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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
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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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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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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
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