Full opinion text
ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT ILLSTON, District Judge. INTRODUCTION Plaintiffs are several environmental organizations who filed an eight count Second Amended Complaint on June 3, 2005, against the Bureau of Land Management and the U.S. Fish and Wildlife Service, alleging violations of the Endangered Species Act, 16 U.S.C. §§ 1531 et seq., the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., the Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701-1785, and the Administrative Procedure Act, 5 U.S.C. § 706 et seq. Plaintiffs generally allege that defendants have failed adequately to protect two species listed under the Endangered Species Act, the Peirson’s milk-vetch and the desert tortoise. Plaintiffs allege that both species are particularly threatened by off-highway vehicle recreational use in the Imperial Sand Dunes Recreation Area, and that the proposed management plan for the Dunes does not contain adequate safeguards to. ensure against jeopardizing the continued existence of these species. Defendants are the Bureau of Land Management (“BLM”), which manages the Dunes, and the U.S. Fish and Wildlife Service (“Service”), which consults with the BLM and is required to evaluate BLM actions that affect the Peirson’s milk-vetch and the desert tortoise. Defendant-intervenors are a number of organizations representing off-highway vehicle recreationists. All parties have filed cross-motions for summary judgment which address claims four through eight of the Second Amended Complaint. The parties’ motions concern (1) Service’s final Biological Opinion on January 25, 2005, regarding management of the Dunes pursuant to the Dunes’ 2003 Recreation Area Management Plan (“RAMP”); (2) the BLM’s Environmental Impact Statement for the RAMP; (3) the BLM’s issuance of the Record of Decision giving final approval to the RAMP on March 24, 2005; and (4) the Service’s final rule designating critical habitat for the Peirson’s milk-vetch on August 4, 2004. The Court now decides these motions. The Court recognizes the complexity of the issues presented in this case, and that defendants have been given the difficult task of addressing the interests and needs of off-highway vehicle recreationists while at the same time protecting listed species as required by law. In deciding the pending summary judgment motions, the Court has been mindful that its review is “narrow” but “searching and careful,” Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). As the United States Supreme Court has instructed, in enacting the Endangered Species Act, “Congress[ ] intended] to provide comprehensive protection for endangered and threatened species.” Babbitt v. Sweet Home Chapter, 515 U.S. 687, 699, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995); see also Tennessee Valley Authority v. Hill, 437 U.S. 153, 174, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (“[EJxamination of the language, history and structure of the [Endangered Species Act] indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities.”). In summary, after careful consideration of the parties’ papers and the arguments of counsel, as well as of the voluminous administrative record, the Court concludes that defendants have failed to comply with federal environmental statutes in a number of important respects. As explained more fully below, the Court concludes that the 2005 Biological Opinion is flawed because, inter alia, it would permit significant declines in the population of the already-threatened Peirson’s milk-vetch before instituting any mitigating measures. The Court concludes that allowing such a significant reduction of reproduction, numbers or distribution of the milk-vetch runs afoul of the requirement under the Endangered Species Act to “insure” that the RAMP is “not likely to jeopardize the continued existence of any ... threatened species.” 16 U.S.C. § 1536(a)(2). Relatedly, the Court concludes that the Biological Opinion is flawed because it fails to explain how continued and expanded habitat degradation of almost half of the designated critical habitat for the Peirson’s milk-vetch does not result in “adverse modification” to milk-vetch critical habitat. The Court also concludes that the Incidental Take Statement for the desert tortoise contained in the Biological Opinion must be set aside because it does not contain a meaningful standard by which incidental take can be measured, and because it fails to include required “terms and conditions” regarding how to minimize the potential for incidental take of desert tortoises as a result of recreational use. With regard to the designation of critical habitat for the Peirson’s milk-vetch, the Court rejects plaintiffs’ procedural challenges to the final rule. However, the Court concludes that the final rule is arbitrary and capricious because it suffers from a number of substantive deficiencies. The Court concludes that by finding that there were no additional regulatory benefits to be gained by designating critical habitat in areas that were ultimately excluded, the Service improperly ignored the recovery goal of critical habitat. In addition, in excluding significant areas from the final critical habitat designation, the Service relied on assumptions that had no factual support in the record, improperly considered economic impacts of critical habitat designation that are coextensive with restrictions resulting from the listing of the milk-vetch, and failed to evaluate the economic benefits associated with reduced visitation. The Court also concludes that the Environment Impact Statement is legally inadequate. By eliminating the interim closures that have been in place since November 2000 from the reasonable range of alternatives, the BLM failed to “present complete and accurate information to decision makers and to the public to allow an informed comparison of the alternatives contained in the EIS.” Natural Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797, 813 (9th Cir.2005). Finally, the Court also concludes that the BLM did not take a “hard look” at the impact of the RAMP on endemic invertebrates. BACKGROUND 1. Management of the Dunes The Algodones Dunes are located in Imperial County in southeastern California. The Dunes are the largest mass of sand dunes in California. See ROD AR Sec.l at 4125. The Dunes and immediately adjacent areas are managed by the BLM as the Imperial Sand Dunes Recreation Area (“ISDRA”). The ISDRA is located within the California Desert Conservation Area (“CDCA”) in Imperial County in southeastern California, approximately 25 miles west of the Colorado River and immediately north of the border between the United States and Mexico. See ROD AR Sec. 2 at 9596. In establishing the CDCA, Congress declared that the California desert is a “total ecosystem that is extremely fragile, easily scarred, and slowly healed,” and that it is a rich and unique environment with “historical, scenic, archaeological, environmental, biological, cultural, scientific, educational, recreational, and economic resources.” 43 U.S.C. § 1781(a)(l)-(2). Congress also stated that “the use of all California desert resources can and should be provided for in a multiple use and sustained yield management plan to conserve these resources for future generations, and to provide present and future use and enjoyment, particularly outdoor recreation uses, including the use, where appropriate, of off-road recreational vehicles.” Id. at § 1781(a)(4). The ISDRA comprises approximately 167,000 acres of land in California, covering an area more than 40 miles long and averaging 5 miles in width. Of the total acreage of the ISDRA, approximately 159,-000 acres are managed by BLM, 7,000 acres are privately owned, and 900 acres are owned by the State of California. In addition, the one-mile wide area around the ISDRA boundary within the planning area for the RAMP includes approximately 48,300 acres of BLM managed land, approximately 1,800 acres of military managed land, and approximately 9,100 acres of privately owned land. See BO AR Doc. # 482 at 8844-45. In 1994, Congress formally established 26,202 acres in the IS-DRA as the North Algodones Dunes Wilderness Area through the enactment of the California Desert Protection Act (“CDPA”) of 1994, Pub.L. 103-433. ROD AR See.2 at 9150-51. This wilderness area is permanently closed to OHV use. There are several management plans applicable to the Dunes. The first management plan for the Dunes was completed in 1972. See ROD AR Sec.l at 4125-28. Only a portion of this plan was implemented, including the establishment of the Algodones Natural Area, a camping area, and the construction of a ranger station. Id. at 4128. The California Desert Conservation Area Plan, completed in 1980, is a comprehensive general management plan for the California desert, and included a number of decisions specific to the ISDRA. See id. at 4128. The 1980 plan designated most areas of the ISDRA as open to unlimited off-highway vehicle (“OHV”) use. See id. at 4131. According to the 2005 BO, the California Desert Plan “provides a general prescription for management,” while the purpose of the ISDRA Recreation Area Management Plan (“RAMP”) “is to provide more specific management guidelines that pertain to the ISDRA, as an amendment to the CDCA Plan.” BO AR Doc. # 697 at 12356. In 1987, the BLM completed a RAMP for the Dunes. See ROD AR Sec.l at 4119-467. The 1987 RAMP called for a number of monitoring programs and surveys of sensitive species found at the Dunes, id. at 4347-51, as well as a program of infrastructure development. See id. at 4187-204. Little of the monitoring was actually carried out. See BO AR Doc. # 96 at 3927. The 2003 RAMP, which is the subject of the 2005 BO, would replace the 1987 RAMP and would guide management of the Dunes for 10 to 15 years. See BO AR Doc. # 697 at 12356. 2. Center for Biological Diversity et al. v. Bureau of Land Management et al., C 00-927 WHA and Interim Closures In March of 2000, the Center for Biological Diversity, the Sierra Club, and Public Employees for Environmental Responsibility filed a complaint alleging that .the BLM was in violation of Section 7 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1536(a)(2), because it had failed to enter into formal consultation with the Service on the effects of the adoption of the CDCA Plan, as amended by the 1987 RAMP, on threatened and endangered species. Center for Biological Diversity et al. v. BLM, Case No. 00-0927 WHA-JCS (N.D.Cal.). Several groups of recreationists in the CDCA area were granted status as defendant-intervenors, and the parties ultimately entered into a settlement that established interim actions to be taken to provide temporary protection for endangered and threatened species pending completion of consultation between BLM and the Service on the CDCA Plan. See ROD AR Sec.3 at 15997. Pursuant to the stipulations, BLM temporarily closed five areas in the ISDRA, totaling approximately 49,000 acres, to OHV and other recreational use to protect the Peirsoris milk-vetch, and temporarily closed to camping a 25,600 acre area to protect the desert tortoise. See BO AR Doc. # 128. These closures were to remain in place until BLM signed the decision document implementing the new RAMP for the ISDRA. On March 29, 2002, BLM issued a draft RAMP and accompanying Draft Environmental Impact Statement for the Dunes. As required by Section 7 of the ESA, BLM consulted with the Service on the draft RAMP regarding impacts to the Peirsoris milk-vetch and the desert tortoise, the only listed species that are known to occur, or to have the potential to occur, in the IS-DRA. See ROD AR Sec.2 at 9489. The Service issued a Biological Opinion dated April 3, 2003, on the proposed RAMP. See BO AR Doc. # 466. On January 25, 2005, the Service issued a new BO for the proposed RAMP, which concluded that the CDCA Plan, as amended by the ISDRA RAMP and subsequent revisions agreed upon during the consultation process, is not likely to jeopardize the continued existence of Peirsoris milk-vetch or desert tortoise over the 10- to 15-year length of the ISDRA RAMP, nor is it likely to destroy or adversely modify critical habitat for the Peirsoris milk-vetch over the 10- to 15-year length of the ISDRA RAMP. BO AR Doc. # 697 at 12396. On March 24, 2005, BLM issued the Record of Decision approving, with minor modifications, the Proposed Imperial Sand Dunes Recreation Area Management Plan and Proposed Amendment to the CDCA Plan. See ROD AR Sec.2 at 8098. 3. Peirson’s Milk-Vetch, the Desert Tortoise, and OHV Use in the IS-DRA The ISDRA provides unique habitat for several endemic and sensitive plant, insect and animal species, including the Peirson’s milk-vetch and desert tortoise. The August 7, 1998 Final Rule determining threatened status for the Peirson’s milk-vetch describes the plant as follows: Astragalus magdalene var. peirsonii is a stout, short-lived perennial reaching 20 to 70 cm (8 to 27 in) high. The stems and leaves are covered with fine silky hairs and the leaves are 5 to 15 cm (2 to 6 in) long, with 3 to 13 small oblong leaflets. The flowers are dull purple, arranged in 10- to 17-flowered racemes and the resulting pods are 2 to 3.5 cm (.8 to 1.4 in) long, inflated, with a triangular beak. Endangered and Threatened Wildlife and Plants; Determination of Endangered or Threatened Status for Five Desert Milk-vetch Taxa from California, 63 Fed.Reg. 53,596 (Oct. 6, 1998) (codified at 50 C.F.R. pt. 17) (BO AR Doc. # 96 at 3919). At the time of listing, the Service identified OHV use as the greatest threat to the Peirson’s milk-vetch. Id. at 3920. The only location where the Peirson’s milk-vetch is currently known to occur within the United States is the Imperial Sand Dunes, which supports between 75 and 80 percent of the world’s known colonies of the species. Id. at 3919. The desert tortoise (Gopherus agassizii) is a large, herbivorous reptile, with adults measuring up to 15 inches in shell length and found in portions of the western United States and Mexico. The Mojave population of the desert tortoise was listed as a threatened species in 1990. See Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for the Mojave Population of the Desert Tortoise, 55 Fed.Reg. 12,178 (Apr. 2, 1990) (codified at 50 C.F.R. pt. 17). The Recovery Plan for the desert tortoise, written in 1994, is the basis and key strategy for recovering and delisting the desert tortoise. See BO AR Doc. # 697 at 12370. The plan divides the range of the desert tortoise into six distinct population segments or recovery units, and recommends the establishment of 14 desert wildlife management areas (“DWMA”) throughout the recovery units. Id. The ISDRA lies within the Eastern Colorado Recovery Unit, which is one of four recovery units for desert tortoise that occur in the California Desert Conservation Area (“CDCA”), and is 6 miles away from the closest DWMA, or desert tortoise conservation area. Id. at 12380. Desert tortoise densities in the ISDRA appear to be very low based upon the rarity of desert tortoise sign and desert tortoise sightings. Id. at 12380-81. Fall 2002 surveys conducted in the ISDRA, although not exhaustive, yielded few observations of desert tortoise sign and no observations of live desert tortoises. Id. The ISDRA is also a popular OHV recreation area, with over 1.4 million OHV visitors in 2002. See ROD AR Sec.2 at 9610. Visitor levels continue to increase at the ISDRA, and have outpaced previous estimations. See BO AR Doc. # 633 at 11112. (stating that the BLM estimated visitorship for 2002 to be 1,005,000, while according to BLM figures there were over 1.4 million visitors.) See id. The BLM has estimated that visitorship for 2012 will be between 1,418,000 to 2,071,000. See id. 4. Critical Habitat Rule for the Milk-Vetch On August 5, 2003, the Service published a draft determination of critical habitat for the Peirson’s milk-vetch within the Algodones Dunes. See Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for Astragalus magdalenas var. peirsonii (Peirson’s milk-vetch), 68 Fed.Reg. 46143 (proposed Aug. 5, 2003) (codified at 50 C.F.R. pt. 17). The Service published a final critical habitat designation for Peirson’s milk-vetch on August 4, 2004, which became effective on September 3, 2004. See Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Astragalus magdalenae var. peirsonii (Peirson’s milk-vetch), 69 Fed.Reg. 47330 (Aug. 4, 2004) (codified at 50 C.F.R. pt. 17) (CH AR Doc. # 430). The final rule eliminated approximately 31,000 acres, or almost 60%, from the acreage originally proposed as designated critical habitat. See id. LEGAL STANDARDS 1. Summary Judgment Summary adjudication is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In a motion for summary judgment, “[if] the moving party for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact, the burden of production then shifts so that the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial.” See T.W. Elec. Service, Inc., v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In judging evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and draws all inferences in the light most favorable to the non-moving party. See T.W. Electric, 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir.1991). The evidence presented by the parties must be admissible. See Fed.R.Civ.P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). 2. Review of Administrative Action Judicial review of final agency actions is governed by the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. See Pyramid Lake Paiute Tribe of Indians v. U.S. Dep’t of the Navy, 898 F.2d 1410, 1413 (9th Cir.1990). The court “shall” set aside any agency decision that the Court finds is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The APA precludes the trial court reviewing an agency action from considering any evidence outside of the administrative record available to the agency at the time of the challenged decision. See 5 U.S.C. § 706(2)(E); Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985); Havasupai Tribe v. Robertson, 943 F.2d 32, 34 (9th Cir.1991). The Court must determine whether the agency decision “was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The Supreme Court has explained that an agency action is arbitrary and capricious if “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Although the arbitrary and capricious standard “is narrow and presumes the agency action is valid, ... it does not shield agency action from a 'thorough, probing, in-depth review.’ ” Northern Spotted Owl v. Model, 716 F.Supp. 479, 481-82 (W.D.Wash.1988) (citations omitted). The Court cannot, however, substitute its judgment for that of the agency or merely determine that it would have decided an issue differently. See Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). DISCUSSION 1. The 2005 Biological Opinion For any federal action that may affect a threatened or endangered species (or its habitat), Congress has required by statute that the agency contemplating the action (here the BLM) must consult pursuant to Section 7 of the ESA with the consulting agency (here the FWS) to “insure” that the federal action “is not likely to [1] jeopardize the continued existence of any endangered species or threatened species or [2] result in the destruction or adverse modification” of the designated critical habitat of such species. 16 U.S.C. § 1536(a)(2). After the agencies engage in the consultation process, the consulting agency issues a biological opinion (“BO”). The BO is required to address both the “no jeopardy” and “no adverse modification” prongs of Section 7. See 50 C.F.R. § 402.14(g)(4). In this case, the Service issued a final BO on January 25, 2005, concluding that the RAMP posed “no jeopardy” to the continued existence of the milk-vetch, and also that the RAMP will not result in the “destruction or adverse modification” of the designated critical habitat of the milk-vetch. The BO also contains an Incidental Take Statement for the desert tortoise that permits “take” of the tortoise within the ISDRA. In their motion for summary judgment, plaintiffs challenge each of these aspects of the BO as arbitrary and capricious. Defendants and defendant-intervenors have filed cross-motions for summary judgment defending these findings and conclusions in the BO as lawful and supported by the administrative record. A. Standard of Review of a Biological Opinion As the Ninth Circuit recently stated, the Court’s review “is ‘narrow’ but ‘searching and careful,’ ... and we must ensure that the FWS’s decisions are based on a consideration of relevant factors and we assess whether there has been a clear error of judgment.” Gifford Pinchot Task Force v. U.S. Fish and Wildlife Serv., 378 F.3d 1059, 1065 (9th Cir.2004) (internal citations omitted). The BO must articulate “a rational connection between the facts found and the choice made.” Pac. Coast Fed’n of Fishermen’s Ass’n, v. Nat’l Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir.2001) (internal quotations omitted). Additionally, the Service’s BO “may be invalid if it fails to use the best available scientific information as required by 16 U.S.C. § 1536(a)(2).” Id. To the extent that there is any uncertainty as to what constitutes the best available scientific information, Congress intended “to give the benefit of the doubt to the species.” Conner v. Burford, 848 F.2d 1441, 1454 (9th Cir.1988) (quoting H.R. Conf. Rep. No. 96-697, 1st Sess. 12, reprinted in 1979 U.S.C.C.A.N. 2572, 2576). And while a reviewing court must show deference to the reasonable decisions of an agency, such deference is “warranted only when the agency utilizes, rather than ignores, the analysis of its experts.” Ctr. for Biological Diversity v. Lohn, 296 F.Supp.2d 1223, 1239 (W.D.Wash.2003). B. The “No Jeopardy” Conclusion as to Peirson’s Milk-Vetch (1) The RAMP The proposed RAMP would (1) reopen 4 areas of the ISDRA which had been temporarily closed to OHV use in order to protect Peirson’s milk-vetch populations (as a result of earlier litigation) and (2) replace these closures with a smaller “Adaptive Management Area” (“AMA”) that initially would allow OHV use at a proposed level of 525 vehicles per day, subject to potential annual adjustments based on visitor data and biological data. See BO AR Doc. # 697 at 12359-60. The only area of the ISDRA that would be completely closed to OHV use is the North Algodones Wilderness Management Area, which comprises approximately 16% of Peirson’s milk-vetch habitat. Id. at 12358; BO AR Doc. # 295 at 7781. Of the remaining milk-vetch habitat, 61% would be opened to unlimited OHV use in five management areas, and 23% would be opened to limited OHV use in the AMA. See BO AR Doc. # 295 at 7782-83. The Adaptive Management Area (AMA) encompasses 23% of milk-vetch habitat. BO AR Doc. #295 at 7782. Under the RAM, BLM intends to limit access to the AMA to 525 vehicles per day. BO AR Doc. # 697 at 12389. The BO acknowledges that “it would be possible, given the projected number of permits and the acreage of the AMA, for permitted vehicles to drive over the entire surface of the AMA within 6 peak holiday periods if each vehicle drove 21 miles per day.... However, BLM proposes to require an education program for AMA visitors. This program is expected to reduce the potential vehicle impacts to Peirson’s milk-vetch occurrences.” Id. The RAMP would also prohibit camping in the AMA, and the BLM would conduct “more intensive monitoring” in the AMA than in other management areas. Id. at 12359,12389. The BO describes the RAMP’s monitoring and research plan as follows: The monitoring plan includes: (1) a commitment to reinitiate ESA section 7 consultation under the Act with the Service, as appropriate, so that scientific information collected can be fully integrated into the section 7(a)(2) analysis of the action; (2) dune-wide monitoring of Peirson’s milk-vetch; (3) dune-wide monitoring and calibration of OHV use patterns; (4) two experimental studies on the effects of OHVs on Peirson’s milk-vetch; (5) examination for correlation between OHV-use patterns and Peirson’s milk-vetch population levels; (6) modeling of Peirson’s milk-vetch populations under various management scenarios; (7) an implementation schedule; and (8) viability study of the seed bank. Id. at 12361. The monitoring plan also establishes an annual review process “to ensure a no jeopardy/no adverse modification standard will be maintained” throughout the ISDRA. Id. at 12362. Under the plan, the BLM will monitor population trends in each of the management areas where Peirson’s milk-vetch exists and if the milk-vetch “distribution or abundance significantly declines” past a certain threshold within any of the management areas “proactive measures will occur to protect the plant and its associated critical habitat.” BO AR Doc. #697 at 12362. The agency has set an interim threshold at 50% of the baseline 2004 reproductive population level in a comparable rainfall year. Id. at 12362-3. If the interim threshold is crossed in any management area, the BO states that the proactive measures “may include, but are not limited to: 1) education of OHV users regarding avoiding the plant; 2) implementation of permitting or other methods to minimize use in sensitive areas; 3) self-policing by OHV users to keep users out of sensitive areas; 4) partial closure of sensitive areas; and 5) complete closure of areas.” Id. If the BLM and the Service are unable to agree on the appropriate response, the BLM “will ensure the protection of the species and associated critical habitat ... by closing the relevant portions of the management areas in question. These areas will remain closed until a reinitiated consultation is completed, and the requirements of 43 C.F.R. § 8341.2 are met.” Id. at 12362. (2) The BO’s Findings and “No Jeopardy” Conclusion Throughout the 2005 BO, the Service noted both the adverse impact of OHVs on Peirson’s milk-vetch, as well as the likely adverse impact of the proposed RAMP on the species. See generally BO AR Doc. # 697 at 12386-89; see also id. at 12386 (“Vehicles can crush individual plants and reduce the reproductive output of those that survive”); id. at 12387 (“The primary OHV recreation season coincides with the winter and spring periods of seed germination, growth and flowering of Peirson’s milk-vetch____[a]s a result, the anticipated increased vehicle use in areas of Peirson’s milk-vetch occurrence likely will reduce reproductive success because plants or branches are damaged or destroyed prior to seed-set.”); id. at 12388 (“Absence of Peirson’s milk-vetch has been observed in many high use areas ..., which to some extent is likely attributable to local extirpation of the plant due to use intensity.”); id. (“During the 10- to 15-year implementation period of the proposed RAMP, Peirson’s milk-vetch populations likely will decline in areas of heavy use.”). The Service ultimately concluded, however, that despite the significant adverse impacts of OHV use on the milk-vetch, the RAMP would not jeopardize the continued existence of the species because of the public education program, restrictions on OHV use in the AMA, the monitoring and research plan and program, and the designation of interim population thresholds for each management area that will trigger immediate management changes should degradation exceed the specified threshold. Id. at 12386-90, 12396-97. The Service placed particular emphasis on the monitoring plan and interim population thresholds as being critical to ensuring the continued existence of the milk-vetch. Id. at 12396-97. (3) Analysis of the “No Jeopardy” Conclusion The Court’s review of the “no jeopardy” conclusion is deferential. A final agency decision, such as a BO, may only be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). However, as the Ninth Circuit has recently stated, the Court “must ensure that the FWS’s decisions are based on a consideration of relevant factors and we assess whether there has been a clear error of judgment.” Gifford Pinchot Task Force, 378 F.3d at 1065. After careful review of the BO and the underlying administrative record, the Court concludes that the “no jeopardy” finding must be set aside. The Court concludes that allowing significant declines in the population of an already-threatened species before instituting any mitigating measures to address the decline violates the requirement under the ESA to “insure” that the RAMP is “not likely to jeopardize the continued existence of any ... threatened species____” 16 U.S.C. § 1536(a)(2). The regulations define “jeopardize the continued existence of’ as “to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.” 50 C.F.R. § 402.02. Here, by its very terms, the RAMP permits the significant reduction of reproduction, numbers, or distribution of the milk-vetch, and indeed the BO specifically contemplates that such reduction is likely: Because the proposed RAMP would allow for substantial increases in OHV use in specified areas over the 10- to 15-year life of the RAMP, continued implementation of the CDCA Plan, as amended by the proposed RAMP, likely will adversely affect Peirson’s milk-vetch plant survival and reproduction principally by individual Peirson’s milk-vetch plants being run over by passing vehicles in areas outside the North Algodones Dunes Wilderness Management Area and AMA. BO AR Doc.# 697 at 12390-91 (emphasis added); see also id. at 12387 (“As a result, the anticipated increased vehicle use in areas of Peirson’s milk-vetch occurrence likely will reduce reproductive success because plants or branches are damaged or destroyed prior to seed-set.”) (emphasis added); id. at 12388 (“During the 10- to 15-year implementation period of the proposed RAMP, Peirson’s milk-vetch populations will likely decrease in areas of heavy use.”) (emphasis added); id. (“We anticipate population declines to the 50 percent management threshold are possible within the management areas that appear to receive most of the heavy OHV use, including Gecko, Glamis, parts of Ogilby (the areas without designated critical habitat), and Buttercup Management Areas.”) (emphasis added); id. at 12396 (“Under the proposed RAMP, continued and expanded species degradation is likely ....”) (emphasis added). The fundamental flaw with the BO’s “no jeopardy” conclusion is that the RAMP, by its very terms, permits a 50% decline in the population of reproductive plants before the BLM is even required to consult with the Service on taking mitigating measures to address the population decline. Defendants place great emphasis on the fact that the population threshold applies to reproductive plants, not to seedlings or the seed bank, and also that the thresholds apply separately to each management area. However, the fact that the population threshold does not apply to seedlings cuts both ways because, theoretically, more than 50% of the seedlings in a given year could die and no proactive measures would be triggered under the RAMP. In addition, as the BO notes, “[t]he relative contribution of firsUyear plants of Peirson’s milk-vetch to the seed bank and survival of the taxon is not fully understood. The available data suggests that older age classes produce substantially more seeds than first year plants, and that therefore the older persisting plants are more important for reproductive success.” Id. at 12364. With respect to the fact that the thresholds apply to each management area, defendants are correct that this fact theoretically helps to reduce the extent of an overall population decline. However, it is theoretically possible that a 50% population decline could occur in multiple, or all, of the management areas. The seed bank is discussed infra in footnote 14. Defendants have not specifically addressed the question of whether allowing a significant decrease in the population of the milk-vetch before instituting any mitigating measures directed at the population decrease violates the regulatory definition of “jeopardize.” Instead, defendants argue that the BO’s “no jeopardy” conclusion is lawful because if a 50% population decline in a management area occurs, the BLM is required to take mitigating measures, and those mitigating measures will insure the survival of the milk-vetch. Defendants have not provided any authority for the proposition that an agency may base a “no jeopardy” conclusion on mitigation measures that will not be implemented until after further, substantial degradation to a threatened species. None of the parties have cited any case law that is directly on point, and indeed the Court has been unable to locate any. However, the Court notes that all of the cases cited by defendants in which courts have upheld “no jeopardy” findings are distinguishable because in those cases the mitigating measures were to be implemented at the same time as the federal action. None of the cases hold that a “no jeopardy” finding is lawful when the agency specifically states that an action will have a significant deleterious impact on a listed species, but no mitigating measures will be instituted until after those impacts have occurred; and the Court is aware of no such authority. Cf. Pac. Coast Fed’n of Fishermen’s Ass’n, 265 F.3d at 1037-38 (holding “no jeopardy” findings in biological opinions flawed because agency failed to analyze short-term impacts on listed species despite acknowledging that short-term effects had potential to jeopardize listed fish populations). For example, in Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944 (9th Cir.2003), the biological opinion concluded that although a proposed project adversely affect grizzly bears, it would not jeopardize the bear due to mitigating measures limiting the use of roads, restricting commercial use in certain logging areas, adding grizzly bear habitat, and other restrictions. Id. at 952-53. Thus, unlike the instant case, the mitigating measures were to be implemented at the same time as the proposed project in order to reduce the acknowledged adverse impact on the bears. Defendants’ reliance on Swan View Coalition, Inc. v. Turner, 824 F.Supp. 923 (D.Mont.1992), is similarly unavailing. In that case, the plaintiffs challenged a biological opinion approving a plan that established forest-wide standards and guidelines and did not authorize any site-specific development. Id. at 933. The biological opinion stated that if the plan and standards pertaining to grizzly bears were consistently adhered to, the plan would not adversely affect the grizzly bear. Id. at 934. Thus, unlike the instant case, in Swan View there was no finding of adverse impact on the listed species, and there were protective measures to be followed at the same time as the implementation of the forest plan. The third case defendants rely on, California Native Plant Soc’y v. Norton, 2004 WL 1118537 (S.D.Cal. Feb.10, 2004), is also distinguishable from the instant case. In that case, the Service issued a biological opinion concluding that a proposed development project would not jeopardize an endangered plant because, inter alia, of a proposed transplantation program, and because the majority of the species would be protected under a military management plan. Id. at *4. The plaintiffs argued that the Service could not rely on the military management plan to mitigate against jeopardy. The court rejected this argument, noting that the military’s management plan was not voluntary but was part of a statutorily-mandated natural services management plan, that the military’s plan was finalized and implemented prior to the completion of the BO, and that it set out “specific mitigation measures.” Id. at *11. Thus, unlike the case here, the proposed project included specific mitigation measures both in the form of a transplantation program and an already-implemented military management plan with “specific mitigation measures.” Relatedly, the Court further concludes that deferring any mitigation measures until after significant degradation has occurred to a threatened species does not “address the threats to the species in a way that satisfies the jeopardy and adverse modification standards.” Ctr. for Biological Diversity v. Rumsfeld, 198 F.Supp.2d at 1152, citing Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir.1987). As discussed supra, throughout the BO the Service acknowledges the considerable deleterious impact that the RAMP is likely to have on Peirson’s milk-vetch. However, the RAMP does not require that any mitigating measures be taken until after the reproductive milk-vetch population has declined past the 50% threshold. Even then, although the BO states that proactive measures “will” be taken, no specific measures are required, and they “may” include anything from additional public education efforts to self-policing by OHV users to closure of sensitive areas. See BO AR Doc. # 697 at 12362. The Court recognizes that agencies should be afforded latitude and flexibility to determine the most appropriate course in responding to issues. At the same time, however, if the Service’s primary justification for the “no jeopardy” conclusion is that mitigating measures “will” be taken when milk-vetch populations decline past the 50% threshold, the Service must determine that those mitigating measures will address the threats to the species. See Rumsfeld, 198 F.Supp.2d at 1154. Here, the RAMP simply provides that proactive measures will be taken, but no specific mitigation measures are required unless the BLM and FWS are unable to agree, in which case BLM is required to “close the relevant portions of the management areas in question ... until a reinitiated consultation is completed and the requirements of 43 C.F.R. § 8341.2 are met.” BO AR Doc. # 697 at 12362. The Court concludes that the deferred nature of any mitigating measures until after additional significant population declines, in combination with the fact that no particular mitigating measures are required unless the agencies cannot agree, does not sufficiently address the threats to the milk-vetch to insure against jeopardy. The Court concludes that not only is the “no jeopardy” conclusion contrary to law, but it lacks a connection between the facts found and the choice made. See Pac. Coast Fed’n of Fishermen’s Ass’ns, 265 F.3d at 1034. The Service’s “Early Alert” found that reopening the temporarily-closed areas to OHV use, along with allowing 525 vehicles per day in the AMA, would jeopardize the milk-vetch. See generally BO AR Doc. # 295. Although defendants are correct that this Court’s review is limited to the 2005 BO, the Service’s analysis and findings in the Early Alert are nevertheless relevant to determining whether the ultimate “no jeopardy” finding is rational and supported by the record. See Rumsfeld, 198 F.Supp.2d at 1147. The Early Alert found, inter alia, that of the dune-restricted plant taxa monitored by the BLM, the Peirson’s milk-vetch “appears to be the most vulnerable species to destruction by OHVs.” BO AR Doe. # 295 at 7781. The Early Alert noted that the proposed RAMP would allow OHV use within 84% of milk-vetch habitat, which is a higher level of OHV use than existed when the Service sought the listing of the species, and that “[cjontinued damage to plants within 84 percent of milk-vetch habitat in the Algodones Dunes is likely to appreciably reduce the survival and recovery of this species by reducing its reproduction, numbers, and distribution in the wild.” Id. at 7781-82. The Early Alert also stated that the proposed level of 525 vehicles per day in the AMA “is based on the maximum number of users that have been previously detected using this area, not on an assessment of the conservation needs of the species.” Id. at 7782. The Early Alert stated that in order to avoid jeopardy to the milk-vetch, the RAMP needed to be modified to (1) incorporate a monitoring plan that would, inter alia, define impact thresholds and populations levels that would result in management changes, and (2) prohibit OHV use on approximately 40% of the “psammophytic scrub community within the range of the Peirson’s milk-vetch as research continues on the effects of OHVs on this plant.” Id. at 7784. “Once sufficient information is available to determine levels of OHV use consistent with the long-term conservation needs of the milk-vetch, ... compatible levels of OHV use could be authorized throughout the non-wilderness portion of the Algodones Dunes/Imperial Sand Dunes Recreation Area, including within both open and closed areas.” Id. Defendants emphasize the fact that after the Service issued the Early Alert, the BLM made numerous revisions to the RAMP, including a more developed monitoring plan and the 50% interim threshold, thus addressing the concerns raised by the Service in its Early Alert. However, as stated swpra, the Early Alert concluded that until more information was gathered regarding the specific impact of OHV use on milk-vetch populations, both the monitoring plan with thresholds that would trigger management changes and closures were necessary to avoid jeopardy. In contrast, the “no jeopardy” conclusion in the 2005 BO rests almost entirely on the monitoring plan with interim thresholds, despite the fact that the extent of information regarding the impacts of OHV use on milk-vetch populations remained essentially the same. In light of the deleterious impact of OHVs on milk-vetch plants, which the 2005 BO repeatedly recognizes, and the lack of information about the effect on milk-vetch populations of opening up 84% of milk-vetch habitat to substantial or unlimited OHV use, the 2005 BO failed to “give the benefit of the doubt to the species.” Conner, 848 F.2d at 1454. C. “No Adverse Modification” to Milk-Vetch Critical Habitat Under the ESA, the Service was also required to analyze whether the proposed RAMP will “result in the destruction or adverse modification” of the critical habitat of the Peirson’s milk-vetch. 16 U.S.C. § 1536(a)(2). As the Ninth Circuit explained in Gifford Pinchot Task Force, critical habitat plays a central role under the ESA in protecting recovery and not just survival of protected species, and “it is logical and inevitable that a species requires more critical habitat for recovery than is necessary for the species survival ...” 378 F.3d at 1069. Gifford Pinchot Task Force struck down the regulatory definition of “destruction or adverse modification” because it improperly required appreciable diminishment of the critical habitat necessary for both survival and recovery, and thus “reads the recovery goal out of the adverse modification inquiry.” Id. The RAMP allows “low to moderate” OHV use on 48% of designated critical habitat (the remainder of the milk-vetch’s critical habitat lies in Congressionally designated wilderness). See BO AR Doc. # 697 at 12397-98. The BO states: Under the proposed RAMP, continued and expanded habitat degradation is likely; however a monitoring plan and an interim population threshold for each management area will be identified that will necessitate management measures, which will include closures if necessary, pursuant to 43 C.F.R. § 8341.2, should the monitoring data indicate that the conservation function of the primary constituent elements of any designated critical habitat is being impaired. During the initial 4 years of intensive data collection (which began in 2004), the 2004 data will be used as the baseline from which to determine change to the plant numbers. The plant’s presence is naturally cyclic, largely in response to rainfall patterns. If there is a noticeable decline in species abundance, BLM has the management authority to temporarily suspend use in one or more of the management areas. Since changes in species abundance are likely to occur if critical habitat is adversely affected, monitoring the population abundance would allow us to assess the ongoing status of the primary constituent elements of the critical habitat. In addition, since no vehicle threats are anticipated in 52 percent of the critical habitat (located in the Northern Algodones Dunes Wilderness), we do not anticipate activities in this area that could result in adverse modification of critical habitat. Id. at 12397. Thus, the Service concluded that the RAMP would not “adversely modify” the critical habitat of the milk-vetch, despite its recognition that “continued and expanded habitat degradation is likely,” because the monitoring program and future mitigating measures will minimize the “extent of the degradation.” Id. at 12397-98. The Court holds that the Service’s “no adverse modification” conclusion is unsupported because the Service fails to explain how “continued and expanded habitat degradation” of almost half of the designated critical habitat does not result in “adverse modification” to milk-vetch critical habitat. As with the “no jeopardy” finding, the Service’s “no adverse modification” finding hinges on the fact that “a monitoring plan and an interim population threshold for each management area will be identified that will necessitate management measures, which will include closures if necessary, pursuant to 43 C.F.R. § 8341.2, should monitoring data indicate that the conservation function of the primary constituent elements of any designated critical habitat is being impaired.” Id. at 12397. However, just as with the flawed “no jeopardy” conclusion, the Court holds that deferring any mitigating measures until after the critical habitat degradation has occurred violates the Service’s obligation to “insure” that an action will not “adversely modify” critical habitat. See 16 U.S.C. § 1536(a)(2). Moreover, the mitigating measures at issue would be directed at reversing significant population declines of an already-threatened species. The Court concludes that permitting such action impermissibly ignores the recovery goal of critical habitat, and as such, is not in accordance with the law and must be set aside. See Gifford Pinchot Task Force, 378 F.3d at 1069-70. Relatedly, the Court holds that the “no adverse modification” conclusion is flawed because the Service fails to provide any meaningful or rational explanation for this conclusion. The Service does not explain how allowing unlimited OHV use in 48% of designated critical habitat, when that use will result in “continued and expanded habitat degradation” as well as injury and death to individual milk-vetch plants, is compatible with the recovery standard for actions affecting critical habitat as required by Gifford Pinchot Task Force. The Court finds that the failure to explain how allowing “continued and expanded habitat degradation” will not result in “destruction or adverse modification” of critical habitat is arbitrary and capricious. See Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 235 F.Supp.2d 1143, 1160 (W.D.Wash.2002) (where agency admitted dredging would have adverse impact on habitat, “failure to explain how dredging ... in critical habitat will not adversely modify that habitat” is “arbitrary and capricious”). Defendants argue that the Service did not rely on the regulatory definition struck down by Gifford Pinchot Task Force, and they cite various references in the BO to that effect. However, although defendants are correct that BO makes reference to “conservation” and includes a disclaimer that its conclusions are not based on the now overturned regulation, the “no adverse modification” conclusion cannot be squared with the BO’s recognition that the proposed RAMP will result in “continued and expanded” degradation of approximately half of designated critical habitat. D. The Incidental Take Statement for the Desert Tortoise The final piece of the 2005 BO challenged by plaintiffs is the Incidental Take Statement (“ITS”) for the desert tortoise, set forth at BO AR Doc. # 697 at 12398-401. Under Section 7 of the ESA, the Service is required to specify whether any “incidental taking” of protected species will occur as a result of the agency action. See 16 U.S.C. § 1536(b)(4). “Take” is defined to include harming, harassing, trapping, pursuing, collecting, shooting, capturing, wounding, or killing a protected species. See id. at § 1532(19). If the Service determines that an incidental taking will result, the Service must prepare an ITS which identifies areas where members of the protected species are at risk. Any taking which is subject to an ITS, and in compliance with the terms and conditions of the statement, is not a prohibited taking under the ESA. See 16 U.S.C. § 1536(o)(2). As relevant here, the ITS must specify (1) the amount or extent of such incidental taking on the species; (2) the reasonable and prudent measures necessary to minimize such impacts; and (3) the terms and conditions that must be complied with to implement the reasonable and prudent measures. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i)(l)(i). Plaintiffs raise two challenges to the desert tortoise ITS. First, plaintiffs contend that the ITS is invalid because it does not quantify nor provide an estimate of the amount or extent of take of desert tortoise. Second, plaintiffs contend that the ITS lacks “terms and conditions” implementing the reasonable and prudent measures necessary to minimize the impact of OHV use. (1) Amount or Extent of Take An ITS is required to contain measurable guidelines to determine whether incidental take is exceeded. See 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i)(4). While the Ninth Circuit has noted that “[i]deally, this ‘trigger’ should be a specific number,” there will be “situations in which impact could not be contemplated in terms of a precise number.” See Arizona Cattle Growers’ Ass’n v. U.S. Fish and Wildlife, 273 F.3d 1229, 1249, 1250 (9th Cir.2001). In those cases, the burden is on the Service to establish that “no such numerical value could be practically obtained.” Id. at 1250. Under “Amount or Extent of Take,” the desert tortoise ITS states: The Service anticipates incidental take of desert tortoise in the ISDRA will be difficult to detect for the following reasons: 1) we cannot anticipate the precise numbers of desert tortoises that may be killed or injured because the number of desert tortoises within the ISDRA has not been estimated; 2) the ISDRA is large, desert tortoises are patchily distributed in this part of the species’ range; and 3) we can not predict where and when the unmonitored recreational activities described herein will kill or injure tortoises. Incidental take may occur due to vehicle collision, collection associated with increasing levels of visitor use, changes in raven or other predator abundance associated with presence of people or trash, loss of cover from vehicle use, and approximately 50 acres of construction activities and road maintenance. However, the following level of take of this species will be quantified by the 65,382 acres of potential desert tortoise habitat within the IS-DRA in microphyll woodland and creosote scrub to the east of the Algodones Dunes, and outside of the North Algodones Dunes Wilderness Management Area. We anticipate that there will be relatively few fatalities or injuries to desert tortoises. BO AR Doc # 697 at 12399. Plaintiffs contend that the Service acted arbitrarily and capriciously by failing to specify the amount or extent of authorized take with the required degree of exactness. Plaintiffs contend that the ITS violates the law because it does not provide any meaningful standard by which incidental take of desert tortoise can be measured. The Court agrees. The Service has not established that no numerical value of desert tortoise take could be practically obtained. The first reason provided by the Service — that the number of desert tortoises within the ISDRA has not been estimated — is circular and unavailing: essentially the Service states that it cannot estimate the number of desert tortoise take because they do not know how many desert tortoise are in the ISDRA. However, this is different from stating that it is not possible to estimate the number of desert tortoise in the ISDRA. See Natural Res. Def. Council v. Evans, 364 F.Supp.2d 1083, 1137 (N.D.Cal.2003). Although defendants cite language from the 2005 BO stating that desert tortoise densities in the ISDRA are “probably low,” BO AR Doc. # 697 at 12380, defendants have not pointed to any evidence in the record that it was impractical to estimate desert tortoise take. Indeed, the Service has estimated the numbers of desert tortoise in other areas of the Dunes outside the IS-DRA. See, e.g., BO AR Doc. # 697 at 12380 (“Abundant desert tortoise (from 0 to 59 desert tortoises per square mile) occur in the vicinity of Mesquite Mine about 3 miles east of the ISDRA (Nicholson 1984), and an average desert tortoise density of 20 desert tortoises per square mile was reported for the proposed Mesquite Regional Landfill site directly to the east of the ISDRA.”). Defendants’ assertion that it is impractical to estimate the number of desert tortoise in the ISDRA is also undercut by the fact that the 2003 BO included a specific number of desert tortoise take in the ITS. See BO AR Doc. # 466 at 8744 (“In accordance with Opinion 1-8-01-F-16, BLM shall contact the Service if more than five desert tortoises are found dead or injured in any 12-month period as a result of any specific activity or circumstance to determine whether formal consultation should be re-initiated on that aspect of the CDCA Plan.”). While defendants are correct that the relevant inquiry is whether the ITS in the 2005 BO is lawful, the ITS in the 2003 BO is nevertheless relevant to analyze defendants’ argument that it is impractical to estimate the amount of desert tortoise take. See Ctr. for Biological Diversity v. Rumsfeld, 198 F.Supp.2d at 1147. Aside from arguing that the 2003 ITS is irrelevant, defendants do not explain either in their briefs or in the 2005 BO why the Service was able to provide a numerical estimate for desert tortoise take in 2003 but unable to do so in the 2005 BO. Furthermore, the Court concludes that even if the Service met its burden to show a precise numerical value was not feasible, the ITS is nevertheless deficient because it does not contain a meaningful surrogate for defining the amount or extent of incidental take. The only arguable surrogate for defining the amount or extent of incidental take in the ITS is found in the following: However, the following level of take of this species will be quantified by the 65,382 acres of potential desert tortoise habitat within the ISDRA in microphyll woodland and creosote scrub to the east of the Algodones Dunes, and outside of the North Algodones Dunes Wilderness Management Area. BO AR Doc # 697 at 12399. There is no explanation of what this sentence means in either the ITS or defendants’ papers. When questioned by the Court, defendants for the first time at oral argument asserted that this sentence, combined with the sentence that follows it (“We anticipate that there will be relatively few fatalities or injuries to desert tortoises.”), somehow provides a standard for measuring take. Despite repeated questioning by the Court on this point, defendants were not able to articulate precisely how these two sentences constituted a surrogate for defining the amount of extent of incidental take. Instead, citing “Terms and Conditions” (“T & C”) 4.1 of the ITS, defendants argued that any time there is a report of a killed or injured desert tortoise, the BLM is required to make a report to FWS, and the agencies are required to review the circumstances surrounding the incident “to determine whether additional protective measures are required.” Id. at 12401. The Court concludes that the neither the surrogate language quoted above, nor the reporting and consulting requirement contained in T & C 4.1, satisfies the Service’s obligations under the ESA to provide a meaningful standard for measuring take. The law permits “the use of ecological conditions as a surrogate for defining the amount or extent of incidental take ... so long as these conditions are linked to the take of the protected species.” Arizona Cattle Growers, 273 F.3d at 1250. When using ecological conditions as a surrogate, the Service “must establish a link between the activity and the taking of species before setting forth specific conditions.” Id. (internal quotation and citation omitted). The Ninth Circuit’s decision in Arizona Cattle Growers is instructive. In that case, the court invalidated an ITS that used changes in ecological conditions as a surrogate for a numerical estimate of take. Id. at 1250. The ITS in Arizona Cattle Growers stated that incidental take of the loach minnow would be exceeded if: Ecological changes do not improve under the proposed livestock management. Improving conditions can be defined through improvements in watershed, soil condition, trend and condition of range-lands (e.g., vegetative litter, plant vigor, and native species diversity), riparian conditions (e.g., vegetative and geomorphologic: bank, terrace, and flood plain conditions), and stream channel conditions (e.g., channel profile, embeddedness, water temperature, and base flow) within the natural capabilities of the landscape in all pastures on the allotment within the Blue River watershed. Id. at 1249. The court invalidated the ITS because it did not sufficiently discuss the causal connection between the “improving conditions” and the taking of the species at issue. Id. at 1250. The court also held that the ITS’s statement th