Sierra Club v. Bureau of Land Mgmt.

• Decision Date: 27 May 2015
• Docket Number: No. 13–15383.,13–15383.
• Citation: 786 F.3d 1219
• Parties: SIERRA CLUB; Center for Biological Diversity ; Defenders of Wildlife, Plaintiffs–Appellants, v. BUREAU OF LAND MANAGEMENT; James Kenna, in his official capacity as California State Director, Bureau of Land Management; Sally Jewell, in her official capacity as Secretary of the Interior, Defendants–Appellees, North Sky River Energy, LLC, Intervenor–Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

786 F.3d 1219

SIERRA CLUB; Center for Biological Diversity ; Defenders of Wildlife, Plaintiffs–Appellants

v. BUREAU OF LAND MANAGEMENT; James Kenna, in his official capacity as California State Director, Bureau of Land Management; Sally Jewell^* , in her official capacity as Secretary of the Interior, Defendants–AppelleesNorth Sky River Energy, LLC, Intervenor–Defendant–Appellee.

No. 13–15383.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 5, 2015.

Filed May 27, 2015.

Matthew Vespa, Sierra Club, San Francisco, CA; Jason C. Rylander (argued), Defenders of Wildlife, Washington, D.C.; Lisa T. Belenky, Center for Biological Diversity, San Francisco, CA; and Babak Naficy, Law Offices of Babak Naficy, San Luis Obispo, CA, for Plaintiff–Appellants.

Robert G. Dreher, Acting Assistant Attorney General, Jared Pettinato, Stephen Finn, Bradley H. Oliphant, and Lane N. McFadden (argued), Attorneys, United States Department of Justice, Environment and Natural Resources Division, Washington, D.C.; and Gregory Russell, United States Department of the Interior, Office of the Solicitor, Washington, D.C., for Defendants–Appellees.

Daniel J. Dunn (argued), Andrew L. Spielman, Jennifer L. Biever, and Margaret A. Parish, Hogan Lovells U.S. LLP, Denver, CO; and Zachary R. Walton, Christine W. Griffith, and Elizabeth L. Bridges, SSL Law Firm, LLP, San Francisco, CA, for Intervenor–Defendant–Appellee.

Appeal from the United States District Court for the Eastern District of California, Anthony W. Ishii, Senior District Judge, Presiding. D.C. No. 1:12–cv–01193–AWI–JLT.

Before: RICHARD C. TALLMAN and JOHNNIE B. RAWLINSON, Circuit Judges, and RAYMOND J. DEARIE, Senior District Judge.^**

OPINION

RAWLINSON, Circuit Judge:

Plaintiffs–Appellants Sierra Club, Center for Biological Diversity, and Defenders of Wildlife (collectively Sierra Club) appeal the district court ruling upholding the decision by the United States Bureau of Land Management (BLM) to grant a right-of-way over federal land (Road Project) for a wind energy project (Wind Project) developed on private land by Intervenor–Appellee North Sky River Energy, LLC (North Sky). Because the Wind Project does not trigger the (1) duty to consult under the Endangered Species Act (ESA) or (2) duty to prepare an Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA), we affirm the decision of the district court.

I. BACKGROUND

The Wind Project is a wind energy project developed by North Sky on more than 12,000 acres of private land located in the Sierra Nevada mountain range, northeast of Tehachapi, California. The Road Project was initiated when North Sky applied to the BLM for a right-of-way over federal land to connect the Wind Project to an existing state highway. The right-of-way (Road Project) would contain underground power and fiber optic communication lines from the Wind Project to California's energy grid.

North Sky's original request to the BLM included wind turbines on BLM land. Several months later, North Sky withdrew the original request and changed the proposal (Revised Proposal) to eliminate the turbines on federal land. Instead, North Sky sought permission to use and improve some existing BLM roads, to “construct a transmission generation tie (gen-tie) line, and construct new roads to access private property owned by” North Sky.¹

The Revised Proposal also identified an “alternative route” of access to the Wind Project that traversed private land only (Private Road Option). The Revised Proposal noted that the Private Road Option would have “topographical constraints,” which would require “earthmoving measures such as cut-and-fill, grading,” “possible stream alteration,” “[b]ulldozing, blasting, and tree-clearing.” That level of disturbance would “greatly impact vegetation and wildlife habitat,” and possibly cause erosion. After considering “accessibility, distance, road condition, and potential environmental impacts [,]” North Sky rejected the Private Road Option in favor of the access Road Project “to utilize as much existing road as possible, and thereby minimize environmental impacts.”

Internal communications among BLM employees track the BLM's review of the evolving project. Initially, BLM employees anticipated seeking consultation on the Wind Project as an interdependent or interrelated activity under section 7 of the ESA. But in these discussions, BLM staff did not consider the Private Road Option. The BLM later received and considered a draft environmental impact report prepared by Kern County during its state-level review of the Wind Project. The report from Kern County addressed the feasibility of the Private Road Option, which it described as requiring improvements “on up to 28 miles” of existing roads and construction of 2.5 miles of new roads through privately-owned land. Nonetheless, North Sky submitted documents to the BLM advising that the company could pursue the Private Road Option if their right-of-way application were denied.

After review of the Revised Proposal and related documents, the BLM issued an environmental assessment, in which the BLM found that the Road Project would have no significant environmental impact. Therefore, the BLM was not required to (1) consult with the United States Fish and Wildlife Service (FWS) under the ESA, or (2) prepare an Environmental Impact Statement under NEPA. This determination depended in large part upon the BLM's conclusion that the Private Road Option was a viable alternative to the Road Project.

The only public comment received was from Sierra Club challenging, inter alia, the viability of the Private Road Option. However, the BLM responded that it had analyzed the Private Road Option as a “technically and economically feasible” alternative to the Road Project. The BLM determined that North Sky's pursuit of the Private Road Option, if the BLM denied easements over federal land for the Road Project, was “neither remote nor speculative.” The BLM noted that the Road Project would “provide dust control, reduce erosion, and reduce unauthorized motor vehicle access to the Pacific Crest Trail.” Because the Wind Project could be built without the federal Road Project, and because the federal Road Project had independent utility, the BLM concluded that the Wind Project was not subject to formal consultation under the ESA, and need not be analyzed as a connected action under NEPA.

The BLM initially sought informal consultation under the ESA with the FWS about the impact of the Road Project on the desert tortoise and California Condor. The BLM withdrew consultation after the agencies determined that the desert tortoise and California Condor were not present in the Road Project area. The BLM also issued a Finding of No Significant Impact under NEPA after concluding that the Road Project would not have a significant environmental impact. The BLM noted that, because of the existence of the Private Road Option, North Sky was expected to go forward with the Wind Project regardless of whether it received the right-of-way grant from the BLM.

After the BLM issued a permit for the Road Project, Sierra Club sued the BLM, alleging that the decision to grant the easement through federal land violated both the ESA and NEPA. Applying the arbitrary and capricious standard of review, the district court denied Sierra Club's motion for summary judgment and granted the BLM's and North Sky's motions for summary judgment. Sierra Club filed a timely appeal.

II. STANDARD OF REVIEW

We review the district court's grant of summary judgment in favor of the BLM de novo and the agency decision under an arbitrary and capricious standard. See Chemehuevi Indian Tribe v. Jewell, 767 F.3d 900, 903 (9th Cir.2014) (summary judgment); Friends of the Wild Swan v. Weber, 767 F.3d 936, 942 (9th Cir.2014) (Administrative Procedure Act).

III. DISCUSSION

The sole issue on appeal is whether the BLM was required to initiate consultation with the FWS under the ESA, or to prepare an EIS under NEPA analyzing the Wind Project. We conclude that no consultation or EIS was required.

A. The Endangered Species Act

The ESA “requires federal agencies to ensure, in consultation with the appropriate wildlife agency, that any action authorized or carried out by the agency is not likely to jeopardize the continued existence of any endangered species or threatened species” or habitat.

Alliance for the Wild Rockies v. U.S. Dept. of Agric., 772 F.3d 592, 601 (9th Cir.2014) (emphasis added) (citation and internal quotation marks omitted). The ESA consultation requirement is triggered only by federal agency actions. See 16 U.S.C. § 1536(a). The federal agency must consider “the direct and indirect effects of [its] action on the species or critical habitat, together with the effects of other activities that are interrelated or interdependent with that action ...” 50 C.F.R. § 402.02.

1. Direct Effects

The duty to consult on the direct effects of an agency action is triggered only if the agency action is “affirmatively authorized, funded, or carried out [by a federal agency]” and “in which there is discretionary Federal involvement or control.”Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1020–21 (9th Cir.2012) (citation and internal quotation marks omitted).

Although the BLM was required to and did consult on the direct effects of the Road Project, the BLM was not required to consult on the direct effects of the Wind Project because the Wind Project did not constitute agency action. The Wind Project was developed by a private company on private land. Although North Sky ultimately sought a right-of-way over BLM land to more directly access the Wind Project, North Sky had the option of an alternative route traversing private property. Consequently, construction of the Wind Project was not dependent on existence of the federal right-of-way (Road Project). In other words, the Wind Project and the Road Project were separate and independent ventures,...