Center for Biological Diversity v. U.S. Fish & Wildlife Service

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CENTER FOR BIOLOGICAL No. 12-17530
DIVERSITY,
Plaintiff-Appellant, D.C. No.
3:10-cv-00521-
v. ECR-WGC

U.S. FISH & WILDLIFE SERVICE;
SALLY JEWELL, Secretary of the OPINION
Interior,
Defendants-Appellees,

SOUTHERN NEVADA WATER
AUTHORITY; COYOTE SPRINGS
INVESTMENT, LLC,
Intervenor-Defendants–Appellees.

Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Jr., Senior District Judge, Presiding

Argued and Submitted
April 11, 2014—San Francisco, California
Submission Vacated June 24, 2014
Resubmitted for Decision September 9, 2015

Filed September 17, 2015
2 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS

Before: Mary M. Schroeder and Consuelo M. Callahan,
Circuit Judges, and Robert W. Pratt, Senior District Judge.*

Opinion by Judge Pratt

SUMMARY**

Environmental Law

The panel affirmed the district court’s summary judgment
in favor of the U.S. Fish and Wildlife Service and intervenors
Southern Nevada Water Authority and Coyote Springs
Investment, LLC in an action brought by the Center for
Biological Diversity challenging the Fish and Wildlife
Service’s Biological Opinion which determined that the
execution of a Memorandum of Agreement, concerning a
groundwater pump test in Nevada, would not jeopardize the
Moapa dace, an endangered species.

The panel held that the Center for Biological Diversity
had standing.

The panel rejected the Center for Biological Diversity’s
challenges to the Biological Opinion. Specifically, the panel
found no evidence in the record that the Fish and Wildlife
Service relied on improper factors, failed to consider

*
The Honorable Robert W. Pratt, Senior District Judge for the U.S.
District Court for the Southern District of Iowa, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 3

important aspects of the problem, offered explanations for its
decision that were counter to the evidence before it, or
offered implausible explanations for its decision. The panel
held that the Fish and Wildlife Service’s determination that
its participation in the Memorandum of Agreement would not
cause jeopardy to the Moapa dace was not arbitrary,
capricious, or in violation of the Endangered Species Act.

COUNSEL

John Buse (argued) and Lisa Belenky, Center for Biological
Diversity, San Francisco, California; William J. Snape, III,
Center for Biological Diversity, Washington, D.C., for
Plaintiff-Appellant.

Ignacia S. Moreno, Assistant Attorney General, James J.
Dubois, Coby Howell, Ellen J. Durkee, and Nina C.
Robertson (argued), United States Department of Justice,
Environment & Natural Resources Division, Washington,
D.C., for Defendants-Appellees United States Fish & Wildlife
Service and Sally Jewell.

Murray D. Feldman (argued), Holland & Hart, Boise, Idaho;
Craig D. Galli, Holland & Hart, Salt Lake City, Utah; Dana
R. Walsh, Southern Nevada Water Authority, Las Vegas,
Nevada, for Intervenor-Defendant–Appellee Southern
Nevada Water Authority.

Kirk B. Lenhard, Scott M. Schoenwald, and Bradley J.
Herrema, Brownstein Hyatt Farber Schreck, LLP, Las Vegas,
Nevada, for Intervenor-Defendant–Appellee Coyote Springs
Investment, LLC.
4 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS

OPINION

PRATT, District Judge:

This case concerns Defendant-Appellee U.S. Fish and
Wildlife Service’s (“FWS”) decision to enter into a
Memorandum of Agreement (“MOA”) with several non-
federal entities who were subject to a Nevada State Order
mandating a groundwater pump test. FWS anticipated that
the pump test may affect an endangered species, the Moapa
dace, and worked with the parties to obtain an agreement to
implement a variety of conservation measures in advance of
the groundwater pump test. FWS conducted a formal
consultation under the Endangered Species Act (“ESA”),
16 U.S.C. § 1531 et seq., and determined in a Biological
Opinion (“Biop”) that FWS’s execution of the MOA would
not jeopardize the Moapa dace. Plaintiff-Appellant Center
for Biological Diversity (“CBD”) challenged the Biop and the
district court granted summary judgment in favor of FWS and
Intervenors-Defendants-Appellees Southern Nevada Water
Authority (“SNWA”) and Coyote Springs Investment, LLC
(“CSI”).

In this opinion, we resolve a challenge by FWS and
Intervenors to CBD’s standing. Because we conclude that
CBD does have standing, we also resolve CBD’s claims that
the Biop was arbitrary and capricious because: (1) it
unlawfully relies on conservation measures that are
inadequate and unenforceable; (2) it was not based on the best
available scientific information; and (3) it failed to evaluate
all foreseeable consequences of the proposed action. We
reject CBD’s challenges to the Biop and affirm the district
court’s grant of summary judgment.
 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 5

I. BACKGROUND

A. The Statutory Scheme

The ESA “is a comprehensive scheme with the broad
purpose of protecting endangered and threatened species.”
Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt.,
698 F.3d 1101, 1106 (9th Cir. 2012) (hereinafter “BLM”)
(citation and internal quotation marks omitted). This case
centers on two provisions central to the ESA’s protections:
section 9, which imposes a blanket prohibition on the “take”
of any endangered species,1 16 U.S.C. § 1538(a)(1)(B), and
section 7, which “imposes an affirmative duty to prevent
violations of Section 9 upon federal agencies.” Ariz. Cattle
Growers’ Ass’n v. FWS, 273 F.3d 1229, 1238 (9th Cir. 2001)
(citing 16 U.S.C. § 1536(a)(2)).

Section 7(a)(2) of the ESA requires every federal agency
to “insure that any action authorized, funded, or carried out
by such agency . . . is not likely to jeopardize the continued
existence2 of any endangered species or threatened species or
result in the destruction or adverse modification of [critical]

1
“The term ‘take’ means to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect, or to attempt to engage in any such conduct.”
16 U.S.C. § 1532(19). The ESA’s implementing regulations define
“harm” as “an act which actually kills or injures wildlife. Such act may
include significant habitat modification or degradation where it actually
kills or injures wildlife by significantly impairing essential behavioral
patterns, including breeding, feeding, or sheltering.” 50 C.F.R. § 17.3.
2
“Jeopardize the continued existence of means to engage in an action
that reasonably would be expected, directly or indirectly, 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.
6 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS

habitat of such species.” 16 U.S.C. § 1536(a)(2); 50 C.F.R.
§ 402.14(a). To achieve this substantive requirement, section
7 and its implementing regulations impose specific
procedural duties on federal agencies. “Each Federal agency
shall review its actions at the earliest possible time to
determine whether any action may affect listed species or
critical habitats.” 50 C.F.R. § 402.14(a). If the agency
determines that its action “may affect” a listed species or
habitat, it must engage in informal or formal consultation
with the Secretary of the Interior or his designee—in this
case, FWS.3 San Luis & Delta-Mendota Water Auth. v.
Jewell, 747 F.3d 581, 596 (9th Cir. 2014); see also 16 U.S.C.
§ 1536(a)(4); 50 C.F.R. § 402.14. If informal consultation
results in a written agreement between the action agency and
the consultation agency that the proposed action “is not likely
to adversely affect” any endangered or threatened species, no
further action is necessary. 50 C.F.R. § 402.14(b)(1).
However, if at any point FWS concludes that the proposed
action is “likely to adversely affect” a listed species or critical
habitat, formal consultation is required. Jewell, 747 F.3d at
596; 50 C.F.R. §§ 402.13, 402.14.

During formal consultation, the FWS is obligated to use
the “best scientific and commercial data available,” 16 U.S.C.
§ 1536(a)(2), to “evaluate[] the effects of the proposed action
on the survival of [the] species and any potential destruction
or adverse modification of critical habitat.” Nat’l Wildlife
Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917, 924 (9th
Cir. 2008) (citing 16 U.S.C. § 1536(b)). At the conclusion of
the formal consultation process, FWS must provide a
biological opinion setting forth a summary of the information
on which the opinion is based, a detailed discussion of the

3
FWS is both the action agency and the consultation agency in this case.
 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 7

effects of the agency action on the listed species, and an
opinion as to whether the proposed agency action, “taken
together with cumulative effects, is likely to jeopardize the
continued existence of listed species or result in the
destruction or adverse modification of critical habitat.”
16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. §§ 402.14(g)(4),
(h)(1)–(3). “If jeopardy . . . is found, [FWS] shall suggest
those reasonable and prudent alternatives which [it] believes
would not violate [§ 7(a)(2)] and can be taken by the . . .
applicant in implementing the agency action.” 16 U.S.C.
§ 1536(b)(1)(B)(3)(A). If it is determined that neither
jeopardy nor adverse modification is likely, FWS “can issue
an ‘Incidental Take Statement’ which, if followed, exempts
the action agency from the prohibition on takings found in
Section 9 of the ESA.” Nat’l Wildlife Fed’n, 524 F.3d at
924–25 (footnote omitted); 16 U.S.C. § 1536(b)(4).

B. The Moapa dace

The Moapa dace is a small, thermophilic fish found only
in the Muddy River, and particularly in the warmer waters of
the upper springs and tributaries of the Warm Springs area in
Southeastern Nevada. Biop at 14–15. Reproduction occurs
year-round and is confined to the upper, spring-fed tributaries
where water temperatures vary from 84.2 to 89.9 degrees
Fahrenheit. Id. at 15. Juveniles are found almost exclusively
in the spring-fed tributaries, whereas adults, who have the
greatest tolerance to cooler water temperatures, are also found
in the mainstream of the Muddy River. Id.

The Moapa dace, a member of the North American
minnow family, Cyprinidae, was listed as endangered under
the Endangered Species Preservation Act of 1966 on March
11, 1967, and has been protected by the ESA since its
8 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS

inception in 1973. Native Fish & Wildlife, 32 Fed. Reg.
4001. Though critical habitat has not been designated for the
species, FWS has assigned the Moapa dace the highest
recovery priority because it is the only species in the genus
Moapa, there is high degree of threat to its continued
existence, and there is a high potential for its recovery. Biop
at 14. Primary threats to the dace include non-native fishes,
parasites, habitat loss from water diversions and
impoundments, fire due to encroaching non-native plant
species, and reductions to surface spring-flows resulting from
groundwater development, which reduces spawning, nursery
habitats, and the food base for the dace. Id. at 15.

In 1979, 106 acres of springs and wetlands located in the
Warm Springs Area of the Upper Moapa Valley were
designated as the Moapa Valley National Wildlife Refuge
(“MVNWR”) for the protection of the endangered Moapa
dace. Id. at 17–18. The thermal headwaters of the springs on
the MVNWR are some of the most productive Moapa dace
spawning habitat in the area. Id. at 18. The MVNWR
consists of three units encompassing the major spring groups:
the Pedersen Unit, the Plummer Unit, and the Apcar Unit
(also known as Jones Spring). Id. In 2005, it was estimated
that throughout the approximately 5.6 miles of habitat in the
upper Muddy River system, the population of dace was about
1,300. Id. at 24. Approximately 95% of this total population
occurs within one major tributary that includes 1.78 miles of
spring complexes that emanate from the three major spring
groups and their tributaries. Id. About 28 percent of the
Moapa dace population was located on the MVNWR, while
approximately 55 percent occupied the Refuge Stream, which
is supplied by the spring complexes emanating from the
MVNWR. Id. The Refuge Stream reach accounted for the
highest density of Moapa dace, with the Plummer, Pedersen,
 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 9

and Apcar Units containing the second, third, and fourth
highest densities, respectively.4 Id. at 24, 26.

C. The parties, their water rights, and the State
pump-test order

CBD is a non-profit corporation actively involved in
species and habitat protection issues throughout North
America and the Pacific. Its members and staff live, work,
visit, and recreate in areas of Nevada that serve as Moapa
dace habitat.

FWS is a federal agency that is part of the Department of
the Interior. Its responsibilities include implementing the
ESA and administering the National Wildlife Refuge System.
Pursuant to Permit No. 56668, FWS owns a Nevada State
water right certificate (the “FWS Water Right”) for a flow
rate of not less than 3.5 cubic feet per second (“cfs”) as
measured at the Warm Springs West flume for maintenance
of the habitat of the Moapa dace and other wildlife purposes.
The priority date for the FWS water right is August 15, 1991.

Several entities own permitted water rights with
appropriation priorities senior to the FWS Water Right.
SNWA is a political subdivision of the State of Nevada,

4
According to the 2005 survey, a total of 1,296 Moapa dace were
identified. Biop at 26. Of these, 714 were in the Refuge Stream (1 fish
per 4 feet of habitat), 177 were in the Plummer Unit (1 fish per 5 feet), 174
were in the Pedersen Unit (1 fish per 11 feet), and 157 were in the Apcar
Unit (1 fish per 20 feet). Id.
10 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS

which owns 9,000 acre feet per year (“afy”)5 of water rights
(the “SNWA Water Rights”) with points of diversion within
the Coyote Spring Valley hydrographic basin under Permit
Nos. 49414, 49660–49662, and 49978–49987. CSI is a
private landowner that owns 4,600 afy of water rights (the
“CSI Water Rights”) with points of diversion within the
Coyote Spring Valley hydrographic basin under Permit Nos.
70429 and 70430. The Moapa Band of Paiute Indians (the
“Tribe”) owns 2,500 afy of water rights (the “Tribe Water
Rights”) with a diversion rate of 5.0 cfs within the California
Wash hydrographic basin6 pursuant to Permit No. 54075.

On March 8, 2002, the Nevada state engineer issued
Order 1169, which held in abeyance all applications for
additional groundwater appropriation from Coyote Spring
Valley pending a study of the impacts of pumping
groundwater pursuant to already-existing water rights. In
particular, the state engineer ordered that several entities
owning water rights in the area, including SNWA, CSI, and
the Moapa Valley Water District (“MVWD”),7 engage in a
minimum five-year study “during which at least 50% of the

5
An acre foot of water is the amount of water it would take to cover one
acre to a depth of one foot. One acre foot of water comprises
approximately 326,000 gallons.
6
The California Wash hydrographic basin neighbors the Coyote Spring
Valley hydrographic basin.
7
The MVWD supplies the municipal water needs of the Upper and
Lower Moapa Valley in Clark County, Nevada. It owns several water
rights in the Upper Moapa Valley including surface rights to spring flows
in the Muddy Springs area and groundwater rights with points of diversion
at the Arrow Canyon well under Permit Nos. 52520, 55450, and 58269.
It also owns a right to 1.0 cfs of spring flow from the Jones Spring (the
“Jones Water Right”). MVWD is not a party to this case.
 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 11

water rights currently permitted in the Coyote Springs Valley
groundwater basin are pumped for at least 2 consecutive
years.” Pump test participants were required to provide data
on a quarterly basis regarding the rate of water diversion, as
well as a report on impacts to groundwater and surface water
resources upon conclusion of the study.8

D. The Memorandum of Agreement

Prior to and after the issuance of Order 1169, FWS was
concerned that groundwater pumping in Arrow Canyon (by
MVWD), in the Coyote Springs Valley hydrographic basin
(by SNWA and CSI), and in the California Wash
hydrographic basin (by the Tribe), was causing or would
cause spring flows to decline in the Warm Springs area,
creating potentially negative effects for the Moapa dace. In
2004, FWS began meeting with the various water-rights
holders to identify conservation measures to aid Moapa dace
survival in light of the anticipated pump test. On April 20,
2006, FWS, SNWA, CSI, MVWD, and the Tribe executed
the MOA at issue in this case, based on their “share[d]
common interest in the conservation and recovery of the
Moapa dace and its habitat,” as well as in each signatory’s
right to the “use and enjoyment of its water rights and

8
The pump test actually began on November 15, 2010, and was declared
completed as of December 31, 2012. See Nevada State Engineer Order
No. 1169A (Dec. 21, 2012), available at http://images.water.nv.gov/
images/Orders/1169Ao.pdf. Study participants were granted to June 28,
2013, to file a report with the Office of the State Engineer addressing
“information obtained from the study/pumping test, impacts of pumping
under the pumping test and the availability of water pursuant to the
pending applications.” Id. We take judicial notice of this document
because it is “a record of a state agency not subject to reasonable dispute.”
City of Sausalito v. O’Neill, 386 F.3d 1186, 1223 n.2 (9th Cir. 2004).
12 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS

entitlements.” In furtherance of this common interest, the
MOA contains a variety of “monitoring, management and
conservation measures,” which can loosely be grouped into
two categories—measures designed to reduce pumping and
dedicate water rights for Moapa dace conservation and
measures designed to restore and improve Moapa dace
habitat.

In the first category of conservation measures, the MOA
signatories agreed that: (1) MVWD’s Jones Water Right will
be dedicated to maintaining in-stream flows in the Apcar
Stream; (2) 460 afy of the CSI Water Rights, plus 5% of any
future water rights obtained by CSI, will be dedicated to the
survival and recovery of the Moapa dace and its habitat; and
(3) pumping would be slowed or ceased at various sites if
water flow, as measured at the Warm Springs West flume,
fell below certain “Trigger Ranges.” In the second category
of conservation measures, the MOA signatories agreed to
provide funding for Moapa dace habitat restoration and
recovery measures, including $750,000 from SNWA to
restore Moapa dace habitat on the Apcar Unit; $125,000 from
both FWS and SNWA to investigate effects of habitat change
on the ecology of the Moapa dace; $50,000 from SNWA to
construct fish barriers to help eliminate predatory fish from
Moapa dace habitat; $25,000 from SNWA to implement
programs to eradicate non-native fish in the Warm Springs
area; and $50,000 per year for four years from CSI to FWS
for restoration of Moapa dace habitat outside the boundaries
of the MVNWR. The parties additionally agreed: (1) to
establish a Recovery Implementation Program (“RIP”) to
identify, prioritize, and fund measures designed to protect the
Moapa dace and facilitate its recovery; (2) to establish a
Hydrologic Review Team to coordinate and ensure accuracy
in monitoring and data collection; (3) that a portion of the
 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 13

Tribe’s greenhouse facility would be dedicated to cultivating
native vegetation for use in RIP-approved habitat restoration;
(4) that the Tribe would permit access to its reservation for
the construction of at least one fish barrier; (5) to identify and
obtain additional land and water rights to aid in Moapa dace
recovery; and (6) to cooperate in carrying out additional
activities targeted at recovery of the Moapa dace as further
data becomes available. The MOA also provided that, so
long as all parties were in compliance with the MOA’s terms,
FWS would not assert injury to the FWS Water Rights unless
flow rates at the Warm Springs West flume fell below 2.7 cfs.
Outside of FWS’s agreement in this regard, the MOA
explicitly “does not waive any of the authorities or duties” of
any of the parties “from complying with any Federal laws,
including . . . [the ESA],” nor does it waive any obligation by
FWS to “consult or re-consult under the [ESA].”

The MOA provides that the “Parties desire that FWS
engage in consultation and prepare a formal biological
opinion” under ESA § 7 prior to execution of the MOA.
Although the MOA neither authorizes nor approves any
groundwater pumping, it nonetheless states that FWS’s
consultation “shall consider the effects on the Moapa dace
from the pumping of 9,000 afy under the SNWA Water
Rights, 4,600 afy under the CSI Water Rights, and 2,500 afy
by the Tribe . . . together with the implementation of the
monitoring, management and conservation measures”
identified in the MOA.

E. The FWS Programmatic Biop

On January 30, 2006, FWS issued a document entitled
“Intra-Service Programmatic Biop for the Proposed Muddy
River Memorandum of Agreement Regarding the
14 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS

Groundwater Withdrawal of 16,100 Acre-Feet per Year from
the Regional Carbonate Aquifer in Coyote Spring Valley and
California Wash Basins, and Establish Conservation
Measures for the Moapa Dace, Clark County, Nevada” (the
“Biop”). The Biop provides:

This biological opinion evaluates, as the
proposed action, the execution of the MOA by
[FWS]. None of the activities included in the
MOA will be implemented absent project or
activity specific consultations. Since the
MOA contemplates future groundwater
development of up to 16,100 [afy], this total
withdrawal and the potential effects to the
Moapa dace are evaluated in this biological
opinion. As part of the proposed action, the
following biological opinion will evaluate the
effects of the cumulative groundwater
withdrawal of 16,100 afy from two basins
within the regional carbonate aquifer to the
federally listed as endangered Moapa dace at
a programmatic level in light of the
conservation measures proposed in the MOA.

Biop at 1.

Due to “the number of impending actions by different
entities included in the proposed action,” FWS employed a
tiered-programmatic approach in preparing its Biop. Id. at 2.
Thus, the required consultation was intended to take place in
two stages: the first stage (the January 30, 2006 Biop) would
“evaluate landscape-level effects,” while a series of later
second-stage Biops would “result[] in the completion of
project-specific documentation that addresses the specific
 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 15

effects of each individual project.” Id. at 2–3. Under this
approach, second-stage consultations performed for specific
action items in the MOA would “tier” to the first-stage
document by incorporating portions of it by reference. Id. at
3 (“Thus each action has its own individual consultation
document that is supported by the programmatic document.”).
Noting that signatories to the MOA “have proposed various
minimization/conservation actions to offset effects [of
groundwater pumping] to the Moapa dace” the Biop provides
that it “will only evaluate the effects of the MOA (cumulative
groundwater withdrawal of 16,100 afy and their minimization
measures) to the endangered Moapa dace.” Biop at 44.

Consistent with its stated approach, the Biop analyzes
anticipated effects on the Moapa dace from the cumulative
withdrawal of 16,100 afy from the Coyote Spring Valley and
the California Wash, finding that the “Moapa dace will be
directly affected by the proposed groundwater withdrawals
since those actions are likely to affect the spring flows upon
which the dace depends.” Id. at 44–55. Among other things,
the Biop opines that, if inflow at the Warm Springs gauge
drops to 2.7 cfs due to groundwater pumping, the result could
be 31% loss of spawning habitat at the important Pedersen
Unit, though “much of the available spawning habitat on the
Plummer and Apcar Units, and the Refuge Stream would not
be as affected by groundwater pumping since they are lower
in elevation and would continue to provide adequate
spawning habitat.” Id. at 54–55. Additionally, reductions in
temperature from loss of flow in the Pedersen Unit could also
extend downstream and “further impact Moapa dace by
restricting its reproductive potential and make it more
vulnerable to catastrophic events such as wildfire.” Id.
16 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS

The Biop next analyzes the anticipated effectiveness of
the conservation measures in the MOA, noting that such
measures “include the removal of non-native fishes,
enhancing, and restoring habitat and restoring instream flows
(Apcar Unit) to increase the amount of habitat available for
use by all life stages of the species.” Id. at 55. The Biop
predicts that the MOA’s conservation measures will, among
other things, “increase thermal habitat and the reproductive
potential of the species in the Apcar and Refuge streams,”
“reduce potential for fire and restore the overall spawning and
rearing habitat sufficient to sustain several hundred Moapa
dace on the Apcar Unit of the MVNWR,” “provide more
secure habitat should water flows decline from groundwater
development activities in the future,” “improve habitat
throughout the range of the species,” “reduce the species
vulnerability to catastrophic events,” and “expan[d] the
species within its range and increase its current population
size.” Id. at 59–60; see also id. at 56 (“The overall expected
outcome of these measures is an increase in the species
distribution and abundance throughout the range of the
species.”). The Biop explains that since the MOA provides
that most of the conservation measures would be
implemented before significant groundwater pumping was to
occur, the Moapa dace population would likely “respond
positively, increasing in its distribution and abundance above
current conditions. Therefore, the conservation benefits to
the species would be realized prior to and would off-set the
effect of groundwater development.” Id. at 126, 130.

In conclusion, the Biop states as follows: “It is [FWS’s]
biological opinion that [FWS] becoming signatory to the
MOA, as proposed and analyzed, is not likely to jeopardize
the continued existence of the endangered Moapa dace.” Id.
 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 17

at 61. Regarding an Incidental Take Statement (“ITS”), the
Biop provides:

No exemption from Section 9 of the Act is
issued through this biological opinion. The
cumulative withdrawal of 16,100 afy from
Coyote Spring Valley and California Wash is
likely to adversely affect listed species.
However, the proposed action of signing the
MOA, in and of itself, does not result in the
pumping of any groundwater, and is one of
many steps in the planning process for
proposed groundwater withdrawal projects
identified in the MOA and in the action area.
Therefore, the Service has taken a tiered-
programmatic approach in an attempt to
analyz[e] the effects of the action. This
programmatic biological opinion does not
authorize any incidental take for
programmatic impacts associated with the
activities included in the MOA. The
likelihood of incidental take, and the
identification of reasonable and prudent
measures and terms and conditions to
minimize such take, is anticipated to be
addressed in future project-specific
consultations (second stage). These tiered-
consultations would incorporate conservation
measures outlined in the MOA at the specific
project level. Any incidental take and
measures to reduce such cannot be effectively
identified at the programmatic level of the
proposed action because of the number of
impending actions by different entities and its
18 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS

regional scope. Incidental take and
reasonable and prudent measures may be
identified adequately through subsequent
actions subject to section 7 consultation, and
tiered to this programmatic biological
opinion. Future site-specific projects that are
in the Description of the Proposed Action
section and identified in the MOA would
require additional section 7 consultation
(second stage) that would be tiered to this
programmatic biological opinion.”

Id. at 62.

F. Proceedings in District Court

On August 23, 2010, CBD filed a Complaint for
Declaratory and Injunctive relief against FWS and Sally
Jewell,9 asserting claims under § 7 of the ESA, the National
Environment Policy Act, the National Wildlife Refuge
System Improvement Act, and the Constitution’s Property
Clause. SNWA and CSI intervened in the action. On
September 27, 2012, the district court granted summary
judgment in favor of Defendants on all of CBD’s claims,
concluding that “[w]hether the action fails for lack of
standing or for lack of merit, the actions simply may not
stand because [CBD] challenges an agreement designed to
aid, not harm, the Moapa dace.”

CBD appeals only the district court’s grant of summary
judgment on its ESA claim. In particular, CBD maintains

9
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Sally Jewell
has been substituted for Ken Salazar as his successor.
 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 19

that FWS’s Biop violated § 7 of the ESA by: (1) failing to
ensure against jeopardizing the continued existence of the
Moapa dace; (2) failing to consider the best available
scientific information; and (3) failing to evaluate all
consequences of the action it purports to review.

II. STANDARD OF REVIEW

The district court’s grant of summary judgment is
reviewed de novo. Pac. Coast Fed’n of Fishermen’s Ass’ns.
v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1090 (9th Cir.
2005). A Biop is a final agency action within the meaning of
the Administrative Procedure Act (“APA”) and is reviewed
under § 706 of the APA. Bennett v. Spear, 520 U.S. 154,
178–79 (1997). Section 706(2)(A) of the APA requires a
reviewing court to uphold agency action unless it is
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A). An agency
action is arbitrary and capricious if the agency has:

relied on factors which Congress has not
intended it to consider, entirely failed to
consider an important aspect of the problem,
offered an explanation for its decision that
runs counter to the evidence before the
agency, or is so implausible that it could not
be ascribed to a difference in view or the
product of agency expertise.

Pac. Coast Fed’n of Fishermen’s Ass’ns, Inc. v. Nat’l Marine
Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir. 2001) (quoting
Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29, 43
(1983)). Under this standard, factual determinations must be
supported by substantial evidence. Dickinson v. Zurko,
20 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS

527 U.S. 150, 162 (1999). An agency action will be sustained
if “the agency has articulated a rational connection between
the facts found and the conclusions made.” Pac. Coast Fed’n
of Fishermen’s Ass’ns, 426 F.3d at 1090.

The arbitrary or capricious standard is a “highly
deferential” standard of review, though our inquiry must
nonetheless “be searching and careful.” Marsh v. Or. Natural
Res. Council, 490 U.S. 360, 378 (1989); Jewell, 747 F.3d at
601. The agency’s decision, however, is “‘entitled to a
presumption of regularity,’ and we may not substitute our
judgment for that of the agency.” Id. (quoting Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415–16
(1971)). This traditional deference to the agency is at its
highest where a court is reviewing an agency action that
required a high level of technical expertise. Marsh, 490 U.S.
at 377.

III. DISCUSSION

A. Standing

FWS, SNWA, and CSI challenge our jurisdiction to hear
the present appeal, arguing that CBD lacks standing. As the
plaintiff in the underlying action, CBD has the burden of
proving the existence of Article III standing at all stages of
the litigation. See Nat’l Org. for Women, Inc. v. Scheidler,
510 U.S. 249, 255 (1994). To fulfill this obligation, CBD
must demonstrate: (1) the existence of an injury-in-fact that
is concrete and particularized, and actual or imminent; (2) the
injury is fairly traceable to the challenged conduct; and
(3) the injury is likely to be redressed by a favorable court
decision. Salmon Spawning & Recovery Alliance v.
 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 21

Gutierrez, 545 F.3d 1220, 1224–25 (9th Cir. 2008) (citing
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)).

To satisfy the injury-in-fact requirement of Article III, “‘a
plaintiff asserting a procedural injury must show that the
procedures in question are designed to protect some
threatened concrete interest of his that is the ultimate basis of
his standing.’” Salmon Spawning, 545 F.3d at 1225 (quoting
Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d
961, 969 (9th Cir. 2003)). Here, CBD alleges that its
members have scientific, aesthetic, personal, spiritual and
work-related interests in the continued survival of the Moapa
dace and other species with habitats in the MVNWR. They
are concerned that if the Moapa dace population is imperiled
or permitted to decline, these interests will be harmed. We
have previously held that the consultation procedures of ESA
§ 7 are designed to protect “concrete interests” such as those
asserted by CBD by “advanc[ing] the ESA’s overall goal of
species preservation, and thus the groups’ specific goals as to
[species] preservation, by ensuring agency compliance with
the ESA’s substantive provisions.” Salmon Spawning,
545 F.3d at 1225–26; see also Lujan, 504 U.S. at 526–63 (“Of
course, the desire to use or observe an animal species, even
for purely esthetic purposes, is undeniably a cognizable
interest for purpose[s] of standing.”).

While appellees do not dispute that CBD has alleged an
injury-in-fact, they argue that causation and redressability are
lacking. Specifically, appellees assert that any threat to the
Moapa dace’s survival is caused exclusively by non-federal
entities pumping groundwater pursuant to a non-federal pump
test order, not by the conservation measures in the MOA,
which were designed to protect the species. As to
redressability, appellees claim that CBD’s injury is not
22 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS

redressable because the pump test, and its correspondent
negative effects on the Moapa dace, could continue unabated
even if the Biop and MOA were vacated.

“A showing of procedural injury lessens a plaintiff’s
burden on the last two prongs of the Article III standing
inquiry, causation and redressibility.” Salmon Spawning,
545 F.3d at 1226 (citing Lujan, 504 U.S. at 572 n.7). Thus,
because CBD is asserting a procedural injury, it “‘must show
only that [it has] a procedural right that, if exercised, could
protect [its] concrete interests.’” Id. (emphasis in original)
(quoting Defenders of Wildlife v. U.S. EPA, 420 F.3d 946,
957 (9th Cir. 2005)). “Plaintiffs alleging procedural injury
can often establish redressibility with little difficulty, because
they need to show only that the relief requested—that the
agency follow the correct procedures—may influence the
agency’s ultimate decision of whether to take or refrain from
taking a certain action. This is not a high bar to meet.” Id. at
1226–27 (internal citation omitted). Nonetheless, “the
redressibility requirement is not toothless in procedural injury
cases.” Id. at 1227.

While we agree that state-ordered groundwater pumping
is an ultimate cause of CBD’s injury, CBD more broadly
claims that a legally deficient Biop caused FWS to execute an
MOA that contained inadequate conservation, monitoring,
and mitigation measures to ensure the continued existence of
the Moapa dace in the face of such groundwater pumping.
CBD contends its injury is redressable because if the Biop
and MOA are vacated, FWS would be obligated to reinitiate
consultation. According to CBD, this consultation, if
conducted in compliance with the ESA § 7 procedures here
challenged, “may influence [FWS’s] ultimate decision as to
whether to participate in the MOA,” and on what terms.
 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 23

Moreover, CBD contends that the MOA federalizes
groundwater withdrawals by non-federal parties and that
those withdrawals harm the Moapa dace and its members’
interests in the species. We agree with CBD that it has
sufficiently demonstrated standing under these circumstances.
See Natural Res. Def. Council v. Jewell, 749 F.3d 776, 783
(9th Cir. 2014) (en banc) (“Because Plaintiffs allege a
procedural violation under Section 7 of the ESA, they need
only show that, if the Bureau engages in adequate
consultation, the DMC Contracts could better protect
Plaintiffs’ concrete interest in the delta smelt than the
contracts do currently.”); Alliance for the Wild Rockies v.
U.S. Dep’t of Agric., 772 F.3d 592, 598–99 (9th Cir. 2014)
(concluding that an environmental group had standing to
challenge federal agencies’ approval of non-federal helicopter
flights that might harass Yellowstone grizzly bears).

B. Challenges to the Biop

1. Enforceability of conservation measures

CBD contends that the MOA fails to ensure against
jeopardy to the Moapa dace because the conservation
measures outlined in the agreement are not enforceable under
the ESA. During formal consultation, FWS is required,
among other things, to “[e]valuate the effects of the action
and cumulative effects on the listed species,” and
“[f]ormulate its biological opinion as to whether the action,
taken together with cumulative effects, is likely to jeopardize
the continued existence of listed species.” 50 C.F.R.
§ 402.14(g). An “action” refers to all activities and programs
“carried out, in whole or in part, by Federal agencies in the
United States,” whereas the “[e]ffects of the action refers to
the direct and indirect effects of an action on the species or
24 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS

critical habitat, together with the effects of other activities
that are interrelated or interdependent with that action.” Id.
§ 402.02. “Interrelated actions are those that are part of a
larger action and depend on the larger action for their
justification.” Id. “‘Interrelated actions’ include
‘conservation measures,’ which the ESA Handbook defines as
‘actions to benefit or promote the recovery of listed species.’”
BLM, 698 F.3d at 1113. “Cumulative effects” are “those
effects of future State or private activities, not involving
Federal activities, that are reasonably certain to occur within
the action area of the Federal action subject to consultation.”
50 C.F.R § 402.02.

In BLM, we held that the ESA’s statutory scheme requires
that “a conservation agreement entered into by the action
agency to mitigate the impact of a contemplated action on
listed species must be enforceable under the ESA” to factor
into a biological opinion’s jeopardy determination. BLM,
698 F.3d at 1117. In that case, Ruby Pipeline L.L.C.
(“Ruby”) sought a right-of-way to build a gas pipeline that
would cross several thousand acres of federal land supporting
numerous endangered and threatened fish species. Id. at
1106. FWS’s analysis of the pipeline project determined it
would adversely affect multiple endangered species and
critical habitats. Id. FWS then evaluated “several ‘voluntary’
conservation actions Ruby had indicated it would facilitate
implementing,” which were contained in a Conservation
Action Plan (the “CAP measures”). Id. at 1109. Although
the CAP measures contained no binding time line for
implementation and were expressly not incorporated into the
 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 25

pipeline project plan,10 FWS deemed them “cumulative
effects” that were “reasonably certain to occur” and found
that they would “eventually contribute to the conservation
and recovery of these fishes.” Id. In reliance on the CAP
measures, FWS concluded that the pipeline project was “not
likely to jeopardize the continued existence” or “adversely
modify or destroy designated critical habitat” of listed species
and it issued an ITS exempting the take of certain species
from liability under ESA § 9. Id. at 1109–12, 1119.

We concluded that the CAP measures were not
cumulative effects; instead, they were “unequivocally
interrelated” to the pipeline project “in that the promises
regarding the conservation measures were dependant on
approval of the project.” Id. at 1118. In fact, the CAP
measures “fit squarely within the definition of ‘conservation
measures’ in the ESA Handbook.” Id. at 1118. Since
interrelated actions are, by definition, part of the “effects of
the action,” we set aside the biological opinion as arbitrary
and capricious:

[M]iscategorizing mitigation measures as
‘cumulative effects’ rather than conservation
measures incorporated in the proposed project
profoundly affects the ESA scheme. Any
such miscategorization sidetracks the FWS,
the primary ESA enforcement agency;
precludes reopening the consultation process
when promised conservation measures do not

10
Ruby’s final Letter of Commitment to the CAP measures specifically
provided that they were “entirely independent of the requirements of
section 7 of the ESA” and that the pipeline project itself was “not
dependent on the[] conservation actions.” BLM, 698 F.3d at 1110.
26 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS

occur; and eliminates the possibility of
criminal penalties and exposure to citizen suit
enforcement incorporated in the ESA to
assure that listed species are protected. . . .

Severing the Conservation Action Plan
measures from the proposed action and
instead treating their anticipated benefits as
‘cumulative effects’ of independent origin
insulated the action agencies from
consultation requirements under section 7, and
Ruby from the ESA’s penalties for unlawful
take under section 9 in the event that the
measures never materialized.

The Biological Opinion therefore
unreasonably relied on the [CAP] measures
as “cumulative effects” and took them into
account in the jeopardy determination, when
reliance on them would have been proper only
if they were included as part of the project and
so subject to the ESA’s consultation and
enforcement provisions.

Id. at 1116, 1119.11

The present case is plainly distinguishable from BLM.
Here, the conservation measures in the MOA are not only
“included as part of the project” consulted upon; they actually

11
Since cumulative effects encompass only “future non-federal actions”
that are neither interrelated nor interdependent with the federal action,
they are not enforceable under the ESA. See BLM, 698 F.3d at 1117–18;
50 C.F.R. § 402.02.
 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 27

are the project consulted upon. Indeed, pursuant to the ESA
regulations, the only activity reviewed in the Biop that even
arguably qualifies as an “action” is FWS becoming signatory
to the MOA. See 50 C.F.R. § 402.02 (“Action means all
activities or programs of any kind authorized, funded, or
carried out, in whole or in part, by Federal agencies in the
United States . . . . Examples include, but are not limited to:
(a) actions intended to conserve listed species or their
habitat.”). Moreover, the Biop expressly provides that
“reinitiation of formal consultation is required where . . .
there is a failure to meet any of the measures or stipulations
in the MOA.” Biop at 63. Thus, this is simply not a case
where there is no ESA recourse whatsoever if a non-federal
party fails to implement its promised conservation actions.
See BLM, 698 F.3d at 1114. Under these circumstances, it is
apparent that the MOA is enforceable “under the ESA,” as
required by BLM.12 Id. at 1117.

12
While CBD admits in its Reply brief that the MOA’s conservation
measures “are part of [FWS’s] action,” it nonetheless staunchly maintains
that an ITS is required to make the measures enforceable under the ESA
pursuant to BLM. This position is not consistent with BLM’s statement that
noncompliance with “mitigation measures incorporated as part of the
action project” is subject to enforcement via citizen action suits under the
ESA. 698 F.3d at 1115. It is also incompatible with language in BLM
indicating that, had the conservation measures in that case simply been
included as part of the proposed action and biological opinion, they likely
would have been enforceable. Id. (“FWS requested that Ruby file the
final Conservation Action Plan with FERC so it could ‘be included as part
of the final biological assessment.’ This approach, it appears, would have
rendered the Conservation Action Plan part of the proposed action, and so
enforceable under the ESA.”). Moreover, as discussed supra, the
conservation measures in this action are not just “incorporated as part of
the action project”; they are the action project.
28 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS

In applying BLM to the present case, we also reject
CBD’s unsupported assertions that FWS “federalized” the
groundwater extraction and made it a “part of the action”
consulted upon merely by entering into an MOA in an
attempt to proactively offset potential negative effects to the
Moapa dace from groundwater pumping. The pump test does
not fit within the definition of “action” because it is not
“authorized, funded, or carried out, in whole or in part, by
Federal agencies in the United States.” 50 C.F.R. § 402.02.
Because the groundwater pumping is not an “action,” as
defined by the ESA, its negative effects on the Moapa dace
are not considered “effects of the action” because they are not
“direct [or] indirect effects of an action on the species.” Id.
(emphasis added).

The negative effects of groundwater pumping also do not
qualify as “effects of the action” by virtue of being
“interrelated or interdependent with [the action].” Indeed, the
record does not support a conclusion that would satisfy the
“but for” test of interrelatedness, i.e., “but for the federal
project [(execution of the MOA)] these activities
[(groundwater pumping)] would not occur.” BLM, 698 F.3d
at 1113 (quoting Sierra Club v. Marsh, 816 F.2d 1376, 1387
(9th Cir. 1987)); 50 C.F.R. § 402.02 (“Interrelated actions are
those that are part of a larger action and depend on the larger
action for their justification.”). Neither is there any evidence
that the groundwater pumping has “no independent utility
apart from the action under consideration,” as required to be
interdependent. 50 C.F.R. § 402.02. It appears then, perhaps
somewhat ironically in light of CBD’s reliance on BLM, that
the effects of groundwater pumping are best characterized as
“cumulative effects,” i.e., they are “effects of future State or
private activities, not involving federal action, that are
 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 29

reasonably certain to occur within the action area of the
Federal action subject to consultation.”13 Id.

2. Best available science

The ESA requires an agency to use “the best scientific
and commercial data available” when formulating a Biop.
16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(g)(8). This
standard does not require the agency to “conduct new tests or
make decisions on data that does not yet exist.” San Luis &
Delta-Mendota Water Authority v. Locke, 776 F.3d 971, 996
(9th Cir. 2014) (citing Am. Wildlands v. Kempthorne,
530 F.3d 991, 998–99 (D.C. Cir. 2008)). Rather, “[t]he best
available data requirement ‘merely prohibits [an agency]
from disregarding available scientific evidence that is in some
way better than the evidence [it] relies on.’” Kern Cnty.
Farm Bureau v. Allen, 450 F.3d 1072, 1080 (9th Cir. 2006)
(quoting Sw. Ctr. for Biological Diversity v. Babbitt, 215 F.3d

13
We acknowledge that the Biop considers groundwater pumping as
“part of the proposed action” rather than as “cumulative effects.” See
Biop at 1 (“As part of the proposed action, the following biological
opinion will evaluate the effects of the cumulative groundwater
withdrawal of 16,100 afy from two basis within the regional carbonate
aquifer to the federally listed as endangered Moapa dace at a
programmatic level in light of the conservation measures proposed in the
MOA.”). Inartful use of language in a Biop, however, does not have the
effect of transforming a non-federal action into a federal action. In any
event, we do not believe this discrepancy, standing alone, is a reversible
error, given that FWS is required in its biological opinion to determine
“whether the action, taken together with cumulative effects, is likely to
jeopardize the continued existence of listed species.” 50 C.F.R.
§ 402.14(g)(3); see also BLM, 698 F.3d at 1113–14 (stating that
cumulative effects “are essentially background considerations, relevant to
the jeopardy determination but not constituting federal actions and so
beyond the action agency’s power to effectuate”).
30 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS

58, 60 (D.C. Cir. 2000)); see also Locke, 776 F.3d at 995
(“Moreover, if the only available data is weak, and thus not
dispositive, an agency’s reliance on such data does not render
the agency’s determination arbitrary and capricious”
(quotations and citations omitted)). “An agency complies
with the best available science standard so long as it does not
ignore available studies, even if it disagrees with or discredits
them.” Locke, 776 F.3d at 995; Kern Cnty., 450 F.3d at
1080–81 (“Essentially, FWS ‘cannot ignore available
biological information.’”) (quoting Conner v. Burford,
848 F.2d 1441, 1454 (9th Cir. 1988)).

CBD argues that the Biop fails to satisfy the best
science requirement because FWS has “conceded that the
Conservation Measures’ flow reduction trigger scheme—the
foundation for the [Biop’s] no jeopardy finding—is based
not on science but on expediency.” In support of this claim,
CBD cites a statement by FWS Office Field Supervisor Bob
Williams that the flow reduction triggers in the MOA “were
negotiated, not biologically based, and believed to be
reasonable for the purpose of off-setting the affects to the
species.”14 We reject this argument because it fails to

14
When read in full context, Williams’s comment does not actually
appear to support CBD’s claim that the “flow reduction trigger
scheme—the foundation for the Biological Opinion’s no jeopardy
finding—is based not on science but on expediency.” His observation that
the “reduction in pumping corresponding to flow decreases (triggers) were
negotiated, not biologically based” refers to the flow triggers as defined
in the MOA. In fact, Williams’s very next sentence states that the triggers
used in the MOA (3.5 to 2.7 cfs) “are the minimums that flows can be
reduced, based on available data, without jeopardizing the species when
considering the status of the species and the direct and indirect effects of
this action.” Williams further states that it “should be recognized that the
3.5 cfs is a State permitted water right not a biological minimum flow
established for the survival or recovery of the species.” (emphasis added).
 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 31

differentiate between FWS’s role as the action agency and
FWS’s role as the consulting agency. The ESA does not
require that a federal agency design or plan its projects using
the best science possible. Rather, the ESA requires that, once
a federal action is submitted for formal consultation, the
consulting agency must use the best scientific and
commercial evidence available in analyzing the potential
effects of that action on endangered species in its biological
opinion. See 16 U.S.C. § 1536(a)(2). Thus, CBD’s objection
that the terms of the MOA were negotiated simply cannot
support a conclusion that the Biop’s analysis of those terms
failed to satisfy the requirements of the ESA. See, e.g.,
Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944,
955–56 (9th Cir. 2002) (holding that FWS did not violate its
duty to rely on the best scientific data available when it
concluded that negotiated conservation terms would
sufficiently mitigate expected harm to a species).

3. Effectiveness of conservation measures

CBD argues that the Biop is arbitrary and capricious
because the record does not support a conclusion that the
MOA’s conservation measures are effective or adequate to
insure against jeopardy to the Moapa dace. CBD also asserts
that we owe no deference to the Biop’s conclusions because
FWS failed to address its own “scientists’ unanswered and
uncontroverted concerns” regarding the effectiveness of the
MOA’s conservation measures in avoiding jeopardy to the
Moapa dace.15 Before conducting our analysis, we briefly

15
While fashioned as a “best science” claim, we consider CBD’s
assertion that FWS ignored its own scientists’ concerns in this section
because the issue is closely related to CBD’s argument regarding the
effectiveness of the conservation measures.
32 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS

recount CBD’s criticisms of the Biop’s no jeopardy
conclusion.

First, CBD criticizes the MOA’s flow triggers, and
particularly the lowest 2.7 cfs flow trigger, which if reached,
requires the MOA signatories to reduce pumping in the
Coyote Spring Valley and the California Wash to 724 afy and
1,250 afy, respectively. CBD points out that in a separate § 7
consultation relating to construction of a pipeline (the
“pipeline project”) in the MVNWR, FWS hydrologist Tim
Mayer expressed “strong doubt” about whether even a higher
3.0 cfs minimum flow threshold would adequately protect the
Moapa dace or support a non-jeopardy determination, stating:
“Biologically, do the flows proposed by SNWA protect the
dace (does it support a non-jeopardy opinion)? We have no
evidence that they do, since they have not been that low
previously. Our proposed flows (of 3.3 cfs) seek to protect
existing conditions so we assume that it won’t jeopardize the
species.” CBD also points out that the FWS Water Right was
already being impacted by pre-MOA groundwater pumping,
and that even the intermediate flow triggers of the MOA,
ranging from 2.8 to 3.2 cfs, permit more groundwater to be
pumped than was pumped prior to the MOA.

CBD’s second critique of the Biop is that it assumes,
without any support, that reducing or halting groundwater
pumping will address any observed decline in spring flows.
According to CBD, this conclusion is the “linchpin” of the
Biop’s no jeopardy conclusion because if Moapa dace habitat
will continue to be lost after the cessation of groundwater
pumping, the conservation measures of the MOA are
ineffective. CBD points to three draft comments by FWS’s
scientists in this regard that it claims were not addressed in
the final Biop. First, hydrologist Tim Mayer stated: “I don’t
 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 33

want to be put in a position of saying that the flows are going
to stop declining at 2.7 cfs—this seems to be the conclusion
of our BO and our basis for the non-jeopardy although the
hydrological analysis doesn’t say anything like that.”
Second, Mayer stated in a comment on the pipeline project
that “stopping pumping at 2.7 cfs doesn’t mean the flow
reductions cease—springs may continue to decline even
without pumping. ” Third, Rick Wadell, whose position with
FWS is unclear, stated in comments to the Biop that
“[i]mpacts to the dace population may occur more rapidly
than the water supply can be re-established.”

Finally, CBD urges that the other conservation measures
of the MOA, i.e., those unrelated to flow triggers, “are of
limited effectiveness in avoiding loss of high quality Moapa
dace habitat in the higher elevation Pedersen Unit spring
complex.” For instance, one FWS scientist expressed
concern that MVWD’s dedication of 1.0 cfs to the Apcar Unit
was “being oversold.” Another FWS scientist noted that it
was unclear how CSI dedicating 460 afy would benefit the
dace unless it could be “transferred to in-stream rights for
dace. . . the small reduction in pumping from carbonates that
this dedication might represent would only delay the impact
a short time.”16

16
CBD also refers generally to four pages of comments by Mayer, but
does not specify how any of these comments: (1) rely on better science
than that ultimately used in the Biop; or (2) undermine the ultimate
conclusions of the Biop.
34 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS

a. The Biop did not ignore the concerns of
FWS scientists

We disagree with CBD’s assertion that the Biop fails to
address or assuage Mayer’s concerns that even a 3.0 cfs flow
rate would be insufficient to protect the Moapa dace. The
comment itself makes clear that FWS did not possess
definitive data supporting a conclusion on the matter either
way, given that flow levels have never actually fallen so low.
See Locke, 776 F.3d at 995 (stating that the best science
requirement does not “require an agency to conduct new tests
or make decisions on data that does not yet exist”). In light
of this lack of data, FWS projected the likely effects of a 2.7
cfs flow rate on Moapa dace habitat by: providing an
extensive review of known characteristics of the regional
carbonate aquifer system and its recharge sources; explaining
the location and characteristics of Moapa dace habitat in and
around the MVNWR and the varying sensitivities of the
Pedersen, Plummer, and Apcar Units to changes in spring
flow; and extrapolating from known groundwater/spring
discharge relationships and currently observed groundwater
impacts and trends “to project the impacts of future
groundwater development on the springs” in the MVNWR.
Biop at 18–55. It then employed numerical groundwater,
hydraulic geometry, and thermal load modeling to project the
“worst-case scenario or lower bound of impacts” believed
likely to result if the flow rate at the Warm Springs West
flume is reduced to 2.7 cfs. Id. at 44–55. In this worst-case
scenario, the Biop anticipates that adverse effects of
anticipated groundwater pumping would most significantly
affect the Pedersen Unit—with a 22% reduction in riffle
habitat, a 16% reduction in pool habitat, and a loss of thermal
load extending downstream—and have a substantially lesser
effect on the lower-elevation Plummer and Apcar Units. Id.
 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 35

at 54–55. We defer to FWS’s chosen methodology and find
that its conclusions were rationally based on available
evidence. See Locke, 776 F.3d at 995 (“[W]hat constitutes
the best scientific and commercial data available is itself a
scientific determination deserving of deference.”).

The Biop also does not, as CBD contends, assume with no
support that reducing or ceasing groundwater pumping will
slow the decline in spring flow at the Warm Springs West
flume. While the Biop explicitly recognizes that “the
response of the aquifer to a reduction or cessation of pumping
is not known and has not been tested,” Biop at 46, FWS still
possessed sufficient data to make an informed prediction. As
noted, the Biop provided an extensive evaluation of the
regional carbonate aquifer system. Biop at 15–17. In so
doing, it explains that “[g]roundwater inflow or recharge” to
the system is “primarily through precipitation.” Biop at 16.
Consistent with this understanding of the system’s most
likely recharge source, the Biop also recognizes that
“groundwater levels have generally increased recently, likely
in response to the extremely wet winter experienced by the
region in 2005.” Id. at 48. After exploring the currently
observed groundwater impacts and trends and a variety of
flow models, the Biop then assumes a correlation between
groundwater withdrawals and a decline in water levels in the
system. Given this data, there was clearly a rational
connection between the data available to FWS and its
“assum[ption] that reducing and ceasing the pumping will
slow the decline in water levels.” Id. at 46–47.

Because the record does not support a conclusion that
FWS ignored its own scientists’ concerns, we reject CBD’s
best science claim in this regard. The claim additionally fails
because CBD has not pointed to any evidence supporting a
36 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS

conclusion that: (1) the “concerns” of FWS scientists were
supported by better science that used in the Biop; or (2) FWS
disregarded scientific information that was better than the
evidence upon which it relied. See, e.g., Lands Council v.
McNair, 537 F.3d 981, 993 (9th Cir. 2008) (en banc) (stating
that courts may not “impose on the agency [their] own notion
of which procedures are best or most likely to further some
vague, undefined public good”) (internal quotation marks
omitted); Kern, 450 F.3d at 1080–81 (stating that “‘[a]bsent
superior data . . . occasional imperfections do not violate [the
best scientific data standard]’” and finding that a best science
claim fails where the plaintiff “‘point[s] to no data that was
omitted from consideration’”) (quoting Bldg. Indus. Ass’n of
Superior Cal. v. Norton, 247 F.3d 1241, 1246 (D.C. Cir.
2001)); Greenpeace Action v. Franklin, 14 F.3d 1324, 1337
(9th Cir. 1992) (rejecting a conclusion that “weak” evidence
or uncertainty is fatal to an agency’s decision); Friends of
Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 985 (9th
Cir. 1985) (rejecting a best science claim where “appellant
and its two experts did not direct [FWS] to any better
available data”).

b. The Biop’s no jeopardy conclusion was
proper

In National Wildlife Federation v. National Marine
Fisheries Service, we stated:

To “jeopardize”—the action ESA prohibits—
means to “expose to loss or injury” or to
“imperil.” Either of these implies causation,
and thus some new risk of harm. Likewise, the
suffix “-ize” in “jeopardize” indicates some
active change of status: an agency may not
 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 37

“cause [a species] to be or to become” in a
state of jeopardy or “subject [a species] to”
jeopardy. American Heritage Dictionary of
the English Language (4th ed.). Agency
action can only “jeopardize” a species’
existence if that agency action causes some
deterioration in the species’ pre-action
condition. . . .

[A]n agency only “jeopardize[s]” a species if
it causes some new jeopardy. An agency may
still take action that removes a species from
jeopardy entirely, or that lessens the degree of
jeopardy. However, an agency may not take
action that will tip a species from a state of
precarious survival into a state of likely
extinction. Likewise, even where baseline
conditions already jeopardize a species, an
agency may not take action that deepens the
jeopardy by causing additional harm.

524 F.3d at 930.

As we explained supra, the only “action” in this case, as
that term is defined by the ESA and its implementing
regulations, is FWS’s participation in the MOA. CBD does
not, however, point to a single provision in the MOA that
causes even a de minimus deterioration in the Moapa dace’s
pre-action condition. Indeed, the Biop makes clear that the
negative effects to the Moapa dace discussed therein are the
result of State-mandated groundwater pumping—which under
the facts of this case fit squarely within the ESA’s definition
of “cumulative effects.” 50 C.F.R. § 402.02. The
conservation measures in the MOA, on the other hand, are
38 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS

expected to result in an “increase in the species distribution
and abundance throughout the range of the species.” Biop at
56. While CBD points to concerns by FWS scientists that
some of the measures were being oversold, the Biop’s
observation that the conservation measures will improve
conditions for the Moapa dace would hold true even
assuming that some provisions of the MOA do not ultimately
result in as high a level of benefit as anticipated in the Biop.

CBD’s objections to the Biop and MOA in this case can
appropriately be characterized as claiming that the MOA does
not do enough to ensure the survival of the Moapa dace in the
face of groundwater pumping.17 Adopting this position,
however, would impermissibly broaden FWS’s obligations,
both as the action agency and as the consulting agency. The
ESA requires simply that in preparing a biological opinion,
the FWS consider “whether the action, taken together with
the cumulative effects, is likely to jeopardize the continued
existence of listed species.” 50 C.F.R. § 402.14(g)(4);
16 U.S.C. § 1536(a)(2). We do not believe it is consistent
with the statutory scheme that jeopardy caused by cumulative
effects could obviate the requirement that the federal action
itself must cause some incremental deterioration in the
species’ pre-action condition. See Nat’l Wildlife Fed’n,
524 F.3d at 930 (“Agency action can only ‘jeopardize’ a
species’ existence if that agency action causes some
deterioration in the species’ pre-action condition.”); see also
Oceana, Inc. v. Pritzker, 75 F. Supp. 3d 469, 491 (D.D.C.
2014) (“But a Section 7 consultation must determine whether

17
CBD seems to concede that this is its true claim in its Reply brief,
stating that, if required to reconsult, FWS “undoubtedly has the power to
persuade, if not compel, the non-federal signatories to adopt more
stringent Conservation Measures.”
 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 39

the specific agency action under review actually causes some
additional harm to the species, beyond that which the species
may suffer due to other factors.”). Stated another way, it
makes little sense that a federal action with entirely positive
effects on an endangered species would be barred as causing
jeopardy merely because cumulative effects, which are
outside the federal agency’s control but required to be
considered in the ESA analysis, are anticipated to adversely
affect that species. Accordingly, because the federal action
provides only benefits to the Moapa dace, we find that the
Biop’s no jeopardy conclusion regarding FWS’s participation
in the MOA is not arbitrary and capricious.

We additionally conclude that CBD has failed to
demonstrate that the Biop’s no jeopardy conclusion is
arbitrary and capricious because CBD has not shown that the
action, even together with the cumulative effects, causes
jeopardy to the “continued existence” of the Moapa dace.
16 U.S.C. § 1536(a)(2). CBD has not challenged the Biop’s
conclusions as they relate to the survival of all Moapa dace;
rather, CBD narrowly and improperly focuses on the claimed
ineffectiveness of the conservation measures in only the
Pedersen Unit. See FWS Consultant Handbook at 4-36 (“The
determination of jeopardy or adverse modification is based on
the effects of the action on the continued existence of the
entire population of the listed species[.]”). In so doing, CBD
fails to even acknowledge the Biop’s conclusions that various
non-flow related conservation measures are anticipated to
“increase [Moapa dace] distribution and abundance over and
above current conditions” before any groundwater pumping
even occurs. Biop at 56. Such measures, among other things,
“would reduce the potential for fire and restore the overall
spawning and rearing habitat [at Jones Spring] sufficient to
sustain several hundred Moapa dace,” as well as increase the
40 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS

security of habitat throughout the species range by removing
non-native fishes and reducing species vulnerability to
catastrophic events. Id. at 57–60. It is proper for FWS to rely
on mitigation and offsets in its jeopardy analysis, and it may
view the effect of all such efforts on the species as a whole,
rather than requiring a tit-for-tat offset in every subsection of
species habitat. See Rock Creek Alliance v. FWS, 663 F.3d
439, 443 (9th Cir. 2011) (approving no jeopardy finding
where mitigation plans were expected to offset adverse
effects to endangered species, and holding that “[t]he [ESA]
does not require that [FWS] replace impacted habitat on an
acre for acre basis”); Selkirk, 336 F.3d at 955 (finding adverse
effects to species outweighed by benefits of mitigation plan
sufficient to support no jeopardy finding).

4. Consideration of scope of federal action at
issue

CBD argues that, by failing to issue an ITS, FWS acted
arbitrarily and capriciously by failing to evaluate all
foreseeable consequences of the proposed action. In
particular, CBD objects to the Biop’s deferral of analysis of
potential take until second stage consultations, contending
that “if a jeopardy analysis is possible in a programmatic
consultation, analysis and quantification of potential take
through an incidental take statement . . . must also be
possible.”

Section 1536(b)(4) provides: “If after consultation . . .
[FWS] concludes that—the taking of an endangered species
. . . incidental to the agency action will not violate
[§ 1536(a)(2)’s requirement that federal agencies avoid
jeopardizing the continued existence of any endangered
species] . . . [FWS] shall provide the Federal agency . . . with
 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 41

[an ITS].” (emphasis added). As we have stated, the “agency
action” that is evaluated in the Biop is “the execution of the
MOA by [FWS].” Biop at 62. While execution of the MOA
presumes that groundwater withdrawals, and resultant take of
Moapa dace, will occur consistent with Order 1169, the Biop
correctly states that the execution of the MOA “in and of
itself, does not result in the pumping of any groundwater.”
Id. CBD points to no evidence that incidental take was likely
to occur merely because FWS executed the MOA, and we do
not believe the record supports such a conclusion. Thus,
there was no necessity that FWS issue an ITS.18 See Ariz.
Cattle Growers’ Ass’n, 273 F.3d at 1233 (“We hold, based on
the legislative history, case law, prior agency representations,
and the plain language of the Endangered Species Act, that an
Incidental Take Statement must be predicated on a finding of
an incidental take.”). We also conclude that deferral of ITSs
to second level analysis was appropriate based on the Biop’s
conclusion that “[a]ny incidental take and measures to reduce
such take cannot be effectively identified at the programmatic
level of the proposed action because of the number of
impending actions by different entities and its regional
scope.” See Gifford Pinchot Task Force v. FWS, 378 F.3d
1059, 1063–68 (9th Cir. 2004) (“We have previously
approved programmatic environmental analysis supplemented
by later project-specific environmental analysis.”); see also
W. Watersheds Project v. Bureau of Land Mgmt., 552 F.
Supp. 2d 1113, 1139 (D. Nev. 2008) (finding deferral of an
ITS to a tiered biological opinion “reasonable” where
“[s]imilar to Gifford . . . the biological opinion in this case

18
The notion that executing the MOA would not, itself, result in take is
supported by the first page of the Biop, where it is noted that “[n]one of
the activities included in the MOA will be implemented absent project or
activity specific consultations.” Biop at 1.
42 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS

does not contemplate actual action. Because no action is
taking place at this time, no ‘take’ is occurring. . . . Thus,
FSA will issue an ITS, if necessary, at the time a specific
project is authorized.”).

IV. CONCLUSION

We find no evidence in the record that FWS relied on
improper factors, failed to consider important aspects of the
problem, offered explanations for its decision that were
counter to the evidence before it, or offered implausible
explanations for its decision. Accordingly, for the reasons
explained herein, FWS’s determination that its participation
in the MOA would not cause jeopardy to the Moapa dace was
not arbitrary, capricious, or in violation of the Endangered
Species Act. The district court’s grant of summary judgment
to FWS, SNWA, and CSI, is AFFIRMED.