Finally, once consultation on the Forest Plan has been reinitiated, the Forest Service must not make any “irreversible or irretrievable commitment of resources” during the consultation process “which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures.” 16 U.S.C. § 1536(d). The Forest Service should also be ordered to insure that no projects or activities on the Superior National Forest may further violate the ESA by unlawfully taking additional lynx or wolves pending the completion of the consultation process and approval of a new biological opinion that complies with the ESA.

However, absent the monitoring provisions, BLM would not be able to review its actions to determine whether reinitiation is necessary; consequently, monitoring is an essential component of ensuring that the ITSs are effective and appropriately “minimize[s] the impact” of incidental take, as specified under the ESA. See 16 U.S.C. § 1536(b)(4)(C)(ii); Oregon Natural Res. Council v. Allen, 476 F.3d 1031, 1039 n. 7 (9th Cir. 2007) (“FWS Section 7 Consultation Handbook [at 5-4] provides as examples concrete activities that may allow those implementing the project to reduce the number of animals taken, such as . . . monitoring.”)

BLM’s reliance on the NECO BO which is legally and factually flawed for all of the reasons discussed above is arbitrary and capricious and contravenes its duty to ensure that the activities authorized in the NECO Plan are not likely to jeopardize the desert tortoise or destroy or adversely modify its critical habitat. 16 U.S.C. § 1536(a)(2). BLM’s reliance on the WEMO BO which is legally and factually flawed for all of the reasons discussed above in adopting the WEMO ROD contravenes its duty to ensure that the activities authorized in the WEMO Plan Amendment and WEMO route designation, are not likely to jeopardize the LMMV or the desert tortoise or destroy or adversely modify its critical habitat.

12. Within 120 days of the date of this Order, the Corps shall submit a new biological assessment to NMFS outlining the Action and the effects of that Action on the species in accord with 16 U.S.C. § 1536(c); 50 C.F.R. § 402.12.

The ESA requires FWS to make judgments on the effects of actions (including mitigation actions), issue an “opinion,” and in many instances quantify “take” numerically. 16 U.S.C. § 1536(a)(2), (b). It asks FWS to do so on the basis of “available,” not perfect, data.

That is untrue. While section 7(a)(2) requires that each Federal agency insure that any action is not likely to jeopardize the listed species, 16 U.S.C. § 1536(a)(2), that provision does not speak to the manner in which ESA consultation must be conducted. Thus, the ESA only required Reclamation to engage in consultation in a manner necessary to “insure” that specific operational activities carried out under its TRD operations would not be likely to jeopardize the continued existence of listed species.

In particular, the level of confidence necessary for a jeopardy determination is higher than the level required for an EIS. While the ESA requires NMFS to determine whether jeopardy is ―likely,‖ 16 U.S.C. § 1536(a)(2), NEPA requires an EIS whenever a project ―may‖ have significant impacts, 40 C.F.R. § 1508.18.

The incidental take statement provides a safe harbor for activities undertaken in compliance with the incidental take statement’s requirements and terms and conditions. 16 U.S.C. § 1536(o)(2); see 16 U.S.C. § 1536(b)(4)(C). An incidental take statement also serves as a check on the biological opinion’s assumptions and conclusions.

Under ESA § 7, the Forest Service has an independent obligation to ensure that actions it authorizes, such as the Montanore Mine, will not jeopardize listed species or destroy or adversely modify their critical habitat. 16 U.S.C. § 1536(a)(2). “[A]n agency cannot meet its section 7 obligations by relying on a Biological Opinion that is legally flawed or by failing to discuss information that Case 9:15-cv-00069-DWM Document 35-1 Filed 09/23/16 Page 46 of 48 42 would undercut the opinion‟s conclusions.”

Section 7(d) provides that agencies shall not make “any irreversible or irretrievable commitment of resources” during a consultation. 16 U.S.C. § 1536(d). Section 9 makes it unlawful to, without a permit or exemption, perform an act that causes the “take” of spotted frogs.