also SSS Bi-Op at 49 (discussing the importance for Tortoises of maintaining demographic and genetic connectivity). As the FWS states, “[t]he long-term viability of linkages depends on the ability of the habitat in these linkages to sustain populations into the future.” Id. at 52.
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C.

The Ivanpah Valley The Ivanpah Valley’s features – “bounded by the Ivanpah Mountains,

Mescal Range, and Clark Mountain to the west; the Spring Mountain Range and Stateline Hills to the north; the Lucy Gray Range, Sheep Mountain and McCullough Mountains to the east; and the New York Mountains and the Mid Hills to the south” (SSS Bi-Op at 34) – “greatly restrict potential for demographic connectivity outside the valley.” SSS Bi-Op at 50. Within the Tortoise’s Eastern Mojave Recovery Unit, there are three “main areas contain[ing] the highest quality habitat and most of the desert tortoises”: (a) a western area mostly lying within the Mojave National Preserve; (b) the Ivanpah Valley; and (c) the Eldorado Valley. Id. at 50 (emphasis added). “The transition from Ivanpah Valley to Eldorado

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Valley is likely the primary genetic and demographic pathway between these two areas of important desert tortoise habitat.” Id. at 51. It is accordingly vital that an effective linkage be maintained. In 2012 BLM issued an ROD for solar development, identifying the Valley as an “exclusion area” from solar projects. See ROD for Solar Energy Dev’t in Six States (Oct. 2012) at 37 and 38 (Table A-2, No. 13) (Aardahl Dec. Ex. 7 (excerpts)). Moreover, recent research has revealed that the Tortoise faces grave risks from climate change, and “many existing populations of desert tortoise will become extinct.” Dr. Sinervo Dec. ¶ 6. This research also shows that the Ivanpah Valley will become one of the Tortoise’s last remaining refuges. Id. ¶ 8.
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D.

Existing Threats to Desert Tortoise Habitat and Habitat Corridors Despite the undisputed need to protect the Tortoise and its remaining habitat

in the Valley, the Bi-Op under review states that “the joint port of entry, Ivanpah Solar Electric Generating System, Primm Valley Golf Course, and DesertXpress,” a high speed train project, “have caused or will cause the loss of thousands of acres of habitat” in the Valley, while “[o]ther actions, such as those occurring in the Boulder Corridor and the Mountain Pass lateral pipeline have degraded additional habitat.” SSS Bi-Op at 71. The FWS also separately approved development of 145,000 acres of non-Federal land by Clark County. Id. at 37. Two other solar projects have also already been approved and constructed, the “Ivanpah” Solar Station and “Silver State North.” Id. at 37. The Ivanpah

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project, on more than 3,500 acres of Tortoise habitat, is adjacent to the planned Stateline project. Id. Silver State North is just west of Silver State South. Id. at 38. The FWS raised significant concerns about habitat connectivity in connection with both of these projects. E.g. id. at 37 (Ivanpah will “impede connectivity within this portion of Ivanpah Valley”); id. at 38 (Silver State North will “impede connectivity between the northern and southern portions of the Ivanpah Valley”). Of the three habitat corridors that could potentially have served as remaining habitat linkages in the Valley, the only remaining functional linkage is between Silver State North and the Lucy Gray Mountains. Id. at 53-54. As the FWS explained in the Bi-Op, “[t]his linkage . . . provides the most reliable potential for
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continued population connectivity [and] [t]he loss of connectivity between the northern and southern ends of Ivanpah Valley would have far-reaching implications.” Id. at 55, 67 and 69 (emphasis added). Crucially, when the FWS was authorizing the added habitat fragmentation for Ivanpah solar, the agency relied on maintenance of this specific corridor, explaining that because the area “provides the most reliable potential for continued population connectivity,” it is “critically important,” and justified allowing Ivanpah to proceed. June 10, 2011 Ivanpah Bi-Op at 73-74 (emphasis added) (Aardahl Dec. Ex. 8 (excerpts)). Accordingly, in approving Ivanpah, while the Service emphasized that loss of Tortoise connectivity would “likely create a nearly closed population in the southern end of the Ivanpah Valley,” the agency

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concluded that this connectivity would remain because of the undisturbed habitat east of Silver State North, which is now under threat. Id. at 84. E. The Two Additional Projects At Issue Stateline will remove an additional approximately 1,600 acres of occupied Tortoise habitat. SSS Bi-Op at 1; see also id. at 5 (Stateline location relative to Ivanpah solar). Less than three miles east, Silver State South will remove approximately 2,400 acres. Id. at 1; see also id. at 6 (Silver State South in relation to North). These two sites contain as many as 209 large Tortoises, up to 1,476 small Tortoises, and up to 639 Tortoise hatchlings and eggs. Id. at 47-48.

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“[A]ll desert tortoises” within the project sites will be taken within the meaning of the ESA, id. at 89; up to four adult Tortoises will be killed during translocation efforts, id. at 91 and 93; and an additional eight during construction. Id. at 90 and 93. Death of up to seven additional adult Tortoises per year is expected for 30 years – for an additional 210 adult Tortoises. Id. at 92 and 94. Absent an injunction, as soon as April 3, 2014, First Solar will begin installing Tortoise exclusionary fencing around the entire sites and relocating Tortoises. Id. at 4 and 14. For Silver State South, a principal relocation site is to the east, where only an overly constricted habitat corridor will remain. Id. at 16. F. The Administrative Process For Federal Approval Despite the 2012 ROD making the Ivanpah Valley a protected zone, BLM

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proceeded with these two projects, preparing one Environmental Impact Statement (“EIS”) to consider both Silver State North and South, and another for Stateline. See Aardahl Dec. Exs. 4 and 5. After separately authorizing Silver State North, BLM prepared a Supplemental EIS (“SEIS”) on Silver State South. Id. BLM also initiated a formal consultation with the FWS for both projects. Id. at 17. After submitting formal comments urging BLM to reject Silver State South, the FWS issued its Bi-Op approving both projects. BLM subsequently issued its RODs, also approving the projects, but stating that the “environmentally preferred

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alternative” would be to reject both projects, in light of, inter alia, their serious adverse impacts on the Tortoise. Aardahl Dec. Ex. 4 at 12 and Ex. 5 at 4.2 ARGUMENT The four-factor test for a temporary injunction considers the likelihood of success on the merits, the irreparable harm that will occur absent the relief sought, the balance of harms, and the public interest. Winter, 555 U.S. at 20. When considering the propriety of preliminary injunction relief, “a stronger showing of one element may offset a weaker showing of another.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 11131 (9th Cir. 2011). I. Defenders Is Likely To Succeed On The Merits.3 A. Defenders Is Likely To Succeed In Demonstrating The FWS’s Analysis Of The Projects’ Impacts On Habitat Linkages Is Arbitrary And Capricious. 1. The Service First Determined That Silver State South Should Not Proceed.

In official comments on the Draft SEIS for Silver State South, the FWS urged rejection of the project, explaining that for multiple reasons the project “would negatively impact the federally listed as threatened Mojave desert Tortoise [ ] and its habitat.” Silver State South Review (Aardahl Dec., Ex. 2). In November, 2013 Defenders sent a letter of intent to sue. Aardahl Dec. Ex. 9. For the merits Plaintiff is only relying on materials that were before the agencies.

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First, the FWS expressed concerns with “demographic and genetic isolation of desert tortoise within the Ivanpah Valley,” explaining that it “is a critical link between desert tortoise conservation areas in California and Nevada,” and that of the Valley’s potential remaining linkages, the one “between Silver State North and the Lucy Gray Mountains is the widest of these linkages and likely the most reliable for continued population connectivity.” Id. at 1-2 (emphasis added). Second, the FWS summarized the best available science concerning Tortoise habitat requirements, explaining that “[h]abitat linkages need to be wide enough to support a diverse age structure and sex ratio within the linkage,” and thus while Tortoises “can occupy narrow canyon passes,” nonetheless “the effects on population demographics by constricting a linkage to a narrow corridor with a

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lower number of desert tortoises remain a concern.” Id. at 2. In particular, the Service unequivocally asserted that while a single desert tortoise uses a lifetime utilization area of approximately 1.4 miles wide, “[m]ultiple lifetime utilization areas are necessary for desert tortoises to find mates, reproduce (demographics), and maintain populations during years of low habitat quality, periodic fire, and disease outbreaks (stochastic events).” Id. (emphasis added). Third, the FWS underscored that, in light of the existing constrictions in the Valley, and the Tortoise’s habitat needs, it was precisely because the widest linkage – the one presently under threat – would remain that the Service had approved the Ivanpah solar project. Id.; see also id. (In analyzing the Ivanpah
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project, “the maintenance of a suitable linkage between the Silver State Project and the Lucy Gray Mountains was a key reason why we concluded that connectivity would still be maintained after construction of that project”) (emphasis added); see also Ivanpah Bi-Op at 74-75 (characterizing the habitat between Silver State North and the Lucy Gray Mountains as “critically important”) (emphasis added). Accordingly, the FWS urged rejection of the Silver State South project. Silver State South Review at 2; see also Aardahl Dec. Ex. 1 at 1 and 3 (maps). As the FWS summarized: [T]he Ivanpah Valley is critically important to desert tortoise population connectivity in the Ivanpah Valley Critical Habitat Unit. We recommend BLM select the “No Action” alternative to avoid impacting the narrow linkage that currently exists between the Silver State North project and the Lucy Gray Mountains. If this is not possible, we ask BLM to create and select a new alternative that will minimize impacts by preserving a protected corridor of undisturbed desert tortoise habitat between the Silver State North project and the suitable desert tortoise habitat west of the Lucy Gray Mountains. This corridor should be wide enough to accommodate multiple desert tortoise ranges, spanning up to several times the desert tortoise lifetime utilization area at the narrowest point. Id. at 5. 2. The Service Reversed Course Without Explanation.

Less than ten months later, the FWS announced a radically different conclusion on precisely the same facts, without even acknowledging the contradiction. Thus, in the Stateline/Silver State South Bi-Op FWS again found that “strongly territorial species require a minimum corridor width that is substantially larger than the width of a [single] home range,” which is “1.4 miles,”
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and must therefore “accommodate multiple home ranges.” SSS Bi-Op at 69 (emphasis added); see also, e.g., Roy C. Averill-Murray et al., Conserving Population Linkages for the Mojave Desert Tortoise (Gopherus Agassizii), 8 Herp. Cons. and Biology 1, 11 (2013) (Aardahl Dec. Ex. 10) (“minimum widths for corridor dwellers such as the Mojave Desert Tortoise should be substantially larger than a home range diameter”).4 The FWS also continued to recognize that, rather than fulfill these biological needs, Silver State South will only “likely accommodate a single lifetime desert utilization throughout the length of the corridor,” because it will be as narrow as 1.39 miles wide. SSS Bi-Op at 69. Indeed, in light of “edge effects” the corridor is likely to be even “less than the measured distance” between the project and the

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4

mountains. Id. at 70 (emphasis added); id. at 79 (“edge effects may reduce the effective connectivity to less than the measured distance”) (emphasis added). However, entirely ignoring its earlier conclusion that, given these facts, Silver State South should not be constructed, the Service simply stated as follows: Although desert tortoises are territorial and will fight among themselves, their territories also frequently overlap. Consequently, although the width of the remaining corridor would be narrower than optimal, territorial desert tortoises are unlikely to block the movement of other desert tortoises through the corridor.
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As the FWS also recognizes in the Bi-Op, “tortoises are more likely to persist in wider linkages” in periods of “low resource availability,” and the narrow linkage that will remain will leave Tortoises “more susceptible to local extirpation” as they “may be less likely to find mates, reproduce, and recolonize the linkage areas . . . .” SSS Bi-Op at 70.

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Id. at 69. It is unclear what FWS meant with this single sentence, but what is apparent is that it fails to provide a “satisfactory explanation” for agency decision-making. Humane Soc., 626 F.3d at 1048 (agency must provide a “rational connection between the facts found and the choice made”) (quoting Motor Vehicle Manufacturers Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). It is of course true that desert tortoise territories “frequently overlap.” However, given the FWS’s recognition in the preceding paragraphs – based on an overwhelming scientific consensus – that a single lifetime utilization area is

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biologically insufficient because, inter alia, in such a narrow corridor Tortoises “may be less likely to find mates, reproduce, and recolonize the linkage areas,” SSS Bi-Op at 70, it is simply a non-sequitur to baldly assert that because Tortoise ranges overlap, there are “unlikely” to be negative biological ramifications of reducing the last effective habitat corridor to a single lifetime utilization area. The arbitrary and capricious nature of the FWS’s conclusion is further exacerbated by the failure to even try to reconcile the Silver State/Stateline BiOp’s conclusions with the agency’s formal comments submitted only months earlier.5 Having stated unequivocally that any Silver State South alignment must
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Importantly, FWS’s Silver State South Review did not represent the views of a single agency employee that were subsequently disavowed by the agency. Cf. Nat’l Asssn of Homebuilders v. Defenders of Wildlife, 551 U.S. 644, 659
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NO. 2:14-CV-1656-MWF-RZ

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include a corridor “wide enough to accommodate multiple desert tortoise ranges, spanning up to several times the desert tortoise lifetime utilization area at the narrowest point,” Silver State South Review at 5, it was arbitrary and capricious for the FWS to fail to explain, in the Silver State/Stateline Bi-Op, the basis for its changed view. E.g., Humane Soc., 626 F.3d at 1051 (agency must offer a “satisfactory explanation for its decision in light of the earlier findings” and “cannot avoid its duty to confront these inconsistencies by blinding itself to them”). The Bi-Op does not even refer to its prior findings, or those made in the Ivanpah Bi-Op. Having entirely ignored its own prior official views – which were based on “the best available science,” Selkirk Conservation Alliance v. Forsgren,

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336 F.3d 944, 955 (9th Cir. 2003), Defenders is likely to prevail on its claim that the FWS’s analysis in the Bi-Op is arbitrary and capricious. The FWS’s ultimate obligation in a Bi-Op is to determine whether jeopardy may occur, and in doing so the agency must err on the side of species’ protection. E.g. Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir. 1987) (citing Hill, 437 U.S. at 194); Washington Toxics Coal. v. EPA, 413 F.3d 1024, 1035 (9th Cir. 2005). The FWS has also turned ESA Section 7 on its head by explaining that, although the agency acknowledges the project “will reduce connectivity” and is
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(2007). Rather, they were the agency’s formal public position in NEPA comments, signed by Edward Koch, a 20 year veteran of the FWS and head of the Nevada state office. See http://www.fws.gov/cno/press/release.cfm?rid=291.

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thus “uncertain as to whether [it will] cause demographic or genetic instability,” the U.S. Geological Survey (“USGS”) is going to undertake a study on Tortoises that “should be able to detect” such problems. SSS Bi-Op at 84-85 (emphasis added). In other words, the FWS will allow the project to proceed in light of a study to evaluate whether the anticipated adverse impacts in fact come to pass. Id. at 85 (“Integral to” the FWS conclusion of no jeopardy “is our expectation that the reduction in width of the” corridor “is either unlikely to degrade demographic or generic stability in Ivanpah Valley or that we will be able to detect degradation of those values and implement remedial actions, if necessary.”). Risking the fate of a species in this manner undermines the ESA’s objectives under any scenario, e.g., H.R. Conf. Rep. No. 697, 96th Cong., 2d Sess. 12 (1979)

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(agencies must give “the benefit of the doubt to the species”), but is especially inappropriate here, because the FWS does not even try to explain what it would, or even could, do in the inevitable event that the project destroys the last habitat linkage in the Valley. See, e.g., Bennett v. Spear, 520 U.S. 154, 176 (1997) (explaining that the “best available science” standard precludes FWS from making decisions “on the basis of speculation or surmise”). Accordingly, Defenders is likely to prevail in demonstrating that the Service’s ultimate jeopardy conclusion is also arbitrary and capricious.6 The Service also flatly recognizes that the constricted corridor “is likely to impede recovery of the desert tortoise, at least temporarily.” SSS Bi-Op at 80.
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NO. 2:14-CV-1656-MWF-RZ

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B.

Defenders Is Likely To Succeed In Demonstrating The FWS’s Analysis Of Tortoise Relocation Impacts Is Arbitrary And Capricious.

The FWS estimates there are up to as many as 200 large Tortoises in the project sites. SSS Bi-Op at 47. These Tortoises will be captured – including, as necessary, by excavating burrows – and moved to new locations, including the habitat corridor between Silver State North and the mountains. Id. at 15-16; see also Aardahl Dec. Ex. 1 at 2 (showing numerous active Tortoise burrows). But since that habitat is already occupied, translocating Tortoises into that specific area, which the FWS recognizes will be too narrow, is likely to exacerbate the adverse effects to both the translocated Tortoises and those already occupying the area. However, the Bi-Op entirely fails to confront this issue, instead vaguely claiming that the corridor can absorb more Tortoises. SSS Bi-Op at 57-58. At bare minimum, the FWS must address the implications of putting translocated Tortoises into precisely the corridor that is being reduced to a single Tortoise lifetime utilization area. Id. In short, given the FWS’s acknowledgment of the
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However, again, the Service purports to resolve that concern by relying on the USGS Study, claiming that the agency will “determine an appropriate course of action” in the event the Study shows that the species’ recovery will be permanently impaired.” Id. This reasoning has the same flaws as the impacts on the species’ survival, involving precisely the kind of “speculation or surmise,” Bennett, 520 U.S. at 176, prohibited by the ESA. See SSS Bi-Op at 80 (claiming that other activities “may mitigate the loss of habitat” and that the USGS Study “should detect” problems when they occur) (emphasis added). The Service also purports to rely on the Tortoise’s long life span to assert that there will be ample time to “implement additional management measures, if needed.” Id. at 81. But this contradicts the Recovery Plan’s finding that the species’ long life makes recovery of the species “difficult,” because “[e]ven moderate downward fluctuations in adult survival rates can result in rapid population declines.” Rec. Plan at viii (emphasis added).

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risks for Tortoises in this overly constricted corridor, it was incumbent on the agency to explain the consequences of adding Tortoises into an overly restrictive habitat corridor. Humane Soc., 626 F.3d at 1048. Capturing and translocating Tortoises is also stressful to the animals under any circumstances. SSS Bi-Op at 55. These efforts pose “increased risk of mortality, spread of disease, and reduced reproductive success.” Id. at 56. Of particular concern is increased predator risks, because of “the tendency for translocated tortoises to spend more time above ground.” Id. at 56. Thus, the FWS “anticipate[s] that predation is likely to be the primary cause of post-translocation mortality.” Id. at 57. Moreover, as the Bi-Op also acknowledges, there is a “statistically significant relationship between decreased precipitation and increased

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predation of desert tortoises” from translocation. Id. at 57. For all these reasons, in the same official comments urging rejection of Silver State South, the FWS also stated unequivocally that “[t]he Service does not support translocation as a proven minimization measure for development projects,” because it “could result in considerable adverse effects to both translocated individuals and individuals that are resident to any identified translocation sites.” Silver State Review at 3 (Aardahl Dec. Ex. 2) (emphasis added). In addition, in a Supplemental BA for Silver State South BLM explained that “[i]f Spring 2014 follows a drier than normal winter with poor annual plant production, translocation

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of these animals would be delayed until Fall 2014.” June 30, 2013 Supplemental BA at 9 (Aardahl Dec. Ex. 11). Despite all of these concerns and purported limitations, the Final Bi-Op also reversed course on this issue, concluding not only that Tortoise translocation is appropriate, but that it may be conducted in the Spring regardless of weather conditions. SSS Bi-Op at 17 and 57. This constitutes yet another unexplained reversal on which Defenders is likely to prevail on the merits. Humane Soc., 626 F.3d at 1051. C. Defenders Is Likely To Succeed In Demonstrating That FWS Has Failed To Address The Overall Take Of Tortoises In The Valley.

Although the Bi-Op mentions many other activities impacting Tortoises and their habitat in the Ivanpah Valley, the FWS also violated the ESA by failing to identify the collective level of take that has been authorized in this area. Instead, the FWS misleadingly focuses on the overall take authorized from solar projects throughout the species’ range. SSS Bi-Op at 27. For example, while the Silver State/Stateline Bi-Op mentions a county-wide incidental take permit issued to Clark County, id. at 37, the agency fails to disclose the amount of incidental take caused by those activities, including “agriculture, flood control, livestock grazing, mineral extraction, [off road] OHV activities, parks and recreation, [and] residential and commercial development.” Nov. 19, 2000 Bi-Op On Issuance of An Permit To Clark County, Nev. at 2.2 (Aardahl Dec., Ex. 12 (excerpts)). Moreover, while that Bi-Op discloses that the FWS had
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already issued more than 300 Bi-Ops for activities in Tortoise habitat in Nevada, including in the Ivanpah Valley, authorizing incidental take “of 16,897 desert tortoises (6,107 harassed and 10,790 killed or injured) and an additional 195 tortoises” each year, id. at 4.44 (emphasis added), none of those stark numbers are disclosed or discussed in the Silver State/Stateline Bi-Op. The FWS has therefore failed to coherently analyze the extent to which these additional projects may cross the line to risk jeopardy. See, e.g., Defenders of Wildlife, 130 F. Supp. 2d at 130 (remanding Bi-Ops that ignored incidental take authorized for other projects); see also Native Ecosystems Council v. Dombeck, 304 F.3d 886, 900-903 (9th Cir. 2002). II. Defenders and Its Members Will Suffer Irreparable Harm. Absent an injunction Defenders and its members, who have concrete interests in observing and enjoying the Tortoise in and near Ivanpah Valley (see Declarations of Brendan Hughes and D’Anne Albers) will be irreparably harmed. As the Court of Appeals has explained, the balance of equities must weigh in favor of protecting imperiled species, and “[t]he traditional preliminary injunction analysis does not apply to injunctions issued pursuant to the ESA.” Natl Wildlife Fed. v. NMFS, 422 F.3d 782, 793-94 (9th Cir. 2005); see also Hill, 437 U.S. at 194 (“the balance has been struck in favor of affording endangered species the highest of priorities”). Here, those considerations overwhelmingly favor maintaining the

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status quo until this case can be resolved on the merits. See also San Luis & DeltaMendota Water Auth. v. Salazar, 693 F. Supp. 2d 1145, 1149-50 (E.D. Cal. 2010). As explained by leading Tortoise experts, this is a situation in which not only the Ivanpah population but the overall species is at risk. Thus, as detailed in the attached expert declarations, these projects not only “pose a high degree of risk to the ecological integrity and functions of the Ivanpah Valley necessary to sustain the Tortoise,” Dr. Sinervo Dec. ¶ 7; see also Dr. Stewart Dec. ¶ 11, they also risk the survival and recovery of the species more broadly because, as a result of climate change, the Ivanpah Valley will be one of only two areas that “will remain suitable in maintaining population demography,” and the other area – near California City – faces similar threats. Dr. Sinervo Dec. ¶¶ 6, ll. 20-25 (emphasis

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added); see also id. at ¶¶ 5, 8, and 13 (“[T]hese new solar projects . . . threaten the continued existence of the desert tortoise in the Ivanpah Valley, and therefore the species overall”). This constitutes irreparable harm under any definition. The Bi-Op also acknowledges that Tortoises “have been crushed by the vehicles of biologists working on translocations,” SSS Bi-Op at 55-56, and, with respect to small Tortoises and hatchlings, the FWS “expect[s] that most of these individuals are likely to be killed or wounded during construction.” Id. at 89. Absent relief here, First Solar will thus begin killing as many as 1,400 juvenile Tortoises, and up to 639 Tortoise hatchlings and eggs. Id.

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Even as regards translocation efforts for larger Tortoises, Dr. Kristin Berry – a research scientist at the USGS – has reported that of the 158 Tortoises translocated for a project at Fort Irwin, 83 are now dead, and an additional 21 are missing – i.e., over 65%. Dr. Kristen Berry, Study Plan 9: 2012 Progress Report at 8 (Aardahl Dec. Ex. 13). Moreover, the adverse impacts of translocation will be further exacerbated here by moving Tortoises over the next few weeks, during drought conditions, see Dr. Steward Dec. ¶ 18; Aardahl Dec. ¶ 13 – exposing them to increased predation risks, which is why BLM itself recognized that translocation should only occur after sufficient rains. See supra at 20; see also Dr. Stewart Dec. ¶ 18. The take of Tortoises that is about to begin also itself constitutes irreparable harm. See, e.g., National Wildlife Fed., 422 F.3d at 793; Humane Soc’y v.

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Gutierrez, 523 F.3d 990, 991 (9th Cir. 2008) (“[T]he lethal taking of the California sea lions is, by definition, irreparable”). Finally, in light of the FWS’s failure to prepare a legally sufficient Bi-Op, the procedural injury at stake here also constitutes irreparable harm. As the Court of Appeals explained in Sierra Club v. Marsh, “[t]he substantive and procedural provisions of the ESA are the means determined by Congress to assure adequate protection” for species, and “[o]nly by requiring substantial compliance with the act’s procedures can we effectuate the intent of the legislature.” 816 F.2d at 1384; accord Nat’l Wildlife Fed’n, 422 F.3d at 795 (injunctive relief may be “necessary

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to effectuate Congress’s clear intent by requiring compliance with the substantive and procedural provisions of the ESA”). III. The Remaining Factors Also Support An Injunction. In light of the foregoing, the final injunction factors also weigh heavily in Plaintiff’s favor. Once again, in TVA v. Hill, the Supreme Court held that where the fate of an imperiled species is at stake, the equities necessitate injunctive relief. 437 U.S. at 193-95; see supra at 21. On the other side of the coin, the Federal Defendants certainly have no overriding interest at stake, and the only interest First Solar could have in temporarily maintaining the status quo are purely economic. Such interests do not weigh heavily, particularly since any injunction would last only until this case can

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be resolved on the merits. See, e.g. South Fork Bank Counci of W. Shoshone of Nev. v. Dep’t. of Interior, 588 F.3d 718, 728 (9th Cir. 2009).

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CONCLUSION For the foregoing reasons Defenders respectfully urges the Court to issue a Temporary Restraining Order and/or Preliminary Injunction enjoining activities associated with the Stateline and Silver State South Solar projects until this case can be resolved on the merits. Dated: March 19, 2014 Respectfully submitted, /s/ Donald B. Mooney Donald B. Mooney (CA Bar # 153721) Law Office of Donald B. Mooney 129 C Street, Suite 2 Davis, CA 95616 530-758-2377 530-758-7169 (fax) Howard M. Crystal Eric R. Glitzenstein Pro Hac Vice applications pending MEYER GLITZENSTEIN & CRYSTAL 1601 Connecticut Ave., N.W., Suite 700 Washington, D.C., 20009 Telephone: (202) 588-5206 Facsimile: (202) 588-5049 Attorneys for Plaintiff Defenders of Wildlife

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