Case 2:14-cv-01656-MWF-RZ Document 33 Filed 03/26/14 Page 1 of 33 Page ID #:576

ROBERT G. DREHER Acting Assistant Attorney General 2 U.S. Department of Justice

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MARISSA A. PIROPATO Trial Attorney, Massachusetts Bar No. 651630 U.S. Department of Justice Environment & Natural Resources Division Natural Resources Section Ben Franklin Station, P.O. Box 7611 Washington, D.C. 20044-7611 Tel (202) 305-0470 Fax (203) 305-0506 Email: Marissa.Piropato@usdoj.gov MICHAEL R. EITEL Trial Attorney, Nebraska Bar No. 22889 U.S. Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section 999 18th Street, South Terrace, Suite 370 Denver, Colorado 80202 Tel (303) 844-1479; Fax (303) 844-1350 E-mail: michael.eitel@usdoj.gov Attorneys for Federal Defendants UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION DEFENDERS OF WILDLIFE, Plaintiff, v. SALLY JEWELL, et al., Defendants, and FIRST SOLAR, INC., et al., Defendant-Intervenors. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:14-CV-1656 MWF (RZx) FEDERAL DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR A TEMPORARY RESTRAINING ORDER AND/OR A PRELIMINARY INJUNCTION Hearing Date: March 31, 2014 Time: 10:00 A.M. Courtroom: 1600, 16th Floor Judge: Hon. Fitzgerald

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TABLE OF CONTENTS Page INTRODUCTION ..................................................................................................... 1 STATUTORY BACKGROUND............................................................................... 3 FACTUAL BACKGROUND .................................................................................... 4 I. II. STATELINE AND SILVER STATE SOUTH SOLAR PROJECTS............ 4 FWS'S 2013 BIOLOGICAL OPINION .......................................................... 6

STANDARD OF REVIEW ....................................................................................... 8 ARGUMENT. ............................................................................................................ 9 I. PLAINTIFF IS NOT LIKELY TO SUCEED ON ITS ESA CLAIMS. ......................................................................................................... 9 A. B. C. D. II. III. FWS's Analysis Of Desert Tortoise Connectivity Is Sound. .............. 10 FWS's Analysis Of Translocation Activities Is Sound. ...................... 15 FWS Rationally Evaluated The Current Status Of The Desert Tortoise And Its Habitat In The Ivanpah Valley................................. 18 Plaintiff Has Not Supported Its Request For Preliminary Relief. ....... 19

PLAINTIFF HAS NOT PROVEN THAT IRREPARABLE HARM IS LIKELY IN THE ABSENCE OF RELIEF. ............................................. 20 THE BALANCING OF HARMS AND THE PUBLIC INTEREST DO NOT SUPPORT PLAINTIFF'S REQUEST FOR EMERGENCY RELIEF. ............................................................................... 24

CONCLUSION ........................................................................................................ 25

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TABLE OF AUTHORITIES CASES PAGE Alabama v. U.S. Army Corps of Engrs, 424 F.3d 1117 (11th Cir. 2005) ..............10 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) .................9 Az. Cattle Growers Ass'n v. Salazar, 606 F.3d 1160 (9th Cir. 2010).....................15 Caribbean Marine Serv. v. Baldrige, 844 F.2d 668 (9th Cir. 1988) .......................22 Conservation Congress v. U.S. Forest Serv., 720 F.3d 1048 (9th Cir. 2013) .......8, 9 Conservation Congress v. U.S. Forest Serv., 803 F.Supp.2d 1126 (E.D. Cal. 2011) .............................................................................................25 Defenders of Wildlife v. Salazar, 812 F. Supp. 2d 1205 (D. Mont. 2009) ..............21 Gifford Pinchot Task Force v. FWS, 378 F.3d 1059, 1066 (9th Cir. 2004) ............19 Humane Society of the U.S. v. Locke, 626 F.3d 1040 (9th Cir. 2010) .....................13 Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) ........................... 9, 20 League Of Wilderness Defenders v. Allen, 615 F.3d 1122 (9th Cir. 2010) .............20 Leiva-Perez v. Holder, 640 F.3d 962, 967-968 (9th Cir. 2011) ......................... 9, 10 Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) ...................................................21 Munaf v. Geren, 553 U.S. 674, 689-90 (2008) ..........................................................8 Natl Wildlife Fedn v. Burlington N.R.R., 23 F.3d 1508, 1512, n.8 (9th Cir. 1994) ...............................................................................................20 Natl Wildlife Fedn v. Natl Marine Fisheries Serv., 422 F.3d 782, 796 (9th Cir. 2005) ........................................................................................ 20, 21 Natl Wildlife Fedn v. Natl Marine Fisheries Serv., 524 F.3d 917, 930-31 (9th Cir. 2008) ...............................................................................................19

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Natural Res. Def. Council v. Kempthorne, 525 F. Supp. 2d 115 D.D.C. 2007) ......25 Nken v. Holder, 556 U.S. 418, 420 (2009) ..............................................................24 N. Alaska Envtl Crt. v. Kempthorne, 457 F.3d 969, 981 (9th Cir. 2006) ...............15 Nw. Ecosystem Alliance v. FWS, 475 F.3d 1136, 1140 (9th Cir. 2007) ....................9 Nw. Envtl Defense Ctr. v. Natl Marine Fisheries Serv., 647 F. Supp. 2d 1221, 1237 (D. Or. 2009).........................................................................................19 Nw. Envtl. Def. Ctr. v. U.S. Army Corps of Engineers, 817 F. Supp. 2d 1290, 1315 (D. Or. 2011)..................................................................................................21 Oceana v. Evans, 384 F.Supp.2d 203 (D.D.C. 2005) ..............................................19 Or. Natural Desert Assn v. Jewell, 12-cv-596, 2013 WL 5101338, *10-*11 (D. Or. Sept. 11, 2013)) .................................................................................13 Oregon Trollers Assn v. Gutierrez, 452 F.3d 1104, 1121 (9th Cir. 2006) .............18

Pac. Coast Fedn of Fishermens Assns v. Gutierrez, 606 F. Supp. 2d 1195 (E.D. Cal. 2008) .............................................................................................21 16
17

Pyramid Lake Paiute Tribe of Indians v. U.S. Dept of Navy, 898 F.2d 1410 (9th Cir. 1990) .................................................................................................4 18
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San Luis & Delta-Mendota Water Authority v. Jewell, ---F.3d---, 20 2014 WL 975130 (9th Cir. Mar. 13, 2014) .................................................2, 9
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Sports Form, Inc. v. United Press Intl., Inc., 686 F.2d 750 (9th Cir. 1982) ..........20 Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982) ....................................24 Western Watersheds Project v. Salazar, 692 F.3d 921, 923 (9th Cir. 2012)...... 1, 25

Western Watersheds Project v. Salazar, -- F.Supp.2d --, 2012 WL 10218460 26 (C.D. Cal. 2012).............................................................................................22
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Winter v. Natural Res. Def. Council, 555 U.S. 7, 22 (2008) ........................ 8, 20, 24

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STATUTES 5 U.S.C. 706. ...........................................................................................................9 16 U.S.C. 1531 et seq.................................................................................................3 16 U.S.C. 1532(6), (20) ..........................................................................................3 16 U.S.C. 1532(19) .................................................................................................3 16 U.S.C. 1536(a)(2) ...............................................................................................3 16 U.S.C. 1536(b)(3)(A) .........................................................................................3 16 U.S.C. 1536(b)(4)(i), (ii), (iv) ............................................................................3 16 U.S.C. 1538(a)(1) ..................................................................................................3 42 U.S.C. 4321-4370 ............................................................................................2 FEDERAL REGULATIONS 50 C.F.R. 402.02 .....................................................................................................7 50 C.F.R. 402.14(g)(2), (3) .....................................................................................3 50 C.F.R. 402.14(g)(4) ............................................................................................3 50 C.F.R. 402.16(b) ..............................................................................................15 51 Fed. Reg. 19926, 19928 (June 3, 1986) ................................................................3 55 Fed. Reg. 12,178 (Apr. 2, 1990) ...........................................................................6 59 Fed. Reg. 5,820 (Feb. 8, 1994) .............................................................................7

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TABLE OF ACRONYMS ACEC APA BiOp BLM DWMA ESA EIS FWS ITS LSTS LUA MW NEPA ROD ROW SSS SSFP Areas of Critical Environmental Concern Administrative Procedure Act Biological Opinion Bureau of Land Management Desert Wildlife Management Areas Endangered Species Act Environmental Impact Statement U.S. Fish and Wildlife Service Incidental Take Statement Large Scale Translocation Site Lifetime Utilization Area Megawatt National Environmental Policy Act Record of Decision Right-of-Way Grant Silver State South solar project Stateline Solar Farm Project ADMINISTRATIVE RECORD CITATION FORMAT References to FWSs Administrative Record excerpts (ECF 32) are referred to as FWS AR X at YYY, where X refers to the document number on the index, and YYY refers to the documents bates number. FWS record documents cited in the opposition are also attached as Exhibits to the Declaration of Michael R. Eitel, filed herewith. BLMs Administrative Record excerpts (ECF 32) for the Stateline Solar Farm Project are cited at SSFP AR X at YYY, and the Administrative Record excerpts for the Silver State South solar project are cited as SSS AR X at YYY. The citation formats follow the same citation convention as FWSs Administrative Record excerpts.

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INTRODUCTION Promoting renewable energy on public lands is one of this Nations highest priorities,1 and the Silver State South and Stateline solar projects challenged in this case reflect the countrys strategy to foster the responsible development of renewable energy projects. Declaration of Amy Lueders (Lueders Decl.) 6-9; Declaration of James G. Kenna (Kenna Decl.) 3-6. The Stateline project will be a 1,685-acre, 300-megawatt (MW) solar photovoltaic facility in San Bernardino County, California, while the Silver State South project will be a 2,427-acre, 250-MW solar photovoltaic facility in Clark County, Nevada. The projects will generate enough renewable electricity to power 170,000 homes, offset hundreds of thousands of metric tons of greenhouse gas emissions annually, and advance other important Federal, State, and local interests. Lueders Decl. 10; Kenna Decl. 7; W. Watersheds Project v. Salazar, 692 F.3d 921, 923 (9th Cir. 2012) (court properly evaluated the Federal governments goal of increasing the supply of renewable energy and Californias aim of reducing fossil fuel use). Balanced against these national and public interests are Plaintiffs claims that the projects will threaten the long-term survival and recovery of the Mojave desert tortoise a theory that simply is not borne out by the best available scientific data, the U.S. Fish and Wildlife Services (FWS) expert biological opinion (BiOp) on the solar projects, FWSs experts, or other experts in the field. See Declaration of Michael Fris (Fris Decl.) 2-6, 50-58; Declaration of Dr. Kenneth Nussear (Nussear Decl.) 4-14. In every respect, Plaintiffs arguments that the projects will significantly impair desert tortoise reproduction, numbers, and connectivity in the Ivanpah Valley are not consistent with the facts or the best available scientific data on these issues. Plaintiffs claims of immediate, irreparable harm do not withstand scrutiny. See White House Issues, www.whitehouse.gov/issues/energy-and-environment.
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Plaintiff also has failed to show a likelihood of success on any of its Endangered Species Act (ESA) claims. During the Bureau of Land Managements (BLM) open and transparent environmental review processes conducted under the National Environmental Policy Act (NEPA) (42 U.S.C. 4321-4370), the environmental effects of the solar projects were scrutinized. As a result, BLM decreased the size of both projects and required the projects to implement numerous mitigation measures to, among other things, protect desert tortoises. BLM further consulted with the expert wildlife agency, FWS, to ensure that the solar projects fully complied with the ESA. FWS, in turn, rationally applied its institutional expertise and performed a reasoned and critical analysis of the likely effects of the projects on desert tortoise. Ultimately, FWS issued a BiOp concluding that the ESAs requirement to avoid taking actions that are likely to jeopardize the continued existence of listed species was satisfied in this case. Judged against FWSs BiOp, Plaintiffs arguments that it has established a likelihood of success on its ESA claims fall short. As demonstrated below, it is readily apparent Plaintiff simply disagrees with FWSs determinations that the projects are not likely to jeopardize the desert tortoise, thereby inviting this Court to second-guess the agency in an area in which the agency has substantial expertise. As the Ninth Circuit has made clear, such a challenge to FWSs expert analysis does not establish an ESA violation. San Luis & Delta-Mendota Water Auth. v. Jewell, ---F.3d---, 2014 WL 975130, at *9-*10, *26 (9th Cir. Mar. 13, 2014) ([T]hat some or many [experts] would disapprove [of the FWSs] approach does not answer the question presented to us. In reviewing [the FWSs BiOp], we do not sit as a panel of referees on a professional [scientific] journal, but as a panel of generalist judges obliged to defer to a reasonable judgment by an agency acting pursuant to congressionally delegated authority.) (citation omitted). At bottom, Plaintiff has failed to establish any of the elements that are necessary to warrant a preliminary injunction, and its motion should be denied.
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STATUTORY BACKGROUND One of the many laws governing BLMs issuance of right-of-way (ROW) grants for the solar projects is the ESA, 16 U.S.C. 1531 et seq. The ESA provides for the listing of a species as either a threatened species or an endangered species. Id. 1532(6), (20) (definitions of threatened and endangered species). Once listed, a species is subject to the ESAs protections, such as the consultation provisions discussed below, and the general prohibition against take in Section 9, id. 1538(a)(1), 1532(19) (defining take). Under Section 7(a)(2) of the ESA, each Federal agency is required to insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of a species critical habitat. Id. 1536(a)(2). To satisfy this obligation, the action agency (here, BLM) consults with the expert wildlife agency (here, FWS) on the likely effects of its proposed actions. Id. During the consultation, FWS reviews the best available scientific data and evaluates the current status of the listed species or critical habitat and the effects of the [proposed agency] action and cumulative effects on the listed species or critical habitat. 50 C.F.R. 402.14(g)(2), (3). Ultimately, FWS formulates its [BiOp] as to whether the [proposed agency] action, taken together with cumulative effects, is likely to jeopardize the continued existence of listed species. Id. 402.14(g)(4); 16 U.S.C. 1536(b)(3)(A).2 The consultation process provides the action agency with an expert opinion, 16 U.S.C. 1536(b)(3)(A), to assist the Federal agencies in conforming their proposed actions to the requirements of Section 7, 51 Fed. Reg. 19926, 19928
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If FWS finds the action is not likely to jeopardize listed species, it then issues an incidental take statement (ITS) that includes, inter alia, terms and conditions to 27 minimize the impact of incidental take. 16 U.S.C. 1536(b)(4)(i), (ii), (iv). If the action agency complies with the terms and conditions, any takings that result from 28 the action are exempt from Section 9s take prohibition. Id. 1536(o)(2).
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(June 3, 1986). Where FWSs BiOp concludes that the proposed action is not likely to jeopardize listed species, the action agency may proceed with the action in compliance with the ESA. Pyramid Lake Paiute Tribe of Indians v. U.S. Dept of Navy, 898 F.2d 1410, 1415-16 (9th Cir. 1990) (affirming agencys reasonable reliance on a BiOp to satisfy its ESA obligations). FACTUAL BACKGROUND I. STATELINE AND SILVER STATE SOUTH SOLAR PROJECTS On February 14, 2014, BLM issued two separate Records of Decision (RODs) approving ROWs for the Silver State South and Stateline projects, as well as land use plan amendments that secure increased protection of desert tortoise habitat in large areas adjacent to the ROWs. SSS AR 2; SSFP AR 1. The Silver State South ROD approved a 30-year ROW for a 2,427-acre, 250-MW solar photovoltaic project and associated infrastructure. SSS AR 2 at 004, 026. The ROD also approved a land use plan amendment that designated a 31,859acre conservation area adjacent to the ROW. Id. The Stateline ROD similarly approved a 30-year ROW for a 1,685-acre, 300-MW solar photovoltaic project and associated infrastructure. SSFP AR 1. The Stateline ROD also expanded an existing desert tortoise conservation area by 23,821 acres, to 58,104 acres a 55% increase in size. Id. at 010; FWS AR 31 at 4070-71 (maps of designations). BLMs RODs culminated multi-year decision-making processes. As part of the review processes, numerous Federal, State, and local entities thoroughly evaluated and considered numerous alternatives to the proposed projects, as well as every facet of the projects impacts on the human and natural environments. SSS AR 2 at 005; SSS AR 4 at 460-65 (considering five project alternatives); SSFP AR 3 at 380-81 (considering seven project alternatives). BLMs reviews further benefited from multiple opportunities for public review and input. BLM held 9 public meetings, received over 460 comments, resolved 19 protests, and responded to each of the comments received. See SSS AR 2 at 005-07, 251-92; SSS AR 5 at
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998; SSFP AR 1 at 005, 019-20; SSFP AR 10. For both projects, a significant component of BLMs review focused on reducing and minimizing environmental impacts, including reducing the footprint of the projects. These modifications were specifically made to reduce the environmental impacts of the projects,3 and BLMs focus on protecting environmental resources is reflected by the extensive, mandatory protection and mitigation actions incorporated into the RODs and ROWs. SSS AR 2 at 28-44; SSFP AR 1 at 157-206. Many of these measures are directed at conservation of desert tortoises, such as the mandatory use of FWS-approved desert tortoise biologists during all aspects of project construction and operation, as well as detailed requirements for surveying, handling, and translocating desert tortoises. FWS AR 1 at 10-19; SSS AR 2 at 39-41; SSFP AR 1 at 157-206. BLM also adopted numerous conservation actions to offset adverse effects on desert tortoise. The Silver State South project is required to spend over $7.2 million to: (1) conduct health and genetic testing at the Large Scale Translocation site (LSTS);4 (2) if feasible, either remove or reconfigure the LSTS fence to improve tortoise connectivity, or erect desert tortoise fencing to reduce mortality; (3) fund restoration work of 400 acres of roads and disturbed areas; (4) fund law enforcement activities in adjacent habitat for three years; (5) fund a study to assess the impacts of dust on desert tortoises; and (6) perform other conservation actions. FWS AR 1 at 20-21; SSS AR 2 at 39-41; see also FWS AR 1 at 20 (Stateline project conservation actions, including retirement of a 53,000-acre grazing See Declaration of Mark Slaughter (Slaughter Decl.) 3-14 (describing refinements to the Silver State South project in response to resource protection concerns); Declaration of Amy L. Parker (Parker Decl.) 3-16 (similarly describing protective and responsive actions taken for the Stateline solar project). 4 The LSTS is located west of Interstate 15 (I-15); it is a fenced, 28,000-acre site used as a relocation area for desert tortoises affected by, inter alia, development in and around Las Vegas, Nevada. FWS AR 1 at 37. The LSTS study would determine whether the fence can be removed and connectivity improved in this area. Id. at 20.
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allotment, 40,000 acres of which are in tortoise habitat, and restoration and fencing actions to improve habitat and reduce mortality). Based on the agency coordination and environmental reviews contained in BLMs Environmental Impact Statements (EISs), RODs, and other analyses, BLM determined that granting the ROWs for the solar projects contributes to the public interest in developing renewable power to meet State and Federal renewable energy goals. SSS AR 2 at 025. BLM further determined that, with the extensive mitigation and compensation requirements, the ROWs will protect environmental resources and comply with environmental laws. Id. These decisions are based on comprehensive environmental analysis and full public involvement, and [t]hese decisions reflect careful balancing of many competing public interests in managing lands. Id.; Lueders Decl. 9-18; Kenna Decl. 7-16. BLM has issued separate ROW grants for both solar projects. Lueders 2021; Kenna 18-19. Construction activities are expected to last two to four years, and the first activities to occur will be erecting desert tortoise exclusion fencing around the project sites, followed by pre-construction clearance surveys and translocation of desert tortoises located within the project sites. Id.; FWS AR 1 at 004-09, 014-21. Desert tortoises would be translocated pursuant to the strict set of requirements to minimize the potential for mortality as specified in the RODs, ROW grants, and the BiOp, as well as in the translocation plans. FWS AR 1 at 014-21, 55, 59-60; FWS AR 28, 32. II. FWSS 2013 BIOLOGICAL OPINION In reviewing and evaluating the ROW grants, BLM consulted with FWS on the likely effects of the projects on the Mojave desert tortoise, a species that was listed as threatened in 1990. 55 Fed. Reg. 12,178 (Apr. 2, 1990).5 The solar
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Desert tortoises are large, herbivorous (plant-eating) reptiles well adapted to living in highly variable and often harsh desert environments. FWS AR 1 at 82. 27 They spend much of their lives in burrows, even during seasons of activity, can live 28 over 50 years in the wild, and have low reproductive rates during a long period of
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projects fall within the Eastern Mojave Recovery Unit, FWS AR 107 at 8165, which includes over 7,300 square miles of conservation areas (such as desert wildlife management areas (DWMAs), areas of critical environmental concern (ACECs), National Park Service lands, wilderness areas, and designated critical habitat). FWS AR 31 at 4048-49.6 The Ivanpah Valley contains over 328,000 acres of tortoise habitat. FWS AR 1 at 32, 82. Neither project is located in designated critical habitat, DWMAs, or other conservation areas established for the desert tortoise. See FWS AR 33 at 4116-17; FWS AR 23 at 2823-24. Through monitoring and survey efforts, it is estimated that the Ivanpah Valley contains approximately 4,572 large (over 160 millimeters) tortoises. FWS AR 1 at 56; id. at 45-46. Utilizing pre-project survey data, FWS estimates no more than 115 large tortoises are located on the Silver State South project (20 actually detected), and no more than 94 large tortoises are located on the Stateline project (14 actually detected). Id. at 46-48. First Solar also located and monitored tortoises in a larger study area surrounding each project site, identifying tortoises, use locations, burrows, and other data to inform assessment of tortoise occupancy and movement. See FWS AR 33 at 4140, 4142; FWS AR 23 at 2836. To ensure an appropriately rigorous, consistent, and comprehensive analysis, FWS considered both the Silver State South and Stateline projects together in a single BiOp. FWS AR 1 at 2. FWSs analysis centered on determining whether the solar projects are likely 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 (defining to jeopardize).

reproductive potential. See FWS AR 103 at 7919-20, 7924, 7929-30. FWS has designated over six million acres of land as critical habitat, 59 Fed. Reg. 5,820 (Feb. 8, 1994), and FWS issued a revised recovery plan in 2011 identifying five tortoise 26 recovery units that are used to prioritize recovery efforts. FWS AR 107 at 8161. 6 A DWMA is a BLM land-use designation for areas managed for the conservation 27 of desert tortoise, and an ACEC is a land-use designation that focuses on resource 28 protection (such as the protection of desert tortoises). FWS AR 107 at 8129.
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Following a complete analysis of the projects effects and the best available scientific data, FWS found that the projects are not likely to appreciably reduce the reproduction, numbers, or distribution of the desert tortoise. FWS AR 1 at 82-85. Among other things, FWS explained that tortoises on the project sites will be relocated pursuant to protective measures and proven protocols and that only a few large tortoises are likely to be killed. Id.; Fris Decl. 34. The mitigation and conservation requirements also are likely to prevent more individuals from being killed than are likely to be killed during project activities. FWS AR 1 at 79, 82. The solar projects reduce habitat for desert tortoise only to a limited degree (0.08% of the recovery units suitable habitat), and the projects are not likely to impair connectivity between populations in the Ivanpah Valley, given the protections secured for corridor habitat with the project approvals. Id. at 84. Through analysis of these and other factors, FWS concluded that the projects are not likely to appreciably reduce the reproduction, numbers, or distribution of desert tortoise in the Ivanpah Valley, the recovery unit, or range-wide. Id. at 82-88. Accordingly, FWS reasonably concluded, based on the best available scientific data, that the solar projects are not likely to jeopardize the continued existence of the desert tortoise, as required by the ESA. Fris Decl. 2-6. STANDARD OF REVIEW Emergency relief issued before the merits of a case have been decided is an extraordinary and drastic remedy, Munaf v. Geren, 553 U.S. 674, 689-90 (2008), that may only be awarded upon a clear showing that the plaintiff is entitled to such relief, Winter v. Natural Res. Def. Council, 555 U.S. 7, 22 (2008). A party seeking such preliminary relief must establish that: (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in its favor; and (4) an injunction is in the public interest. Winter, 520 U.S. at 20; Conservation Cong. v. U.S. Forest Serv.,

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720 F.3d 1048, 1054 (9th Cir. 2013) (Winter standard applies in ESA cases).7 In reviewing the likelihood of success on the merits prong of the preliminary injunction test, the Courts review is governed by the provisions of the Administrative Procedure Act (APA), 5 U.S.C. 706. Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc); Conservation Cong., 720 F.3d at 1054. Under the APA, the Courts task is simply to ensure that the agency considered the relevant factors and articulated a rational connection between the facts found and the choices made. Nw. Ecosystem Alliance v. FWS, 475 F.3d 1136, 1140 (9th Cir. 2007) (citations omitted).8 Where a reasonable basis exists for its decision, the APA requires courts to affirm[] the agency action. Id. at 1140; Lands Council, 537 F.3d at 994 (We will conclude that the [agency] acts arbitrarily and capriciously only when the record plainly demonstrates that the [agency] made a clear error in judgment.) (emphasis added). These limited and deferential principles of judicial review are particularly salient in cases, such as this, where the agency is making predictions, within its area of special expertise, at the frontiers of science, Lands Council, 537 F.3d at 993, 998; San Luis & Delta-Mendota Water Auth., 2014 WL 975130 (strongly reaffirming the deferential nature of judicial review of FWSs BiOps). ARGUMENT I. PLAINTIFF IS NOT LIKELY TO SUCCEED ON ITS ESA CLAIMS. Plaintiffs motion for extraordinary, preliminary injunctive relief is based only on its ESA claims challenging FWSs BiOp. Plaintiffs motion, however, See also Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (serious questions going to the merits, and a balance of hardships that tips sharply towards the plaintiff can support relief with a showing of likely irreparable harm); Leiva-Perez v. Holder, 640 F.3d 962, 967-968 (9th Cir. 2011) (serious questions means a substantial case for relief on the merits). 8 Under the APA, the reviewing court is to consider the agencys whole record or those parts of it brought to the courts attention by the parties. 5 U.S.C. 706(2). FWS and BLM have filed Administrative Record excerpts, and BLMs and FWSs declarations address information encompassed in the full administrative record.
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essentially ignores the BiOps findings and, instead, relies on purported inconsistencies between the BiOp and prior findings. This challenge has no merit, as the alleged inconsistencies are ones of Plaintiffs own making. Nor has Plaintiff raised any other argument demonstrating a substantial case for relief on the merits. Leiva-Perez, 640 F.3d at 967-968. A. FWSs Analysis Of Desert Tortoise Connectivity Is Sound. Plaintiffs argument that FWS failed to reasonably consider desert tortoise connectivity ignores the record in this case. In the BiOp, FWS addressed the importance of maintaining connectivity between tortoise populations in the Ivanpah Valley. FWS AR 1 at 49-55. FWS further identified the area to the east of the proposed Silver State South project as one of the remaining areas functionally providing connectivity between the populations in the southern and northern portions of the Ivanpah Valley. Id. Given the importance of this area for connectivity in the Ivanpah Valley, FWS carefully scrutinized the Silver State South projects likely effects on connectivity. Id. at 65-70; Fris Decl. 7-8.9 Desert tortoise connectivity occurs through what is called a continuousdistribution model. AR 103 at 7927-28; FWS AR 1 at 66-67. Unlike more mobile species, tortoises require continuous blocks of occupied habitat to maintain connectivity. Id.; FWS AR 119 at 9050 ([P]opulations need to be connected by areas of habitat occupied by desert tortoises.). FWS also has consistently explained that [o]ccupancy within a linkage likely depends on many site-specific factors, such as tortoise densities in the area, the length-to-width ratio of the linkage, and potential edge effects and integrity of the ecosystem surrounding the

Plaintiff does not contest FWSs connectivity analysis or findings for the Stateline project. Thus, FWSs analysis and findings in this regard are not 27 discussed herein. See Alabama v. U.S. Army Corps of Engrs, 424 F.3d 1117, 1134 (11th Cir. 2005) ([A] petitioner must demonstrate a substantial likelihood of 28 prevailing on at least one of the causes of action he has asserted.).
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corridor. FWS AR 119 at 9063; FWS AR 1 at 52.10 FWS analyzed these site-specific factors in the BiOp. FWS AR 1 at 68-70. After construction, the corridor habitat to the east of the Silver State South project would range from 1.39 to 2 miles wide and would be less than 3.65 miles long. FWS AR 1 at 69; Fris Decl. 12-14; FWS AR 33 at 4144 (Figure 10). FWS recognized this as suitable and presently occupied desert tortoise habitat. FWS AR 1 at 69; FWS AR 33 at 4140, 4142; FWS AR 32 at 4090, 4100-03. The corridor length is bounded by occupied suitable habitat to the north and south and is wide enough to accommodate areas utilized by tortoises over a lifetime (1.4 miles wide). FWS AR 1 at 52, 69; FWS AR 33 at 4140 (Figure 8); FWS AR 32 at 4100-01 (Figures 5-6). Human-disturbance (edge effects) in this corridor habitat are associated largely with the western edge of the corridor but, even there, are not likely to substantially influence the corridor habitat. FWS AR 1 at 69-70; Fris Decl. 15. Moreover, the conservation measures (land-use designations increasing protections to habitat, habitat restoration actions, increased law enforcement) are likely to improve habitat integrity and may mitigate the loss of habitat entirely, FWS AR 1 at 75-79, 80-81; Fris Decl. 16. FWS considered the relevant factors and rationally explained that connectivity is likely to be maintained in the habitat to the east of the Silver State South project. Id. at 80-81, 84-85; Fris Decl. 7-19. Plaintiff disagrees, relying largely on a single premise that FWS urged rejection of the Silver State South project in 2012 but, based on precisely the same facts, approved the Silver State South project in the BiOp. Pls. Br. at 13:8-9, 22-25 (ECF 24). Plaintiff stretches the facts too far. In 2012, FWS provided comments to BLM during its NEPA review process.
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One factor FWS considers is the size of tortoise home ranges (typically less than 220 acres) and the area a tortoise uses over its 50-80 year lifespan (a lifetime 27 utilization area or LUA). FWS AR 1 at 52. A LUA is generally described as 1.5 square miles; given fidelity to overwintering burrows, FWS discusses LUAs in 28 terms of a circular area that is 1.4 miles wide. Id.; AR 119 at 9063.
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See Declaration of Jeffrey Aardahl (Aardahl Decl.) (ECF 25) at Ex. 2. At that time, the proposed action for the Silver State South project was a 3,855-acre facility that left a 0.02-mile-wide corridor to the east, and the other alternatives being considered provided similarly restrictive corridors. Id. at 2. In this context, FWS recommended that BLM should not adopt any of the identified alternatives. Id. at 2. FWS alternatively provided that BLM could create a new or revised alternative and adopt identified mitigation actions. Id at 3. Ultimately BLM agreed with FWS. BLM did not authorize any of the project alternatives then under consideration, but instead worked with the project applicant to reduce the project footprint and widen the corridor to the east (to 1.39 to 2 miles wide), and BLM adopted all of the mitigation FWS recommended. See Slaughter Decl. 10, 13; Fris Decl. 47-49. FWS reviewed this modified 2,427-acre project, accompanied by additional mitigation, in the BiOp. FWS AR 1 at 3-21, 65. Given the developments that occurred following the 2012 comments, Plaintiffs claim that FWSs 2012 comments and the BiOp arrived at radically different conclusions on precisely the same facts is, put simply, false. Pls. Br. at 13:22-24. Equally unavailing is Plaintiffs reliance on a single sentence embedded within the 2012 comments, where FWS stated that corridor habitat should span[] up to several times the desert tortoise lifetime utilization area. Pls. Br. at 15:2516:4 (quoting Aardahl Decl. Ex. 2 at 2, 5). While FWS could have been more precise with this sentence, immediately after the quoted sentence FWS identified a 1.4-mile distance from the suitable habitat (a single LUA) as guidance for BLM in developing a new or revised solar project. Aardahl Decl. Ex. 2 at 2, Att. 13 (attaching maps with a 1.4-mile-wide buffer). In context, FWS focused its recommendation on protecting a 1.4-mile-wide corridor, which is consistent with FWSs longstanding discussion of this issue. FWS AR 1 at 69; Fris Decl. 9-10. BLM addressed every substantive issue FWS identified in 2012. Further, FWSs 2012 comments represented input issued early in a NEPA process, not an
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ESA analysis of what is needed to avoid jeopardizing listed species. Fris Decl. 47-49. Accordingly, Plaintiffs suggestion that FWSs 2012 comments undermine its formal ESA analysis (analyzing a different project) has no merit. See Or. Natural Desert Assn v. Jewell, 12-cv-596, 2013 WL 5101338, *10-*11 (D. Or. Sept. 11, 2013) (FWS comments early in a NEPA process do not render an agencys final decision arbitrary, where mitigation plans were developed, project modifications occurred, and FWSs comments were fully addressed). Plaintiffs subsidiary connectivity arguments fare no better. First, Plaintiff argues that FWSs BiOp is inconsistent with FWSs 2011 BiOp issued on the Ivanpah solar project (Ivanpah BiOp, FWS AR 108), because FWS allegedly concluded that the area between the Silver State North and the Lucy Gray Mountains was critically important and must remain. Pls. Br. at 12:24-13:6. The Ivanpah BiOp findings that Plaintiff references, however, were based on the existence of the originally proposed, three-phase, 2,966-acre Silver State project, not the smaller Silver State North project previously approved by BLM. FWS AR 108 at 8391, 8414, 8417.11 Thus, there is no conflict or inconsistency the 2010 Silver State BiOp, the Ivanpah BiOp, and the current BiOp reviewed similar projects and all determined that connectivity is likely to be maintained. AR 100 at 7871; AR 108 at 8414, 8417; FWS AR 1 at 68-70, 80-81.12 Second, Plaintiff significantly overstates the state of the science in arguing that a corridor width of more than 1.4 miles is per se necessary to provide for FWS analyzed the larger project because it had previously issued a BiOp on the original 400-MW, 2,966-acre Silver State project in 2010. FWS AR 100. Because it already completed an ESA consultation, FWSs regulations require it to consider the existence of the larger project in subsequent consultations, such as the Ivanpah BiOp. 50 C.F.R. 402.02 (under effects of the action, noting that the environmental baseline includes all proposed Federal projects in the action area that have already undergone formal section 7 consultation) (emphasis added). 12 In this regard, Plaintiffs reliance on Humane Society v. Locke, 626 F.3d 1040 (9th Cir. 2010), is inapposite, as the court there identified seemingly inconsistent findings (on the significance of an impact) between numerous formal agency decisions. Id. at 1044, 1048. Here, FWSs ESA analyses are consistent.
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connectivity among tortoise populations, citing nothing to support its assertion that there is overwhelming scientific consensus on this point. Pls. Br. at 15:10-16. In reality, there is not consensus, and scientists do not have a magic threshold at which connectivity is maintained. Nussear Decl. 4; Fris Decl. 10; AR 119 at 9063. Nor, importantly, does the science indicate that connectivity cannot be maintained in corridors less than 1.4 miles wide. As Dr. Nussear has explained, actual research data may indicate that a diameter of 0.63 to 0.86 miles might be a more appropriate estimate for a corridor width based on longer term data from a greater number of animals. Nussear Decl. 6. Further, Dr. Nussear has documented functional corridors occupied by these animals [that] are approximately 0.4 to 0.8 miles wide and 3 miles long in more inhospitable mountain passes in the Ivanpah Valley. Id. 8, Figure 2; AR 33 at 4140 (data showing tortoise occupancy in narrower habitat to the north of the project). Dr. Nussear illustrates the problem with Plaintiffs argument, as more factors than just the width of a corridor must be considered in a connectivity analysis. Here, FWS reasonably analyzed the site-specific factors that inform a connectivity analysis in the BiOp. FWS AR 1 at 67-70, 80-86; Fris Decl. 7-19.13 Finally, Plaintiff seeks to fault FWSs discussion of one of the projects mitigation requirements to fund a United States Geological Survey (USGS) study on connectivity in the Ivanpah Valley. FWS AR 1 at 18-19; FWS AR 79 (USGS study proposal); Nussear Decl. 7 (discussing his own study). FWS appropriately recognized the import of this study it will provide new information that either validates, or runs against, the conclusions reached in the BiOp. FWS AR
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Plaintiff confusingly takes issue with FWSs finding that tortoise ranges overlap and that tortoises will continue to be able to traverse occupied habitat in the corridor east of the Silver State South project. Pls. Br. at 14:21-15:4. Yet, there is nothing 26 unclear on this issue. Nussear Decl. 8 (All sites have multiple overlapping home 27 ranges, which is typical of every study site that I have ever[] worked in); AR 33 at 4142 (documenting range overlap); Fris Decl. 17 (data clearly show that home 28 ranges of desert tortoises overlap to a large degree over relatively small areas).
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1 at 80-81; Fris Decl. 19-22. That new information may come to light following a BiOp is expressly contemplated in every ESA consultation. 50 C.F.R. 402.16(b) (reinitiation regulations).14 Here, and unlike a typical ESA consultation where there is uncertainty on whether new information will arise, First Solar is required to affirmatively fund and obtain such new information in time to, if necessary, take corrective action. Fris Decl. 21-22. Rather than undermine the BiOp, this process of monitoring the effects of an action and addressing them as they arise is a fundamental part of the ESA. Id. 21; Az. Cattle Growers Ass'n v. Salazar, 606 F.3d 1160, 1164 (9th Cir. 2010) ([T]he ESA accepts agency decisions in the face of uncertainty, as the statute does not require that the FWS act only when it can justify its decision with absolute confidence.). B. FWSs Analysis Of Translocation Activities Is Sound. Plaintiff argues that FWSs analysis of translocation is flawed because it failed to confront the effects of moving desert tortoises into habitat adjacent to the Silver State South project. Pls. Br. at 18:14-15. This argument is baseless, as FWS rationally analyzed these issues. Prior to conducting any ground-disturbing activities, First Solar is required to install desert tortoise exclusion fencing around the project sites and perform preactivity clearance surveys of fence lines or work areas by FWS-approved biologists. FWS AR 1 at 59-60. Within the perimeter fencing, First Solar is required to perform surveys and translocate desert tortoises. FWS AR 1 at 59-60; FWS AR 32 at 4094 (Silver State South translocation areas); FWS AR 28 at 2922 (Stateline translocation areas). As FWS explained, these activities are expected to
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Reinitiation of consultation addresses situations where future actions differ from the [BiOp] assumptions. N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 27 981 (9th Cir. 2006). If reinitiation is required, corrective actions can be taken to address the new information, including the menu of conservation actions identified 28 in the 2011 recovery plan. AR 107 at 8180-8210; Fris 21-22.
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take (in the form of capture) up to 115 and 94 tortoises on the Silver State South and Stateline sites, respectively, FWS AR 1 at 46-47, but are not likely to result in the injury or death of more than a few large tortoises given the extensive protective requirements in place, id. at 55, 59-62.15 Contrary to Plaintiffs claims, FWS expressly analyzed densities in the recipient sites, the capacity of the habitat to support additional tortoises, and the effects of translocation on resident tortoises. FWS AR 1 at 15-16, 57-58; FWS AR 32 at 4095. Indeed, limits were placed on moving tortoises to the primary Silver State South translocation site (corridor site) specifically to avoid exceeding densities that this habitat can support (15 tortoises/square mile). Id. Translocation procedures are structured to minimize effects on resident tortoises, FWS AR 1 at 18 (release locations identified to maintain tortoise spatial distribution patterns), and the translocation sites are not confined areas likely to engender resource conflicts, id. at 57-58, 82. Only FWS-approved biologists handle tortoises; these biologists will follow health screening, disease testing, and hydration protocols and implement numerous other measures to minimize impacts to both resident and translocated animals. FWS AR 1 at 10-19; Fris Decl. 27, 29, 31, 50-53. FWS had a firm scientific basis for concluding that translocation under these protocols and protective measures is an effective tool for reducing mortality at project sites. FWS AR 1 at 85; FWS AR 107 at 8150-51 (recovery plan, finding tortoises seem to respond well to translocation and recent studies have shown initial success in translocation to be high). Plaintiff disregards how the translocation activities will occur, which does not undermine FWSs analysis. Further, in one paragraph, Plaintiff cursorily suggests that translocation causes
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FWS also estimates that there are up to 1,906 eggs and tortoises under 160 mm on the project sites. FWS AR 1 at 46-47. Some of these small tortoises and eggs 26 may be translocated; however, most are likely to be killed through construction 27 activities. The effect of the loss of eggs and small tortoises is significantly different from large tortoises, due to their already high rates of natural mortality and the 28 importance of adults to population dynamics. FWS AR 1 at 84; Fris Decl. 35-37.
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significant stress, mortality, increased predation, and reduced reproduction in the relocated tortoises. Pls. Br. at 19:5-16. Incredibly, Plaintiff simply chooses to ignore all of the peer-reviewed science that directly contradicts these claims. See Nussear Decl. 10-12; Fris Decl. 24-30. For example, the Nussear et al. 2012 study found that survivorship was not significantly different between translocated and residents; for instance, predation on tortoises occurred irrespective of whether the tortoises had been translocated. FWS AR 78 at 5828.16 The study found a slight reduction in eggs laid the first year (one less egg), but similar numbers of eggs were produced every year thereafter, id. at 5830, and no apparent change in habitat use or movements [of resident tortoises] with the addition of translocated tortoises. Id. at 5831. The Field et al. 2007 study revealed that, during harsh conditions, translocated tortoises quickly became adept at life in the wild and translocations during dry years may be acceptable because drought conditions likely affect mortality of resident and translocated tortoises similarly. FWS AR 54 at 5091. The Drake et al. 2012 study found that translocation of desert tortoises did not result in elevated stress levels relative to either resident or control animals. FWS AR 46 at 4656. FWSs findings and analysis are supported by this and other recent, peerreviewed science on the effects of translocation. See FWS AR 1 at 56-59, 82-84; Fris Decl. 24-30. Indeed, Dr. Nussear has identified the high quality, peer reviewed science FWS relied on, and he has further provided a concise discussion Many critics, like Plaintiff here, have been quick to deem translocation an unsuitable conservation tool for desert tortoises because of the impacts predators may have. FWS AR 107 at 8151. However, as FWSs recovery plan explains, because desert tortoises do appear to be suitable candidates for translocation, instances where predators have impacted translocated tortoises do not indicate that translocation should be abandoned but rather emphasize the need to address threats which impact all tortoises regardless of origin. Id. (emphasis added). FWSs guidance was applied here; the added protections to habitat adjacent to the project areas (the protective land-use designations, habitat restoration actions, fencing roads, etc.) reduce mortality sources and increase habitat integrity, factors Plaintiff also ignores entirely. FWS AR 1 at 77-81.
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of why science is not consistent with Plaintiffs litigation claims. Nussear Decl. 10-12.17 Where a party seeks to upset a multi-year environmental review process through preliminary relief, Plaintiffs tactic of ignoring scientific data that directly undercuts its arguments should be seen for what it is a tacit acknowledgement that they cannot prevail in the challenge to the BiOp. Or. Trollers Assn v. Gutierrez, 452 F.3d 1104, 1120 (9th Cir. 2006) (Bereft of any contrary science, plaintiffs bare allegation that the agencys distinction conflicts with the best scientific evidence available fails.). C. FWS Rationally Evaluated The Current Status Of The Desert Tortoise And Its Habitat In The Ivanpah Valley. As a final argument, Plaintiff disputes that FWS developed the appropriate context (or baseline) in which to review the likely effects of the solar projects on desert tortoise, contending that FWS must mathematically count all prior take exempted through previous ESA consultations in the action area. Pls. Br. at 20:1419. The problem with this argument is that FWSs analysis did account for the impacts associated with prior ESA consultations, as required under the ESA. In the BiOp, FWS analyzed the status and condition of the desert tortoise and its habitat in the action area the Ivanpah Valley. FWS AR 1 at 32-45. Here, FWS expressly accounted for both the existing conditions as well as current status of desert tortoise in the Ivanpah Valley. FWS AR 1 at 35-49. These existing conditions reflect all prior actions and disturbances in the area, whether reviewed in a previous ESA consultation (other solar projects) or not (roads, golf courses, and developments). Id. Likewise, FWSs evaluation of the current status
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Plaintiff claims another inconsistency because BLM initially premised translocation on precipitation conditions. Pls. Br. at 19:25-20:11. This condition did change during the consultation, because FWS the expert agency concluded 26 that such conditions were not required. FWS AR 1 at 17, 56-58. FWSs findings 27 are supported by peer-reviewed science that translocation is not likely to cause additional mortality to tortoises depending on precipitation and drought conditions. 28 Id.; see also Nussear Decl. 11-12; Fris Decl. 28-30.
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of desert tortoise reflects all prior actions (and take) that have influenced and led to the current conditions.18 FWSs baseline analysis provided a full understanding of the present and future human and natural contexts in Ivanpah Valley, which is needed in order to properly determine whether the proposed actions will jeopardize the listed [species]. Natl Wildlife Fedn v. Natl Marine Fisheries Serv., 524 F.3d 917, 930-31 (9th Cir. 2008). Thus, Plaintiffs disagreement lies with FWSs methodology. Plaintiff would prefer that FWS instead count up prior take analyzed in prior BiOps19 and then presumably do what FWS did in the BiOp analyze the actual current status of desert tortoise in the Ivanpah Valley. FWSs methodology in analyzing the baseline, however, is owed substantial deference, Gifford Pinchot Task Force v. FWS, 378 F.3d 1059, 1066 (9th Cir. 2004), which is why courts have rejected the arguments Plaintiff advances here, see Nw. Evntl. Defense Ctr. v. Natl Marine Fisheries Serv., 647 F. Supp. 2d 1221, 1237 (D. Or. 2009) (rejecting arguments that an ESA analysis must occur like a bank account, where each project and take must be balanced); Oceana Inc. v. Evans, 384 F.Supp.2d 203 (D.D.C. 2005) (explaining that the agencys evaluation was proper even though it does not numerically add the takes from different sources together). D. Plaintiff Has Not Supported Its Request For Preliminary Relief. The errors inherent in Plaintiffs claims are apparent, and these errors highlight the broader deficiency in Plaintiffs motion. At its core, Plaintiffs arguments assert disagreement with FWSs expert findings and analyses. But the Ninth Circuit recently clarified that such disagreement is not a basis to overturn the
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For example, Plaintiff relies on take estimates described in a BiOp issued 15 years ago. Pls. Br. at 21:1-5. Yet much of this take was associated with development of lands around Las Vegas, Nevada. Aardahl Decl. Ex. 12 at 4.4. FWS 26 expressly accounted for this past take and habitat loss by explaining that tortoises no longer inhabit the area around Las Vegas. FWS AR 1 at 31, 51. 27 19 As FWS explained, the identification in a BiOp of a certain level of anticipated take does not mean that the take actually occurs. Fris Decl. 39. 28
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agencys decision, explaining that it went en banc to foreclose precisely [that] type of second-guessing of the [agency]. League of Wilderness Defenders v. Allen, 615 F.3d 1122, 1131 (9th Cir. 2010) (citing Lands Council v. McNair, 537 F.3d 981, 998 (9th Cir. 2008) (en banc)). Here, FWSs expert analysis is both extensive and reasoned. It fully examined the effects of the solar projects on tortoise habitat, connectivity, reproduction, and numbers. And FWSs analysis and findings were cogently explained and supported by the science. For these reasons, Plaintiff has not, and cannot, demonstrate any likelihood of success on the merits of its ESA claims, and its motion should be denied on this ground alone. Sports Form, Inc. v. United Press Intl., 686 F.2d 750, 753 (9th Cir. 1982). II. PLAINTIFF HAS NOT PROVEN THAT IRREPARABLE HARM IS LIKELY IN THE ABSENCE OF RELIEF. Plaintiff bears a heavy burden to show that irreparable injury is likely in the absence of an injunction. Winter v. Natural Res. Def. Council, 555 U.S. 7, 22 (2008). Plaintiff suggests this is not actually the case because ESA claims are at issue. Pls. Br. at 21:15-22:2. The Ninth Circuit, however, has always required a showing of irreparable harm in ESA cases. Natl Wildlife Fedn v. Natl Marine Fisheries Serv., 422 F.3d 782, 796 (9th Cir. 2005) (preliminary injunction requires showing of irreparable harm to a threatened species); Natl Wildlife Fedn v. Burlington N. R.R., 23 F.3d 1508, 1512, n.8 (9th Cir. 1994) (definitive threat of future harm to protected species, not mere speculation is required). Plaintiff also suggests that its burden is minimized because the take of individuals constitutes irreparable harm. Pls. Br. at 23:13-17. This, too, is wrong. [T]he ESA explicitly permits the taking of individual members of a species in some circumstances, which is why irreparable harm must be measured at the species level. Nw. Envtl. Def. Ctr. v. U.S. Army Corps of Engrs, 817 F.Supp.2d 1290, 1315 (D. Or. 2011); Defenders of Wildlife v. Salazar, 812 F. Supp. 2d 1205, 1209-10 (D. Mont. 2009) (equating take of one individual to irreparable harm
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would produce an irrational result; considering the ESAs purposes, the measure of irreparable harm is taken in relation to the health of the overall species rather than individual members). Thus, irreparable harm must be significant vis-a-vis the overall population. Pac. Coast Fedn of Fishermens Assns v. Gutierrez, 606 F. Supp. 2d 1195, 1210 & n.12 (E.D. Cal. 2008) (citing Natl Wildlife Fedn, 422 F.3d at 795). Plaintiff seeks to manufacture such species-level harm by contending that climate change will render the entire Mojave desert tortoise species extinct everywhere except the Ivanpah Valley and one other location. Pls. Br. at 22:12-15. That is, out of the over 20.5 million acres of modeled suitable habitat range-wide, FWS AR 1 at 31, the Ivanpah Valley (328,640 acres) will be one of two last refuges, such that the solar projects otherwise insignificant impacts are now suddenly significant. Id. Among other fundamental problems with this argument, see Fris Decl. 40-44, Plaintiff wholly fails to present substantial proof that its climate change predictions are actually likely to materialize.20 Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). Indeed, one of the foremost tortoise experts has developed a climate model that predicts results that do not support the Ivanpah Valley as the last stand of tortoise habitat over the next 80 years. Nussear Decl. 14. These factors show that Plaintiffs predictions of future harm are simply too speculative to constitute an irreparable harm justifying injunctive relief. Caribbean Marine Serv. v. Baldrige, 844 F.2d 668, 675 (9th Cir. 1988). For example, the proffered climate predictions are based on the work of Millstein and Menon 2011, Sinervo Decl. 7; Sinervo Ex. 2-3, which predicted local temperature increases associated with a 1-terawatt solar facility. FWS AR 1 at 73; FWS AR 72. In context, a 1-terawatt facility is 181,718% larger than the Stateline and Silver State South projects combined (550 MW), and predictions of broad scale extinctions or site-specific impacts based on a 1-terawatt facility does not fit the facts at issue here. See Fris Decl. 41-43 (We are unaware of any aspect of Millstein and Menons model or Dr. Sinervos work that would reasonably predict a 0.4C increase from heat generated by the much smaller existing and proposed solar facilities in the Ivanpah Valley, even in consideration of changes in local climate that may be driven by global climate change.).
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In any event, Plaintiff admits the Ivanpah Valley habitat will remain functional. Pls. Br. at 22:12-14. Thus, its irreparable harm arguments simply recast the merits claims that the solar projects will irreparably harm the Ivanpah Valley tortoise population. These arguments fail. First, Plaintiff points to take of large and juvenile tortoises and eggs but fails entirely to relate such impact to population-level harm. For example, the solar projects are likely to result in the loss of as many as 1,906 eggs and small tortoises, FWS AR 1 at 46-48, 83-84. Yet, as Plaintiffs own declarant explains, only a small number (e.g., two percent) of hatchlings naturally reach adulthood in the wild due to predation and other factors. Stewart Decl. 4. For this reason, protecting reproducing adults (with long reproductive capacities) is meaningful for populations and the focus of conservation efforts. FWS AR 1 at 84; Fris Decl. 50-55. Thus, Plaintiffs bare statement that eggs and juvenile tortoises will be lost fails to show any significant impact, as other courts have found, Western Watersheds Project v. Salazar, -- F.Supp.2d --, 2012 WL 10218460, *5-*6 & n.4 (C.D. Cal. 2012) (agencies were reasonable in focusing their analysis on the adult population of tortoises and the destruction of juveniles and eggs at the [solar] site was found unlikely to have a significant effect on the species overall population). Second, Plaintiff seeks to inflate the projects impacts by contending that translocation will cause additional, significant mortality. Pls. Br. at 23:1-17. As with its merits arguments, Plaintiff and its declarants simply ignore the high quality peer reviewed scientific results of translocation studies, actual conditions in the project areas, and method by which tortoises will be relocated. See Nussear Decl. 10-12; Fris Decl. 24-29. For example, Plaintiff identifies mortality of tortoises translocated at Fort Irwin, Pls. Br. at 23:2-6, but fails to address whether translocation caused such mortality, Fris Decl. 26 (referencing studies demonstrating that translocation of desert tortoises at Fort Irwin was not the cause of the high mortality rate); Nussear
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Decl. 11 (studies demonstrating that translocated and resident tortoises had similar levels of predation; [t]hus, there was no protection from naturally occurring predation by leaving animals un-translocated). Plaintiff and its declarants state, without support, that translocation impacts are exacerbated by drought conditions, even though the actual science and protective measures in place belie these assertions, see Fris Decl. 28; Nussear Decl. 10 (studies show survivorship did not differ among translocated and resident tortoises, even in years in which animals were released in drought conditions). Plaintiffs and its declarants other claims that recipient sites are at carrying capacity are similarly made without support. Fris Decl. 29-30 (The best available information indicates that the proposed translocation areas can support that density of desert tortoises expected here); Nussear Decl. 12 (scientific results are inconsistent with the assertion that tortoise populations are already at their carrying capacity, and that translocation will depress resident populations.).21 FWS fully analyzed these issues and demonstrated in the BiOp that the projects are not likely to have significant impacts to the Ivanpah Valley population. FWS AR 1 at 81-88. In stark contrast to Plaintiff and its declarants, FWSs BiOp encompasses the collective expertise of an agency whose very mission is to perform this type of scientific evaluation and analysis.22 Moreover, Dr. Nussear a tortoise expert who has extensively researched and studied translocation activities and connectivity has testified that the assumptions and statements of harm by It is also notable that neither Plaintiff nor its declarants ever identifies, let alone discusses, the numerous protective measures and protocols in place that inform the success of a translocation effort. For example, Plaintiffs declarant cites a translocation effort that occurred 20 years ago, Stewart Decl. 14, but fails to explain why such efforts are relevant given advancements in translocation efforts and the science, Fris Decl. 25; Nussear Decl. 10. 22 For example, FWSs Desert Tortoise Recovery Office focuses solely on desert tortoise and its recovery. See www.fws.gov/nevada/desert_tortoise/dtro/. The DTRO coordinates recovery planning and implementation, research, monitoring, and recovery permitting, while working closely with those [FWS] biologists working on regulatory issues. FWS AR 107 at 8118 (emphasis added).
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Plaintiff and its experts are not grounded in the best available science. Nussear Decl. 10-12. It is clear that Plaintiff has offered nothing more than speculative fears of future harm, and these allegations fall well short of showing that irreparable harm is likely in this case. Winter, 555 U.S. at 22. III. THE BALANCING OF HARMS AND PUBLIC INTEREST DO NOT SUPPORT PLAINTIFFS REQUEST FOR EMERGENCY RELIEF. The third and fourth factors, harm to the opposing party and the public interest, merge when the Government is the opposing party. Nken v. Holder, 556 U.S. 418, 435 (2009). In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction. Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982). Plaintiff seeks to avoid any discussion of the consequences of an injunction, baldly stating that Federal Defendants certainly have no overriding interest at stake. Pls. Br. at 24:11-12. This argument plainly ignores that Plaintiffs requested injunction threatens a myriad of extremely significant public interest considerations. First and foremost, Federal Defendants ensured that approval of the solar projects fully complied with the ESA, and Plaintiffs motion seeks nothing more than to usurp the discretion and expertise of the Federal agency entrusted with the responsibility to protect the desert tortoise. Fris Decl. 50-58. Second, as both the Nevada and California BLM State Directors have testified, this case implicates one of this Administrations and this Departments highest priorities, and Plaintiffs motion seeks to enjoin solar projects and protective land-use plan amendments that will benefit the nation, the State of Nevada, [the State of California,] and the Ivanpah Valley by stimulating employment, decreasing our dependence on foreign oil, bolstering our national security, reducing greenhouse gas emissions, contributing to the building the foundation of a clean energy economy and providing other economic benefits. Lueders Decl. 9; Kenna Decl. 6. The Federal agencies and countless others
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have expended immense time and effort to develop the projects and ensure they proceed responsibly, Lueders Decl. 11-12; Kenna Decl. 8-13, including promoting the protection of the desert tortoise, see Slaughter Decl. 3-14; Parker Decl. 3-16. Plaintiffs relief also threatens to eliminate BLMs designations of thousands of acres of land as conservation areas that will materially contribute to the protection of desert tortoise. Lueders Decl. 14; Kenna Decl. 15. As the courts have recognized, development of domestic energy resources is of paramount public interest, Natural Res. Def. Council v. Kempthorne, 525 F. Supp. 2d 115, 127 (D.D.C. 2007), and this factor should be considered in balancing harms and weighing the public interest, see W. Watersheds Project v. Salazar, 692 F.3d 921, 923 (9th Cir. 2012) (affirming denial of preliminary injunction where Court considered federal and state energy policy in assessing whether injunction would be in public interest).23 The significant Federal, State, and local interests furthered by these solar projects should not be disregarded, Lueders 11-18; Kenna Decl. 8-13, and Plaintiffs cursory claims that there are no countervailing interests or harms utterly fails to show that its hardship significantly outweigh[s] the hardship that an injunction would impose on the defendant, Conservation Congress v. U.S. Forest Serv., 803 F. Supp. 2d 1126, 1133 (E.D. Cal. 2011). CONCLUSION For the reasons set forth above and in the accompanying declarations and excerpts of the administrative records, Plaintiffs motion for preliminary injunctive relief should be denied. DATED: March 26, 2014
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Respectfully submitted,

As the courts also have recognized, potential economic impacts (loss of jobs, harm to local economy) disserve the public interest and, given the facts of this case, also weigh against an injunction. See W. Watersheds Project, 692 F.3d at 26 923 (affirming denial of a injunction where desert tortoise were involved, noting 27 that the lower court properly considered, inter alia, protecting jobs). Here, regionally, the projects are expected to result in nearly 700 construction jobs with 28 attendant benefits to the local economy. Lueders Decl. 13; Kenna Decl. 7.
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ROBERT G. DREHER Acting Assistant Attorney General Environment & Natural Resources Division U.S. Department of Justice MARISSA A. PIROPATO Trial Attorney, Massachusetts Bar No. 61530 U.S. Department of Justice Environment & Natural Resources Division Natural Resources Section Ben Franklin Station, P.O. Box 7611 Washington, D.C. 20044-7611 Tel (202) 305-0470 Fax (203) 305-0506 Email: Marissa.Piropato@usdoj.gov /s/ Michael R. Eitel MICHAEL R. EITEL Trial Attorney, Nebraska Bar No. 22889 U.S. Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section Environment & Natural Resources Section 999 18th Street, South Terrace, Suite 370 Denver, Colorado 80202 Tel (303) 844-1479; Fax (303) 844-1350 E-mail: michael.eitel@usdoj.gov Attorneys for Federal Defendants

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CERTIFICATE OF SERVICE I hereby certify that, on March 26, 2014, I caused to be served the foregoing through the Courts CM-ECF System, which will automatically provide service to the counsel of record. /s/ Michael R. Eitel Michael R. Eitel

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