Wildlife Group Defends Tortoise at Ninth Circuit

PASADENA, Calif. (CN) – A wildlife group claiming a Nevada solar power project endangers the Mojave Desert tortoise have urged the Ninth Circuit Court of Appeals to overturn a ruling in favor of the federal government.

Three years ago, Defenders of Wildlife asked a judge to halt the Silver State South Solar station in Ivanpah Valley, Nevada, claiming the project endangered the tortoise and its habitat.

Suing the Secretary of the Interior and the directors of the U.S. Fish and Wildlife Service and the Bureau of Land Management, the nonprofit claimed the solar station violated the Endangered Species Act and other federal environmental laws.

At a hearing on Friday, Defenders of Wildlife attorney Eric Glitzenstein asked the court to reverse U.S. District Judge Michael Fitzgerald’s ruling and remand the case for another environmental review of the project, which is now complete.

After the Bureau of Land Management approved the project, it put a number of measures in place to protect the tortoise and its habitat. U.S. Circuit Judge Milan Smith questioned whether the government was not already doing enough.

Glitzenstein argued the Fish and Wildlife Service’s biological opinion was inconsistent with the Endangered Species Act, asking the court to allow Defenders of Wildlife to participate in the review. He said they would bring on scientists who know more about the project’s impacts on the tortoise.

“If we don’t have that, we’re not going to get the time of day on this project,” Glitzenstsein said.

But the government’s attorney Varu Chilakamarri said the Bureau of Land Management, which had reviewed the opinion, had properly considered the impact on the tortoise and its habitat before it granted the right of way.

“The biological opinion in this case is reasonable. It was dealing with a challenging issue of science to be sure, but it was reasonable, fully supported by the record, and the district court in this case got it right. We ask that you affirm,” she said.

In court papers, the government said officials spent five years studying the environmental impacts of the project.

George Caplan, an attorney with intervenor-defendant Silver State Solar Power South said the acreage of the project was reduced by 37 percent and had been moved two to three miles away from critical habitat.

“It’s not like the project was built adjacent to or on the critical habitat. It’s not. And it’s not only not near it, but it’s a passive project. It’s a benign site. Meaning, it’s a sun collector. It’s not polluting. It’s not a public housing project,” Caplan said.

U.S. Circuit Judge John Owens sat on the panel with U.S. District Judge Edward Korman, sitting by designation from the Eastern District of New York. The panel took the case under submission.

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