United States Court of Appeals

for the Fifth Circuit

No. 20-60319

Sierra Club; Defenders of Wildlife, 

Petitioners,

versus

United States Department of Interior; Scott de la 

Vega, Acting Secretary, U.S. Department of the Interior, in his official 

capacity; United States Fish and Wildlife Service, an agency 

of the United States Department of the Interior; Aurelia Skipwith, in her 

official capacity as Director of the United States Fish and Wildlife Service; 

Charles Ardizzone, in his official capacity as Field Supervisor, Texas 

Coastal Ecological Services Field Office, Responsible Official, 

Respondents.

Petition for Review of an Order of the

United States Department of the Interior

Agency No. 20191022-5106

Before King, Elrod, and Willett, Circuit Judges.

King, Circuit Judge:

After years of review, the U.S. Fish & Wildlife Service issued a 

biological opinion and incidental take statement in connection with the

construction and operation of a liquefied natural gas terminal in south Texas. 

Specifically, the U.S. Fish & Wildlife Service authorized the harm or 

United States Court of Appeals

Fifth Circuit

FILED

March 10, 2021

Lyle W. Cayce

Clerk

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harassment of one ocelot or jaguarundi and determined that the project 

would not jeopardize the continued existence of the ocelot or jaguarundi. The 

Sierra Club and Defenders of Wildlife petition for review of the incidental

take statement and biological opinion. For the reasons that follow, we DENY

the petition.

I.

This challenge asks us to consider whether a decision by Respondent, 

the U.S. Fish & Wildlife Service (the “Service”), was arbitrary and 

capricious, an abuse of discretion, or otherwise not in accordance with law. 

Specifically, at issue is whether the Service complied with its obligations 

under the Endangered Species Act, 16 U.S.C. § 15311 et seq., (the “ESA”) in 

authorizing the harm or harassment of one ocelot or jaguarundi and in 

determining that the proposed project was not likely to jeopardize the 

continued existence of either cat. 

By way of background, we discuss the proposed project, the cats, the 

relevant portions of the ESA and the federal regulations, and the agency 

action.

1. The Project

Intervenor Annova LNG Common Infrastructure, LLC (“Annova”) 

proposed a $5.2 billion dollar project for the export of liquefied natural gas 

1 In broad strokes, the ESA “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). Specifically, it seeks to protect “endangered” or “threatened” species, that is, 

“any species which is in danger of extinction throughout all or a significant portion of its 

range” or “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). For species 

under the jurisdiction of the Secretary of the Interior, like the ocelot and jaguarundi, the 

Service administers the ESA. See 50 C.F.R. § 402.01(b); see also Nat’l Ass’n of Home 

Builders v. Defs. of Wildlife, 551 U.S. 644, 651 (2007). 

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from the South Texas Gulf Coast region to international markets. 

Specifically, Annova proposed the construction and operation of a liquefied 

natural gas export terminal on a 731-acre parcel on the south bank of the 

Brownsville Ship Channel in Cameron County, Texas (the “project” or the 

“Annova project”).2

2. The Ocelot and Jaguarundi

As it turns out, the project would occupy land that is also home to the 

two species of cats at issue in this case: the ocelot and jaguarundi. The ocelot 

is an endangered cat whose range spans twenty-two countries “from extreme 

southern Texas and southern Arizona through the coastal lowlands of 

Mexico to Central America, Ecuador and northern Argentina.” The United 

States, however, “contains only a small portion of the ocelot’s range and 

habitat.” There are approximately fifty ocelots left in the United States with 

two breeding populations in Cameron and Willacy Counties in Texas. 

Similarly, the Gulf Coast jaguarundi is another endangered cat whose range 

includes south Texas, though a jaguarundi has not been seen in south Texas 

in decades. 

At present, the Service has worked to protect the ocelot and 

jaguarundi by maintaining three national wildlife refuges. Additionally, as 

relevant for the ocelot, the Service has worked to connect the Cameron 

County and Willacy County populations with each other and with 

populations in Mexico. 

2 We note at the outset that this project is separate and distinct from the Rio Grande 

project, which involves the construction and operation of a liquefied natural gas pipeline 

through several counties in Texas. 

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3. The ESA and the Federal Regulations

In a case such as this one, where the Service’s biological opinion and 

incidental take statement are at issue, the court focuses its attention on 

Sections 7 and 9 of the ESA. 

To start, Section 7(a)(2) requires that a federal agency consult with 

the Service to make sure that any authorized agency action “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.”3 16 U.S.C. § 1536(a)(2); see also 50 C.F.R. § 402.14(a) (providing 

that formal consultation between the action agency and the Service is 

required where the action agency concludes in its initial review that its action 

“may affect listed species”). Once the Section 7 formal consultation 

concludes, the Service must then issue a biological opinion, “setting forth 

[its] opinion, and a summary of the information on which the opinion is 

based, detailing how the agency action affects the species,” 16 U.S.C. 

§ 1536(b)(3)(A), and using “the best scientific and commercial data 

available,” id. § 1536(a)(2).

Although Section 9 of the ESA prohibits takes of listed species, an 

incidental take statement renders such takes permissible as long as they occur 

in accordance with the incidental take statement’s conditions. 50 C.F.R.

§ 402.14(i)(5). If the Service concludes that the agency action is not likely to 

jeopardize the continued existence of the species but will result in some harm 

3 The agency whose authorized action is at issue is referred to as the action agency 

while the Service is the “consulting agency.” See Nat’l Wildlife Fed’n v. Nat’l Marine 

Fisheries Serv., 524 F.3d 917, 924 (9th Cir. 2008). In this case, the Federal Energy 

Regulatory Commission (“FERC”) is the action agency as it authorized the project.

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or harassment to the species—an incidental take4—then the opinion must 

also set out an incidental take statement. See 16 U.S.C. § 1536(b)(4). This 

statement provides the permissible “amount or extent” of impact on the 

species from the action. Id. See 50 C.F.R. § 402.14(i). And the conditions are 

“reasonable and prudent measures” designed to minimize the extent of the 

incidental take. 50 C.F.R. § 402.14(i)(1)(ii). Once the take limit specified in 

the statement has been exceeded, the action agency must reinitiate Section 7 

consultation “immediately.” Id. §§ 402.14(i)(4), 402.16(a).

4. Agency Action

In this case, the Service issued the opinion and statement in 

connection with FERC’s authorization of the Annova project. FERC 

authorized the project after conducting its environmental analysis, which 

involved soliciting public comment. From there, FERC prepared an 

environmental impact statement. Included in FERC’s environmental impact 

statement was a discussion of the project’s respective effects on the ocelot 

and jaguarundi. As part of this process, FERC consulted with the Service, 

both formally and informally. 

In FERC’s biological assessment of the project, it concluded that the 

project likely would have an adverse effect on the cats, and the Service agreed 

with this conclusion. As a result of this conclusion, formal consultation was 

required under the ESA. The Service reached its conclusion after it reviewed 

the proposed project, and in consultation with biologists, considered the 

project’s potential effects on relevant endangered species—the ocelot and 

the jaguarundi. And the Service’s biologists worked with FERC and the 

4A “take” means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, 

or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). 

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project’s proponents5 to develop ways to mitigate any effects on the ocelot 

and jaguarundi. For example, as a result of these consultations, the project 

proponents agreed to move the site of the terminal 1,800 feet from the 

original location to minimize harms to the cats’ habitats. 

After this careful review, the Service issued its opinion and 

determined that the project would not jeopardize the cats’ continued 

existence, though it may have some adverse effects on the cats. Specifically, 

the Service determined that the project would likely harm or harass only one 

cat during construction and the life of the project, and this single “take” was 

simply not enough to jeopardize the cats’ continued existence. The opinion 

also stated that if the take limit is exceeded, reinitiation of formal consultation

is required by 50 C.F.R. § 402.16. 

Petitioners Sierra Club and Defenders of Wildlife (collectively, 

“Petitioners”), however, contend that the opinion and incidental take 

statement are arbitrary and capricious. Specifically, they argue that there is 

no clearly defined “take” or trigger for reinitiation of formal consultation 

once the take of one ocelot or jaguarundi has occurred, and they challenge 

the Service’s no-jeopardy conclusion.

II.

The court reviews the incidental take statement and biological opinion

under the same “narrow and highly deferential standard” set forth under the 

Administrative Procedure Act. Medina Cnty. Env’t Action Ass’n v. Surface 

Transp. Bd., 602 F.3d 687, 699 (5th Cir. 2010). And the court may not 

overturn the Service’s decision unless it is “arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 

5 Specifically, FERC worked with Annova as well as Annova’s consultants. 

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Further, the “court is not to substitute its judgment for that of the agency.” 

FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009) (quoting Motor 

Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). 

Rather, the court “consider[s] whether the decision was based on a 

consideration of the relevant factors and whether there has been a clear error 

of judgment.” Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989) 

(quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416

(1971)). And the court may nevertheless uphold an agency’s decision even if 

it is “of less than ideal clarity,” so long as “the agency’s path may reasonably 

be discerned.” State Farm, 463 U.S. at 43 (quoting Bowman Transp., Inc. v. 

Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)).

III.

We first turn to Petitioners’ challenge to the incidental take 

statement. Second, we turn to Petitioners’ challenge to the Service’s nojeopardy conclusion. As explained below, we reject these challenges because

neither the incidental take statement nor the no-jeopardy conclusion is 

arbitrary and capricious, an abuse of discretion, or otherwise not in 

accordance with law. 

1. The Incidental Take Statement is Not Arbitrary and Capricious

Petitioners argue that the incidental take statement is arbitrary and 

capricious because it fails to (1) set a clear take limit, (2) set an enforceable

trigger for reinitiation of formal consultation, and (3) include terms and 

conditions implementing certain of the reasonable and prudent measures 

designed to mitigate the effects of the project on the cats. We reject each 

argument in turn. 

First, the incidental take statement clearly specifies the anticipated 

take of “one endangered cat, (in [the] aggregate, ocelots or a 

jaguarundi) . . . for construction, and for the life of the project.” As such, the 

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statement specifies “the amount or extent” of the anticipated take, which is 

all the regulations require. 50 C.F.R. § 402.14(i)(1)(i). Although Petitioners 

argue that this language in the incidental take statement is ambiguous, we 

disagree. The phrase “for construction” means that the take of one ocelot 

could occur at the earliest during construction while “and for the life of the 

project” delineates the rest of the timeline in which the take could occur. In 

other words, one take could occur anytime between when construction 

begins through the life of the project. Therefore, the statement sets a clear 

take limit.

The reinitiation trigger is similarly clear and enforceable. If the 

incidental take limit is exceeded, then FERC must reinitiate consultation 

immediately. Id. § 402.14(i)(4). The opinion’s reinitiation notice specifies

exactly that. If more than one cat is harmed or harassed, then the take limit is 

exceeded, and consultation must be reinitiated. True enough that the 

reinitiation notice also provides that in the specific instance where the take 

limit is exceeded by “vehicular mortality,” i.e., road-kill, then FERC, 

Annova, and the Service “will meet to discuss further options.” But a plain 

reading of the reinitiation notice clarifies that such discussion is not in lieu of 

the required reinitiation of consultation. Rather, such discussion is simply 

one of Annova’s obligations while reinitiation is pending. In other words, in 

an instance where the take limit is exceeded by a construction or maintenance 

operation, “the operation causing such take must cease pending 

reinitiation”; where the take limit is instead exceeded by “vehicular 

mortality,” the obligation pending reinitiation involves a separate discussion. 

Further, contrary to Petitioners’ argument, the requirement that a 

discussion with the Service must occur if a cat is killed during any twelvemonth period does not alter the take limit of a single cat during the life of the 

project to one take per year. Rather, it merely governs the timing of 

discussion and, recognizing that a take need not be lethal, provides for 

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discussion in the event that any cat dies in the project area. Once the take 

limit is exceeded, i.e., two cats are taken, reinitiation of formal consultation is 

necessarily triggered. Seeid. § 402.14(i)(4). But in the event of even onelethal 

take, which by itself would not exceed the take limit, the Service and the 

project’s proponents will have a discussion. Even with these additional 

obligations, the statement nevertheless sets a clear and enforceable trigger for 

reinitiation of formal consultation. 

Finally, although the reasonable and prudent measures listed in the 

statement regarding voluntary conservation measures (specifically the land 

acquisitions)6 are not included word-for-word in the terms and conditions, 

those measures are necessarily already accounted for in several important 

ways. To begin, the Service’s Consultation Handbook expressly provides 

that where “conservation measures are part of the proposed action,” 

implementing those measuresis necessarily required “under the terms of the 

consultation.” Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 698 

F.3d 1101, 1114 (9th Cir. 2012) (following and adopting this very principle); 

see 50 C.F.R. § 402.14(h)(1)(i). These voluntary conservation measures were 

squarely included in the descriptions of the proposed project, and the Service 

required commitments on these measures before even initiating formal 

consultation. Additionally, the incidental take statement itself provides that 

these measures “are non-discretionary, and must be undertaken by FERC 

and [Annova], so that they become binding conditions of the project.” 

Further still, the record shows that a commitment to fund the acquisition of 

the land has already occurred, and FERC’s authorization requires the 

implementation of all voluntary conservation measures as part of its 

certification. Therefore, the failure to include the reasonable and prudent 

6 These measures include a voluntary land acquisition of 1,000 acres of land and 

250 acres of ocelot habitat. 

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measures word-for-word in the terms and conditions does not render the 

incidental take statement arbitrary and capricious, an abuse of discretion, or 

otherwise not in accordance with law. 

Based on the foregoing, we find no cause to overturn the agency’s 

action based on the challenged incidental take statement.

2. The No-Jeopardy Conclusion is Not Arbitrary and Capricious

Petitioners’ overarching argument regarding the no-jeopardy 

conclusion depends on reading the Service’s opinion as conclusory. In 

support of this reading, Petitioners maintain that the opinion fails to take 

account of (1) the Rio Grande project (see supra note 2); (2) the effects of 

other projects when developing the so-called environmental baseline and 

their aggregate impacts; and (3) the cumulative effects by not aggregating 

impacts and not considering factors used in the Rio Grande project’s 

biological opinion. As explained below, we reject each of these arguments.

To start, under Section 7 of the ESA, once the Service concluded its 

formal consultation process with FERC regarding the project’s effects on the 

endangered cats, the Service was required to issue a biological opinion, 

summarizing the information it is based on and discussing the project’s 

anticipated effects on the cats, including whether the project is “likely to 

jeopardize the [cats’] continued existence.” 50 C.F.R. § 402.14(g)(4). See 

also id. § 402.14(h)(iv). And this conclusion was reached after evaluating both 

the direct and indirect effects of an action on the cats. See id. § 402.02(d) 

(defining the action area); see also Oceana, Inc. v. Pritzker, 75 F. Supp. 3d 469, 

486 (D.D.C. 2014) (explaining that the Service, as the “expert agency 

charged with administering the ESA, may reasonably conclude that a given 

agency action, although likely to reduce the likelihood of the species’ survival 

and recovery to some degree, would not be likely to jeopardize the continued 

existence of the species”).

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First, the Service’s decision to omit the Rio Grande project in its 

Annova jeopardy analysis was not arbitrary and capricious because the Rio 

Grande project location was outside of the Annova project’s action area.7

The Annova project’s action area does not include lands north of the 

Brownsville Ship Channel. Although Petitioners suggest in their reply brief 

that the Service drew the “‘action area’ boundary to exclude Rio Grande, 

even though Rio Grande is adjacent to Annova by only .3 miles on the 

opposite side of the Brownsville Ship Channel,” we are unpersuaded.

Indeed, the Service has supported its rationale for drawing the action area 

boundary as it did, noting, among other reasons, that all activity that will 

disturb the land as well as all vehicle traffic will occur south of the Brownsville 

Ship Channel. The Service’s decision regarding the action area is thus 

entitled to deference. See Medina Cnty., 602 F.3d at 699.

Further, though FERC considered the Rio Grande project in its 

description of the marine action area, this consideration was confined to 

FERC’s analysis of vessel traffic on marine species, which is not part of the 

Service’s consideration and not the subject of this challenge. It should also 

be noted that when FERC defined the non-marine action area, lands north of 

the Brownsville Ship Channel were similarly excluded. To the extent that 

Petitioners attempt to expand the action area based on where the cats roam 

as opposed to where the project’s direct or indirect effects will occur, this 

position is misguided. See Oceana, Inc. v. Evans, 384 F. Supp. 2d 203, 228–29

(D.D.C. 2005) (rejecting this position in the case of alleged threats to 

loggerhead turtles, upholding the agency’s definition of the action area as 

7 The “action area” is defined as “all areas to be affected directly or indirectly by 

the Federal action and not merely the immediate area involved in the action.” 50 C.F.R. 

§ 402.02; see Nat’l Family Farm Coal v. EPA, 966 F.3d 893, 927 (9th Cir. 2020) (“We 

accord deference to [the agency] in the way it chose to define the action area.”)

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where the fishery operates, and maintaining that there is “no support for the 

proposition that the action area must be extended to include the migratory 

range of loggerhead turtles”). 

Petitioners’ argument that the Rio Grande project site should be 

included in the action area lest the Annova action area be too narrowly 

defined is equally unavailing. Although courts have previously found action 

areas to be too narrowly defined where they were limited to, for example, 

lands only within the agency’s control, see Defs. of Wildlife v. Babbitt, 130 F. 

Supp. 2d 121, 128–29 (D.D.C. 2001), such is hardly the case here. Indeed, 

the Service included private lands, public lands, roads, water lines, and 

agricultural lands. 

Second, the Service’s environmental baseline does not render its nojeopardy conclusion arbitrary and capricious. Under the ESA’s regulations, 

the Service is required to evaluate the “effects of the action” against an 

environmental baseline, which includes “the past and present impacts of all 

Federal, State, or private actions and other human activities in the action 

area.” 50 C.F.R. §§ 402.02, 402.14(g)(2). Here, the Service described and 

discussed the relevant ecosystems within the Rio Grande Delta region, the 

other federal actionsin the area, the status of the cats and their habitat as well 

as what affects the cats’ habitat. For example, the opinion discusses nine

other federal actions that “have resulted in formal section 7 consultations 

with the Service and the issuance of incidental take for the ocelot and 

jaguarundi within the Action Area.” These actions involved widening and 

improving highways, installing a waterline, and issuing launch licenses for 

orbital or suborbital vehicles, among others. The Service discussed the 

authorized take for these actions and explained that if all of the authorized 

takes occurred, then the ocelot population relevant to this petition would be 

“extirpated.” But the Service went on to explain that to its knowledge, “no 

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cats have been taken from any of the [discussed] projects.”8 See id. § 402.02 

(explaining that the Service is required to consider the “past and present 

impacts” of federal actions in the area). We note, too, that a take is not 

necessarily lethal but rather includes actions that could “harass, harm, 

pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to 

engage in any such conduct.” 16 U.S.C. § 1532(19). Indeed, in many of the 

discussed projects, lethal takes were not authorized. 

Finally, there is no requirement that the Service provide a specific 

numerical analysis in lieu of a qualitative analysis regarding the effects of the 

projects on the species. See Interagency Cooperation—Endangered Species 

Act of 1973, 51 Fed. Reg. 19,926, 19,932 (June 3, 1986) (codified at 50 C.F.R. 

pt. 402) (discussing that the agency should address “the totality of factors 

affecting the species”); see also Gifford Pinchot Task Force v. U.S. Fish & 

Wildlife Serv., 378 F.3d 1059, 1067 (9th Cir. 2004) (explaining that “the ESA 

does not prescribe how the jeopardy prong is to be determined”), superseded 

on other grounds by Definition of Destruction or Adverse Modification of 

Critical Habitat, 81 Fed. Reg. 7214 (Feb. 11, 2016); Mayo v. Jarvis, 177 F. 

Supp. 3d 91, 138 (D.D.C. 2016) (noting that “nothing in the statute or 

regulation[s] requires the [Service] to rigidly add up each incidental take”).

Based on this review, and the fact that the ESA does not define how 

to measure whether an action will in fact “jeopardize the continued 

existence” of the cats, the Service could make this determination based on 

its own expertise. See State Farm, 463 U.S. at 43; see also Pritzker, 75 F. Supp.

3d at 486–87. And such determination provides us no occasion to overturn 

the agency’s conclusions.

8 Further, as the Service points out in its brief, some of the projects are now 

completed and the authorized take has since expired. 

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Third, the Service’s cumulative effects analysis does not render the 

Service’s determinations arbitrary and capricious. “Cumulative effects” are 

defined as “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.” 50 C.F.R. § 402.02(d). In 

formulating a biological opinion, the Service must determine whether the 

action, taken together with “cumulative effects to the environmental baseline 

and in light of the status of the species . . . is likely to jeopardize the continued 

existence of listed species.” Id. § 402.14(g)(4).

Although courts have found that a cumulative effects analysis was 

deficient where there was “no analysis whatsoever,” see Greenpeace v. Nat’l 

Marine Fisheries Serv., 80 F. Supp. 2d 1137, 1149 (W.D. Wash. 2000), this is 

not the case here. The Service’s effects analysis accounted for the effects of 

each project against the baseline and the cats’ survival and recovery. Indeed, 

the Service provided a detailed analysis of direct effects of the project on the 

ocelot and jaguarundi such as habitat loss, human disturbance, operational 

noise, vehicle collisions, and light emissions. For example, human 

disturbance could cause the ocelot to flee or change habitat selection, and a 

new access road could increase the risk of a vehicle collision with an ocelot, 

But in response to these concerns, Annova agreed to take certain actions to 

mitigate the risk. Regarding the risk of vehicle collisions, for instance, 

Annova agreed to mandate a 25 miles per hour speed limit. From there, the 

Service then concluded that the project “may harm or harass” an ocelot and 

“prevent[] dispersal of cats into otherwise suitable habitat,” but that this 

anticipated take would not likely jeopardize the cats “in the wild across their 

range.”

To be sure, the regulations neither preclude all actions that will result 

in the take of an endangered species nor require a finding that the species will 

be jeopardized if there is a likelihood of a take. See 50 C.F.R. §§ 402.13(a), 

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402.14(b)(1) (discussing the type of consultation required and the Service’s 

responsibilities but not requiring the Service to preclude actions that will 

harm an endangered species); see also 16 U.S.C. § 1536(b)(4). 

Further still, the Service considered the effects of a natural gas 

interconnection, overhead transmission lines, an underground water supply, 

wind energy projects, other oil and gas projects, and urban development. 

That the factors considered in the Rio Grande cumulative effects analysis are 

not identical to those considered here does not render the no-jeopardy 

conclusion arbitrary and capricious. To be sure, the Rio Grande materials are 

not part of the record in this case. And we note at that we “may not consider 

evidence outside of the administrative record.” Harris v. United States, 19 

F.3d 1090, 1096 n.7 (5th Cir. 1995).

Petitioners also challenge the opinion’s mitigation measures, namely 

the conservation of acreage, as arbitrary and capricious. This argument 

amounts to speculation about further explanation that the Service could have 

provided regarding why the habitat loss at the project site will not jeopardize 

the endangered cats and how the conserved acreage will offset the acres 

disturbed by the project. But Petitioners point to no portion of the ESA that 

would have required the Service to add such explanation and write the 

opinion any differently. Here, the Service biologists worked for five years 

with FERC and Annova before issuing the opinion and concluding that the 

loss of the 212 acres—offset by habitat acreage and other conservation 

measures—will not jeopardize the cats’ continued existence. And this is 

precisely the type of conclusion that is entitled to deference. Medina Cnty., 

602 F.3d at 699.

At bottom, the Service considered all that it was required to 

consider—and much of what Petitioners argue they failed to consider—

except for what it was specifically allowed to omit. 

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Plainly put, the Service has identified the reasons underlying its 

conclusion that the ocelot and jaguarundi’s continued existence would not be 

jeopardized by the project, and it has articulated a rational connection 

between these reasons and that conclusion. This is all that the ESA and its 

implementing regulations require. See Luminant Generation Co. LLC v. EPA, 

714 F.3d 841, 850 (5th Cir. 2013); see also Atchafalaya Basinkeeper v. U.S. 

Army Corps of Eng’rs, 894 F.3d 692, 697 (5th Cir. 2018).

Therefore, the Service’s biological opinion was not arbitrary and 

capricious, an abuse of discretion, or otherwise not in accordance with law. 

IV.

For the foregoing reasons, we DENY the petition.

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