Friends of Animals v. FWS

Appellate Case: 25-4021 Document: 49-1 Date Filed: 08/12/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS August 12, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _______________________________________ FRIENDS OF ANIMALS, Plaintiff - Appellant, v. No. 25-4021 U.S. FISH AND WILDLIFE SERVICE, Defendant - Appellee. _______________________________________ Appeal from the United States District Court for the District of Utah (D.C. No. 4:18-CV-00053-DN) _______________________________________ Andreia Marcuccio (Jennifer Best with her on the briefs), Friends of Animals, Wildlife Law Program, Greenwood Village, Colorado, for Plaintiff-Appellant. Amy E. Collier (Adam R.F. Gustafson, Acting Assistant Attorney General, with her on the brief), Environment and Natural Resources Division, U.S. Department of Justice, Washington, D.C., for Defendant-Appellee. _______________________________________ Before BACHARACH, MORITZ, and FEDERICO, Circuit Judges. _______________________________________ BACHARACH, Circuit Judge. _______________________________________ This case involves tension between development of land and preservation of animal species threatened with extinction. Some of these  Appellate Case: 25-4021 Document: 49-1 Date Filed: 08/12/2026 Page: 2 species colonize on land where development is expected. So when development looms, federal law strikes a balance between the interest in development and survival of the species. This appeal involves two main sets of issues: 1. Comparing habitats: Development can threaten the survival of animal colonies. But habitats vary in their suitability for colonization. For example, habitats vary in the quality and quantity of vegetation suitable for animals. Can regulators adequately protect animals by moving them without comparing the suitability of their habitats? We answer no. 2. Logistics: When deciding whether to allow development, regulators can’t foresee every contingency. For example, regulators may rely on funding sources that unexpectedly vanish. But do regulators adequately plan for these contingencies by drawing on regulatory expertise and experience? We answer yes. 1. The Service establishes a General Conservation Plan for Utah prairie dogs. These issues arise from regulatory efforts to protect Utah prairie dogs, which live in Utah grasslands. During the twentieth century, the species suffered a massive drop in population from disease, poisoning, and destruction of habitats. In response, the Fish and Wildlife Service listed the species as endangered and later as threatened. 1 1 The Endangered Species Act defines an endangered species as a species, other than insects considered as pests, “which is in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6). A species is threatened when it “is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. § 1532(20). 2  Appellate Case: 25-4021 Document: 49-1 Date Filed: 08/12/2026 Page: 3 These listings triggered the Endangered Species Act and accompanying regulations, which ordinarily bar the taking of endangered or threatened species within the United States. See 16 U.S.C. § 1538(a)(1)(B) (prohibiting the taking of endangered species); 16 U.S.C. § 1533(d) (allowing the Secretary of the Interior to prohibit the taking of threatened species); 50 C.F.R. § 17.31 (establishing a default prohibition against the taking of species that are threatened); see also 16 U.S.C. § 1532(19) (defining take as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct”). Despite this general bar, the Service can issue permits allowing takes that are incidental to conduct that is otherwise legal. Id. § 1539(a)(1)(B). For example, a developer may get a permit to build a school or hospital on land occupied by prairie dogs. Joint App’x vol. 3, at 36. A permit can be issued only if a developer submits a conservation plan and the Service finds that • the developer would minimize and mitigate the impact of the taking to the maximum extent practicable, • the developer would ensure enough funding to minimize and mitigate the impact, • the taking would not appreciably reduce the likelihood of the survival and recovery of the species, and • the developer would take any other measures that are necessary or appropriate to implement the plan. 16 U.S.C. § 1539(a)(2)(A)–(B). 3  Appellate Case: 25-4021 Document: 49-1 Date Filed: 08/12/2026 Page: 4 In 2018, the Service issued a General Conservation Plan that covered land in seven counties in southwest Utah. The Plan included three “recovery units”—areas that were geographically identifiable and “essential to the conservation and recovery of the entire population of Utah prairie dogs.” Joint App’x vol. 5, at 79. The Plan was designed to streamline the issuance of permits over a ten- year period. Id. vol. 3, at 30–32, 42. In that period, regulators expected 4  Appellate Case: 25-4021 Document: 49-1 Date Filed: 08/12/2026 Page: 5 construction on habitats containing large colonies of Utah prairie dogs. Id. at 40. The Service recognized that developers would focus on just a few counties. For those counties, the Plan would relieve developers of the need to get individual permits. Instead, the Plan would allow the Service to issue a “master permit” to a county. Id. at 35–38. The county could then allow developers to use the master permit by issuing “certificates of inclusion.” Id. at 134–37. A certificate of inclusion would allow developers to take prairie dogs under conditions specified by the Plan and the county. In places without master permits, the Service could authorize the take of prairie dogs by issuing individual permits to developers. Id. at 36–37. To predict the potential impact on prairie dogs, the Plan designated two types of areas: (1) major development areas and (2) minor development areas. 5  Appellate Case: 25-4021 Document: 49-1 Date Filed: 08/12/2026 Page: 6 Major development areas are lands • that are owned by someone other than the federal government and • that are “built out or adjacent to built out areas.” Id. at 40. Minor development areas are lands that are • owned by someone other than the federal government and • less likely to experience significant development over the ten- year period. Id. at 41. Minor development areas sometimes contain low-quality habitats, which are areas lacking the required biological, ecological, or functional requirements to sustain the species’ life cycle. Alan D. Copsey, Symposium: Guidance for Growth, The Protection of Wildlife Under Washington’s Growth Management Act, 16 U. Puget Sound L. Rev. 1101, 1126 n.145 (1993). The Service used historical averages to project the loss of habitat in major development areas and minor development areas. Joint App’x vol. 3, at 84. But the Service recognized that future development could exceed the historic averages. Id. at 85 (acknowledging that “it is possible that future development would be higher than historical averages, at least in some years, with changes in the economy or human population growth”). So the Service also predicted the impact on prairie dogs if the destruction of their habitats were to increase fivefold. Id. at 85–86. 6  Appellate Case: 25-4021 Document: 49-1 Date Filed: 08/12/2026 Page: 7 To address the impact of future development, the Plan supplied two primary approaches for mitigation. The first approach would be used in “major development areas” and “small colonies on low-quality habitats in the minor development areas.” Id. at 58. For these areas, the Plan required • the movement of prairie dogs from development sites and • the establishment of new colonies on federal or protected lands. This movement of prairie dogs is called translocation. Id. at 57–60. For minor development areas with medium- or high-quality habitats, the Plan required protection of habitats through conservation banks, land acquisitions, and conservation easements. Id. at 60–63. (Conservation banks are permanently protected and managed lands, and conservation easements are restrictions in deeds.) The mitigation measures would be funded by Utah and fees paid by developers. Id. at 106–10. To allow adjustments, the Plan required • the permittees to monitor the success of mitigation and • the Service to annually review compliance. Id. at 76–80, 227. The Service projected that future development (like construction of schools and hospitals) would destroy habitats, leading to the take of up to 7,152 prairie dogs over 10 years. Id. at 88. But the Service concluded that the mitigation measures would fully offset the impact. Id. at 94, 97. For these conclusions, the Service found 7  Appellate Case: 25-4021 Document: 49-1 Date Filed: 08/12/2026 Page: 8 • that the Plan and the proposed permits would not likely jeopardize the continued existence of the Utah prairie dog, id. vol. 2, at 86–123, 157–74, • that the minimization and mitigation measures would fully offset the take of the prairie dogs, id. at 104–13, 160–68, • that funding was assured, id. at 168–72, and • that the Plan would not significantly impact the environment, id. at 175–297. Based on these findings, the Service issued master permits to three Utah counties (Iron, Garfield, and Beaver), authorizing incidental takes through development. Id. at 151–56; id. vol. 3, at 6–19. 2. Friends of Animals unsuccessfully challenges the Plan in district court. Friends of Animals petitioned for judicial review, claiming violations of the Endangered Species Act and the National Environmental Policy Act. The district court denied Friends of Animals’ petition for review. 3. Friends of Animals has standing. The Service challenges Friends of Animals’ standing, arguing that a disconnect exists between the claims and the documents allowing the take. The district court rejected this challenge, and we conduct de novo review. Colo. Outfitters Ass’n v. Hickenlooper, 823 F.3d 537, 544 (10th Cir. 2016). The district court didn’t err. For standing, a plaintiff must show that “(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury 8  Appellate Case: 25-4021 Document: 49-1 Date Filed: 08/12/2026 Page: 9 is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). An organization has standing only if at least one member has standing. See Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009). Friends of Animals alleges that the Plan and related permits will impede members’ ability to view Utah prairie dogs. In response, the Service distinguishes between the Plan and the permits authorizing the take, asserting that Friends of Animals has relied on deficiencies in the Plan rather than in the permits themselves. Because permits are required for the take, the Service argues that Friends of Animals can’t trace its injury to the Plan itself. This argument reflects a misunderstanding of the claims: Friends of Animals challenges not only the Plan, but also the permits themselves. See Joint App’x, vol. 1, at 21 (Friends of Animals’ request for the district court to “vacate and remand the decisions approving [the General Conservation Plan] and [incidental take permits]”). Indeed, the Service bases the permits on the Plan; and the terms of the permits incorporate the Plan. Id. vol. 2, at 152 (master permit for Beaver County, incorporating the terms of the Plan); Id. vol. 3, at 8, 15 (master permits for Garfield 9  Appellate Case: 25-4021 Document: 49-1 Date Filed: 08/12/2026 Page: 10 County and Iron County, incorporating the terms of the Plan). So the alleged injury is traceable to the Plan itself. The Service disagrees, characterizing the Plan as a programmatic framework that doesn’t authorize the take. But the Plan itself allows an incidental take of up to 7,152 prairie dogs. Id. at 88; see also id. at 30 (describing how conservation plans are “required as part of an application for an incidental take permit”). Given the existence of an injury traceable to the Plan, Friends of Animals has standing. 4. We review the Plan under standards established by the Administrative Procedure Act. The claims are governed by the Administrative Procedure Act. See Defs. of Wildlife v. U.S. Forest Serv., 94 F.4th 1210, 1220 (10th Cir. 2024) (stating that the Administrative Procedure Act governs a claim under the Endangered Species Act); Cure Land, LLC v. U.S. Dep’t of Agric., 833 F.3d 1223, 1230 (10th Cir. 2016) (stating that the Administrative Procedure Act governs a claim under the National Environmental Policy Act). Under the Administrative Procedure Act, a court can overturn an agency’s decision when it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The decision is arbitrary and capricious if the agency has • “relied on factors which Congress has not intended it to consider,” 10  Appellate Case: 25-4021 Document: 49-1 Date Filed: 08/12/2026 Page: 11 • “entirely failed to consider an important aspect of the problem,” • “offered an explanation for its decision that runs counter to the evidence before [it],” or • taken an action “so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43 (1983). Friends of Animals argues that the Service’s issuance of the Plan and related permits was arbitrary and capricious under the Administrative Procedure Act. To address this argument, we conduct de novo review of the agency’s decision, applying the same deference to the decision as the district court. W. Watersheds Project v. Haaland, 69 F.4th 689, 700 (10th Cir. 2023). Given this deference, Friends of Animals must show that the Service acted arbitrarily and capriciously. Audubon Soc’y of Greater Denver v. U.S. Army Corps of Eng’rs, 908 F.3d 593, 602–03 (10th Cir. 2018). Our deference is “especially strong” when the decision falls within the agency’s expertise in technical and scientific matters. Utah Env’t Cong. v. Russell, 518 F.3d 817, 824 (10th Cir. 2008). Despite that deference, we consider only the Service’s stated reasons. State Farm, 463 U.S. at 43. “[P]ost hoc rationalizations” won’t suffice. Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 23 (2020). 11  Appellate Case: 25-4021 Document: 49-1 Date Filed: 08/12/2026 Page: 12 5. The Service acted arbitrarily and capriciously in evaluating the Plan’s assessment of prairie dog habitats. For a 10-year period, the Plan allowed a take of up to 7,152 prairie dogs and 1,750 acres of land. The Service could approve this take under the Endangered Species Act only if the Plan had minimized and mitigated the effects “to the maximum extent practicable.” 16 U.S.C. § 1539(a)(2)(B)(ii). The Service concluded that the Plan had provided adequate mitigation to fully offset these losses of prairie dogs and habitat. Joint App’x vol. 2, at 163. For this conclusion, the Service pointed to its • use of protocols for translocation and • consideration of habitat quality when selecting sites for conservation banks, land acquisitions, and conservation easements. Id.; see also id. vol. 3, at 53 (stating that the Plan was designed to protect “sufficient habitat of appropriate quality to offset impacts from habitat loss”). Friends of Animals challenges this conclusion, arguing that the Service • should have compared the biological value of lost habitats and new habitats and • should not have relied on translocation to mitigate the impact of development in major development areas. We agree with Friends of Animals that the Service arbitrarily and capriciously failed to compare the biological value of habitats. But this 12  Appellate Case: 25-4021 Document: 49-1 Date Filed: 08/12/2026 Page: 13 failure didn’t otherwise prevent the Service from relying on translocation as the preferred mitigation measure in major development areas and low quality habitats in minor development areas. A. The Service should have compared the biological value of habitats. For the major development areas and low-quality habitats in minor development areas, the Service regarded translocation as the preferred measure of mitigation to fully offset the losses of prairie dogs. Id. at 58– 60. But the Service failed to require the replacement of old habitats with habitats of equivalent biological value. The Service would translocate the Utah prairie dogs by trapping and moving them to new habitats. Id. at 60, 82; id. vol. 5, at 60–62. And the Service recognized the need to assess the quality of the new habitats for the long-term recovery of the species. Id. vol. 2, at 163; id. vol. 3, at 98. For example, the Service had earlier underscored the importance of open habitats for foraging; well-drained, deep soils; moist herbaceous vegetation; and connectivity of habitats. Id. vol. 5, at 10, 33, 35, 37–38, 53, 71–72. In comparing the old and new habitats, the Service applied a concept of biological value. Id. at 111–16. This concept recognized the need to fully replace the biological value of habitats through conservation. Id.; see also id. at 111 (the Service’s handbook defining fully offset to require 13  Appellate Case: 25-4021 Document: 49-1 Date Filed: 08/12/2026 Page: 14 replacement of the biological value lost by implementing conservation measures with equivalent biological value). The Service illustrated the required analysis with loss of a habitat spanning 100 acres. Id. at 113. The loss might be offset with restoration of land for a new habitat. Id. The comparison of the old and new habitats would involve these “key questions”: [W]hat value did the habitat lost have to the covered species? What value does the replacement habitat have to covered species (e.g., did the replacement habitat provide for the same life stage of the covered species as that lost)? Does the replacement ratio need to be greater than 1:1 to compensate for the lag time between impacts and full eco-function of the replacement habitat, to allow for restoration uncertainties, or is [it] consistent with previously-defined recovery objectives? Is the identified conservation habitat likely to remain suitable in reasonably anticipated future climate scenarios? Is there more value to the species by replacing the habitat that is lost with a different habitat type (e.g. breeding vs. foraging habitat)? Id. The Service acknowledges the “key questions” of replacing lost habitat with habitat of equal value. Appellee’s Resp. Br. at 23 (stating that “[the Plan’s] framework does consider ‘the quality of habitat and colonies’” (cleaned up)). And the Service says that the Plan is designed to protect “habitat of appropriate quality. Joint App’x vol. 3, at 53. After acknowledging this goal, however, the Service adopted the Plan without comparing the biological values of the old and new habitats. 14  Appellate Case: 25-4021 Document: 49-1 Date Filed: 08/12/2026 Page: 15 The Service protests that until developers seek permits, no one can know the size of the development or select the lands for mitigation. But the Plan authorizes the take without requiring anyone to assess the biological quality of the existing habitat. This omission might be unimportant if the existing habitats were inferior sites. But that’s not the case; the Service acknowledges that major development areas “retain a high level of conservation value based on the high numbers of prairie dogs in these areas and the connectivity that may remain with” prairie dogs in the minor development areas. Id. at 58. For example, the Service points out that the major development areas contain 46 colonies that are considered medium or large. Id. at 97. Given the sizes of these colonies, the Service regards them as valuable contributors to the resiliency of the species. Id. at 50. Despite this contribution to the resiliency of the species, the Plan does not require the replacement of lost habitats with habitats of equivalent biological value. The Service defends this omission by arguing that (1) regulators will consider the quality of habitats before issuing individual permits, (2) the Plan analyzes where development is expected, and (3) the Plan includes mechanisms to evaluate the success of mitigation and to allow adjustments. First, the Service suggests that regulators will address habitat quality when a developer applies for an individual permit. In the application, the 15  Appellate Case: 25-4021 Document: 49-1 Date Filed: 08/12/2026 Page: 16 developer must provide the results of a survey as to Utah prairie dogs, a map of the proposed development and any existing colonies of Utah prairie dogs on the property, a description of the proposed development and the acreage of habitat that is affected, and the identification of measures to minimize and mitigate the loss of habitat prior to construction. Id. at 204, 214. The developer also needs to provide an assessment of habitat quality “where applicable.” Id. But developers in major development areas don’t need to assess habitat quality. See id. at 211, 220. So regulators wouldn’t have information on habitat quality when reviewing applications for development in the major development areas. Second, the Service contends that the Plan includes projections about the particular areas for development. Based on these projections, the Service anticipates complete offset of lost habitat by either • a new colony on 400 acres (based on historic levels of development) or • 3 new colonies on 1,200 acres (based on a “stepped-up” scenario). Id. at 99–100. The Service explains that it can’t anticipate the places for future development. Id. at 38. These arguments provide little reason to expect a full offset of lost habitat. Although the plan relied primarily on translocations to offset the loss of habitat, the Service didn’t assess the quality of future sites. In fact, the Service acknowledged that some of the existing sites might have 16  Appellate Case: 25-4021 Document: 49-1 Date Filed: 08/12/2026 Page: 17 greater biological value than the new sites. For example, the Service planned to focus on establishing new colonies or reestablishing colonies on federal lands. See id. at 58–59. Yet the Service also observed that • the numbers and densities of prairie dogs on private lands were generally higher than on federal lands and • the federal lands were more arid than private lands. Id. at 49. The Service thus provides little reason to expect that the Plan would preserve existing biological values. The Service reasons that major development areas will be jeopardized by development irrespective of the Plan: “Overall, prairie dog colonies in the major development areas do not contribute to our long-term objectives for recovery of the species in the wild, because the existing and anticipated development, combined with loss and fragmentation of habitat in these areas have already or would result in the loss of habitat connectivity and population viability.” Id. at 40. This reasoning is circular because the Plan is what would allow for future development. Third, the Service argues that it acted reasonably by monitoring the Plan’s success, allowing adjustments if habitats worsened with translocations resulting in inferior habitats. Id. at 72–74. But the Service hasn’t explained how monitoring will guarantee the replacement of lost habitats with habitats of equivalent biological value. Without an explanation, the Service assumed 17  Appellate Case: 25-4021 Document: 49-1 Date Filed: 08/12/2026 Page: 18 • that development was inevitable and • that monitoring would ensure equivalent biological content of future habitats. These assumptions were arbitrary and capricious absent a comparison of biological values. B. Reliance on translocation wasn’t arbitrary or capricious. Apart from the failure to compare biological values, Friends of Animals challenges the Service’s reliance on translocation to mitigate the impact of the take in major development areas. For these challenges, Friends of Animals argues that • translocation often kills prairie dogs, • the Service used a flawed measure of success for the translocations, and • the Plan doesn’t require translocation. But these arguments don’t undermine the Service’s reliance on translocation as a preferred measure of mitigation. We typically defer to an agency when it applies its expertise in scientific and technical matters. San Juan Citizens All. v. Stiles, 654 F.3d 1038, 1045 (10th Cir. 2011). This deference is appropriate here because the Service used its scientific judgment and experience when selecting translocation as a preferred mitigating measure. Joint App’x vol. 3, at 40, 57–60; see p. 11, above. For example, the Service explained that “[t]ranslocation effectiveness ha[d] improved across the years and now 18  Appellate Case: 25-4021 Document: 49-1 Date Filed: 08/12/2026 Page: 19 plays an important role in Utah prairie dog recovery.” Joint App’x vol. 3, at 57; see also id. at 59 (noting that 80% of post-1985 translocation sites are still occupied by prairie dogs, in contrast to 22% of pre-1986 sites); id. at 59 (explaining that “[t]he improvement in translocation success over time is the result of active study and modification of methods that include vegetation treatments, restrictions on movements of certain age and sex categories, shortened holding times prior to release, food and water supplementation, installation of plastic burrows, use of retention cages and nest boxes, and plague prevention dusting”). The Service pointed to two translocation sites as “recent evidence” of effectiveness in keeping prairie dogs on site and protecting them from predators. Id. Granted, translocation typically results in a low survival rate. For example, the Service estimated a 10% survival rate. But the Service explained that • this rate could stem in part from other factors, such as dispersal, predation, plague, and the short life spans of individual animals; • “prairie dogs have relatively short life spans and many of the translocated prairie dogs would not have survived at their home site even absent translocation efforts;” and • the survival rate might be higher than 10% given the possibility of dispersal following translocations. Id. at 87. 19  Appellate Case: 25-4021 Document: 49-1 Date Filed: 08/12/2026 Page: 20 The Service also acted reasonably in projecting the number of prairie dogs that would be moved. For this projection, the Service reasonably relied on its experience with other habitat protection plans. Id. at 87. The Service acknowledged that some development may take place outside the time-period for translocation (generally July 1 through August 31). See id. at 22, 57. But any development would occur only after the developer had obtained authorization from the Service or a county. Id. at 37–38. And developers seeking individual permits needed to “commit to conducting translocations of prairie dogs” whenever “feasible.” Id. at 222. It's true that the Service or the county might allow development when translocation isn’t feasible. Id. vol. 2, at 288 (acknowledging that the Plan “does not mandate translocations, because translocations may not always be practical given a developer ’s timeframe”). From past experience, the Service could reasonably project translocation of 71% of the prairie dogs on developing properties. Id. at 288; id. vol. 3, at 87. Given the Service’s expertise and explanation, reliance on translocation wasn’t arbitrary or capricious despite questions involving the low survival rate, the measures of success, and the timing of development projects. 20  Appellate Case: 25-4021 Document: 49-1 Date Filed: 08/12/2026 Page: 21 6. The Service didn’t act arbitrarily or capriciously in evaluating the Plan’s approach in minor development areas. Friends of Animals also questions the mitigation measures in the minor development areas. For these areas, the Service relied on measures involving conservation banks, land acquisitions, and conservation easements. Id. at 60. Conservation banks are permanently protected lands that are conserved and managed for endangered and threatened species. Id. at 21; see p. 7, above. The Service listed three conservation banks with reserves where prairie dogs could be relocated. Id. at 61. The Service predicted that these banks could compensate for the loss of 312 acres of habitat. See id. at 101–02. But under the stepped-up projections, the lost habitat could increase from 312 acres to 612 acres. Id. at 101 (Plan); see also id. vol. 2, at 54 (incidental take permit). So Friends of Animals questions the adequacy of • conservation banks to offset the loss of habitat and • standards to evaluate the new habitats. But these questions don’t show arbitrariness or caprice in the Service’s selection of mitigation measures in the minor development areas. The Service recognized that development might outstrip the mitigation potential of conservation banks. If the conservation banks were exhausted, the Service admittedly would need to acquire land and obtain 21  Appellate Case: 25-4021 Document: 49-1 Date Filed: 08/12/2026 Page: 22 conservation easements. Id. vol. 3, at 62. Granted, those measures might require greater funding. Id. But the Service noted the flexibility in its fee structure. See id. at 177–80 (discussing the options to structure fees for the minor development areas). The Service also explained that it would consider habitat quality when picking sites for conservation banks, land acquisitions, and conservation easements. Id. at 102. When considering habitat quality, the Service would rely on the Utah prairie dog recovery plan, a paper on population structure, Five-Year Management Plans, and new scientific information. Id. at 60. Given its expertise, the Service acted reasonably in selecting mitigation measures for the minor development areas. Those measures could require greater funding, but the Service recognized this possibility and planned accordingly. 7. The Service acted arbitrarily and capriciously in concluding that the Plan wouldn’t jeopardize survival of the species. The Service concluded that the Plan wouldn’t reduce the likelihood that Utah prairie dogs would survive and recover. See 16 U.S.C. § 1536(a)(2) (requiring federal agencies to consider whether their actions could “jeopardize the continued existence” of a threatened species). In support, the Service reasoned that • most of the authorized take would take place in the major development areas, 22  Appellate Case: 25-4021 Document: 49-1 Date Filed: 08/12/2026 Page: 23 • these takes would be fully offset by the creation of new colonies on federal or protected lands, and • the losses in minor development areas would be fully offset by the protection of other colonies. Joint App’x vol. 2, at 172. This reasoning is unsupported. A. The Service failed to consider the loss of habitat in the major development areas. Friends of Animals argues that the Service didn’t adequately consider the quality and extent of the habitat being lost in the major development areas. The Service recognized the importance of the major development areas. For example, the Service had adopted a recovery plan in 2012 that • recognized the heightened risk to prairie dogs from urban development on non-federal lands and • found that protecting certain habitats in “recovery units” was necessary for the species to survive and recover. Id. vol. 5, at 74–76, 79 (designating certain areas as “recovery units”), 86– 89 (discussing the protection of habitat in those units). The 2018 Plan • observed that major development areas were located within the recovery units, 2 • incorporated the entirety of the 2012 recovery plan, and • reaffirmed the earlier plan’s biological goals. 2 A study noted the importance of preserving existing colonies on private land in the West Desert Recovery Unit. Joint App’x vol. 4, at 50. 23  Appellate Case: 25-4021 Document: 49-1 Date Filed: 08/12/2026 Page: 24 Id. vol. 3, at 30–32, 45, 49, 52. Despite incorporating the 2012 recovery plan, the Service adopted the new plan in 2018 without protecting habitats equivalent to those lost in the major development areas. For example, the Service expressed skepticism about the ability of prairie dogs to remain in the major development areas over the long term based on future development and the resulting separation of colonies. Id. vol. 2, at 172; id. vol. 3, at 40. This reasoning could explain the inability to restore past disruptions to colonies, but wouldn’t explain a willingness to allow future destruction of habitats in the major development areas. While downplaying the long-term importance of major development areas, the 2018 Plan recognized the conservation value of these areas because of their colonies of prairie dogs and the connectivity to colonies in the minor development areas. Id. at 58. Given the concentration of prairie dogs in the major development areas and connectivity to colonies in minor development areas, the Service apparently assumed that it could preserve the species while sacrificing existing habitats in the major development areas. But the Service didn’t • assess the quality or quantity of the new sites or • ensure that the counties would make these assessments before issuing certificates of inclusion. 24  Appellate Case: 25-4021 Document: 49-1 Date Filed: 08/12/2026 Page: 25 The Service thus had no way to assure survival and recovery under the Plan. The Service noted that the major development areas contain 5,200 acres of private land on three recovery units. Id. at 47. These were areas identified in the 2012 recovery plan as “essential to the conservation and recovery of the species.” Id. at 141. The 2012 plan had characterized the recovery units as “individually necessary to conserve the genetic, demographic, and ecological diversity necessary for the long-term sustainability of Utah prairie dogs.” Id. vol. 5, at 79. After underscoring the importance of these units in 2012, the Service adopted the new plan in 2018 despite the expected loss of 1,138 acres. Id. vol. 2, at 106–07. The loss of that habitat could undermine preservation of the species. For example, a 2000 Princeton study had urgently recommended preservation of the species in one of the recovery units (the West Desert Recovery Unit). Id. vol. 4, at 50. But the new plan said nothing about the colonies in this unit. By failing to explain the change in its approach, the Service couldn’t reasonably square the survival and recovery of the species with the large- scale loss of habitat in the major development areas. See Sierra Club v. Marsh, 816 F.2d 1376, 1388–89 (9th Cir. 1987) (concluding that the Endangered Species Act requires an agency to ensure the creation of a new refuge before allowing modification of an existing habitat), abrogated in 25  Appellate Case: 25-4021 Document: 49-1 Date Filed: 08/12/2026 Page: 26 part on other grounds as recognized in Cottonwood Env’t L. Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1088–91 (9th Cir. 2015). B. The Service didn’t act arbitrarily or capriciously by relying on scientific studies and various time-periods. Friends of Animals also questions the reliance on a 2006 study and the use of multiple time-periods for different p