Protect Our Communities Found. v. Jewell

• Citation: 825 F.3d 571
• Decision Date: 07 June 2016
• Docket Number: No. 14-55666, No. 14-55842,14-55666
• Parties: Protect Our Communities Foundation, Plaintiff, and Backcountry Against Dumps; Donna Tisdale, Plaintiffs-Appellants, v. Sally Jewell, in her official capacity as Secretary of the United States Department of the Interior; Mike Pool, in his capacity as Acting Director of the United States Bureau of Land Management; Thomas Zale, in his official capacity as El Centro Field Office Manager for the United States Bureau of Land Management; Bureau of Land Management; U.S. Department of the Interior, Defendants-Appellees, Tule Wind, LLC, Intervenor-Defendant-Appellee. Protect Our Communities Foundation, Plaintiff-Appellant, and Backcountry Against Dumps; Donna Tisdale, Plaintiffs, v. Sally Jewell, in her official capacity as Secretary of the United States Department of the Interior; Mike Pool, in his capacity as Acting Director of the United States Bureau of Land Management; Thomas Zale, in his official capacity as El Centro Field Office Manager for the United States Bureau of Land Management; Bureau of Land Management; U.S. Department of the Interior, Defendants-Appellees, Tule Wind, LLC, Intervenor-Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

825 F.3d 571

Protect Our Communities Foundation, Plaintiff
and
Backcountry Against Dumps; Donna Tisdale, Plaintiffs-Appellants
v.
Sally Jewell, in her official capacity as Secretary of the United States Department of the Interior; Mike Pool, in his capacity as Acting Director of the United States Bureau of Land Management; Thomas Zale, in his official capacity as El Centro Field Office Manager for the United States Bureau of Land Management; Bureau of Land Management; U.S. Department of the Interior, Defendants-Appellees

Tule Wind, LLC, Intervenor-Defendant-Appellee.

Protect Our Communities Foundation, Plaintiff-Appellant
and
Backcountry Against Dumps; Donna Tisdale, Plaintiffs
v.
Sally Jewell, in her official capacity as Secretary of the United States Department of the Interior; Mike Pool, in his capacity as Acting Director of the United States Bureau of Land Management; Thomas Zale, in his official capacity as El Centro Field Office Manager for the United States Bureau of Land Management; Bureau of Land Management; U.S. Department of the Interior, Defendants-Appellees

Tule Wind, LLC, Intervenor-Defendant-Appellee.

No. 14-55666
No. 14-55842

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 6, 2016, Pasadena, California
Filed June 7, 2016

Eric R. Glitzenstein (argued) and William S. Eubanks, II, Meyer Glitzenstein & Crystal LLP, Washington, D.C., for Plaintiff-Appellee Protect Our Communities Foundation.

Stephen C. Volker (argued), Jamey M.B. Volker, Marcus Eichenberg, and Stephanie Clark, Law Offices of Stephan C. Volker, Oakland, California, for Plaintiffs-Appellants/Plaintiffs-Appellees Backcountry Against Dumps and Donna Tisdale.

Allen M. Brabender (argued), John H. Martin, and Stacey Bosshardt, Attorneys; John C. Cruden, Assistant Attorney General; United States Department of Justice, Environmental & Natural Resources Division, Washington, D.C.; for Defendants-Appellees.

Daniel P. Brunton (argued), Latham & Watkins LLP, San Diego, California, for Intervenor-Defendant/Appellee Tule Wind, LLC.

Before: JEROME FARRIS, TIMOTHY M. TYMKOVICH,^** and MILAN D. SMITH, JR., CIRCUIT JUDGES.

OPINION

M. SMITH, Circuit Judge:

Protect Our Communities Foundation (Protect), Backcountry Against Dumps (Backcountry), and Donna Tisdale (collectively, Plaintiffs) appeal the decision of the Bureau of Land Management to grant Defendant-Intervenor Tule Wind, LLC, (Tule) a right-of-way on federal lands in southeast San Diego County. Plaintiffs named several federal defendants in this action, including the Bureau of Land Management (BLM), the Department of the Interior, and various officials of those agencies (collectively, Defendants).

The BLM's right-of-way grant permits Tule to construct and operate a wind energy project, which Plaintiffs claim will harm birds in violation of the Migratory Bird Treaty Act (MBTA), 16 U.S.C. §§ 703 –12, and the Bald and Golden Eagle Protection Act (Eagle Act), 16 U.S.C. §§ 668 –668d. In

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addition, Plaintiffs challenge the adequacy of the BLM's Environmental Impact Statement (EIS) for the project, which was prepared pursuant to the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 –70h. The district court rejected Plaintiffs' challenges and granted summary judgment to Defendants. We affirm.

FACTS AND PRIOR PROCEEDINGS

A. The Right-of-Way Grant

The BLM, which is an agency within the Department of the Interior, is charged with the management of federally owned land. See 43 U.S.C. §§ 1732(a), 1702(c). Among the BLM's responsibilities is the determination of whether to grant rights-of-way for the use of such lands. See id . § 1761(a). Plaintiffs, which are a collection of environmental advocacy organizations and a local resident, challenge a right-of-way grant by the BLM that would permit Tule to construct and operate a wind energy facility on 12,360 acres of land in the McCain Valley, 70 miles east of San Diego (the Project).

Tule's original right-of-way proposal envisioned the construction of 128 wind turbines and supporting infrastructure, which could generate up to 200 megawatts of electricity. On December 23, 2010, the BLM released a lengthy draft EIS for public comment. The EIS discussed the environmental impacts of the Project and considered a range of alternative approaches.

Ultimately, the BLM decided to grant Tule a right-of-way for the development of a more modest wind-energy facility, which eliminated thirty-three of the originally proposed turbines from the Project. Moreover, in order to help reduce the risk of avian collisions with turbine blades, the approved Project repositioned several wind turbines that were originally proposed to be located on top of ridgelines. As modified, the Project was expected to generate up to 186 megawatts of electricity, thereby meeting the electrical energy needs of approximately 65,000 homes and businesses.

On October 3, 2011, the BLM released a final EIS reflecting these modifications. The agency published a Record of Decision (ROD) on December 19, 2011, memorializing its grant of a right-of-way for the Project. The ROD specified that the right-of-way grant would be issued for a thirty-year term, with an option to renew. It further provided that the grant of the right-of-way was expressly conditioned on the “implementation of mitigation measures and monitoring programs,” as well as “the issuance of all other necessary local, state, and Federal approvals, authorizations, and permits.”

Included among the mitigation measures required for the Project was the Project-Specific Avian and Bat Protection Plan (the Protection Plan). Tule developed the Protection Plan in conjunction with the BLM and the U.S. Fish and Wildlife Service (FWS), which is the federal agency responsible for enforcing the MBTA and the Eagle Act. The Protection Plan was based on scientific literature and research studies, including field surveys conducted by Tule over several years in the Project area. Based on this information, the Protection Plan outlines a number of measures that would, if implemented, mitigate the impacts of the Project on bird and bat species.

The Protection Plan provides for continuous monitoring and inspection of the Project's environmental impacts on bird and bat species as part of an adaptive-management plan. The FWS endorsed the Protection Plan, stating that it was “appropriate in its adaptive management approach to avoid and minimize take of migratory

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birds, bats and eagles.” Although the FWS advised that the Protection Plan was not a “take permit,” it acknowledged that it could serve as the basis for a future permit application with the FWS. The BLM incorporated the Protection Plan by reference into the final EIS and conditioned its right-of-way grant on Tule's adherence to the mitigation measures described therein.

B. Procedural History

Plaintiffs jointly brought an action in federal district court, challenging the BLM's issuance of a right-of-way grant to Tule, and seeking injunctive and declaratory relief under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701 –06, to address Defendants' alleged unlawful actions under NEPA, the MBTA, and the Eagle Act. Tule intervened as a defendant in the lawsuit.

The parties filed cross-motions for summary judgment, and the district court granted Defendants' motion for summary judgment on all claims. Specifically, the district court held that the final EIS had sufficiently articulated a proposed goal and need for the Project, properly reviewed a number of alternatives, and proposed reasonable mitigation measures. The district court also held that the final EIS complied with NEPA by taking a “hard look” at the environmental impacts of the Project, including impacts such as noise and electromagnetic energy or stray voltage, as well as effects on avian species and greenhouse-gas emissions. Finally, the district court concluded that the BLM was not responsible for ensuring that it or Tule obtain MBTA and Eagle Act permits from the FWS prior to issuing its right-of-way grant.

Plaintiffs filed two separate notices of appeal from the district court's judgment, with Plaintiff Protect addressing the MBTA issue, and Plaintiffs Backcountry and Tisdale addressing all issues appealed. We consolidated these appeals from the district court's judgment.

STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court's grant of summary judgment de novo. United States v. City of Tacoma , 332 F.3d 574, 578 (9th Cir. 2003). Under the APA, we review agency action to determine whether it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). An agency acts in an “arbitrary and capricious” manner when it “relie[s] on factors which Congress has not intended it to consider, entirely fail[s] to consider an important aspect of the problem, offer[s] an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it c[an]not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass'n v....