United States Court of Appeals

for the Fifth Circuit

No. 20-60299

Sierra Club; Defenders of Wildlife, 

Petitioners,

versus

United States Department of Interior; Scott de la 

Vega, Acting Secretary, U.S. Department of the Interior; 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. 20191002-5102

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 pipeline 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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2

harassment of one ocelot or jaguarundi and determined that the project 

would not jeopardize the cats’ continued existence. 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

Intervenors Rio Grande LNG, LLC and Rio Bravo Pipeline Company, 

LLC (collectively, the “proponents”) proposed a multi-billion-dollar project 

that is expected to provide a source of competitively priced liquefied natural 

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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gas to the global market and “result in a positive, permanent impact on the 

local economy” in Brownsville, Texas. Specifically, the proponents proposed 

to construct and operate a liquefied natural gas pipeline that will gather 

natural gas from existing pipelines using a 2.4-mile header system and 135.5 

miles of dual pipeline through Cameron, Willacy, Kenedy, and Kleburg 

Counties in Texas (the “project” or the “Rio Grande project”).

2 The 

project also involves a liquefied natural gas export terminal over 750.4 acres 

in Cameron County, Texas. 

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, is home only to a small portion of the ocelot’s range. 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. 

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

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

in Texas. We further recognize that there is a pending separate and distinct challenge under 

the Clean Water Act to a different agency action, No. 20-60281, in this court involving the 

Rio Grande project. But that challenge does not affect the finality or fitness for judicial 

disposition of the instant petition because the Service’s biological opinion and incidental 

take statement, at issue here, constitute final agency action. See Bennett v. Spear, 520 U.S. 

154, 178 (1997); see also Nat’l Comm. for the New River, Inc. v. Fed. Energy Regul. Comm’n, 

373 F.3d 1323, 1329 (D.C. Cir. 2004) (noting that if “every aspect of [a] project were 

required to be finalized before any part of the project could move forward, it would be 

difficult, if not impossible, to construct the project”) (citation omitted).

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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. 

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).

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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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 

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

also set out an incidental take statement. See id. § 1536(b)(4). This statement 

provides the permissible “amount or extent” of impact on the species from 

the action. 50 C.F.R. § 402.14(i). See 16 U.S.C. § 1536(b)(4). In other words, 

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. See 50 C.F.R. 

§ 402.14(i)(5). And the conditions are “reasonable and prudent measures” 

designed to minimize the extent of the incidental take. Id. § 402.14(i)(1)(ii). 

Once the take limit specified in the statement has been exceeded, the action 

agency must re-initiate Section 7 consultation “immediately.” Id.

§§ 402.14(i)(4), 402.16(a).

4. Agency Action

The Service issued the opinion and incidental take statement in 

connection with FERC’s authorization of the Rio Grande 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 

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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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 

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

and jaguarundi. For example, the proponents committed to funding the 

acquisition of 1,050 acres of land and agreed to change the pipeline’s 

alignment as well as the project’s lighting plan. 

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, re-initiation 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 re-initiation 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 

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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). 

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 re-initiation 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. 

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First, the incidental take statement clearly specifies the anticipated 

take of “one endangered cat, (ocelot or jaguarundi) . . . for construction and 

the life of the project.” As such, the 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”5 means that the take of one ocelot could occur at the earliest 

during construction while “and 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 re-initiation trigger is similarly clear and enforceable. If the 

incidental take limit is exceeded, then FERC must re-initiate consultation 

immediately. Id. § 402.14(i)(4). The opinion’s re-initiation notice specifies

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

exceeded, and consultation must be re-initiated. 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, the 

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

plain reading of the re-initiation notice clarifies that such discussion is not in 

lieu of the required re-initiation of consultation. Rather, such discussion is 

simply one of the proponents’ obligations while re-initiation 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 

5 That the summary of the incidental take statement uses the words “from the 

construction” similarly does not change our analysis. 

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mortality,” the obligation pending re-initiation 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 

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

limit is exceeded, i.e., two cats are taken, re-initiation 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 

re-initiation of formal consultation. 

Finally, Petitioners concede that their argument that the reasonable 

and prudent measures listed in the statement regarding voluntary 

conservation measures (specifically the land acquisition)6 are not included 

word-for-word in the terms and conditions is partially moot. This is so 

because the land acquisition has already occurred.

To the extent that this argument is still live regarding the other

voluntary conservation measuresincluded in the first reasonable and prudent 

measure, the argument is unavailing for several reasons. To begin, the 

Service’s Consultation Handbook expressly provides that where 

“conservation measures are part of the proposed action,” implementing 

those measures is necessarily required “under the terms of the 

6 These measures include a voluntary land acquisition of 1,050 acres of ocelot and 

jaguarundi habitat. 

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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(i)(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 [the 

proponents], so that they become binding conditions of the project.” Further 

still, 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 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 Annova project (see supra note 2) and information used in 

the Annova project’s biological opinion; (2) the effects of other projects 

when developing the so-called environmental baseline and their aggregate 

impacts; and (3) the effect of taking an additional cat on the species’ survival. 

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 

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

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

id. § 402.14(h)(iv)(h). 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 a species’ survival 

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

existence of the species”).

First, the Service’s decision to omit the Annova project in this 

project’s jeopardy analysis was not arbitrary and capricious, an abuse of 

discretion, or otherwise not in accordance with law. Indeed, the Service was 

effectively required to exclude the Annova project because Section 7 

consultation regarding the Annova project had not yet concluded, and the 

environmental baseline instead must include only those projects that have 

already undergone such consultation. 50 C.F.R. § 402.02. Plainly, the 

Service does not include projects that have not yet undergone Section 7

consultation. 

The Annova project was also properly excluded from the cumulative 

effects7 analysis because, at the time of the opinion, the Annova project was 

a federal action subject to its own consultation. Id.; see also Miccosukee Tribe of 

7 “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.” 50 C.F.R. 

§ 402.14(g)(4).

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Indians v. United States, 566 F.3d 1257, 1269 (11th Cir. 2009) (“Federal 

actions, and those involving federal agencies, are excluded from cumulative 

effects analysis because they are subject to their own consultation process.”). 

Further, the proponents’ pursuit of state permits does not render it a state 

action required to be considered as part of the cumulative effects analysis.

Additionally, the mere fact that the Annova project was included in 

FERC’s environmental impact statement does not change our analysis

because that statement was prepared under a different statute and a different 

standard. We recognize that the action area of the Annova project is in 

relatively close proximity to the action area of the Rio Grande project. But we 

reiterate that the Annova project’s Section 7 consultation post-dates the Rio 

Grande project, and the Service does not include projects that have not yet 

undergone such consultation. Finally, Petitioners suggest that the Annova 

project opinion’s data is “better” and thus should have been considered 

because it is the “best scientific and commercial data available,” which the 

Service is required to use under 16 U.S.C. § 1536(a)(2). But this is yet 

another attempt to shoehorn the Annova project into the Rio Grande 

opinion. Nevertheless, “best scientific and commercial data” does not mean 

the data a party would have preferred. Id. § 1536(a)(2). To that end, that the 

information and studies considered in the Rio Grande opinion are not 

identical to those considered in the Annova opinion does not render the nojeopardy conclusion arbitrary and capricious. To be sure, the Annova 

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

not consider evidence outside the administrative record.” Harris v. United 

States, 19 F.3d 1090, 1096 n.7 (5th Cir. 1995).

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 

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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 actions in the area, the status of the cats and their habitat as well 

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

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, issuing launch licenses for heavy 

orbital or suborbital vehicles, and authorizing special permits for 

“experimentally grazing cattle treated with injectable acaricides, and feeding 

white-tailed deer ivermectin-treated corn from feeding stations,” 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 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 

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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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 no-jeopardy conclusion

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. 

Third, the Service’s analysis of the effect of taking an additional cat 

on the species’ survival was not arbitrary and capricious. Here, the Service 

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 discourage the ocelot’s use of the 

action area, and a new access road could increase the risk of a vehicle collision 

with an ocelot. But in response to these concerns, proponents agreed to take 

certain actions to mitigate the risk. Regarding the risk of vehicle collisions, 

for instance, proponents 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 

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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), 

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, 

and wind energy projects as well as oil and gas development and the “rapid 

economic expansion of the large metropolitan areas.”

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

consider—and much of what Petitioners argue that the Service failed to 

consider—except for what it was specifically allowed to omit. 

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 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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