author: GOULD, Circuit Judge:

text:
    Matthew Rowan DAVIES, Petitioner-Appellant, v. Michael BENOV, Respondent-Appellee.
    No. 15-17256
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 15, 2017 San Francisco, California
    Filed May 17, 2017

      Cody Harris (argued), Philip J. Tassin, Steven P. Ragland, and Elliot R. Peters, Keker & Van Nest LLP, San Francisco, California, for Petitioner-Appellant.

      Gregory T. Broderick (argued), Assistant United States Attorney; Camil A. Skipper, Appellate Chief; Phillip A. Tal-bert, United States Attorney; United States Attorney’s Office, Sacramento, California; for Respondent-Appellee.
    Before: KIM McLANE WARDLAW, RONALD M. GOULD, and CONSUELO M. CALLAHAN, Circuit Judges.
   OPINION

GOULD, Circuit Judge:

Matthew Davies filed a 28 U.S.C. § 2241 habeas corpus petition, contending that a congressional appropriations rider prohibits the Bureau of Prisons (BOP) from using federal funds to incarcerate him and seeking release from custody to remedy the wrongful expenditure. The district court denied his habeas corpus petition, and Davies appealed. Because Davies voluntarily waived his right to bring this challenge through the collateral-attack waiver provision of his plea agreement, we affirm the denial of his habeas corpus petition.

I

Davies owned and operated medical marijuana dispensaries in Stockton and Sacramento, California, which he contends complied with state and local medical marijuana laws. Davies, however, was charged with violating federal drug laws, including manufacturing, distributing, and conspiring to manufacture and distribute marijuana—a Schedule I controlled substance. He subsequently entered into a plea agreement, agreeing to a five-year prison term and pleading guilty to the ten counts filed against him. His plea agreement included a waiver of the rights to bring an appeal or collateral attack on his conviction or sentence. Section VII. B of Davies’s plea agreement reads:

Waiver of Appeal and Collateral Attack: The defendant understands that the law gives him a right to appeal his conviction and sentence. He agrees as part of his plea, however, to give up the right to appeal the conviction and the right to appeal any aspect of the sentence imposed in this case so long as his prison sentence is no longer than 5 years.
Regardless of the sentence he receives, the defendant also gives up any right he may have to bring a post-appeal attack on his conviction or his sentence. He specifically agrees not to file a motion under 28 U.S.C. § 2255 or § 2241 attacking his conviction or sentence.

Davies was sentenced to five years in prison, and is projected to be released on August 9, 2017.

Nearly one year into Davies’s term of imprisonment, Congress enacted an omnibus appropriations bill, which included an appropriations rider requiring that:

None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 538,128 Stat. 2130, 2217 (2014). The most recent appropriations act appropriates funds through the fiscal year ending on September 30, 2017, and includes essentially the same rider. See Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, § 537 (2017) (additionally listing Arkansas, Georgia, Louisiana, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Texas, Virginia, West Virginia, Wyoming, Guam, and Puerto Rico and changing “prevent such States from implementing their own State laws” to “prevent any of them from implementing their own laws”). We have held that, “at a minimum, [the appropriations rider] prohibits [the Department of Justice] from spending funds from relevant appropriations acts for the prosecution of individual's who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws.” United States v. McIntosh, 833 F.3d 1163, 1177 (9th Cir. 2016); see United States v. Nixon, 839 F.3d 885, 887-88 (9th Cir. 2016) (per curiam).

Davies filed a habeas corpus petition under 28 U.S.C. § 2241 in the Eastern District of California, contending that the BOP’s use of federal funds to incarcerate individuals, such as himself, who engaged in conduct permitted by state medical marijuana laws violates the appropriations rider. Davies argued that his continued imprisonment prevents California from implementing its own state medical marijuana laws, and requested that the court “issue a Writ of Habeas Corpus ordering [Benov] to release Davies from his custody” as the remedy. The magistrate judge denied the petition, holding that the waiver provision in Davies’s plea agreement barred him from bringing the challenge, and the magistrate judge entered judgment in the case. Davies timely appealed.

II

We have jurisdiction pursuant to 28 U.S.C. § 2253. We review the district court’s denial of a habeas corpus petition de novo. Moore v. Reno, 185 F.3d 1054, 1054 (9th Cir. 1999) (per curiam). We review the scope and validity of an appeal waiver de novo. See United States v. Charles, 581 F.3d 927, 931 (9th Cir. 2009).

III

The sole question presented here is whether the plea agreement’s waiver provision clearly bars Davies from bringing his § 2241 petition, which challenges his continued incarceration based on the appropriations rider. The waiver language included in Davies’s plea agreement is broad and unambiguous, and we hold that it precludes Davies’s petition on the grounds he raised.

A defendant’s waiver of his rights to appeal and to bring a collateral attack is generally enforced if “(1) the language of the waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made.” United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005), overruled on other grounds by United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc). Principles of contract law control our interpretation of a plea agreement. See United States v. Speelman, 431 F.3d 1226, 1229 (9th Cir. 2005). “We therefore will ‘generally enforce the plain language of a plea agreement if it is clear and unambiguous on its face.’ ” Id. (quoting Jeronimo, 398 F.3d at 1153). The government, as the drafter of this plea agreement, “is responsible for any lack of clarity such that ambiguities are construed in favor of the defendant.” Charles, 581 F.3d at 931.

The direct-appeal waiver provision prevents Davies from “appeal[ing] any aspect of the sentence imposed in this case,” and Davies stresses that the collateral-attack waiver provision does not include the same language. The collateral-attack waiver provision instead states that, “[rjegardless of the sentence he receives, the defendant also gives up any right he may have to bring a post-appeal attack on his conviction or sentence” and that he “specifically agrees not to file a motion under 28 U.S.C. § 2255 or § 2241 attacking his conviction or sentence.” Davies contends that the collateral-attack waiver provision is more limited in scope than the direct-appeal waiver provision because the provision does not preclude an attack on “any aspect of his sentence.”

Davies also seeks to enhance his argument by contending that his § 2241 petition permissibly challenges the execution of the sentence—because the BOP’s expenditure of funds to incarcerate him unlawfully contravenes the appropriations rider—and does not challenge the legality of the sentence itself. Davies argues that a ruling .in his favor would merely have “the ancillary effect of ending his present incarceration,” that the grant of the petition would leave all other aspects of his sentence untouched because he is not asking that his sentence be vacated, and that he would “continue to suffer all of the effects” of a felony conviction.

Despite differences in the language of the direct-appeal and collateral-attack waiver provisions, the collateral-attack waiver provision states the scope of the waiver: Davies gives up any right to bring a post-appeal attack on his' conviction or sentence. The scope of the collateral-attack waiver provision clearly covers his present challenge. Limitations on any right to attack his sentence encompasses challenges to the execution and conditions of his sentence, as his challenge is styled here, as well as to the legality of his sentence.

The collateral-attack waiver provision’s limitations on the method of collaterally attacking a sentence further precludes Davies’s 28 U.S.C. § 2241 petition. Davies has waived his right to challenge the BOP’s expenditure of funds to execute his sentence by specifically agreeing to not file a § 2241 petition to collaterally attack his sentence.

Davies broadly waived his right to challenge his sentence in the manner raised, as the waiver encompasses the execution of his sentence, and he specifically waived his right to do so through a § 2241 petition.

IV

The collateral-attack waiver provision in Davies’s plea agreement bars him from this particular challenge to the BOP’s use of federal funds to incarcerate him for conduct he contends complied with California’s medical marijuana laws. Because of this waiver, we need not reach and save for another day the issue of whether the expenditure of federal funds to incarcerate individuals who fully complied with state medical marijuana laws violates the appropriations rider. Cf. McIntosh, 833 F.3d at 1177-78 (holding that the appropriations rider prohibits the Department of Justice from using appropriated funds to prosecute individuals for engaging in conduct permitted by state medical marijuana laws). “We will enforce a valid waiver even if the claims that could have been made [through a collateral attack] absent that waiver appear meritorious, because the whole point of a waiver is the relinquishment of claims regardless of their merit.” United States v. Medina-Carrasco, 815 F.3d 457, 462-63 (9th Cir. 2015) (internal quotation marks, alterations, and emphasis omitted). We affirm the district court’s denial of Davies’s petition for writ of habe-as corpus.

AFFIRMED.

      . California passed the Compassionate Use Act of 1996 “[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes” and “that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physi-cían are not subject to criminal prosecution or sanction.” Cal. Health & Safety Code § 11362.5(b)(1)(A), (B). California’s Medical Marijuana Program creates a regulatory scheme for the cultivation, distribution, and use of medical marijuana. See id. § 11362.7 et seq.

      . Claims that the plea or waiver itself was involuntary or that ineffective assistance of counsel rendered the plea or waiver involuntary, however, may not be waived. See Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005) (“[A] plea agreement that waives the right to file a federal habeas petition pursuant to 28 U.S.C. § 2254 is unenforceable with respect to an [ineffective assistance of counsel] claim that challenges the voluntariness of the waiver.”). Here, however, the parties do not dispute that Davies knowingly and voluntarily entered into the plea agreement. The parties dispute what exactly Davies waived through the collateral-attack waiver provision.

      . The parties disagree as to whether Davies’s distribution of medical marijuana complied with California laws requiring that distribution be done on a non-profit basis, that Davies be a primary caregiver, and that his dispensaries operate as collectives.


source: Caselaw Access Project

author: M. SMITH, Circuit Judge:

license: Public Domain

text:
    DEFENDERS OF WILDLIFE, Plaintiff-Appellant, v. Ryan ZINKE, Secretary, Department of the Interior; James W. Kurth, Acting Director, U.S. Fish and Wildlife Service; Michael D. Nedd, Acting Director, Bureau of Land Management, Defendants-Appellees, and Silver State South Solar, LLC; Silver State Solar Power South LLC, Intervenor-Defendants-Appellees, and First Solar, Inc.; Desert Stateline, LLC, Intervenor-Defendants.
    No. 15-55806
    United States Court of Appeals, Ninth Circuit.
    Submitted February 17, 2017, Pasadena, California
    Filed May 18, 2017

      Eric R. Giltzenstein (argued) and William N. Lawton, Meyer Glitzenstein & Eu-banks, Washington, D.C., for Plaintiff-Appellant.
    Varu Chilakamarri (argued), J. David Gunter II, and Andrew C. Mergen; John C. Cruden, Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C., for Defendants-Appel-lees.
    George T. Caplan (argued), Los Angeles, California, for Intervenor-Defendants-Ap-pellees.
    Lori Potter and Nicholas Clabbers, Kap-lan Kirsch & Rockwell LLP, Denver, Colorado, for Amicus Curiae Clark County.
    Before: MILAN D. SMITH, JR. and JOHN B. OWENS, Circuit Judges, and EDWARD R. KORMAN, District Judge.

       We substitute Ryan Zinke for Sally Jewell, James W. Kurth for Daniel M. Ashe, and Michael D. Nedd for Neil Kornze as Defendants-Appellees pursuant to Fed. R. App. P. 43(c)(2).

       The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation.

   OPINION

M. SMITH, Circuit Judge:

This case arises from the Bureau of Land Management (BLM)’s approval of a right-of-way on federal lands in Nevada for the construction of an industrial solar project, known as Silver State South, and the project’s possible impact on the desert tortoise. Plaintiff Defenders of Wildlife (DOW) contends that the Department of the Interior, the U.S. Fish and Wildlife Service (FWS), and the BLM (collectively, the Federal Defendants) violated the requirements of the Endangered Species Act (ESA), 16 U.S.C. § 1531, et seq., and the Administrative Procedures Act (APA), 5 U.S.C. § 706, by issuing a Biological Opinion (BiOp) analyzing the effect of Silver State South on the desert tortoise that was arbitrary, capricious, and an abuse of discretion, and subsequently relying on the BiOp to grant the right-of-way. The district court concluded that the BiOp fully complied with both the ESA and APA, and granted summary judgment for the Federal Defendants and Intervenor-Defendants Silver State Solar Power South, LLC and Silver State South Solar, LLC (collectively, Defendants). We affirm.

BACKGROUND

I. Statutory Framework

“The Endangered Species Act of 1973, 16 U.S.C. § 1531, et seq., ‘is a comprehensive scheme with the broad purpose of protecting endangered and threatened species.’” Conservation Cong. v. U.S. Forest Serv., 720 F.3d 1048, 1050-51 (9th Cir. 2013) (quoting Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101, 1106 (9th Cir. 2012)). The ESA tasks the Secretary of the Interior and the Secretary of Commerce with identifying and maintaining a list of endangered and threatened species. 16 U.S.C. § 1533(a)(1)-(2). Endangered species are those “in danger of extinction throughout all or a significant portion of its range.” Id. at § 1532(6). Threatened species are those “likely to become an endangered species within the foreseeable future.” Id. at § 1532(20). The Secretary of the Interior is additionally charged with designating “critical habitat” for each listed species. Id. at § 1533(a)(3)(A)®. Critical habitat is defined as (a) “specific areas within the geographical area occupied by the [endangered] species ... on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection,” id. at § 1532(5)(A)(i), and (b) “specific areas outside the geographical area occupied by the species ... [that] are essential for the conservation of the species,” id. at § 1532(5)(A)(ii). However, critical habitat generally does “not include the entire geographical area which can be occupied by the threatened or endangered species.” Id. at § 1532(5)(C).

Section 7(a)(2) of the ESA “affirmatively commands each federal agency to ‘insure that any action authorized, funded, or carried out’ by the agency ‘is not likely to jeopardize the continued existence of any endangered species ... or result in the destruction or adverse modification of habitat of such species.’ ” Or. Nat. Res. Council v. Allen, 476 F.3d 1031, 1033 (9th Cir. 2007) (quoting 16 U.S.C. § 1536(a)(2)). To comply with Section 7(a)(2), an agency proposing an action (the action agency) must first determine whether the action “may affect” an endangered or threatened species or its critical habitat. 50 C.F.R. § 402.14(a) (2016). If the action agency determines that its proposed action “may affect” an endangered species or its critical habitat, the action agency must initiate formal consultation with either the FWS or the National Marine Fisheries Service (NMFS), as appropriate (collectively, the consulting agency). Id. Under certain circumstances, an action agency may bypass formal consultation. For example, the ESA’s implementing regulations allow for informal consultation, “an optional process that includes all discussions, correspondence, etc., between [the action agency and the consulting agency], designed to assist the [action] agency in determining whether formal consultation ... is required.” Id. at § 402.13(a). “If during informal consultation it is determined by the [action] agency, with the written concurrence of the [consulting agency], that the action is not likely to adversely affect listed species or critical habitat, the consultation process is terminated, and no further action is necessary.” Id.

But if formal consultation is required, “the consulting agency must prepare a biological opinion that advises the action agency as to whether the proposed action, alone or ‘taken together with cumulative effects, is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.’ ” Conservation Cong., 720 F.3d at 1051 (quoting 50 C.F.R. § 402.14(g)(4)). Jeopardy to the continued existence of a listed species (jeopardy) “means to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.” 50 C.F.R. § 402.02. Destruction or adverse modification of critical habitat (adverse modification) “means a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species.” Id. (2014). “Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.” Id. In making these determinations, the biological opinion “must state a rational connection between the facts found and the decision made,” Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1065 (9th Cir. 2004), and also rely on “the best scientific and commercial data available.” 16 U.S.C. § 1536(a)(2).

If the consulting agency determines that a proposed action is likely to result in jeopardy or adverse modification, the consulting agency must suggest “reasonable and prudent alternatives, if any” that avoid jeopardy or adverse modification. 50 C.F.R. § 402.14(h)(3). If there are no alternatives, then any “take” of the listed species resulting from the proposed action will violate Section 9 of the ESA, which prohibits the taking of any member of an endangered or threatened species. Ctr. for Biological Diversity, 698 F.3d at 1106-07 (citing 16 U.S.C. § 1538(a)(1)(B)). Violations of Section 9 can result in “substantial civil and criminal penalties, including imprisonment.” Id. at 1107 (internal quotation marks omitted).

If the consulting agency concludes that the proposed action is not likely to result in jeopardy or adverse modification, but the project nevertheless results in takings of a listed species that'“result from, but are not the purpose of, carrying out” the requested agency action, the consulting agency must include an incidental take statement in the biological opinion. 50 C.F.R. § 402.02. The incidental take statement “(1) specifies] the impact of the incidental taking on the species; (2) specifies] the ‘reasonable and prudent measures’ that the FWS considers necessary or appropriate to minimize such impact; (3) set[s] forth ‘terms and conditions’ with which the action agency must comply to implement the reasonable and prudent measures ...; and (4) specifies] the procedures to be used to handle or dispose of any animals actually taken.” Or. Nat. Res. Council, 476 F.3d at 1034 (citing 16 U.S.C. § 1536(b)(4) and 50 C.F.R. § 402.14®). Compliance with the terms of an incidental take statement “exempts the action agency from the prohibition on takings found in Section 9 of the ESA.” Nat'l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917, 924-25 (9th Cir. 2008) (footnote omitted) (citing 16 U.S.C. § 1536(b)(4) and ALCOA v. BPA, 175 F.3d 1156, 1159 (9th Cir. 1999)).

II. The Desert Tortoise

The desert tortoise is a reptile native to the Mojave and Sonoran deserts in southern California, southern Nevada, Arizona, and the southwestern tip of Utah. In 1990, the FWS listed the desert tortoise as “threatened.” See 55 Fed. Reg. 12,178-01, 12,179-80 (Apr. 2, 1990). In 1994, the FWS divided the entire range of the desert tortoise into six recovery units to “conserve the genetic, behavioral, morphological, and ecological diversity necessary for long-term sustainability of the entire [desert tortoise] population.” The FWS then designated a total of 6.4 million acres of land within the six recovery units as the desert tortoise’s critical habitat. 59 Fed. Reg. 5,820-01, 5,827 (Feb. 8, 1994). One of the six recovery units, the Eastern Mojave Recovery Unit, is at issue here.

III. The Silver State South Project

In 2008, NextLight Renewable Power, LLC submitted right-of-way applications to the BLM for the construction of two solar power facilities, Silver State North and Silver State South. It proposed to locate both project sites on unincorporated public lands in the Ivanpah Valley. Although the proposed project sites fell within the Eastern Mojave Recovery Unit, both were outside the designated critical habitat for the desert tortoise within this recovery unit. However, Silver State South would be located within a corridor between Silver State North and the Lucy Gray Mountains, which is currently the geographical linkage that provides “the most reliable potential for continued population connectivity [of the desert tortoise] throughout the Ivanpah Valley.” Connectivity is the “degree to which population growth and vital rates are affected by dispersal” and “the flow of genetic material between two populations.” Connectivity promotes stability in a species by “providing an immigrant subsidy that compensates for low survival or birth rates of residents” and “increasing colonization of unoccupied” habitat.

In October 2010, the BLM approved the application for Silver Státe North but deferred approval of the application for Silver State South. The BLM explained that the deferral of Silver State South was in part due to the “higher density of [desert] tortoise that reside in that portion of the project area,” which “requires' additional wildlife consideration and potentially further consultation with the [FWS].”

In October 2012, the BLM issued a draft Supplemental Environmental Impact Statement (SEIS) that evaluated three alternative layouts for Silver State South. In response to the SEIS, the Nevada field office of the FWS recommended that the BLM reject all three layouts and choose a “No Action” alternative. The FWS expressed concern over Silver State South’s potential impact on habitat fragmentation and genetic isolation of the desert tortoise and noted that the proposed layouts would reduce the existing width of the corridor between Silver State North and the Lucy Gray Mountains to .02 miles, .03 miles, or 1 mile. In the alternative, the FWS recommended that the BLM create a new proposal that would keep the corridor “wide enough to accommodate multiple desert tortoise ranges, spanning up to several times the desert tortoise lifetime utilization area.” The FWS also recommended the adoption of additional mitigation measures to offset any reductions in the linkage and monitoring studies to track impact on population demographics and genetic stability.

On February 11, 2013, the BLM initiated formal consultation under the ESA for Silver State South. The consultation process among the BLM, the FWS, and Silver State Solar Power South, LLC, a wholly owned subsidiary of the' original applicant for the Silver State South project, resulted in a new proposal (the BLM-preferred alternative) that was authorized by the BLM in 2014. The BLM-preferred alternative reduced the size of the project from 3,881 acres to 2,427 acres, and left a 3.65 mile long corridor between Silver State South and the Lucy Gray Mountains with a width ranging from 1.39 to 2 miles. The BLM-preferred alternative also incorporated measures to minimize adverse effects on the desert tortoise, such as the translocation of desert tortoises found within the project site, and measures to offset the loss of the desert tortoise habitat, primarily consisting of the Silver State South applicants funding the BLM’s conservation activities.

Of particular importance to this case, the Silver State South applicants agreed to fund a monitoring program jointly developed by the U.S. Geological Survey and the BLM (the USGS monitoring study) that would track the regional desert tortoise populations for changes in demographic and genetic stability. The study would monitor the effects of Silver State South on connectivity by taking an initial set of measurements that would establish baseline conditions that could then be compared to subsequent data over time and across sites. Changes “that rise to the level of significance (alpha = 0.05) would likely indicate changes in demographic and genetic stability,” which could require the BLM to re-initiate formal consultation under the ESA.

IV. The Biological Opinion

On September 30, 2013, the FWS issued the BiOp, which formally reviewed the BLM-preferred alternative. The BiOp selected the entire Ivanpah Valley as the “action area” for Silver State South, because of the “potential effects ... on connectivity for the desert tortoise within the entire valley.”

The BiOp first concluded that Silver State South would be “not likely to adversely affect the critical habitat of the desert tortoise,” because “the proposed actions would not occur within the boundaries of critical habitat of the desert tortoise or directly or indirectly affect the primary constituent elements of critical habitat” (“no adverse modification” determination).

The BiOp next concluded that Silver State South was unlikely to appreciably diminish the reproduction, numbers, or distribution of the desert tortoise in the action area (“no jeopardy” determination). The BiOp found no long term effects on the reproductive rates of tortoises that live adjacent to the project site or of tortoises that would be translocated. It estimated that few tortoises would be harmed or killed because of the proposed translocation of tortoises found in the project site and fencing to be built around Silver State South. It also acknowledged that the habitat loss of 2,388 acres “will reduce connectivity between the southern and northern ends of Ivanpah Valley,” but explained that the proposed mitigation measures would “offset, to some degree, the decrease in the width of the linkage.” The BiOp therefore expressed “uncertainly] as to whether the reduced width of the corridor between the Silver State South Project and the Lucy Gray Mountains would cause demographic or genetic instability.” But, the BiOp reasoned, should Silver State South ultimately degrade connectivity, the USGS monitory survey would be able to detect any change and “the long generation time [of the tortoise] and re-initiation requirements of section 7(a)(2) would enable [the BLM] to undertake correction actions on the ground to Jpoláter connectivity” 1 ' ■

The BiOp also concluded that Silver State South would not appreciably impede the long-term recovery of the desert tortoise, but acknowledged that the project was likely to reduce connectivity within the Ivanpah Valley, which would temporarily impede recovery. However, the BiOp concluded that the project was “not likely to appreciably dimmish the likelihood of recovery” because “at least one desert tortoise’s lifetime utilization area would remain in the corridor after construction of the product.” In addition, “[t]his corridor, combined with the increased level of management proposed by the [BLM] ... has the potential to increase the density of desert tortoises in the region to a degree that may mitigate the loss of habitat.” The BiOp again noted that the USGS monitoring study would detect any changes to connectivity, which would allow for imposition of remedial measures.

V. The BLM Approval of the Right-of-Way for Silver State South

In February 2014, the BLM issued a Record of Decision, and granted the requested right-of-way for Silver State South. The Record of Decision specifically approved the BLM-preferred alternative for Silver State South and noted that the “reasonable and prudent measures contained in the [BiOp] significantly minimize and/or mitigate environmental damage and protect resources.” Construction of Silver State South has now been completed.

VI. Procedural History

On March 6, 2014, DOW sued the Federal Defendants to enjoin construction of Silver State South. Silver State Solar Power South, LLC and Silver State South Solar, LLC, another subsidiary of the original project applicant, subsequently intervened as defendants. The district court denied DOW’s request for a preliminary injunction, concluding that DOW could not show a likelihood of success on the merits of their claim that the BiOp’s “no jeopardy” determination was arbitrary or capricious. Defs. of Wildlife v. Jewell, No. CV 14-1656-MWF, 2014 WL 1364452, at *14 (C.D. Cal. Apr. 2, 2014).

The parties subsequently cross-moved for summary judgment. The district court denied DOW’s motion and granted summary judgment for the various Defendants. In doing so, the district court first concluded that the BiOp’s “no adverse modification” determination was neither arbitrary nor capricious because (1) adverse modification is an alteration to a critical habitat’s primary constituent elements, and “gene flow” is not a primary constituent element of the desert tortoise’s critical habitat, (2) mere inclusion of critical habitat in the identified “action area” for Silver Lake South is not a finding of adverse modification, and (3) adverse effects on connectivity are not modifications to critical habitat and should instead be analyzed under the jeopardy-to-the-species analysis. The district court next concluded that the BiOp’s “no jeopardy” determination was neither arbitrary nor capricious, because (1) the BiOp permissibly made a “no jeopardy” determination based on equivocal evidence that the reduced corridor was unlikely to jeopardize the desert tortoise’s recovery, (2) the USGS monitoring study was a sufficiently specific and certain mitigation measure, and (3) the USGS monitoring study provided a sufficiently clear trigger for reinitiating formal consultation under Section 7(a)(2) of the ESA. The district court therefore concluded that the BiOp fully complied with both the ESA and the APA, and that the BLM permissibly relied upon the BiOp in authorizing Silver State South. DOW timely appealed on May 28, 2015.

STANDARD OF REVIEW

We review de novo a district court’s grant of summary judgment. San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014).

“Agency decisions under ESA are governed by the Administrative Procedure Act, which requires an agency action to be upheld unless it is found to be ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Pac. Coast Fed’n of Fishermen’s Ass’ns, Inc. v. Nat’l Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir. 2001) (quoting 5 U.S.C. § 706(2)(A)). An agency action is arbitrary and capricious “only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Conservation Cong., 720 F.3d at 1054 (internal quotation marks omitted).

ANALYSIS

I. Jeopardy Analysis

DOW first argues that the BiOp’s determination that Silver State South would not result in jeopardy to the desert tortoise impermissibly relied upon unspecified remedial measures. DOW cites the BiOp’s conclusion, which states:

To summarize, we concluded that the proposed actions are not likely to appreciably diminish reproduction, numbers, or distribution of the desert tortoise in the action area, or to appreciably impede long-term recovery of the desert tortoise. Integral to that conclusion is our expectation that the reduction in the width of habitat east of the Silver State South Project is either unlikely to degrade demographic or genetic stability in Ivanpah Valley or that we will be able to detect degradation of those values and implement remedial actions, if necessary.

(Emphasis added). DOW interprets this second sentence to indicate that the BiOp’s “no jeopardy” determination was dependent on the ability to detect future demographic or genetic degradation and implement remedial measures. And, because the BiOp did not identify specific remedial actions to combat these future effects, DOW argues that BiOp’s “no jeopardy” determination was arbitrary and capricious.

DOW’s objection to the BiOp’s “no jeopardy” determination fails for two reasons. First, the BiOp did not rely on mitigation measures to make its “no jeopardy” determination. Throughout the BiOp, the FWS expressly stated that it was uncertain if the reduced width of the corridor between Silver State South and the Lucy Gray Mountains would cause genetic or demographic instability. This uncertainty reflected the lack of a scientific consensus regarding the requisite corridor width necessary to support connectivity for the desert tortoise. In the face of such uncertainty, the FWS permissibly concluded that the reduced width of the corridor would not result in jeopardy. Although the ESA requires the FWS to make its determinations with the “best scientific ddta ... available,” 16 U.S.C. § 1533(b)(2), “the ESA accepts agency decisions in the face of uncertainty.” Ariz. Cattle Growers’ Ass’n v. Salazar, 606 F.3d 1160, 1164 (9th Cir. 2010); see also San Luis & Delta-Mendota Water Auth., 747 F.3d at 633 (“It is not our job to task the FWS with filling the gaps in the scientific evidence. We must respect the agency’s judgment even in the face of uncertainty.” (internal quotation marks omitted)). “This standard does not require that the FWS act only when it can justify its decision with absolute confidence.” Ariz. Cattle Growers’, 606 F.3d at 1164. The FWS therefore permissibly concluded that the proposed action would not result in jeopardy to the desert tortoise in spite of the uncertainty of the effect of Silver State South on the connectivity within the corridor.

Second, our precedents do not require mitigation measures to be identified or guaranteed when the mitigation measures themselves may be unnecessary. We have held that an action agency may consider the impact of mitigation measures on a proposed action only when the measures are the result of “specific and binding plans” and show “a clear, definite commitment of resources,” Nat’l Wildlife Fed’n, 524 F.3d at 936, but our precedents imposing this requirement all involve mitigation measures aimed at “certain immediate negative effects,” id.; see also Sierra Club v. Marsh, 816 F.2d 1376, 1388 (9th Cir. 1987) (requiring the FWS to reinitiate formal consultation after the FWS concluded that a highway construction project would adversely affect bird habitat and the county’s preservation of marshland was “necessary to mitigate” the “effects of the project,” but the county subsequently failed to acquire the marshland), abrogated on other grounds as recognized in Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1088-91 (9th Cir. 2015). Thus, our precedents require an agency to identify and guarantee mitigation measures that target certain or existing negative effects. However, DOW cites no authority for the proposition that an agency must similarly identify and guarantee mitigation measures that target uncertain future negative effects. As aptly noted by the district court, “[t]he FWS cannot be expected to respond to data that is not yet available to surmise potential mitigation actions that are not needed under the agency’s current interpretation of the data.”

Here, although the BiOp repeatedly emphasized that monitoring would allow the FWS to detect any future genetic or demographic degradation and implement responsive mitigation measures, the BiOp ultimately found these potential harms to be uncertain. As such, even the sentence of the BiOp upon which DOW relies acknowledges that the need for future mitigation measures is similarly uncertain, by explaining that the implementation of remedial actions will only be done “if necessary.” Because the BiOp did not rely upon these potential remedial measures to target a certain or existing harm that would be caused by Silver State South, the BiOp was not obligated to identify or guarantee these future remedial measures. Accordingly, the BiOp’s “no jeopardy” determination was neither arbitrary nor capricious.

II. Adverse Modification Analysis

The BiOp concluded that Silver State, South would be “not likely to adversely affect critical habitat of the desert tortoise,” because “the proposed actions would not occur within the boundaries of critical habitat of the desert tortoise or directly or indirectly affect the primary constituent elements of critical habitat.” The BiOp therefore did not analyze whether Silver State South would adversely modify the critical habitat within the Ivan-pah Valley. DOW challenges the failure to do so on two grounds.

a. Inclusion of Critical Habitat in the “Action Area”

DOW first contends that the BiOp’s inclusion of critical habitat within Silver State South’s “action area” expressly conceded that there would be an effect on critical habitat, which should have obligated the FWS to conduct an adverse modification analysis in the BiOp. The ESA’s implementing regulations require biological opinions to analyze “effects of the [proposed] action on listed species or critical habitat,” 50 C.F.R. § 402.14(h)(2), and “[e]ffects of the action refers to the direct and indirect effects of an action on the species or critical habitat” within the relevant “action area,” id. at § 402.02. The regulations then define “action area” as “all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action.” Id. The BiOp selected the Ivanpah Valley as the “action area” for Silver State South, and DOW notes that the Ivanpah Valley Critical Habitat Unit (CHU) is ■within the Ivanpah Valley. DOW insists that the BiOp’s inclusion of Ivanpah Valley CHU in the action area is a finding that critical habitat would be affected by Silver State South.

We rejected a similar argument in Friends of the Wild Swan v. Weber, 767 F.3d 936 (9th Cir. 2014). There, we concluded that the consulting agency need not conduct an adverse modification analysis in spite of the biological opinion’s inclusion of critical habitat within the action area. Id. at 950. Because both the consulting and action agencies had agreed that the projects at issue were unlikely to affect the critical habitat, “[tjhis informal consultation satisfied the requirements of the ESA and no formal consolation was thus required.” Id. (citing 50 C.F.R. § 402.13). Friends of the Wild Swan illustrates the proposition that the inclusion of critical habitat in a biological opinion’s action area does not automatically trigger the duty to conduct an adverse modification analysis; the relevant inquiry remains whether the proposed action is “likely to adversely affect” critical habitat. 50 C.F.R. § 402.14(b)(1); see also id. § 402.14(g)(4).

Here, both the BLM and the FWS concluded that Silver State South would be unlikely to adversely affect any critical habitat through informal consultation. As mentioned above, no formal consultation is required if both the action agency and the consulting agency determine, the latter in writing, through informal consultation that the action is “not likely to adversely affect listed species or critical habitat.” Id. § 402.13(a). The BLM made this determination in a biological' assessment dated February 11, 2013. The FWS reached an identical conclusion in the BiOp itself. Because the BLM and the FWS were in agreement, the FWS had no obligation to conduct an adverse modification analysis pursuant to formal consultation in the BiOp. In any event, the BiOp also explained that its inclusion of the entire Ivanpah Valley in the action area was due to the potential effect of Silver State South “on connectivity for the desert tortoise within the entire valley,” not any potential effect on the Ivanpah Valley CHU.

b. Reduced Connectivity as an “Adverse Modification” of Critical Habitat

Although the construction of Silver State South was not to occur on any critical habitat, DOW argues that the BiOp was obligated to perform an adverse modification analysis because evidence in the record indicated that the construction of Silver State South would narrow the corridor between two critical habitats, and thus adversely affect the connectivity of the desert tortoise. DOW contends that this reduction in connectivity constitutes adverse modification of critical habitat because it is an impact to the critical habitat’s recovery value.

During the period of time in which the BLM, the FWS, and Silver State South applicants engaged in the Section 7 consultation process that resulted in the BiOp, the ESA’s implementing regulations defined “destruction or adverse modification of critical habitat” as “a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species” (the 1986 regulation). 50 C.F.R. § 402.02 (2014). The 1986 regulation further explained that “[s]ueh alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.” Id. However, on February 11, 2016, the FWS and the NMSF published a final rule amending the definition of adverse modification (the 2016 regulation) that became effective on March 14, 2016. 81 Fed. Reg. 7,214-01, 7,225-26 (Feb. 11, 2016). The 2016 regulation now defines adverse modification as “a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species.” 50 C.F.R. § 402.02 (2016). And “[s]uch alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of a species or that preclude or significantly delay development of such features.” Id. This amendment was a direct result of our decision in Gifford Pinchot Task Force v. U.S. Fish & Wildlife Service, 378 F.3d 1059 (9th Cir. 2004). 81 Fed. Reg. 7,214-01, 7,215. There, we found the 1986 regulation to be invalid insofar as it limited adverse modifications to actions that “appreciably diminish[ ] the value of critical habitat for both the survival and recovery” of habitat. Gifford Pinchot Task Force, 378 F.3d at 1069 (quoting 50 C.F.R. § 402.02). We explained that this definition “read[ ] the ‘recovery’ goal out of the adverse modification inquiry” altogether, “[b]ecause it is logical and inevitable that a species requires more critical habitat for recovery than is necessary for the species survival, the regulation’s singular focus becomes ‘survival.’ ” Id. We emphasized that the text of the ESA evinced congressional intent to view “conservation,” which incorporates “recovery,” and “survival” as “distinct, though complementary, goals, and the requirement to preserve critical habitat is designed to promote both conservation and survival.” Id. at 1070. We therefore concluded that “[w]here Congress in its statutory language required ‘or,’ the agency in its regulatory definition substituted ‘and.’ ” Id.

The parties each rely on different versions of the regulation to argue whether reduced connectivity can constitute adverse modification. Defendants first emphasize that the plain language of Section 7 of the ESA requires agencies to ensure that none of their actions “result in the destruction or adverse modification of habitat.” 16 U.S.C. § 1536(a)(2). Defendants argue that the phrase “adverse modification of habitat” itself imposes two requirements: there must be (1) a “modification of habitat,” which Defendants interpret to mean “some change to the habitat itself,” that is (2) “adverse.” Second, Defendants insist that a change in the desert tortoise’s connectivity is an effect on the “species” and not a change to the “habitat.” Third, Defendants cite our precedents and other ESA implementing regulations that frame adverse modification inquiry as one based on alterations to the “primary constituent elements” of the critical habitat. See e.g., Butte Envtl. Council v. U.S. Army Corps of Eng’rs, 620 F.3d 936, 948 (9th Cir. 2010) (characterizing adverse modification as “[a]dverse effects on ... constituent elements or segments of critical habitat” (quoting U.S. Fish & Wildlife Serv. & Nat’l Marine Fisheries Serv., Endangered Specie s Consultation Handbook: Procedures for Conducting Consultation and Conference Activities Under Section 7 of the Endangered Species Act 4-43 (1998)); 50 C.F.R. § 17.94 (“All Federal agencies must insure that any action authorized, funded, or carried out by them is not likely to result in the destruction or adverse modification of the constituent elements essential to the conservation of the listed species within these defined Critical Habitats.”)). Critical habitats are comprised of primary constituent eléments, which are listed in the critical habitat designations. 50 C.F.R. § 424.12(b). Defendants argue that reducing connectivity would not affect any of the desert tortoise’s primary constituent elements, which includes “[sjufficient space to ... provide for ... gene flow,” but not connectivity as a whole. 59 Fed Reg. 5,820, 5,822. Finally, Defendants contend that the 2016 regulation does not alter the requirement that adverse modification requires some modification to the habitat itself.

In contrast, DOW argues that any action that adversely impacts the “recovery” value of critical habitat can constitute an adverse modification. DOW also cites to the language of Section 7 of the ESA, but instead argues that the ESA’s use of the phrase “result in” indicates “clear congressional intent to require FWS to focus on the consequences of federal actions.” Next, DOW contends that Defendants’ interpretation of adverse modification cannot be squared with the FWS’s interpretation of adverse modification as embodied by the 2016 regulation. First, DOW argues that the 2016 regulation’s definition of adverse modification as an alteration “that appreciably diminishes the value of critical habitat for the conservation of a listed species” supports DOW’s argument that the adverse modification inquiry must focus on the impact of the proposed agency’s action on critical habitat’s recovery value as opposed to whether there was an alteration to the habitat itself. Second, DOW argues that the 2016 regulation’s interpretation of the phrase “may include, but not limited to” supports a broad conception of what constitutes an alteration of critical habitat. In the supplementary information accompanying the publication of the 2016 regulation (2016 regulation commentary), the FWS and the NMFS explained that this phrase “emphasizes that the types of direct or indirect alterations that appreciably diminish the value of critical habitat for listed species include not only those that affect physical or biological features, but also those that affect the value of critical habitat itself.” 81 Fed. Reg. 7,214, 7,219. This phrase therefore encapsulates “impacts to an area of critical habitat itself that are not impacts to features,” such as “those that would impede access to or the use of the habitat.” Id.

We agree with Defendants that the plain language of the ESA requires that an adverse modification'of critical habitat consists of two elements: (1) a “modification” of the habitat that is (2) “adverse.” 16 U.S.C. § 1536(a)(2). Both the 1986 and 2016 definitions reflect that understanding by defining adverse modification as a “direct or indirect alteration” that “appreciably diminishes the value of the critical habitat.” 50 C.F.R. § 402.02 (2014) (emphasis added); 50 C.F.R. § 402.02 (2016) (same). This interpretation of adverse modification is further confirmed by the 2016 regulation commentary, which describes the adverse modification analysis as follows:

[The FWS] will generally conclude that a Federal action is likely to “destroy or adversely modify” designated critical habitat if the action results in an alteration of the quantity or quality of the essential physical or biological features of designated critical habitat, or that precludes or significantly delays the capacity of that habitat to develop those features over time, and if the effect of the alteration is to appreciably diminish the value of critical habitat for the conservation of the species.

81 Fed. Reg. 7214-01, 7216 (emphasis added). .DOW’s interpretation of “adverse modification” focuses solely on the effect of the proposed agency action, and thus improperly reads the “alteration” requirement out of the ESA’s implementing regulations altogether. Furthermore, DOW’s reliance on the 2016 regulation commentary’s explanation of the phrase “may include, but are not limited to” is misplaced. This phrase merely clarifies the types of impacts on the critical habitat that can result in adverse modification; it does not speak to the threshold requirement that there must be an alteration to the critical habitat that creates these impacts to begin with. See 81 Fed. Reg. 7,214, 7,219.

With this proper understanding of “adverse modification” in mind, we conclude that reduced connectivity resulting from the narrowing of the corridor between Silver State South and the Lucy Gray Mountains cannot constitute adverse modification because the construction of Silver State South would not have resulted in any alteration to the critical habitat of the desert tortoise. It is undisputed that the corridor itself is not critical habitat and the construction of Silver State South would not have taken place on any critical habitat within the Ivanpah Valley. Nor can reduced connectivity itself serve as the alteration; reduced connectivity can lead to a change in the desert tortoise’s genetic health, which is an alteration to the species, not its critical habitat. Accordingly, the BiOp’s determination that Silver State South was “not likely to adversely affect the critical habitat of the desert tortoise,” which permitted the FWS to forego an adverse modification analysis, was neither arbitrary nor capricious.

III. Inconsistent Positions in the BiOp

a. The FWS’s SEIS Comments

DOW next contends that the BiOp was arbitrary and capricious because it failed to address the FWS Nevada field office’s comments on the BLM’s draft SEIS pertaining to adverse impacts on recovery, connectivity of critical habitat, and recommended corridor-width. DOW notes that the FWS’s comments on the SEIS specifically recommended that the corridor between Silver State South and the Lucy Gray Mountains “should be wide enough to accommodate multiple desert tortoise ranges, spanning up to several times the desert tortoise lifetime utilization area.” DOW argues that because the FWS also authored the BiOp, which permitted the corridor’s narrowest point to be slightly less than a single lifetime utilization area, the FWS was obligated to address this inconsistency in the BiOp.

“Agencies are entitled to change them minds.” Butte Envtl. Council, 620 F.3d at 946. Thus, “the fact that a preliminary determination by a local agency representative is later overruled at a higher level within the agency does not render the decisionmaking process arbitrary and capricious.” Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 659, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007); see also Friends of the Earth v. Hintz, 800 F.2d 822, 834 (9th Cir. 1986) (finding that agency’s approval of a permit despite earlier criticism because “[the agency’s] ultimate decision was not a reversal but simply the culmination of over a year and a half of investigations, meetings, and reports”). However, an agency also “must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Humane Soc’y of U.S. v. Locke, 626 F.3d 1040, 1051 (9th Cir. 2010) (emphases and internal quotation marks omitted). Under certain circumstances, an agency’s prior factual findings or conclusions may be “relevant data” such that an agency must “articulate a satisfactory explanation” when it changes its mind. See id.

Humane Society of the United States v. Locke illustrates this principle. There, we held that the NMFS did not adequately explain its finding that a sea lion predation rate of 1 percent would have a significant negative impact on the decline or recovery of salmon “given earlier factual findings by NMFS that fisheries that cause similar or greater mortality among [the salmon population] are not having significant negative impacts.” Id. at 1048. We noted that the fishery environmental assessments were “in apparent conflict with NMFS’s finding in this case ... yet the agency has not offered a rationale to explain the disparate findings.” Id. at 1049. We acknowledged that agencies do not have a “duty to identify and any potential tensions between current and earlier factual determinations in marginally related administrative actions,” but explained that the impact of fisheries compared to that of sea lion predation “ha[d] occupied the center of this controversy from the start.” Id. at 1051. The prior fishery environmental assessments were therefore “relevant data” which required a “satisfactory explanation.” Id.

Locke is distinguishable from the circumstances here in two ways. First, the FWS comments on the SEIS did not make any factual or scientific findings. Although the FWS recommended that any alternative plan preserve a corridor between Silver State South and the Lucy Gray Mounts “spanning up to several times the desert tortoise lifetime utilization area,” the FWS did not conclude that anything less would affirmatively result in a loss of connectivity, jeopardy, or adverse modification. The FWS comments on the SEIS therefore made no findings with respect to Silver State South, let alone any “[djiver-gent” findings that required a response in the BiOp. Id. at 1049. Second, the SEIS (and by extension, the FWS’s comments on the SEIS) evaluated three proposed plans for Silver State South that differed signifi-. cantly from the BLM-preferred alternative analyzed in the BiOp. The BLM-preferred alternative reduced the size of the project from 3,881 acres to 2,427 acres, increased the width of the corridor between Silver State South and the Lucy Gray Mountains at its narrowest point from 100 feet to 1.39 miles (with the corridor maintaining an average width of 1.4 miles), and also incorporated mitigation measures recommended by the FWS in their comments on the SEIS to minimize adverse effects to the desert tortoise and offset the loss of desert tortoise habitat. Thus, even if the FWS’s comments on the SEIS were construed to have made factual or scientific findings, they would not be inconsistent with the FWS’s conclusions regarding Silver State South in the BiOp because the SEIS and the BiOp evaluated substantially different plans. Accordingly, the BiOp’s failure to address the FWS comments to the SEIS was not arbitrary or capricious.

b. Edge Effects

DOW additionally contends that the BiOp contained an internal inconsistency regarding the necessary width of the corridor: The BiOp recognized that the corridor “would need to be at least 1.4 miles wide to accommodate the width of a single desert tortoise’s lifetime utilization area,” and subsequently acknowledged that because of edge effects “the effective width of the corridor to the east of the project site is likely less than the measured distance,” but never reconciled these two findings. DOW argues that the BiOp’s failure to quantify the extent of the edge effects or make an express finding that edge effects would not be significant to this corridor was arbitrary and capricious.

As an initial matter, DOW misconstrues the BiOp as concluding that a corridor width of at least 1.4 miles is necessary to maintain connectivity in the Ivanpah Valley. The BiOp acknowledged that the 1.4 miles estimation “provides a means for characterizing the potential minimum width of a linkage” required to maintain connectivity, but explained that “the actual linkage-width needed will be highly dependent on the actual site-specific configuration and -size of desert tortoise home ranges in that area, the terrain within the linkage, and the degree to which threats, other constrictions, and edge effect will disrupt the linkage.” That edge effects may have reduced the width of the corridor below 1.4 miles at a single point thus does not create an internal inconsistency with the BiOp’s conclusion that the corridor width of the approved plan for Silver State South would not disrupt the connectivity of the corridor.

Furthermore, the record supports the BiOp’s conclusion that edge effects created by Silver State South were unlikely to be significant because the “edge effects of a solar plant likely extend less into adjacent habitat ... and [ ] edge effects likely do not emanate from the Lucy Gray Mountains.” Although the BiOp’s explanation of this issue is conclusory, there is sufficient evidence in the record from we can “discern [the FWS’s] reasoning.” San Luis & Delta-Mendota Water Auth., 747 F.3d at 604-06 (even an “unpolished” or “largely unintelligible” biological opinion should be upheld if it is “adequately supported by the record” and the court can “discern the agency’s reasoning”). The record included evidence that desert tortoises were burrowing near Silver State North and other existing solar projects in the Ivanpah Valley, which corroborates the BiOp’s explanation that solar plants result in minimal edge effects. The mitigation measures incorporated by the BiOp also included measures to minimize edge effects, such as the use of “Authorized biologists or desert tortoise monitors [to] flag all desert tortoise burrows for avoidance in areas adjacent to work areas.” Because we can discern the BiOp’s reasoning in concluding that Silver State South would not have significant edge effects and the record supports the BiOp’s conclusion, the BiOp’s consideration of Silver State South’s edge effects was not arbitrary or capricious.

IV. Trigger for Reinitiation of Formal Consultation

Lastly, DOW alleges that the BiOp established an impermissibly vague trigger for reinitiating formal consultation over Silver State South. DOW contends that reinitiation triggers must provide “clear criteria” that do not give “unfettered discretion” to federal agencies. Although the BiOp explained that the FWS would reini-tiate formal consultation with the BLM if the USGS monitoring survey found “changes in demographic and genetic stability [that] are related to the Silver State South,” DOW claims that this is insufficient because the BiOp does not identify criteria for determining whether changes are “related” to Silver State South.

We disagree. The ESA’s implementing regulations require an action agency to reinitiate formal consultation with the consulting agency when “new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered” (the “new information” reinitation trigger). 50 C.F.R. § 402.16(b). Neither the ESA nor its implementing regulations require the action agency to identify ex-ante standards for determining whether information is “new” or explaining how “new information” will be evaluated. In the absence of such authority, the BLM instead exceeded its obligations under the ESA by explaining how it would determine when results from the USGS monitoring survey would require reinitiation of formal consultation.

Moreover, the BiOp provided clear criteria for determining whether any future demographic or genetic changes identified by the USGS monitoring survey are “related” to Silver State South. The USGS monitoring survey will first conduct initial sampling to establish baseline conditions from different monitoring plots and will then compare this information to subsequent data over time and across plots. The BiOp also explained that changes “that rise to the level of significance (alpha = 0.05) would likely indicate changes in demographic and genetic stability,” which would then constitute new information if related to Silver State South. The BiOp therefore does not rely on an impermissibly vague “new information” reinitiation trigger.

Y. The BLM’s Reliance on the BiOp

Because the BiOp was neither legally nor factually flawed, the BLM permissibly relied upon the BiOp in approving of the right-of-way for Silver State South. See Pyramid Lake Paiute Tribe of Indians v. U.S. Dep’t of Navy, 898 F.2d 1410, 1415-16 (9th Cir. 1990).

CONCLUSION

For the foregoing reasons, the district court’s grant of summary judgment to the Defendants is AFFIRMED. Plaintiff shall bear costs on appeal. Fed. R. App. P. 39(a)(2).

      . This definition of'adverse modification governed at the time the BiOp was issued. For the current governing definition and a discussion of the change, see infra Section Il.b.

      . "Action area means 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.

      . The cases that DOW cites for the proposition that reinitiation triggers must provide "clear standard[s]” involve reinitiation in the "incidental take” context. E.g., Ariz. Cattle Growers’ Ass'n v. U.S. Fish and Wildlife, Bureau of Land Management, 273 F.3d 1229, 1249-51 (9th Cir.2001). Incidental take statements must "set forth a 'trigger' that, when reached, results in an unacceptable level of incidental take, invalidating the safe harbor provision [of the ESA], and requiring the parties to reinitiate consultation.” Id. at 1249. The requirement that an "incidental take” trigger provide clear standards for determining when it has been met thus reflects a consequence that is not implicated by the "new information” trigger: The "new information” trigger merely requires reinitiation of formal consultation, while the "incidental take” trigger requires not only reinitiation of formal consultation, but also revokes an action agency's or project applicant’s immunity from penalties under Section 9 of the ESA. See id. To the extent that DOW asks us to import the "clear standard” requirement from "incidental take” triggers into the "new information” trigger context, we decline to do so because of this substantive difference.


text:
    Scott D. NORDSTROM, Plaintiff-Appellant, v. Charles L. RYAN, Director of ADOC; A. Ramos, Deputy Warden; F. Hawthorne, Defendants-Appellees.
    No. 16-15277
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted January 11, 2017, San Francisco, California
    Filed May 18, 2017

      Gregory C. Sisk (argued), Attorney; Bridget A. Duffus and Katherine J. Koeh-ler, Certified Law Student Representatives; Appellate Clinic, University of St. Thomas School of Law, Minneapolis, Minnesota; for Plaintiff-Appellant.
    Neil Singh (argued), Assistant Attorney General; Mark Brnovich, Arizona Attorney General; Office of the Attorney General, Phoenix, Arizona; for Defendants-Appel-lees.
    Robin E. Wechkin, Vice Chair, 9th Circuit Amicus Committee, National Association of Criminal Defense Lawyers, Sidley Austin LLP, Seattle, Washington; Elliot Dolby Shields, Chair, Civil Rights & Liberties Committee, New York County Lawyers Association, New York, New York; for Amici Curiae New York County Lawyers Association and National Association of Criminal Defense Lawyers.
    Bryan A. Stevenson and Benjamin H. Schaefer, Montgomery, Alabama, as and for Amicus Curiae Equal Justice Initiative.
    Kelly A. Kszywienski, Snell & Wilmer LLP, Phoenix, Arizona; Lawrence Fox, Yale Law School, New Haven, Connecticut; for Amicus Curiae Ethics Bureau at Yale.
    Before: RICHARD R. CLIFTON and MILAN D. SMITH, JR., Circuit Judges, and RALPH R. ERICKSON, District Judge.

       The Honorable Ralph R. Erickson, United States District Judge for the District of North Dakota, sitting by designation.

   OPINION

M. SMITH, Circuit Judge:

Scott Nordstrom, a death row inmate in Arizona state prison, appeals the district court’s dismissal of his claims that the Arizona Department of Corrections (ADC) policy and practice for inspecting inmates’ outgoing legal mail violates his Sixth and First Amendment rights. We hold that ADC’s current “inspection” policy does not satisfy the standard articulated in Nordstrom v. Ryan, 762 F.3d 908, 906 (9th Cir. 2014) (Nordstrom I), because the policy calls for page-by-page content review of inmates’ confidential outgoing legal mail. Further, the policy does not satisfy the four-part test identified in Turner v. Safley, 482 U.S. 78, 89-91, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), because ADC did not produce evidence of a threat to prison security sufficient to justify its policy, and because feasible, readily available alternatives are apparent. Accordingly, we REVERSE the district court’s dismissal of Nordstrom’s Sixth and First Amendment claims, and remand to the district court for further proceedings.

FACTS AND PRIOR PROCEEDINGS

Nordstrom alleges that when he sought to mail a confidential letter addressed to his attorney the officer on duty actually read his letter, rather than merely scanned or inspected it. After about 15 seconds, Nordstrom requested that the officer stop, and the officer responded “don’t tell me how to do my job; I am authorized to search legal mail for contraband as well as scan the content of the material to ensure it is of legal subject matter.” Nordstrom persisted, and the officer ceased reading (or scanning) the letter.

Nordstrom filed formal grievances, which were denied on the ground that ADC “is authorized to scan and is not prohibited from reading [legal] mail to establish the absence of contraband and ensure the content of the mail is of legal subject matter.” This stated ground for denial conforms to ADC’s legal mail policy, which provides that ADC staff must, in the presence of the inmate, inspect, but not read; outgoing legal mail for the presence of contraband. The inspection must be “only to the extent necessary to determine if the mail contains contraband, or to verify that its contents qualify as legal mail and do not contain communications about illegal activities.” Contraband is defined broadly to include “[a]ny non-legal written correspondence or communication discovered as a result of scanning incoming or outgoing legal mail.”

Nordstrom filed this 42 U.S.C. § 1983 suit against ADC, seeking a declaratory judgment and injunction against its legal mail policy and practice, alleging violations of his Sixth and First Amendment rights. Nordstrom I, 762 F.3d at 906. The district court dismissed the complaint for failure to state a claim. Id. On appeal, we held that Nordstrom stated a claim for violation of his Sixth Amendment rights, and that prison officials may inspect outgoing legal mail in an inmate’s presence for contraband, among other things, but that prison officials may not read such mail. Id. at 906, 910-11. We remanded for consideration of Nordstrom’s allegation that ADC has had a policy and practice of reading legal mail. Id. at 911-12.

On remand, the district court denied Nordstrom’s request for a declaratory judgment and permanent injunction, holding that ADC’s policies and practices did not violate the Sixth or First Amendments. Nordstrom v. Ryan, 128 F.Supp.3d 1201, 1219 (D. Ariz. 2016) (Nordstrom II). Nord-strom appealed.

STANDARDS OF REVIEW

We review the district court’s Article III standing decision de novo. Braunstein v. Arizona Dep’t of Transp., 683 F.3d 1177, 1184 (9th Cir. 2012).

Regarding Nordstrom’s Sixth Amendment claim, we review questions of law and “mixed questions of law and fact implicating constitutional rights” de novo. Am.-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1066 (9th Cir. 1995). We review factual findings for clear error. Crittenden v. Chappell, 804 F.3d 998, 1006 (9th Cir. 2015).

We review the district court’s holding that ADC’s policy does not violate the First Amendment de novo, including any underlying factual findings. Tucker v. State of Cal. Dep’t of Educ., 97 F.3d 1204, 1209 n.2 (9th Cir. 1996).

ANALYSIS

I. Nordstrom Has Standing to Bring His Constitutional Claims

In Nordstrom I, we evaluated Nord-strom’s Sixth Amendment claim and concluded that the allegation that ADC “interfered with attorney-client communications related to the appeal of [Nordstrom’s] murder conviction and death sentence ... [fell] squarely within the scope of the Sixth Amendment right to counsel.” 762 F.3d at 909. His standing did not arise from alleged prejudice that he suffered related to his conviction; rather it was an interest in enjoining a practice that chilled his Sixth Amendment rights. Id. at 911.

On remand, ADC argued that Nordstrom lacked standing because his requested injunction would not affect his Sixth Amendment rights because he was in post-conviction proceedings under Arizona Rule of Criminal Procedure 32, and “[t]here is no constitutional right to an attorney in state post-conviction proceedings.” Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The district court held that Nord-strom had standing because “for standing analysis, the key point in time is the filing of the complaint,” and “Nordstrom was still involved in criminal proceedings—implicating the Sixth Amendment—when he filed his original complaint.” Nordstrom II, 128 F.Supp.3d at 1213 n.6 (citing Cornett v. Donovan, 51 F.3d 894, 897 (9th Cir. 1995)). The district court erred by failing to consider whether Nordstrom has standing now, and not merely at the time of the complaint, because “a live controversy must exist at all stages of the litigation, not simply at the time plaintiff filed the complaint.” Vasquez v. Los Angeles Cty., 487 F.3d 1246, 1253 (9th Cir. 2007).

In Nordstrom I, we necessarily decided that Nordstrom had standing to bring his Sixth Amendment claim. 762 F.3d at 909, 911. At that time, Nordstrom’s criminal appeals had concluded, and he was preparing his petition for post-conviction relief. See State v. Nordstrom, 230 Ariz. 110, 280 P.3d 1244 (Ariz. 2012), cert. denied, — U.S. -, 133 S.Ct. 985, 184 L.Ed.2d 765 (2013) (affirming Nordstrom’s sentence). Because this case returns to our court in virtually the same procedural posture as Nordstrom I, the prior determination that Nordstrom had standing is both the law of the case and binding precedent that we must follow. See Hilao v. Estate of Marcos, 103 F.3d 767, 772 (9th Cir. 1996); see also Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 715 (9th Cir. 1990) (noting that the law of the case doctrine applies to issues “decided explicitly or by necessary implication in [the] previous disposition”) (emphasis added).

Although we have recognized exceptions to the law of the case doctrine, see Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc), aff'd sub nom. Arizona v. Inter Tribal Council of Ariz., Inc., — U.S. -, 133 S.Ct. 2247, 186 L.Ed.2d 239 (2013), such exceptions “are not exceptions to the rule that, as a three-judge panel, we are bound by the law of the circuit in the absence of a recognized exception to that rule.” Barnes-Wallace v. City of San Diego, 704 F.3d 1067, 1076-77 (9th Cir. 2012). No “recognized exception” to the law-of-the-cireuit rule applies here. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (holding that a panel may depart from the law of the circuit when “the relevant court of last resort ... undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable”). Thus, pursuant to both the law-of-the-case doctrine and our law-of-the-eircuit rules, Nordstrom has standing to assert his Sixth Amendment claim.

Nordstrom also has standing to assert his First Amendment claim, which was not addressed in Nordstrom I. To establish constitutional standing Nord-strom “must allege (1) a distinct and palpable injury-in-fact that is (2) fairly traceable to the challenged provision or interpretation and (3) would likely be redressed by a favorable decision.” Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1033 (9th Cir. 2006) (internal quotation marks and ellipsis omitted). Nordstrom has alleged that his First Amendment free speech rights were violated by ADC’s legal mail policy and practices. Nordstrom has “a First Amendment right to send and receive mail” while incarcerated, Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per curiam), and a decision invalidating ADC’s legal mail policy would likely redress Nordstrom’s alleged injury. Thus, Nordstrom has Article III standing to bring his constitutional claims.

II. ADC’s Outgoing Legal Mail Policy Violates the Sixth Amendment

Criminal defendants have a Sixth Amendment right to assistance of counsel, and the right applies in state court proceedings. Gideon v. Wainwright, 372 U.S. 335, 339-41, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The right to counsel is violated when (1) “the government deliberately interferes with the confidential relationship between a criminal defendant and defense counsel,” and (2) the interference “substantially' prejudices the criminal defendant.” Nordstrom I, 762 F.3d at 910. We have recognized a defendant’s “ability to communicate candidly and confidentially” with defense counsel as “essential to his defense” and “nearly sacrosanct.” Id, Thus, prison officials may not read an inmate’s “outgoing attorney-client correspondence.” Id. at 910-11. However, prison officials may “inspect[ ] an inmate’s outgoing mail, in his presence, to make sure that it does not contain, for example, a map of the prison yard, the time of guards’ shift changes, escape plans, or contraband.” Id. at 910.

ADC’s policy requires that outgoing legal mail “be inspected for contraband, ... and scanned to ensure that it is in fact legal mail,” in the inmate’s presence. However, the mail “shall not be read by staff’ and must be sealed in the inmate’s presence following inspection. The inspection must be “only to the extent necessary to determine if the mail contains contraband, or to verify that its contents qualify as legal mail and do not contain communications about illegal activities.” ADC broadly defines contraband to include “[a]ny nonlegal written correspondence or communication discovered as a result of scanning incoming or outgoing legal mail.” Based on the testimony of a prison mail supervisor, it appears that ADC’s practice of “scanning” involves reading some words in a letter and looking at each page, but not reading the text line-by-line.

ADC’s policy goes beyond the inspection approved of in Nordstrom I. We explained that inspection of outgoing mail should be for “suspicious features” that can readily be identified -without reading the words on a page; i.e., “maps of the prison yard, the times of guards’ shift changes, and the like.” Nordstrom I, 762 F.3d at 906. This level of inspection is akin to the “cursory visual inspection” that we approved of for outgoing mail sent to public officials in Witherow. 52 F.3d at 265-66.

We included “contraband” as a subject for inspection, Nordstrom I, 762 F.3d at 910, but ADC’s broad definition of contraband transforms permissible inspection into page-by-page content review. Contraband is commonly understood to refer to smuggled or otherwise illegal goods. See Contraband, Black’s Law Dictionary (10th ed. 2014). In her testimony, ADC’s Associate Deputy Warden defined contraband as “anything deemed [ ] to be a security threat or safety threat to [] staff or [] inmates.” By invoking contraband in Nord-strom I, we intended to reference dangerous or illegal items hidden in legal mail that are not mail. ADC’s inclusion of “[a]ny non-legal written correspondence or communication” in its definition of contraband extends Nordstrom I beyond its intended limits by requiring that staff inspect mail page-by-page to ensure that a letter concerns only legal subjects. This is plainly not the type of inspection envisioned in Nordstrom I.

We reiterate our holding that prison officials may inspect, but may not read, an inmate’s outgoing legal mail in his presence. At most, a proper inspection entails looking at a letter to confirm that it does not include suspicious features such as maps, and making sure that illegal goods or items that pose a security threat are not hidden in the envelope. ADC’s legal mail policy does not meet this standard because it requires that prison officials “verify that [the letter’s] contents qualify as legal mail.”

III. ADC’s Outgoing Legal Mail Policy Violates the First Amendment

Nordstrom has “a First Amendment right to send and receive mail,” but prison regulations may curtail that right if the “regulations are reasonably related to legitimate penological interests.” Witherow, 52 F.3d at 265 (internal quotation marks omitted); see, e.g., Wolff v. McDonnell, 418 U.S. 539, 577, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (holding that prison officials may open, but not read, incoming legal mail in the presence of the inmate). Legitimate penological interests that justify regulation of outgoing legal mail include “the prevention of criminal activity and the maintenance of prison security.” O’Keefe v. Van Boening, 82 F.3d 322, 326 (9th Cir. 1996).

When assessing the constitutionality of prison regulations that affect inmates’ constitutional rights, we apply the four-factor test articulated in Turner, 482 U.S. at 89-91, 107 S.Ct. 2254. We ask (1) whether there is “a- valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it”; (2) “whether there are alternative means of exercising the right that remain open to prison inmates”; (3) what “impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally”; and (4) whether there is an “absence of ready alternatives.” Id. (internal quotation marks omitted). Additionally, “[w]hen a prison regulation affects outgoing mail as opposed to incoming mail, there must be a closer fit between the regulation and the purpose it serves.” Witherow, 52 F.3d at 265 (internal quotation marks omitted).

The district court dismissed Nord-strom’s First Amendment claim. Nord-strom II, 128 F.Supp.3d at 1219. In doing so, the court only considered the first Turner factor, and concluded that ADC’s legitimate penological interest in institutional security justified its policy and practices. Id. The court reasoned that legal mail “can be used to introduce contraband into ADC’s facilities, to facilitate criminal activity within the prison’s walls, and to facilitate criminal activity on the outside.” Id.

The district court is correct that outgoing- legal mail could be used to facilitate criminal activity, but ADC did not present any evidence that this has ever happened, or that it is likely to happen. ADC did not produce any evidence that an Arizona inmate has ever abused the system when sending legal mail to an actual attorney. Evidence presented showed that inmates have attempted to abuse the legal mail system by sending mail disguised as legal mail to non-lawyers, and that non-lawyer gang members have attempted to send mail disguised as legal mail to incarcerated gang members. Additionally, ADC provided evidence that three attorneys in Arizona have criminally assisted inmates by smuggling contraband into a prison and by facilitating communication among gang members. None of these instances involving actual attorneys involved abuse of outgoing legal mail. Thus, ADC presented no evidence that outgoing legal mail addressed to a licensed attorney has ever posed the security threats identified by the district court.

The district court erred by not distinguishing between the risks of incoming and outgoing mail in its analysis. Although ADC need not “satisfy a least restrictive means test,” its restrictions on outgoing mail must have “a closer fit between the regulation and the purpose it serves” than incoming mail restrictions. Witherow, 52 F.3d at 265 (internal quotation marks omitted). This is because “outgoing personal correspondence from prisoners [does] not, by its very nature, pose a serious threat to prison order and security.” Thornburgh v. Abbott, 490 U.S. 401, 411, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989).

Although prison security is undoubtedly a legitimate government interest, ADC has not met its burden to justify its intrusion into outgoing legal mail. With no evidence that such mail has ever posed a threat, a policy requiring a page-by-page inspection to determine if the contents actually concern legal matters is unduly intrusive.

The district court failed to consider the remaining Turner factors, which largely support Nordstrom’s claim. There is “an obvious, easy alternative! ]” to ADC’s policy. See Turner, 482 U.S. at 90, 107 S.Ct. 2254. ADC could use procedures to ensure that outgoing legal mail is sent to a licensed attorney, rather than inspecting the contents to make sure that the letter concerns legal subject matter. Because there is no evidence that legitimate outgoing legal mail has posed a security threat, readily available alternative means suggest that ADC’s policy “is an ‘exaggerated response’ to prison concerns.” See id.

Because there is no evidence of abuse of the legal mail system when outgoing mail is addressed to an attorney, there is no reason to conclude that a more limited inspection of outgoing legal mail would have an adverse effect on prison staff, other inmates, or allocation of resources within prisons. See id. Checking a state bar’s list of licensed attorneys is no more onerous than page-by-page inspection to confirm legal content. Indeed, an ADC prison mail supervisor testified that he uses the Arizona Bar Association’s website “every single day,” and that finding out whether a given individual is an attorney can be done “very easily.”

We also consider “whether there are alternative means of exercising the right that remain open to prison inmates.” Id. Under this factor “ ‘the right’ in question must be viewed sensibly and expansively.” Thornburgh, 490 U.S. at 417, 109 S.Ct. 1874. That is, we consider whether inmates have sufficient forms of free expression, not whether the exact expression at issue is available through alternative means. Id. at 417-18, 109 S.Ct. 1874. This factor does not weigh heavily for or against ADC’s policy. Inmates are able to communicate with attorneys through phone calls and in-person meetings, giving them an outlet for expression. However, confidential legal correspondence, free from unreasonable censorship and the chilling effect of excessive monitoring, remains an important avenue of communication for inmates, and alternative means do not entirely make up for infringement ón this right.

On balance, the Turner factors point to the conclusion that ADC’s outgoing legal mail policy unreasonably intrudes on Nordstrom’s First Amendment rights. Due to the more limited threat that outgoing mail poses to prison security, and ADC’s inability to proffer evidence to show that such mail poses a threat, the ends do not justify the means. Moreover, there are readily available, less restrictive alternatives that are unlikely to have an adverse effect on prisons.

IV. Nordstrom Is Entitled to Injunc-tive Relief

As we determined in Nordstrom I, Nordstrom’s allegations support a claim for injunctive relief. 762 F.3d at 911-12. Nordstrom has demonstrated that he is realistically threatened by repetition of ADC’s violation, because his injury stems from ADC’s policy, and he remains incarcerated in Arizona state prison. See id.

CONCLUSION

We REVERSE the district court’s dismissal of Nordstrom’s Sixth and First Amendment claims. We hold that ADC’s outgoing legal mail policy does not satisfy the Nordstrom I standard for an outgoing legal mail inspection policy, or the Turner factors. We REMAND for the district court to craft a decree based on the evidence of actual risks in Arizona state prisons.

      . This broad statement is not necessarily accurate for all state post-conviction proceedings. Nordstrom argues that Sixth Amendment rights attach in his current state proceeding because he is raising an issue of prosecutorial misconduct that he was not allowed to raise until his post-conviction petition, making it an "initial-review collateral proceeding.” See Martinez v. Ryan, 566 U.S. 1, 8-9, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012); State v. Nordstrom, 230 Ariz. 110, 280 P.3d 1244, 1250 (2012). In Martinez, the Court left open the question of whether a prisoner has Sixth Amendment rights "in collateral proceedings which provide the first occasion to raise a claim of ineffective assistance at trial,” proceedings the Court termed "initial-review collateral proceedings.” 566 U.S. at 8-9, 132 S.Ct. 1309. As discussed in this section, the law-of-the-case and law-of-the-circuit rules compel that we find that Nordstrom has standing to raise his Sixth Amendment claim. Thus, we decline to address the question of whether Sixth Amendment rights attach in Nordstrom's current proceedings under Arizona Rule of Criminal Procedure 32.

      . Cornett (the case the district court cited) does not alter this basic rule. In Cornett, four plaintiffs brought a declaratory judgment action, alleging that their constitutional rights were denied while they were institutionalized. 51 F.3d at 896. The panel held that a plaintiff who was no longer institutionalized at the time of the complaint did not have standing because his injury would not be redressed by the declaratory judgment; however, the remaining three plaintiffs had standing because they were institutionalized at the time of the complaint. Id. at 897. Although the panel focused on plaintiffs’ status at the time of the complaint, it noted that two of the three plaintiffs were no longer institutionalized by the time of the appeal, but expressly declined to decide whether their release during appeal affected standing, because at least one of the plaintiffs remained institutionalized and the case could proceed with that plaintiff. Id. at 897 n.2. Cornett thus makes clear that a plaintiff must have standing at the time the complaint is filed, but does not stand for the principle that standing at the time of appeal is irrelevant.