govinfo:USCOURTS-dcd-1_23-cv-03343-1

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
 
 
CENTER FOR BIOLOGICAL 
DIVERSITY, et al., 
 
 Plaintiffs, 
 
 v. 
 
U.S. OFFICE OF SURFACE MINING 
RECLAMATION AND ENFORCEMENT, 
et al., 
 
 Defendants. 
 
Civil Action No. 23 - 3343 (SLS) 
Judge Sparkle L. Sooknanan 
 
 
MEMORANDUM OPINION 
The Endangered Species Act of 1973 entrusts federal agencies with the critical task of 
identifying and preserving endangered and threatened species across our country. This case is 
about whether the Act permits those agencies to delegate certain authorities and responsibilities to 
state regulators in the field of coal mining . The Plaintiffs in this case are two environmental 
groups—t he Center for Biological Diversity and Appalachian Voices—that are concerned about 
the risks that coal mining activities pose to threatened species living in Appalachian streams and 
rivers, including the Guyandotte River crayfish, Big Sandy crayfish, and candy darter. They claim 
that the dwindling number of streams and rivers where these creatures live are at risk of pollution 
by displaced sediment, chemical run-off, and other aftereffects of mining . And they contend that 
even brief lapses in regulatory oversight could cause significant harm to these threatened species, 
including their complete elimination. 
The Plaintiffs brought this lawsuit to challenge a written Biological Opinion by the U.S. 
Fish and Wildlife Service finding that the mining regulatory program administered by the U.S. 

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Office of Surface Min ing Reclamation and Enforcement is unlikely to jeopardize the continued 
existence of threatened species . The Plaintiffs assert that the Biological Opinion flouts carefully 
designed procedures in the Endangered Species Act and impermissibly approves entrusting state 
regulators with responsibilities that lie with the federal Defendants. The Parties now cross-move 
for summary judgment. For the reasons below, the Court concludes that the Biological Opinion is 
arbitrary and capricious and must be set aside. 
BACKGROUND 
A. Statutory and Regulatory Background 
1. The Endangered Species Act (ESA) 
The ESA is “the most comprehensive legislation for the preservation of endangered species 
ever enacted by any nation.” Tenn. Valley Auth. v. Hill , 437 U.S. 153, 180 (1978) . It “seeks to 
protect species of animals against threats to their continuing existence caused by man.” Lujan v. 
Defs. of Wildlife, 504 U.S. 555, 558 (1992). Congress tasked two agencies with administering the 
ESA: the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) . 
Nat’l Ass’n of Home Builders v. Defs. of Wildlife , 551 U.S. 644, 651 (2007) . “The NMFS 
administers the ESA for protected marine and anadromous species (ones that migrate between 
freshwater and saltwater); and the FWS administers the ESA with respect to all other protected 
species.” Ctr. for Biological Diversity v. Zeldin , 171 F.4th 356, 365 (D.C. Cir. 2026) (citing 
50 C.F.R § 402.01(b)). 
“[A] species can be ‘listed’ as either ‘endangered’ or ‘threatened’” under the ESA. Id. at 
364–65 (quoting 16 U.S.C. § 1533). The Act defines an endangered species as “any species which 
is in danger of extinction throughout all or a significant portion of its range” and a threatened 
species as “any species which is likely to become an endangered species within the foreseeable 
future throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6), (20). Once a 

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species has been “listed,” it gains “significant protections” under the ESA, WildEarth Guardians 
v. U.S. Fish & Wildlife Serv., 749 F. Supp. 3d 26, 36 (D.D.C. 2024), which “provide[s] a means 
whereby the ecosystems upon which endangered species and threatened species depend may be 
conserved” and “a program for the conservation of such endangered species and threatened 
species,” 16 U.S.C. § 1531(b). 
Section 9 of the ESA makes it unlawful for “any person,” including private parties, States, 
and federal agencies, to “take” an endangered species. Id. § 1538(a)(1)(B). 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.” Id. § 1532(19). And “Congress intended ‘take’ to apply broadly to cover 
indirect as well as purposeful actions.” Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 
515 U.S. 687, 704 (1995). Violators of this prohibition m ay face civil or criminal penalties. See 
16 U.S.C. § 1540. 
“Recognizing that some take can occur as a result of otherwise lawful activities, Congress 
created two paths to ensure that ‘incidental take’ does not jeopardize protected species or adversely 
modify or destroy critical habitat: The first path, under Section 7, applies to federal agency actions, 
and the second, under Section 10, applies to non- federal actions.” Ctr. for Biological Diversity v. 
Regan, 734 F. Supp. 3d 1, 15 (D.D.C. 2024) ( first citing 16 U.S.C. § 1536; and then id. § 1538), 
aff’d sub nom., Zeldin, 171 F.4th 356. Both Section 7 and Section 10 “offer the promise of liability 
protection for incidental take” if certain requirements are met. Id. (first citing 16 U.S.C. 
§§ 1536(o)(2), 1539(a); and then 50 C.F.R. § 402.14(i)(5)). 
a. Section 7 Consultation 
Section 7 of the ESA “prescribes the steps that federal agencies must take to ensure that 
their actions do not jeopardize endangered wildlife and flora.” Nat’l Ass’n of Home Builders , 

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551 U.S. at 652. Section 7(a)(2) provides that “[e]ach Federal agency shall, in consultation with 
and with the assistance of [the FWS or the NMFS], insure that any action authorized, funded, or 
carried out by such an agency . . . is not likely to jeopardize the continued existence of any 
endangered species or threatened species or result in the destruction or adverse modification of 
habitat of such species.” 16 U.S.C. § 1536(a)(2) ; see 50 C.F.R. § 402.02. “Action” is defined to 
cover “all activities or programs of any kind authorized, funded, or carried out, in whole or in part, 
by Federal agencies,” including “the granting of licenses, contracts, leases, easements, rights -of-
way, permits, or grants -in-aid.” 50 C.F.R. § 402.02. And an action “jeopardize[s] the continued 
existence of” an endangered or threatened species if it “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.” Id. The agency 
proposing the action is known as the “action agency,” and the agency providing consultation—
either the FWS or the NMFS—serves as the “consulting agency.” Oceana, Inc. v. Pritzker, 75 F. 
Supp. 3d 469, 474 n.3 (D.D.C. 2014). 
The action agency must first determine whether formal consultation is required. To do this, 
“[e]ach federal agency shall review its actions at the earliest possible time to determine whether 
any action may affect listed species or critical habitat.” 50 C.F.R. § 402.14(a). “If the action agency 
determines—and the consulting agency concurs —that ‘the proposed action is not likely to 
adversely affect any listed species or critical habitat,’ then no formal consultation is required.” 
Ctr. for Biological Diversity, 734 F. Supp. 3d at 16 (quoting 50 C.F.R. § 402.14(b)(1)). But if the 
action agency “concludes after an initial review that its action ‘may affect listed species or critical 
habitat,’ that agency must engage in ‘consultation’ with [ the FWS or the NMFS].” Id. (quoting 
50 C.F.R. § 402.14(a)); see also 50 C.F.R. § 402.02 (defining “Service” as either the FWS or the 

5 
NMFS, “as appropriate”). A formal consultation under Section 7 is triggered for a discrete federal 
agency action or “an agency’s multiple actions on a program, region, or other basis.” 50 C.F.R. 
§ 402.02. 
b. Biological Opinion 
The first step of a Section 7 formal consultation requires the consulting agency to prepare 
a written Biological Opinion (BiOp) that evaluates whether the planned agency action is “likely to 
jeopardize the continued existence” of a protected species or result in the “destruction or adverse 
modification” of its critical habitat. See 16 U.S.C. § 1536(a)(2)–(4). “The process of preparing a 
BiOp is a rigorous endeavor.” Zeldin, 171 F.4th at 365. The consulting agency must: 
(1) Review all relevant information provided by the Federal agency or otherwise 
available. Such review may include an on- site inspection of the action area with 
representatives of the [action] agency and the applicant. 
(2) Evaluate the current status and environmental baseline of the listed species or 
critical habitat. 
(3) Evaluate the effects of the action and cumulative effects on the listed species or 
critical habitat. 
(4) Add the effects of the action and cumulative effects to the environmental 
baseline and in light of the status of the species and critical habitat, formulate the 
Service’s opinion as to whether the action is likely to jeopardize the continued 
existence of listed species or result in the destruction or adverse modification of 
critical habitat. 
50 C.F.R. § 402.14(g). Additionally, the consulting agency must “[f]ormulate a statement 
concerning incidental take, if such take is reasonably certain to occur.” Id. § 402.14(g)(7). 
The D.C. Circuit has referred “to the third BiOp requirement as the ‘effects analysis.’” 
Zeldin, 171 F.4th at 366 (citing 50 C.F.R. § 402.14(g)(3)). And it has described that analysis as 
“encompass[ing] two types of effects .” Id. “First, the ‘effects of the action’ include ‘all 
consequences to listed species . . . that are caused by the proposed action, including the 
consequences of other activities that are caused by the proposed action.” Id. (alteration in original) 

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(quoting 50 C.F.R. § 402.02). Such effects “may occur later in time and may include consequences 
occurring outside the immediate area involved in the action.” 50 C.F.R. § 402.02. “Second, the 
‘cumulative effects’ on the listed species include ‘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.’” Zeldin, 171 F.4th at 366 (emphasis in original) (quoting 
50 C.F.R. § 402.02). 
Once the consulting agency has completed the effects analysis, it must “[a]dd the effects 
of the action and cumulative effects to the environmental baseline” and then, “in light of the status 
of the species and critical habitat,” formulate its “opinion as to whether the action is likely to 
jeopardize the continued existence of listed species or result in the destruction or adverse 
modification of critical habitat.” 50 C.F.R. § 402.14(g)(4). “In other words, the [consulting 
agency] must determine whether the planned action ‘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.’” Zeldin , 171 
F.4th at 366 (quoting 50 C.F.R. § 402.02). Finally, the consulting agency must set forth its opinion 
in a BiOp, summarizing the information on which its jeopardy determination is based, and 
detailing “how the agency action affects the species or its critical habitat.” 16 U.S.C. 
§ 1536(b)(3)(A); see also 50 C.F.R. § 402.14(h). 
“In the event of a ‘jeopardy’ determination, the consulting agency ‘ shall suggest those 
reasonable and prudent alternatives which [it] believes would not violate [Section 7(a)(2)] and can 
be taken by [the action agency]. ’” Zeldin, 171 F.4th at 366 (alterations in original) (quoting 
16 U.S.C. § 1536(b)(3)(A)). “Following the issuance of a ‘jeopardy’ opinion, the [action] agency 
must either terminate the action, implement the proposed alternative, or seek an exemption from 

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the Cabinet-level Endangered Species Committee pursuant to 16 U.S.C. § 1536(e).” Id. (alteration 
in original) (quoting Nat’l Ass’n of Home Builders, 551 U.S. at 652). “Importantly, in ‘formulating 
its biological opinion, any reasonable and prudent alternatives, and any reasonable and prudent 
measures,’ the [consulting agency] [is] required to ‘use the best scientific and commercial data 
available.’” Id. (quoting 50 C.F.R. § 402.14(g)(8)); see also 16 U.S.C. § 1536(a)(2) (“In fulfilling 
the requirements of this paragraph each agency shall use the best scientific and commercial data 
available.”). 
c. Incidental Take Statement 
If the consulting agency makes a “no-jeopardy” determination but concludes that incidental 
take is nonetheless “reasonably certain to occur,” 50 C.F.R. § 402.14(g)(7), it must proceed to “the 
second step of the Section 7 consultation process” and provide an “incidental take statement” or 
ITS, Zeldin, 171 F.4th at 366; see also 50 C.F.R. § 402.14(i); 16 U.S.C. § 1536(b)(4). This step is 
necessary where a proposed action “may still cause some harm to the [listed] species” “[e]ven if 
[it] will not ‘jeopardize the continued existence’ of [the] listed species.” Shafer & Freeman Lakes 
Env’t Conservation Corp. v. FERC, 992 F.3d 1071, 1080 (D.C. Cir. 2021). 
When an ITS is required, the consulting agency must include it as part of the BiOp, 
16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i)(1), and the ITS must “(i) specif[y] the extent of the 
anticipated take, (ii) identif [y] any ‘reasonable and prudent measures’ that the wildlife agency 
considers ‘necessary or appropriate to minimize such impact,’ and (iii) set[] forth detailed ‘terms 
and conditions’ that the action agency or licensed private party must undertake to implement those 
reasonable and prudent measures,” Shafer, 992 F.3d at 1080 (quoting 16 U.S.C. § 1536(b)(4)). The 
ITS must specify “the impact of incidental taking as the amount or extent of such taking” on the 
species. 50 C.F.R. § 402.14(i)(1)(i). And the ITS may do that through a “surrogate (e.g., similarly 

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affected species or habitat or ecological conditions)” so long as it adequately explains why it must 
use a surrogate and it still “sets a clear standard for determining when the level of anticipated take 
has been exceeded[.]” Id. 
“[T]he action agency or applicant must ‘monitor the impacts of incidental take’ and ‘report 
the progress of the action and its impact on the species to the [consulting agency] as specified in 
the [ITS].’” Zeldin, 171 F.4th at 367 (second alteration in original) (quoting 50 C.F.R. 
§ 402.14(i)(4)). “The action agency ‘must reinitiate consultation immediately’ if the ‘amount or 
extent of incidental taking’ specified in the ITS, as required by the regulations, ‘is exceeded.’” Id. 
at 367 (emphasis in original) (quoting 50 C.F.R. § 402.14(i)(5)); see also 50 C.F.R. § 402.16(a)(1). 
The action agency must also reinitiate consultation under other circumstances, including: “[i]f new 
information reveals effects of the action that may affect listed species or critical habitat in a manner 
or to an extent not previously considered;” “[i]f the identified action is subsequently modified in a 
manner that causes an effect to the listed species or critical habitat that was not considered in the 
biological opinion or written concurrence ;” or “[i]f a new species is listed or critical habitat 
designated that may be affected by the identified action.” 50 C.F.R. § 402.16(a). Such reinitiation 
“shall be requested” by the action agency. Id. 
“Ultimately, if [a consulting agency] provide[s] a no- jeopardy determination and issue[s] 
an ITS, then the ITS offers a safe harbor to those who participate in the planned agency action: 
Parties that comply with the terms and conditions specified in the ITS are exempted from civil and 
criminal liability under the ESA for any incidental takings, and they need not seek any other 
authorization or permit under the ESA.” Zeldin, 171 F.4th at 367; see also 16 U.S.C. § 1536(o)(2); 
50 C.F.R. § 402.14(i)(6). 

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d. Programmatic Consultation 
A formal consultation under Section 7 is also necessary for “an agency’s multiple actions 
on a program, region, or other basis.” 50 C.F.R. § 402.02. This “is known as a ‘programmatic 
consultation,’” under which the consulting agency may “consult on the effects of programmatic 
actions, such as ‘[m]ultiple similar, frequently occurring, or routine actions,’ and proposed 
frameworks ‘for future proposed actions.’” Zeldin, 171 F.4th at 367 (alteration in original) (quoting 
50 C.F.R. § 402.02). The ESA’s implementing “[r] egulations recognize that such ‘ multiple 
actions’ might not be ready for full Section 7 consultation at the outset and may need to defer the 
required Section 7 analysis until a later time.” Id. For example, the regulations contemplate 
authorization of federal programs for which “incidental take resulting from any action 
subsequently authorized, funded, or carried out under the program will be addressed in subsequent 
section 7 consultation, as appropriate.” 50 C.F.R. § 402.14(i)( 7); see also id. § 402.02 (defining 
“Framework programmatic action”). Importantly, however, “neither the statute nor any applicable 
regulation provides that ‘programmatic’ consultations allow the [consulting agency] to avoid the 
rigorous requirements of Section 7 consultation entirely.” Zeldin, 171 F.4th at 367. 
e. Section 10 Consultation 
Section 10 establishes a different pathway for “private parties, states, and other nonfederal 
actors.” Id. at 367–68 (first citing 16 U.S.C. § 1539(a); and then 50 C.F.R. § 402.14(i)(5)). “Under 
Section 10, a nonfederal actor may obtain a permit from the [FWS or the NMFS] that allows 
incidental takings to occur without subjecting the actor to liability under the ESA.” Id. at 
368 (citing 16 U.S.C. § 1539(a)(1)(B)). The permit process is significant. A n applicant “ must 
submit a conservation plan that describes the impacts of potential incidental takings, the steps the 
applicant will take to minimize and mitigate those impacts, alternatives to the planned activity, 

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why the applicant is not taking those alternatives, and any other measures that the [consulting 
agency] ‘may require as being necessary or appropriate.’” Id. (citing 16 U.S.C. § 1539(a)(2)(A)). 
“The [consulting agency] must publish notice of the Section 10 permit application in the Federal 
Register and provide opportunity for public comment.” Id. (citing 16 U.S.C. § 1539(c), (a)(2)(B)). 
“And the [consulting agency] must make certain findings before they can issue a permit that allows 
incidental takings, inc luding that the takings ‘will not appreciably reduce the likelihood of the 
survival and recovery of the species in the wild,’ and that ‘the applicant will, to the maximum 
extent practicable, minimize and mitigate the impacts of such taking.’” Id. (citing 16 U.S.C. 
§ 1539(a)(2)(B)). 
2. The Surface Mining Control and Reclamation Act (SMCRA) 
The Court provided a more detailed summary of the SMCRA in an earlier opinion in this 
case and assumes familiarity with that opinion. See Ctr. for Biological Diversity v. U.S. OSMRE , 
No. 23- cv-3343, 2025 WL 1503802, at *3–4 (D.D.C. May 27, 2025) , ECF No. 33. In short, 
Congress enacted the SMCRA “to establish a nationwide program to protect society and the 
environment from the adverse effects of surface coal mining operations.” Nat’l Mining Ass’n v. 
U.S. Dep’t of the Interior, 105 F.3d 691, 693 (D.C. Cir. 1997) (quoting 30 U.S.C. § 1202(a)). The 
Department of Interior ’s Office of Surface Mining Reclamation and Enforcement (OSMRE) 
“administers and enforces” the SMCRA. Id. (citing 30 U.S.C. § 1211(c)). 
“As part of its comprehensive regulatory scheme, the SMCRA provides for federal 
coordination with the states.” Coal River Mountain Watch v. U.S. Dep’t of the Interior, 146 F. 
Supp. 3d 17, 20 (D.D.C. 2015). “After an interim period of direct federal regulation, states are 
authorized by the [SMCRA] to assume a major regulatory role.” Nat’l Wildlife Fed’n v. Hodel, 
839 F.2d 694, 701 (1988). “With the Secretary [of the Interior] ’s approval, . . . state[s] [may] 

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assume[] primary responsibility for SMCRA enforcement and rulemaking.” Id. at 701. States that 
have achieved this status are known as “primacy” states. Nat’l Mining Ass’n v. U.S. Dep’t of the 
Interior, 70 F.3d 1345, 1347 (D.C. Cir. 1995). But the OSMRE must still ensure that these state 
programs are properly administered and that violations of the SMCRA are corrected. See 30 U.S.C. 
§§ 1211(c), 1267, 1271 (describing the Secretary of the Interior’s duties to oversee approved state 
programs). 
B. Factual Background 
1. The Effects of Coal Mining 
The Plaintiffs are both non- profit 501(c)(3) corporations committed to overlapping 
environmental goals. See Am. Compl. ¶¶ 17–18, ECF No. 13. The Center for Biological Diversity 
“works to secure a future for all species, great or small, hovering on the brink of extinction.” 
Id. ¶ 17. And Appalachian Voices is “committed to protecting the land, air, and water of the central 
and southern Appalachian region,” with “a focus on reducing coal mining’s impact on the region, 
including to species listed under the ESA .” Id. ¶ 18. In this case, the Plaintiffs are particularly 
concerned about the ways that coal mining has negatively impacted threatened and endangered 
species in West Virginia, Kentucky, and Virginia. See id. ¶ 67. 
The Plaintiffs allege that “coal mining activities have led to severe habitat degradation and 
dramatic population declines across the ranges of the Guyandotte River crayfish, Big Sandy 
crayfish, and candy darter.” Id. ¶ 70. According to the Plaintiffs, coal mining has had a particularly 
negative impact on the Guyandotte River crayfish, which now survives in only two streams in 
West Virginia. Id. They point to hundreds of SMC RA-related actions as evidence that “the coal 
industry has a track record of chronic non -compliance with the requirements of [the] SM CRA 
across the ranges of both the Guyandotte River crayfish and Big Sandy crayfish.” Id. ¶ 73. Both 

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species of crayfish, as well as the candy darter, are listed as endangered or threatened under the 
ESA. See id. ¶ 69; FWS_36633–34, ECF No. 52. 
2. The 2020 Biological Opinion 
The OSMRE’s implementation of its regulatory program for overseeing surface coal 
mining and reclamation operations has been subject to several ESA Section 7 consultations over 
the past thirty years, including in 1996 and 2016. FWS_36606–07. The consultation at issue here 
occurred in 2020, when the OSMRE requested that the FWS review its continued implementation 
of the SMCRA, including its “direct implementation and enforcement” of SMCRA regulations “in 
Federal program States and on Indian lands” and its “oversight of State regulatory programs with 
primacy.” Id. With respect to the latter, the activities subject to consultation included the OSMRE’s 
“oversight of State program compliance with requirements related to the protection and 
enhancement of proposed or listed species and proposed or designated critical habitats.” 
FWS_36605. And importantly, that oversight included “implementation of two documents 
developed by [the] OSMRE in consultation with the [FWS] .” Id. The first document detailed an 
“SMCRA/ESA Coordination Process .” Id. And the second described a “Dispute Resolution 
Process Relevant to Regulatory Authorities Coordi nating SMCRA Permitting with the 
USFWS.” Id. 
a. Coordination Process 
The Coordination Process, which was attached to the FWS’s BiOp as Appendix A, 
prescribed four steps by which State regulatory authorities and the FWS would coordinate their 
efforts regarding State permit issuance. First, “State regulatory authorities [would] approach the 
Service as early as possible in the permit application development process to provide sufficient 
time for the coordination and permit review and revision process as it relate s to threatened or 

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endangered species or designated or proposed critical habitat .” FWS_36708. The State authority 
would notify the FWS whenever it received complete applications to receive, renew, or 
significantly revise a permit. Id. And upon request by the FWS, it would provide the Service with 
any “fish and wildlife resources information in the permit application, as well as the fish and 
wildlife protection and enhancement plan.” Id. 
Second, the State authority would, “based upon [its] discretion,” provide the FWS with 
“fish and wildlife resource information” necessary to facilitate the FWS’s “timely and efficient 
review” of each permit application. Id . “[I]n most instances,” this information would include a 
description of the action under consideration that addressed: “the areas to be disturbed by mining 
activities”; “any listed or proposed species or designated critical habitat that may be affected by 
the action”; the actions the operator and applicant would take to “minimize disturbance and adverse 
impacts on fish and wildlife, ” including on “ listed or proposed species and designated critical 
habitat”; and the actions proposed by the permit applicant “to enhance fish, wildlife and related 
environmental values, where practicable.” FWS_36708–09. 
Third, the FWS would review the materials provided, notify the State if any additional 
information was needed, and evaluate “the State regulatory authority’s written findings that the 
exploration, mining, and reclamation activities [would] not jeopardize the continued existence of 
an endangered or threatened species.” FWS_36709. “If, in close coordination with the regulatory 
authority, the Service and the State regulatory authority determine [d] there [was] a need for 
additional species-specific protective measures (SSPMs), including reporting and monitoring, the 
Service and the State regulatory authority [would] develop SSPM [s] to minimize anticipated 
incidental take.” Id . “If no additional SSPMs [were] required, the Service [would] provide the 
State regulatory authority with written confirmation that the technical assistance process ha [d] 

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been successfully completed.” Id . If, however, the FWS “unilaterally suggest[ed] additional 
SSPMs” that the State regulatory did not accept, the State would explain why it rejected those 
measures and the Service and the State would attempt to resolve the issue through the Dispute 
Resolution Process described below. FWS_36709–10. 
Fourth, and finally, the State regulatory authority would “issue a written notification to the 
Service of its decision to approve or deny an application for a permit if the Service filed comments 
or objections to the permit application.” FWS_36710. And “[b]efore approving any permit 
application that may affect proposed or ESA-listed species or designated critical habitat, the State 
regulatory authority [would] make a finding that ‘[t]he operation would not affect the continued 
existence of endangered or thr eatened species or result in destruction or adverse modification of 
their critical habitats, as determined under the [ESA].’” Id. (third and fourth alterations in original). 
b. Dispute Resolution Process 
The Dispute Resolution Process, which was attached to the FWS’s BiOp as Appendix B, 
was designed to resolve disagreements that arose in step three of the Coordination Process about 
what measures might be necessary “to minimize disturbances and adverse impacts” on species or 
habitats caused by permitted activity. FWS_36711. The Dispute Resolution Process provided a 
four-level “elevation process” if the State regulatory authority and the FWS could not agree on 
measures that the FWS had recommended. In short, the dispute could be elevated: first, to an 
OSMRE Field Office Director; second, to OSMRE and FWS Regional Directors; third, to OSMRE 
and FWS Headquarters; and fourth, to the Secretary of the Interior. FWS_36712–13. At each stage 
in the elevation process, the FWS officials involved would propose a resolution to the dispute. And 
at each stage, the State would retain the authority to reject the proposed resolution. This was true 
even at level four, where the State could either “require implementation of the proposed resolution” 

15 
offered by the Secretary of the Interior or “reject the proposed resolution and approve the permit.” 
FWS_36713. At that point, the Dispute Resolution Process specified that “[f]urther elevations 
[would] not be available.” FWS_36713. 
c. Jeopardy Determination 
In reviewing the OSMRE’s proposed action, the FWS ultimately concluded that the 
OSMRE’s implementation of the SMCRA “through its existing regulations [was] not likely to 
jeopardize the continued existence of proposed or listed species and or destroy or adversely modify 
designated or proposed critical habitat.” FWS_36682. In reaching that conclusion, the FWS relied 
on the additional protections that it believed would be provided by the Coordination and Dispute 
Resolution Processes. It noted that “[i]mplementation of the performance standards required by 
the SMCRA, on their own, [would] not necessarily eliminate adverse effects on ESA -proposed 
and listed species and designated and proposed critical habitat.” FWS_36670. But the FWS found 
that the Coordination Process would enable it to provide S tate regulatory authorities with 
“additional site -specific and species -specific protective measures, monitoring, and reporting 
recommendations to further enhance the protection of listed or proposed species or designated or 
proposed critical habitat.” Id. And it concluded that the “OSMRE’s commitment to exercise its 
oversight authority to resolve any issues that arise between regulatory authorities and the Service 
further suggest [ed]” that adverse effects to ESA -protected species and habitats would be 
“adequately minimized.” Id. 
The FWS left it to subsequent technical assistance and coordination to address issues that 
might otherwise be addressed during a standard Section 7 consultation. It concluded, for example, 
that “it [was] not feasible, nor [was] it required, to conduct a meaningful site-specific and species-
specific effects analysis” in the BiOp. FWS_36662. This was because the SMCRA’s program was 

16 
“essentially nationwide” and “detailed information on the specific size, scope, and operation of 
future mining activities” that might be permitted under the program was not available. Id. Instead, 
the FWS noted that “site-specific and species -specific information [would] be available and 
assessed through the technical assistance process.” Id.; see also FWS_36680. 
d. Incidental Take Statement 
The FWS took a similar approach in the ITS accompanying the BiOp. The Service noted 
that “the paucity of information regarding future mining projects . . . available at the time of [the] 
programmatic consultation [did] not allow the Service to identify the specific locations in which 
future mining projects [would] occur, the specific activities associated with a particular mining 
permit, and the number of individuals that might be affected by such activities in order for the 
Service to conduct species and site- specific analyses.” FWS_36684. Accordingly, the ITS 
provided that “[f]or proposed mining activities” in primacy states where “incidental take of ESA-
listed species [was] reasonably certain to occur, the amount and extent of incidental take 
anticipated from [those] proposed actions [would] be quantified by the Service and evaluated on a 
project-specific basis through the SMCRA Coordination Process .” Id. Consistent with this 
approach, the ITS itself did not quantify or estimate a specific amount of incidental take that would 
be permitted. FWS_36684–85. 
The ITS nonetheless provided that the “OSMRE, State regulatory authorities, and mine 
operators [would] be afforded an exemption from the prohibition against take resulting from 
surface mining activities subject to regulation under” the SMCRA, so long as the mining activities 
complied with the BiOp and the “Reasonable and Prudent Measures and associated Terms and 
Conditions” of the ITS. FWS_36685. The applicable Reasonable and Prudent Measures were that 
the OSMRE would “use its authorities to minimize impacts to listed species” by “evaluating and 

17 
assisting States and Tribes in the administration of SMCRA regulations, and the implementation, 
enforcement, and maintenance” of their approved regulatory programs. Id. And the Terms and 
Conditions required that, to be exempt from Section 9’s take prohibitions, the OSMRE and State 
regulatory authorities needed to engage with the FWS in accordance with the SMCRA 
Coordination Process in their review and approval of permit applications. FWS_36685- 86. If a 
State regulatory authority disagreed about the necessit y of an SSPM recommended by the FWS 
and, after completing the dispute resolution process, “issu[ed] [a] permit without Service 
concurrence,” the permitted action would “not be exempted” from liability under the ITS. 
FWS_36686. Finally, the OSMRE would provide an “annual evaluation report to the Service” on 
“any known issues implementing the technical assistance or dispute resolution process.” Id. 
e. Reinitiation 
The BiOp concluded by noting that, consistent with 50 C.F.R. § 402.16(a), reinitiation of 
formal consultation would be required if: 
1. The amount or extent of incidental take for [the BiOp was] exceeded; 
2. New information reveal[ed] effects of the action that may affect listed species 
or critical habitat in a manner or to an extent not considered in [the BiOp]; 
3. The identified action [was] subsequently modified in a manner that cause[d] an 
effect to the listed species or critical habitat that was not considered in [the 
BiOp]; or 
4. A new species [was] listed or critical habitat designated that may be affected by 
the action identified in [the BiOp]. 
 
FWS_36687. “Potential reinitiation scenarios” could also arise if certain assumptions in the BiOp 
were “proven incorrect” —e.g., about how State authorities and the OSMRE would adhere to 
SMCRA regulations and would engage with the FWS through the Coordination and Dispute 
Resolution Processes. Id.; see also FWS_36662–64. 

18 
C. Procedural Background 
The Plaintiffs filed their Amended Complaint on March 4, 2024, raising three claims. See 
Am. Compl. ¶¶ 133–59. First, they allege that the OSMRE and the FWS violated the ESA and its 
implementing regulations by failing to reinitiate consultation, which constitutes agency action 
unlawfully withheld and unreasonably delayed in violation of the Administrative Procedure Act 
(APA). Id. ¶ 142 (first citing 50 C.F.R. § 402.16; and then 5 U.S.C. § 706(1)). Second, they allege 
that the OSMRE violated Section 7(a)(2) of the ESA by not providing sufficient oversight for state 
implementation of the SMCRA programs as required by the 2020 BiOp, thereby failing to “insure 
that SMCRA -regulated mining operations will not jeopardize the continued existence of listed 
species or adversely modify their critical habitat.” Id. ¶ 150 (citing 16 U.S.C. § 1536(a)(2)). And 
third, they allege that the 2020 BiOp opinion is facially invalid. Id. ¶¶ 151–59 ( first citing 
16 U.S.C. § 1536; and then 5 U.S.C. § 706(2)(A)). 
The Defendants filed certified administrative record indices on July 10, 2024, ECF No. 20, 
and later provided the Court with complete certified copies of the administrative record, 
ECF No. 31. In May 2025, the Court denied a motion by the Plaintiffs to supplement the 
administrative record. See Ctr. for Biological Diversity , 2025 WL 1503802, at *1, ECF No. 33. 
And soon after , the Court granted an unopposed motion by the Plaintiffs to hold summary 
judgment briefing in abeyance pending a decision by the D.C. Circuit that the Plaintiffs expected 
would bear directly on this case. See Min. Order (June 13, 2025) . In February — after the 
Defendants reversed their position and asked that the case proceed, see ECF No. 36—the Court 
lifted the stay, Min. Order (Feb. 11, 2026). 
On March 4, 2026, the Plaintiffs moved for summary judgment . Pls.’ Mot., ECF No. 42. 
On March 25, 2026, the Defendants opposed and cross -moved for summary judgment, Defs.’ 

19 
Cross-Mot., ECF No. 45, while simultaneously moving to strike declarations and exhibits that the 
Plaintiffs had attached to their summary judgment motion, Mot. Strike, ECF No. 44. On March 
27, 2026, the D.C. Circuit issued Center for Biological Diversity v. Zeldin , 171 F.4th 356 (D.C. 
Cir. 2026), and the Parties addressed the import of that decision in their final briefs. See Min. Order 
(Mar. 27, 2026). The Parties’ motions are now ripe for decision. See Pls.’ Reply & Opp’n Summ. 
J., ECF No. 48; Defs.’ Reply Summ. J., ECF No. 50; Opp’n Mot. Strike, ECF No. 49; Reply Mot. 
Strike, ECF No. 51. 
LEGAL STANDARD 
“The APA sets forth the procedures by which federal agencies are accountable to the public 
and their actions subject to review by the courts.” Franklin v. Massachusetts , 505 U.S. 788, 796 
(1992). The D.C. Circuit has held that ESA findings are reviewed under the APA “ because the 
ESA does not specify a standard of review.” Zeldin , 171 F.4th at 376 (citing Union Neighbors 
United, Inc. v. Jewell, 831 F.3d 564, 574 (D.C. Cir. 2016)). 
The APA requires that the Court “set aside agency action, findings, and conclusions” that 
are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 
5 U.S.C. § 706(2)( A). The same is true of agency action undertaken “without observance of 
procedure required by law.” Id. § 706(2)(D). “The question of whether agency action is arbitrary 
and capricious is a legal one generally made on the administrative record and resolved on summary 
judgment.” Zeldin, 171 F.4th at 376 (citing Nat’l Ass’n of Home Builders v. U.S. Army Corps of 
Eng’rs, 417 F.3d 1272, 1277, 1282 (D.C. Cir. 2005)). 
“It is well settled that an agency must adhere to its own regulations, and an agency action 
may be set aside as arbitrary and capricious if the agency fails to comply with its own regulations.” 
Id. at 376 (cleaned up). “Moreover, an agency action that ‘violates [a statute] is ‘not in accordance 

20 
with law’ within the meaning of [the APA].” Id. (alterations in original) (quoting Chrysler Corp. 
v. Brown, 441 U.S. 281, 318 (1979)). 
DISCUSSION 
The Plaintiffs contend that they are entitled to summary judgment for two reasons: (1) the 
2020 BiOp violates the requirements of the ESA and is thus facially invalid (Claim 3); and (2) even 
if the 2020 BiOp were not deficient , the Defendants have failed to comply with its express 
requirements (Claims 1 and 2). The Court agrees that the 2020 BiOp is unlawful and should be 
vacated and set aside. It thus declines to consider the Plaintiffs’ alternative theories. 
A. Center for Biological Diversity v. Zeldin 
The Parties’ arguments substantially revolve around the import of the D.C. Circuit’s recent 
decision in Zeldin . So, the Court begins by summarizing that decision. In Zeldin, the state of 
Florida applied to the U.S. Environmental Protection Agency (EPA) for authority to issue certain 
permits under Section 404 of “the Clean Water Act that would allow permittees associated with 
building and mining projects to discharge dredged or fill material into U.S. waters.” 171 F.4th at 
368. The intended permit recipients “normally would have to obtain an additional permit from the 
FWS or NMFS under Section 10 of the ESA if they wished to avoid liability for incidental takings 
resulting from the planned discharges.” Id. But “Florida considered that extra step ‘burdensome,’ 
‘time consuming[,] and resource -intensive.’” Id. (alteration in original). It thus “proposed to 
‘streamline’ the ESA’s permitting process and to obtain broad, up-front ESA liability protection 
for all its future CWA permittees” by having the EPA “engage in a ‘programmatic’ Section 7 
consultation with the FWS” aimed at approving Florida’s application to assume Section 404 
permitting authority. Id. 
The EPA agreed to consider Florida’s proposal and “submitted a request for a formal 
consultation with the FWS under Section 7 concerning [its] consideration of Florida’s Section 404 

21 
application.” Id. at 370. After completing its consultation, the FWS published a programmatic 
BiOp determining “that the EPA’s approval of Florida’s Section 404 permitting application would 
not jeopardize protected species or harm critical habitats .” Id. In reaching this conclusion, “ the 
FWS stated that it was ‘not feasible, nor [was] it required, to conduct a meaningful site -specific 
and species-specific effects analysis in [the] BiOp.’” Id. (alterations in original). Instead, it found 
that site-specific and species-specific effects would be sufficiently assessed and addressed through 
a “technical assistance” and coordination process in which Florida would have primary 
responsibility for reviewing and approving Section 404 permit applications and the FWS “would 
play a largely advisory role.” Id. at 370-71. 
Under the technical assistance process, Florida would receive and review material provided 
by Section 404 permit applicants that included “a description of the proposed activity, the ‘specific 
areas’ affected by the activity, a description of protected species and habitats in the area and ways 
in which they might be affected, analysis of any cumulative effects, and other ‘relevant 
information,’ including, ‘[w]hen needed, proposed project designs and . . . conservation measures 
that would avoid and minimize the expected impacts to listed species and their habitats.’” Id. at 371 
(alterations in original). Based on that information, Florida “would decide whether protected 
species or habitats would be adversely affected if the permit were granted.” Id. The FWS, 
meanwhile, would receive and review all the Section 404 permit applications (which would be 
sent to the FWS by Florida) and “could . . . participate in the approval process if it chose to do so.” 
Id. If, for example, the FWS “found that an application ‘may cause an adverse effect to [a] 
species,’” it could require that the project “include additional protective measures or Florida 
[would] reject the permit.” Id. (alteration in original). The FWS could also, “if it wished, provide 

22 
Florida with technical information and recommend measures that would avoid or minimize 
effects.” Id. (cleaned up). 
In formulating its BiOp, “[t]he FWS reasoned that the ‘assum[ed]’ coordination between 
the FWS and Florida in the technical assistance program was ‘as protective as the section 7 
interagency consultation process.’” Id. (second alteration in original). And based on that supposed 
efficacy, the Service concluded “that Florida’s program was ‘sufficiently structured’ to avoid 
jeopardy to ESA-listed species.” Id. In formulating the BiOp’s accompanying ITS, the FWS found 
that “some incidental take was ‘reasonably certain’” to occur from Florida’s permitting program. 
Id. But much like the effects analysis, the FWS determined that it could not estimate the incidental 
take amount “because it was ‘not possible for [the] FWS to know what permits would issue and 
where throughout the life of the program, let alone specific amounts of take resulting from those 
permits.’” Id. at 372. “Instead, the FWS stated that Florida would estimate incidental-take amounts 
on a permit -by-permit basis and that the FWS would track anticipated take amounts of listed 
species on a permit -by-permit basis.” Id. The ITS further provided “that Florida (not the EPA) 
would reinitiate consultation with the FWS if Florida found that its own permit- level incidental-
take estimates were exceeded.” Id. And it conferred “ESA liability protection for incidental takings 
of protected species” on all permittees so long as Florida complied with the ITS and the technical 
assistance program. Id. 
A coalition of environmental groups filed suit alleging that the EPA’s approval of Florida’s 
Section 404 permitting application was unlawful. Id. The district court granted summary judgment 
in the plaintiffs’ favor, holding, among other things, “that the FWS’s BiOp and ITS must be set 
aside” because they “failed to comply with applicable standards under the ESA.” Id. at 372-73. On 
appeal, the D.C. Circuit affirmed , similarly concluding that both the BiOp and the ITS violated 

23 
critical ESA requirements. Id. at 382–83. While all three judges on the panel wrote separately to 
explain their reasoning (and Judge Henderson dissented from some of the majority’s conclusions), 
a majority of the Zeldin panel agreed on three points pertinent here. 
First, the panel unanimously concluded that the programmatic ITS issued by the FWS 
violated several Section 7 regulations. See i d. at 377, 379–81. Most notably, the ITS did “not 
quantify ‘the amount or extent’ of incidental take of ESA -listed species, due to an asserted 
‘inability to anticipate the locations of future State 404 permit applications,’ which ‘did not allow 
the [FWS] to conduct site -and species-specifi[c] analyses to estimate the number of individuals 
that might be affected by the permitted activities.’” Id. at 380 (first alteration in original). Instead, 
the ITS left the amount of incidental take to be quantified through the “technical assistance 
process” conducted between the FWS and Florida. Id. 
The Circuit viewed this as a critical error . It rejected the FWS’s explanations for why it 
could not estimate an incidental -take amount, noting that the ESA requires the FWS to “use the 
‘best available information’” and that the “FWS had ‘reams’ of information about protected 
Florida species at its disposal” that it could have used. Id. at 380–81. The Circuit further noted that 
providing an “initial estimate of ‘the amount or extent’ of incidental take is an important feature 
of any ITS because that take am ount triggers immediate reinitiation of consultation between the 
[consulting agency] and the action agency under Section 7.” Id. at 380 (citing Am. Rivers v. FERC, 
895 F.3d 32, 48- 49 (D.C. Cir. 2018) ). As Judge Wilkins noted in his concurrence, the “ESA 
regulations mandate that the parties must monitor the impact of [an] action on protected species, 
and if the amount of take exceeds the limit set forth in the ITS, ‘the Federal agency must reinitiate 
consultation immediately.’” Id. at 38 5 (Wilkins, J., concurring) (quoting 50 C.F.R. 
§§ 402.14(i)(4)–(5)). Complying with that requirement is impossible if the ITS does not even 

24 
estimate a take limit that can potentially be exceeded. Id. (noting that an ITS that lacks “a clear 
and enforceable incidental take limit . . . violates the ESA”). The Zeldin court thus concluded that 
the FWS’s failure to include such a limit in its programmatic ITS governing Florida’s permitting 
program was “arbitrary and capricious” because it “openly violate[d] applicable regulations 
regarding take amounts and the reinitiation of consultation.” Id. at 381.1 
Second, both Judge Pan and Judge Wilkins agreed that the BiOp approving Florida’s 
permitting program was unlawful and must be set aside. See id. at 377. Judge Pan, in a portion of 
her opinion not joined by the other judges, identified several reasons why the BiOp was deficient. 
Chief among the m was that the BiOp failed to include “a meaningful site -specific and species -
specific effects analysis,” as required by 50 C.F.R. § 402.14(g). It instead opted to have site -
specific and species-specific information “assessed through the technical assistance process .” Id. 
And it left compliance with various other ESA requirements to this “technical assistance program,” 
which Judge Pan found was “not ‘as protective’ as the Section 7 consultation process.” Id. Unlike 
a Section 7 consultation, the technical assistance process required only that Florida “share permit 
applications with the FWS” and give FWS “the option of weighing in to overturn Florida’s effects 
determinations.” Id. at 377-78. The FWS then could, but was not required to, provide Florida with 
technical information and “recommend[] measures that would avoid or minimize effects.” 
Id. at 378. The technical assistance process also did not require that either Florida or the FWS 
evaluate each Section 404 permit using “the best scientific and commercial data available,” as the 
 
1 In explaining how the ITS fell short, Judge Pan (writing for the unanimous court) further noted 
that the ITS failed to “identify specific ‘reasonable and prudent measures’ to minimize the impact 
of incidental take,” as required by 50 C.F.R. § 402.14(i)(1)(ii). Zeldin, 171 F.4th at 380. Rather, it 
“(1) generally instruct[ed] the EPA, Florida, and other agencies to minimize impacts on protected 
species, and (2) ‘assume[d] that through technical assistance with the State,’” the FWS would help 
develop appropriate measures to en sure each permit minimized adverse effects and avoided 
placing ESA-listed species in jeopardy. Id. (emphasis in original). 

25 
FWS “would be required to do in carrying out a proper Section 7 consultation.” Id. (first citing 
16 U.S.C. § 1536(a)(2); and then 50 C.F.R. § 402.14(g)(8)). 
Considering these differences, Judge Pan concluded that the technical assistance program 
was “far less demanding than what is required under Section 7.” Id And the FWS’s reliance on 
that “less protective” process to ensure ESA compliance was fundamentally different from the 
Service permissibly finding that the effects of later programmatic actions could be addressed by 
subsequent Section 7 consultations. Id. at. 378–79. Programmatic consultations, Judge Pan noted, 
“may delay but may not avoid the requirements of Section 7.” Id. at 378. After all, “[n]either the 
ESA nor its implementing regulations permit the FWS to dilute the requirements of Section 7” and 
replace them with a “watered-down” technical assistance procedure that “does not comport with 
agency regulations or programmatic approvals.” Id. at 379. 
Judge Wilkins did not join Judge Pan’s reasoning regarding the BiOp’s deficiencies but 
instead emphasized simply that a BiOp cannot be compliant unless it includes an ITS that specifies 
the impact of incidental taking and the amount or extent of such taking. Id. at 385 (Wilkins, J., 
concurring) (first citing 16 U.S.C. § 1536(b)(4)(i); and then 50 C.F.R. § 402.14(i)(1)(i)). In other 
words, Judge Wilkins reasoned that because a BiOp requires a compliant ITS and the ITS at issue 
was plainly deficient, the BiOp was also deficient and no further analyses of its deficiencies was 
necessary. See id. at 384 (“[V]acatur of the Incidental Take Statement as deficient, . . . results in 
vacatur of the Biological Opinion because its no jeopardy finding is dependent upon the deficient 
ITS.”). Thus, the most significant way in which Judge Wilkins’ view appears to differ from Judge 
Pan’s is that he found her additional analysis unnecessary to reach their shared conclusion that the 
BiOp was deficient. 

26 
Third, and finally, Judge Pan and Judge Wilkins agreed that the unlawful agency actions 
at issue needed to be set aside. Id. at 382–83. While the Zeldin majority identified four agency 
actions that violated the ESA and the APA—“the BiOp, the ITS, the EPA’s failure to consult with 
the NMFS, and the EPA’s approval of Florida’s permitting program”2—they noted that “[e]ach of 
those unlawful agency actions require[d] the normal remedy of vacatur.” Id. The Circuit noted that 
“the deficiencies of each action [were] serious” and could not be “sufficiently explain[ed] on 
remand.” Id. at 383. The FWS’s BiOp and “no-jeopardy determination,” for example, was based 
on “a flawed effects analysis and inaccurate assumptions about the efficacy of the technical 
assistance process.” Id. The Circuit also found that vacatur was unlikely to cause undue “disruptive 
consequences” as it was prospective and would “not call into question previously issued 
Section 404 permits.” Id. 
B. The Current Challenge 
Turning to this case , the Court finds that Zeldin controls and resolves this case in the 
Plaintiffs’ favor. First, the ITS that accompanies the 2020 BiOp violates the ESA because it does 
not set a clear and enforceable incidental take limit. Second, the 2020 BiOp is itself invalid because 
it does not include a robust effects analysis and relies on a technical assistance coordination process 
that is not as protective as Section 7 consultation under the ESA. Third, those deficiencies warrant 
the normal remedy of vacatur, although in a more limited fashion than was appropriate in Zeldin.
3 
 
2 The latter two actions are not relevant here, so the Court need not address them. 
3 The Parties more broadly disagree about whether non-federal entities may ever receive incidental 
take coverage based on a Section 7 consultation obtained by a federal agency that is not the 
permitting authority or if they must instead proceed under Section 10 themselves. See Pls.’ 
Mot. 15–21; Defs.’ Cross-Mot. 21–22. The Court declines to reach that question given its finding 
that the 2020 BiOp and ITS at issue are invalid. 

27 
In arguing otherwise, the Defendants effectively ask the Court to disregard Zeldin . And, 
curiously, even post-Zeldin, they “maintain” that the Second Circuit’s decision in Cooling Water 
Intake Structure Coal ition v. EPA, 905 F.3d 49 (2d Cir. 2018) , “was correctly decided and is 
persuasive under the facts of this case.” Defs.’ Reply 3 n.1. But the Defendants do not bother to 
explain how that position can be reconciled with Zeldin, which concluded that Cooling Water is 
neither binding in this Circuit nor persuasive. 171 F.4th at 378 (“Cooling Water does not bind us 
and its reasoning is at odds with applicable regulations and our own precedents .” (citation 
omitted)); see also id. at 386–87 (Wilkins, J., concurring). The Circuit’s dim view of Cooling 
Water was consistent with that of the district court in Zeldin, which found that the Second Circuit’s 
decision “stands alone” and “is at odds with the statute, regulations, and caselaw.” Ctr. for 
Biological Diversity, 734 F. Supp. 3d at 48. This Court agrees. 
1. The 2020 ITS 
The ITS attached to the 2020 BiOp suffers from the same critical deficiencies as the ITS 
in Zeldin. The ITS does not quantify or even estimate the amount or extent of incidental take of 
ESA-listed species that is permitted, as the ESA requires. See 50 C.F.R. § 402.14(i)(1)(i); Zeldin, 
171 F.4th at 380. It instead claims an inability to provide such an estimate because of insufficient 
information about where specific permitted activities might occur in the future and “the number of 
specific individuals that might be affected by such activities.” FWS_36684; see also Zeldin, 
171 F.4th at 380. And it therefore leaves the amount of incidental take to be quantified later 
through a technical assistance process conducted by the FWS and a State regulatory authority. 
FWS_36684–
 85; Zeldin, 171 F.4th at 380. 
The Zeldin court rejected such an approach as inconsistent with the ESA. Like the ITS in 
Zeldin, the 2020 ITS lacks a clear take limit that, if exceeded, can effectively trigger “immediate 

28 
reinitiation of consultation” as required by 50 C.F.R. § 402.14(i)(5). Zeldin, 171 F.4th at 380–81 
(citing Am. Rivers, 895 F.3d at 48–49); see also id. at 385 (Wilkins, J., concurring) (noting that an 
ITS “without a clear and enforceable incidental take limit . . . violates the ESA ”). In addition to 
this critical shortcoming, the ITS also fails to “identify specific ‘reasonable and prudent measures’ 
to minimize the impact of incidental take .” Id. at 380 (emphasis added) (quoting 50 C.F.R. 
§ 402.14(i)(1)(ii)). It instead generally instruct s the OSMRE to use its oversight “authorities to 
minimize impacts to listed species .” FWS_36685. Just as in Zeldin , “[b]ecause the ITS openly 
violates applicable regulations regarding take amounts and the reinitiation of consultation, it is 
arbitrary and capricious” in violation of the APA. Zeldin, 171 F. 4th at 381. 
2. The 2020 BiOp 
The 2020 BiOp is also unlawful. As discussed earlier, Judge Pan found the BiOp in Zeldin 
legally deficient because, among other reasons, it did not include a robust effects analysis as 
required by 50 C.F.R. § 402.14(g), and it left that analysis and compliance with other ESA 
requirements to a “technical assistance program” that was “not ‘as protective’ as the Section 7 
consultation process.”
 Zeldin, 171 F.4th at 377. Both of those things are true here as well.4 
First, as to the effects analysis, the FWS concluded in the 2020 BiOp that “it [was] not 
feasible, nor [was] it required, to conduct a meaningful site -specific and species-specific effects 
analysis” in the BiOp. FWS_36662. Instead, the FWS noted “that site-specific and species-specific 
 
4 Though Judge Pan wr ote alone on this point in Zeldin , the Court finds her analysis highly 
persuasive. The Defendants note that the Court may not be bound by either concurring opinion in 
Zeldin, citing J.G.G. v. Trump, No. 25-5124, 2025 WL 3198891, at *3 (D.C. Cir. Nov. 14, 2025). 
Defs.’ Reply 2. But J.G.G. noted only that two concurrences in a fragmented circuit panel decision 
may have no “precedential effect” if they “have no meaningful points of agreement .” 2025 WL 
3198891, at *3 (Pillard, Wilkins & Garcia, JJ., respecting the denial of rehearing en banc) . And 
the Court does not read Judge Wilkins and Judge Pan as “hav[ing] no meaningful points of 
agreement.” Id. Either way, the Court finds both concurrences persuasive and sees no compelling 
reason to disregard them. 

29 
information [would] be available and assessed through the technical assistance process.” Id. This 
is functionally identical to the approach that Judge Pan rejected in Zeldin . See 171 F.4th at 377 
(“[T]he FWS did not evaluate how the approval of Florida’s permitting program would affect listed 
species or critical habitat” and instead “stated in the BiOp that it was ‘not feasible, nor [was] it 
required, to conduct a meaningful site -specific and species -specific effects analysis in [the] 
BiOp.’” (second alteration in original)). That approach is equally problematic here. 
Second, t he technical assistance process outlined in the Coordination and Dispute 
Resolution Processes is less protective than Section 7 consultation under the ESA. As discussed at 
length above, the Section 7 formal consultation process is rigorous. See id. at 365. It requires that 
the federal agency initiating consultation provide the consulting agency with a substantial amount 
of information regarding all aspects of the proposed action. See 50 C.F.R. § 402.14(c)–(d). The 
consulting agency is then required to conduct a detailed review of that information; to conduct, if 
necessary, an on-site inspection; to evaluate the current status and environmental baseline for any 
listed species or critical habitat that may be affected by the proposed action; and to assess what 
effects the action might have on those species and habitats. Id. § 402.14(g). These tasks require 
the consulting agency to play a direct and proactive role in reviewing each proposed action and to 
thereby formulate a well-supported opinion “as to whether the action is likely to jeopardize” the 
species or habitat in question. See id. § 402.14(g)–
 (h). 
Here, the technical assistance process takes key responsibilities assigned to the consulting 
agency under Section 7 (like conducting effects analyses and making a jeopardy determination) 
and delegates them to state regulatory authorities to conduct in the first instance. FWS_36708–09. 
It also leaves the scope of information to be provided to the FWS for each permit to “the discretion 
of the State regulatory authority.” FWS_36708. Thus, the technical assistance process is less 

30 
protective than Section 7 and the Court agrees with Judge Pan that “[a] technical assistance process 
that sets standards less protective than those prescribed by the ESA cannot displace the ESA itself.” 
Zeldin, 171 F. 4th at 379. 
Indeed, although the technical assistance process at issue does not suffer from all the same 
deficiencies as the process in Zeldin , compare, e.g., id. at 371 (noting the FWS’s participation in 
permit approval process was optional) with FWS_36709 (spelling out actions the FWS “will” take 
as part of approval process), it is even less protective than the process in Zeldin in at least one key 
respect. In Zeldin, the technical assistance process gave the FWS the option to overturn effects 
determinations that Florida made with respect to specific permit applications. 171 F.4th at 377– 78. 
It also empowered the FWS to insist that a project “include additional protective measures” and, 
if it did not, “Florida [would] reject the permit.” Id. at 371. Here, the Coordination and Dispute 
Resolution Processes do not give the FWS such dispositive authority. Rather , even after the 
Secretary of Interior has proposed that a State regulatory authority require protective measures for 
a certain mining project, the State may still “reject the proposed resolution and approve the 
permit.” FWS_36713. 
In attempting to rebut arguments about the deficiency of the technical assistance process, 
the Defendants make much of the fact that the SMCRA regulatory program at issue is not a new 
program like Florida’s proposal in Zeldin. They emphasize that “states with primacy have been 
appropriately following a technical assistance process mandated by the federal regulations 
implementing [the] SMCRA ” for “nearly five decades.” Defs.’ Reply 3–4. The 2020 BiOp 
expressly acknowledges, however, that the requirements of the SMCRA , “on their own, will not 
necessarily eliminate adverse effects on ESA-proposed and listed species and designated proposed 
critical habitat.” FWS_36670 (emphasis added); see also FWS_36673 (“Implementation of the 

31 
monitoring practices associated with SMCRA, on their own, will not necessarily adequately 
monitor effects on ESA-proposed and - listed species or designated and proposed critical habitat in 
all cases.”). That is why the BiOp emphasizes the importance of the Coordination and Dispute 
Resolution Processes — both of which were developed as part of the 2020 consultation, 
FWS_36607—to ensure that the FWS can help reduce “the impacts of surface mining operations 
on ESA-proposed and -listed species” and “critical habitat,” FWS_36670. And as described above, 
that technical assistance process is lacking. 
For all the above reasons , the Court concludes that the 2020 BiOp is arbitrary and 
capricious because it lacks an effects analysis and relies on a technical assistance process that is 
less protective than Section 7 consultation.5 
C. Remedies 
Turning to the appropriate remedy, “[w]hen an agency’s action is unlawful, ‘vacatur is the 
normal remedy.’” Zeldin, 171 F.4th at 378 (quoting Allina Health Servs. v. Sebelius, 746 F.3d 
1102, 1110 (D.C. Cir. 2014)). That is because Congress has directed courts to “hold unlawful and 
set aside agency action” that is “not in accordance with law.” 5 U.S.C. § 706(2)(A). Under certain 
limited circumstances, a court may remand an agency’s action or decision to the agency. Am. Great 
 
5 As noted above, Judge Wilkins agreed with Judge Pan that the BiOp in Zeldin needed to be set 
aside, but he reached that conclusion for a different reason. Judge Wilkins reasoned that the 
validity of the BiOp was so inextricably linked to the validity of its accompanying ITS that the 
deficient ITS rendered the BiOp deficient. See Zeldin, 171 F.4th at 384–86 (Wilkins, J. concurring) 
(“[V]acatur of the Incidental Take Statement as deficient, . . . results in vacatur of the Biological 
Opinion because its no jeopardy finding is dependent upon the deficient ITS.”). As he explained, 
“a clear and enforceable take limit” is necessary to enable effective monitoring of the impact of an 
approved federal action, and thus a consulting Service cannot conclude its consultation (and issue 
a BiOp) without first setting a clear take limit. Id. at 38 5–86 (“Neither the statute nor the 
regulations allow the action agency to state that take limits will be determined at a later time, and 
then deem Section 7 consultations finished.”). The Court agrees with Judge Wilkins’ reasoning, 
which provides an independent basis for finding that the 2020 BiOp is deficient. 

32 
Lakes Ports Ass’n v. Schultz, 962 F.3d 510, 518 (D.C. Cir. 2020) . But “remand without vacatur 
remains an exceptional remedy .” Id. at 519. To determine whether remand without vacatur is 
appropriate, the Court must consider: (1) “the seriousness of the order’s deficiencies (and thus the 
extent of doubt whether the agency chose correctly),” and (2) “the disruptive consequences of an 
interim change that may itself be changed.” Allied -Signal, Inc. v. U.S. Nuclear Regul. Comm’n, 
988 F.2d 146, 150–51 (D.C. Cir. 1993). The Court must also ensure that any “injunction” it issues 
is “narrowly tailored to remedy the specific harm shown.” Neb. Dep’t of Health & Hum. Servs. v. 
HHS, 435 F.3d 326, 330 (D.C. Cir. 2006). 
In Zeldin, the C ircuit held that the BiOp and the ITS were “each . . . unlawful agency 
actions” that “require[d] the normal remedy of vacatur.” 171 F.4th at 382–83. In applying the 
Allied-Signal factors, the Circuit held: first, that “the deficiencies of each action [were] serious and 
the EPA [could] not sufficiently explain its actions on remand,” and second, that “vacatur would 
not likely cause undue ‘disruptive consequences’ from ‘an interim change that may itself be 
changed.’” Id. Given that the Court has identified much the same deficienc ies with the BiOp and 
ITS here, it sees no reason to deviate from Zeldin’s general finding that vacatur rather than remand 
is appropriate for the unlawful agency actions at issue. 
Even so, the Court deviates from Zeldin ’s approach on vacatur in one notable way. As 
discussed, the 2020 BiOp and ITS cover not just the OSMRE’s oversight of state regulatory 
programs with primacy, but also the OSMRE’s “direct implementation and enforcement ” of the 
SMCRA “in Federal program States and on Indian lands.” FWS_36605. And the BiOp provides 
different guidance for the OSMRE’s implementation of the SMCRA in states where it “retains 
permitting authority” as compared to its role in overseeing the regulatory programs of primacy 
States. FWS_36609. Of particular note, the BiOp’s assessment of the OSMRE’s direct permitting 

33 
of projects in states where it is the primary regulatory authority does not hinge on the technical 
assistance process that undergirds its oversight of primacy states. Rather, the BiOp concluded that 
the OSMRE’s direct permitting of mining projects was “not likely to jeopardize” ESA-protected 
species or habitats because each of those projects wou ld be covered by site-specific “step-down” 
Section 7 consultations that would assess the effects of the proposed projects. FWS_36682; see 
also FWS_36667 (“For OSMRE-issued permits that may affect ESA-listed species or designated 
critical habitat, section 7(a)(2) consultation is required and will be performed separately.”) ; 
FWS_36621; FWS_36629; FWS_36664; FWS_36670; FWS_36678; FWS_36680. Those 
“project-specific, step-down” Section 7 consultations would also analyze and quantify “any 
incidental take anticipated to occur” from “mining activities in which [the] OSMRE is the authority 
issuing permits.” FWS_36684–85. 
The Plaintiffs do not challenge the 2020 BiOp as it applies to the OSMRE’s direct 
permitting authority. Indeed, the Plaintiffs’ facial challenge to the BiOp focuses on how the BiOp 
“does not ‘insure’ that SMCRA-permitted mining activities in states with primacy are not likely 
to jeopardize” ESA-protected species and habitats. Am. Compl. ¶ 157 (emphasis added). And the 
specific harms that the Plaintiffs identify are in primacy states: Kentucky, Virginia, and West 
Virginia. Id. ¶ 67; see also FWS_36609–10. Further, the Plaintiffs’ summary judgment motion 
asks that the Court “vacate the 2020 BiOp as it applies to State-delegated SMCRA programs.” 
Pls.’ Mot. 29 (emphasis added). Accordingly, the Court sees no basis for disturbing the 2020 BiOp 
or its accompanying ITS as they apply to the OSMRE’s regulation of mining activities in non-
primacy states. It thus vacates and sets aside only those portions of the 2020 BiOp and the ITS that 
concern the OSMRE’s oversight of primacy states . Finally, to further minimize any “ disruptive 

34 
consequences” from this decision, the Court ’s vacatur of the BiOp and ITS “is prospective and 
[does] not call into question previously issued . . . permits.” Zeldin, 171 F.4th at 383. 
* * * 
The Court recognizes that the burdens imposed by the ESA can often be substantial. But 
that is by design. As the Supreme Court has noted, “[t]he plain intent of Congress in enacting [the 
ESA] was to halt and reverse the trend toward species extinction, whatever the cost.” Tenn. Valley 
Auth., 437 U.S. at 184. That “is reflected not only in the stated policies of the Act, but in literally 
every section of the statute.” Id. The D.C. Circuit’s recent decision in Zeldin affirms the importance 
of enforcing all aspects of the ESA— even though that makes it more difficult for federal and state 
actors to au thorize activities, like coal mining, that may adversely affect the endangered and 
threatened species that the ESA protects. Congress knowingly imposed these burdens based on its 
recognition of what was at stake for our nation’s wildlife. And it is not this Court’s place to 
question or ignore that policy choice. 
In issuing this decision, the Court is also cognizant of the federalism concerns that underlie 
the SMCRA’s regulatory scheme for coal mining. But in enacting the SMCRA, Congress did not 
displace the ESA. Indeed, the Circuit faced similar concerns regarding the Clean Water Act in 
Zeldin and still vacated the agency action at issue. To be clear, the Court’s decision today says 
nothing about the validity of the relevant SMCRA regulations. It says only that t he Defendants 
may not ignore critical aspects of the ESA when administering the SMCRA. 
CONCLUSION 
For all these reasons, the Court grants the Plaintiffs’ Motion for Summary Judgment as to 
Claim 3 , ECF No. 42, and denies the Defendants’ Cross -Motion for Summary Judgment , 
ECF No. 45, on that same claim. In light of this ruling, and the Court’s conclusion that it warrants 
vacating and setting aside the 2020 BiOp and ITS as they apply to the OSMRE’s oversight of 

35 
primacy states, the Court declines to reach the merits of Claims 1 or 2 as they essentially present 
alternative theories for obtaining the same relief. Moreover, because the Court’s conclus ion 
regarding Claim 3 is not dependent on any extra -record materials, the Court denies as moot the 
Defendants’ Motion to Strike the Plaintiffs’ Extra Record Declaration and Exhibits. ECF No. 44. 
A separate order will issue. 
 
 
 
SPARKLE L. SOOKNANAN 
United States District Judge 
 
Date: May 29, 2026 
 

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