defenders motion for injunction

5/28/2018 Defenders Motion for Injunction

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

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Donald B. Mooney (CA Bar # 153721)[email protected] Office of Donald B. Mooney129 C Street, Suite 2Davis, CA 95616530-758-2377530-758-7169 (fax)

Howard M. Crystal (D.C. Bar No. 446189)[email protected] R. Glitzenstein (D.C. Bar No. 358287)[email protected] Hac Vice applications pendingMeyer Glitzenstein & Crystal1601 Connecticut Ave., N.W., Suite 700Washington, D.C., 20009Telephone: (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, DANIELM. ASHE, Director, U.S. Fish andWildlife Service, NEIL KORNZE,Director, Bureau of Land Management,

Defendants.

FIRST SOLAR, INC., a Delawarecorporation; DESERT STATELINELLC, a Delaware limited liability

corporation; and SILVER STATESOLAR POWER SOUTH, LLC, aDelaware limited liability corporation,

Intervenors.

NO. 2:14-CV-1656-MWF-RZ

NOTICE OF MOTION ANDMOTION FOR A TEMPORARYRESTRAINING ORDER AND/OR APRELIMINARY INJUNCTION

HEARING: March 31, 2014

TIME: 10:00 A.M.

COURTROOM: 1600 16th

Fl.

JUDGE: Hon. Michael F. Fitzgerald

Case 2:14-cv-01656-MWF-RZ Document 24 Filed 03/19/14 Page 1 of 34 Page ID #:78


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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 Courts 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

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

1The right-of-way for Silver State South was signed on March 17, 2014, and theother right-of- way is anticipated shortly. Seehttp://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 (discussingtiming 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.

Plaintiffs 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 DAnne 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)[email protected]

Law Office of Donald B. Mooney129 C Street, Suite 2Davis, CA 95616530-758-2377530-758-7169 (fax)

Howard M. Crystal (D.C. Bar No. 446189)[email protected] R. Glitzenstein (D.C. Bar No.358287)[email protected] Hac Vice applications pending

MEYER GLITZENSTEIN & CRYSTAL1601 Connecticut Ave., N.W., Suite 700Washington, D.C., 20009Telephone: (202) 588-5206Facsimile: (202) 588-5049

Attorneys for Plaintiff



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

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Donald B. Mooney (CA Bar # 153721)[email protected] Office of Donald B. Mooney129 C Street, Suite 2Davis, CA 95616530-758-2377530-758-7169 (fax)

Howard M. Crystal (D.C. Bar No. 446189)[email protected] R. Glitzenstein (D.C. Bar No. 358287)[email protected] Hac Vice applications pendingMeyer Glitzenstein & Crystal1601 Connecticut Ave., N.W., Suite 700Washington, D.C., 20009Telephone: (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, DANIELM. ASHE, Director, U.S. Fish andWildlife Service, NEIL KORNZE,Director, Bureau of Land Management,

Defendants,

FIRST SOLAR, INC., a Delawarecorporation; DESERT STATELINELLC, a Delaware limited liability

corporation; and SILVER STATESOLAR POWER SOUTH, LLC, aDelaware limited liability corporation,

Intervenors.

NO. 2:14-CV-1656-MWF-RZ

MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFPLAINTIFFS MOTION FOR ATEMPORARY RESTRAINING

ORDER AND/OR A PRELIMINARYINJUNCTION

HEARING: March 31, 2014

TIME: 10:00 A.M.

COURTROOM: 1600 16th

Fl.

JUDGE: Hon. Michael F. Fitzgerald



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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

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TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ................................................................................... iii

GLOSSARY .............................................................................................................. v

INTRODUCTION ..................................................................................................... 1

BACKGROUND ....................................................................................................... 4

A. The Endangered Species Act ................................................................. 4

B. The Imperiled Desert Tortoise .............................................................. 5

C. The Ivanpah Valley ............................................................................... 7

D. Existing Threats to Desert Tortoise Habitat and Habitat Corridors ..... 8

E. The Two Additional Projects At Issue. ................................................. 9

F. The Administrative Process For Federal Approval ............................. 10

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

2. The Service Reversed Course Without Explanation. ............... 13

B. Defenders Is Likely To Succeed In Demonstrating The FWSs

Analysis Of Tortoise Relocation Impacts

Is Arbitrary And Capricious. ............................................................... 18

C. Defenders Is Likely To Succeed In Demonstrating That The

FWS Has Failed To Address The Overall Take Of Tortoises in The

Valley. ................................................................................................. 20

II. Defenders and Its Members Will Suffer Irreparable Harm. .......................... 21

III. 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

Natl 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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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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A TRO And/Or A Prelimary Injunction - v

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GLOSSARY

Aardahl Dec. Declaration of Jeffrey Aardahl, including exhibits

BA Biological Assessment

Bi-Op Biological Opinion

BLM U.S. Bureau of Land Management

Defenders Defenders of Wildlife

Dr. Stewart Dec. Declaration of Dr. Glenn Stewart

Dr. Sinervo Dec Declaration of Dr. Barry Sinervo

EIS Environmental Impact Statement

Ex. Exhibits to filed declarations

FWS U.S. Fish and Wildlife Service

Ivanpah Bi-Op The FWS;s June 10, 2011 Biological Opinion on

the Ivanpah Solar Project

Rec. Plan 2011 Desert Tortoise Recovery Plan

ROD Record of Decision

Silver State South Review Nov. 16, 2012 FWS Comments on the Draft EIS

For The Silver State South Solar Project

SSS Bi-Op The FWSs September, 30, 2013 Biological

Opinion on the Silver State South and Stateline

Solar Projects

SEIS Supplemental EIS

USGS U.S. Geological Survey



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NO. 2:14-CV-1656-MWF-RZ Pl. Mem. In Support Of Mot. ForA TRO And/Or A Prelimary Injunction- 1

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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 additionaloccupied habitat

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 itselfrecognized is necessary. SeeDeclaration 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 rejectSilver State South

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 FWSs 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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authorizedSilver 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 thefurtherdangers posed by

translocating Tortoises into the overly constricted remaining corridor, and the

failure to consider the overalltake 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. SeeDeclarations 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

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).

1 Dr. Stewart, retired from Cal. State Polytechnic, has more than forty years

of experience researching and studying species such as the Tortoise, and haspublished numerous reports and papers on the species. Dr. Stewart Dec. 1-4;Dr. Sinervo, a professor at UC Santa Cruz, also has extensive experience withthe Tortoise, and has recently completed extensive research concerning thecoming impacts of climate change on the species. Dr. Sinervo Dec. 1-6.Jeffrey Aardahl worked on public lands and species protection for the federalgovernment 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.

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.

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 necessaryin any given area to provide a sufficient habitat linkage forTortoises 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 Valleys 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 Tortoises 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

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. SeeROD for Solar Energy Devt 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 Tortoises last remaining refuges. Id. 8.



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D. Existing Threats to Desert Tortoise Habitat and Habitat Corridors

Despite the undisputed need toprotectthe 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

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 bothof 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 havefar-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 ofthis 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

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

proceeded with these two projects, preparing one Environmental Impact Statement

(EIS) to consider both Silver State North and South, and another for Stateline.

SeeAardahl 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 rejectSilver State South,

the FWS issued its Bi-Op approvingboth 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 FWSs

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).

2 In November, 2013 Defenders sent a letter of intent to sue. Aardahl Dec.Ex. 9.

3 For the merits Plaintiff is only relying on materials that were before theagencies.



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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 Valleys 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

lower number of desert tortoises remain a concern. Id.at 2. In particular, the

Service unequivocally asserted that while a singledesert 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 Tortoises 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 reasonwhy 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 rejectionof the Silver State South project.

Silver State South Review at 2; see alsoAardahl 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 onprecisely 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 largerthan the width of a [single] home range, which is 1.4 miles,



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and must therefore accommodate multiplehome 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 lessthan the measured distance between the project and the

mountains. Id.at 70 (emphasis added); id. at 79 (edge effects may reduce the

effective connectivity to less thanthe 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.

4 As the FWS also recognizes in the Bi-Op, tortoises are more likely topersist in wider linkages in periods of low resource availability, and thenarrow linkage that will remain will leave Tortoises more susceptible to localextirpation as they may be less likely to find mates, reproduce, and recolonizethe 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) (quotingMotor Vehicle

Manufacturers Assn 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 FWSs recognition in the preceding paragraphs based on an

overwhelming scientific consensus that a single lifetime utilization area is

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-sequiturto 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 FWSs conclusion is further

exacerbated by the failure to even tryto reconcile the Silver State/Stateline Bi-

Ops conclusions with the agencys formal comments submitted only months

earlier.5 Having stated unequivocally that any Silver State South alignment must

5 Importantly, FWSs Silver State South Review did not represent the viewsof a single agency employee that were subsequently disavowed by the agency.Cf.Natl Asssn of Homebuilders v.Defenders of Wildlife, 551 U.S. 644, 659



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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 referto 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,

336 F.3d 944, 955 (9th Cir. 2003), Defenders is likely to prevail on its claim that

the FWSs analysis in the Bi-Op is arbitrary and capricious.

The FWSs 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) (citingHill, 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

(2007). Rather, they were the agencys formal public position in NEPAcomments, signed by Edward Koch, a 20 year veteran of the FWS and head ofthe Nevada state office. Seehttp://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 shouldbe 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 ESAs objectives

under any scenario, e.g., H.R. Conf. Rep. No. 697, 96th Cong., 2d Sess. 12 (1979)

(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 Services ultimate jeopardy conclusion is

also arbitrary and capricious.6

6 The Service also flatly recognizes that the constricted corridor is likely toimpede recovery of the desert tortoise, at least temporarily. SSS Bi-Op at 80.



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B. Defenders Is Likely To Succeed In Demonstrating The FWSs

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

alsoAardahl 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 thatis being reduced to a single Tortoise

lifetime utilization area. Id. In short, given the FWSs acknowledgment of the

However, again, the Service purports to resolve that concern by relying on theUSGS Study, claiming that the agency will determine an appropriate course ofaction in the event the Study shows that the species recovery will be

permanently impaired. Id. This reasoning has the same flaws as the impacts onthe species survival, involving precisely the kind of speculation or surmise,

Bennett, 520 U.S. at 176, prohibited by the ESA. SeeSSS Bi-Op at 80 (claiming

that other activities may mitigate the loss of habitat and that the USGS Studyshould detect problems when they occur) (emphasis added).

The Service also purports to rely on the Tortoises long life span to assertthat there will be ample time to implement additional management measures, ifneeded. Id.at 81. But this contradicts the Recovery Plans finding that thespecies long life makes recovery of the species difficult, because [e]venmoderate 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

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

supporttranslocation 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 thatBi-Op discloses that the FWS had



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already issued more than 300Bi-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 additionalprojects 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

alsoNative 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 DAnne 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 alsoHill, 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 alsoSan Luis & Delta-

Mendota 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 speciesis 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

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 supraat 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 Socy v.

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 FWSs 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

acts procedures can we effectuate the intent of the legislature. 816 F.2d at 1384;

accord Natl Wildlife Fedn, 422 F.3d at 795 (injunctive relief may be necessary



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to effectuate Congresss 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

Plaintiffs 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 supraat 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 quoare purely economic. Such interests do not

weigh heavily, particularly since any injunction would last only until this case can

be resolved on the merits. See, e.g.South Fork Bank Counci of W. Shoshone of

Nev. v. Dept. 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. Mooney129 C Street, Suite 2

Davis, CA 95616530-758-2377530-758-7169 (fax)

Howard M. CrystalEric R. GlitzensteinPro Hac Vice applications pending

MEYER GLITZENSTEIN & CRYSTAL1601 Connecticut Ave., N.W., Suite 700Washington, D.C., 20009Telephone: (202) 588-5206

Facsimile: (202) 588-5049

Attorneys for Plaintiff

Defenders of Wildlife


defenders motion for injunction

Documents

defenders motion

mwfrz motion

present motion

motion andmotion

motion for1the

solar companies

mwfrz document

page id