Fallon Paiute-Shoshone Tribe v. U.S. Dep't of Interior

• Decision Date: 14 January 2022
• Docket Number: 3:21-cv-00512-RCJ-WGC
• Parties: FALLON PAIUTE-SHOSHONE TRIBE and the CENTER FOR BIOLOGICAL DIVERSITY, Plaintiffs, v. U.S. DEPARTMENT OF THE INTERIOR, et al., Defendants, and ORMAT NEVADA INC., Defendant-Intervenor
• Court: U.S. District Court — District of Nevada

FALLON PAIUTE-SHOSHONE TRIBE and the CENTER FOR BIOLOGICAL DIVERSITY, Plaintiffs, v. U.S. DEPARTMENT OF THE INTERIOR, et al., Defendants, and ORMAT NEVADA INC., Defendant-Intervenor

No. 3:21-cv-00512-RCJ-WGC

United States District Court, D. Nevada

January 14, 2022

ORDER

Plaintiffs moved the Court for a temporary restraining order and a preliminary injunction to bar construction of an approved geothermal facility. (ECF Nos. 13 & 14). At the hearing on Plaintiffs' motion, the Court granted in part and denied in part. The Court issued an order temporarily restraining and preliminarily enjoining Defendants and Ormat Nevada Inc. (“Ormat”) from conducting the work described in the Decision Record for the Dixie Valley Geothermal Utilization Project (“Project”) for 90 days, including implementation of the Aquatic Resources Monitoring and Mitigation Plan (“ARMMP”). (ECF No. 31.) By this order, the Court denies Plaintiffs' motion for a preliminary injunction beyond 90 days.

FACTUAL BACKGROUND

The Bureau of Land Management (“BLM”) approved Ormat's application to construct the Project in November 2021, finding that the Project would result in no significant impact on the environment and thereby avoiding the need for an Environmental Impact Statement (“EIS”). (ECF No. 13-23, Decision Record (“DR”) at 4-21.) The Project, which consists of geothermal production and injection wells, a power plant facility, and an electrical transmission line, is to be constructed in Dixie Valley about 43 miles northeast of Fallon, Nevada. (ECF No. 13-25 Final Environmental Assessment (“EA”) at 1-1.) Defendants contend the binary technology for the plant does not consume any groundwater or geothermal resource fluid, and subsurface aquifer pressures are maintained. (EA at 2-16; ECF No. 24-1, Second Declaration of Paul Thomsen ¶ 4). Construction would take place in an area of existing development, including a pre-existing power line, roads mineral materials site, and numerous geothermal wells. (Id. at 3-113; ECF No. 6-1, Declaration of Paul Thomsen ¶ 10.) The specific configuration of the Project has been changed several times during the six-year environmental review process to accommodate Plaintiffs' concerns regarding impacts to nearby springs in Dixie Valley, including moving the location of one of the power plants and the transmission line specifically to address viewshed concerns. (ECF No. 13-15 at 3-114, 3-126.)

The Dixie Meadows Hot Springs are used by members of Plaintiff Fallon Paiute-Shoshone Tribe (the “Tribe”) for ceremonial and religious purposes. (Id. at 3-119.) In consultation with the Tribe, BLM designated the Dixie Meadows Hot Spring as eligible for listing on the National Register of Historic Places. (Id. at 3-118 to 3-119.) BLM asserted at hearing that the location of the power plant is not within the designated sacred site. Transcript of Jan. 4, 2022 Hearing, at 42:13-16, 44:5-11 (hereinafter, “Tr.”). The Tribe disputes this and claims that the sacred site extends to uplands surrounding the springs. (Tr. 76:6-8.) In addition, the Dixie Valley toad, a species that is not listed as endangered or threatened but whose listing determination is currently pending, is found within wetlands fed from artesian springs on the western edge of the Dixie Valley playa. (ECF No. 13-25 at 3-77.)^[1] Plaintiffs allege that both the Tribe's religious practice and the Dixie Valley toad would be adversely affected if the operation of the power plant reduces water quantity, quality, or temperature at the springs in Dixie Valley.

BLM conducted an Environmental Assessment to analyze whether the Project would have a significant effect on the environment, and specifically on the hot springs. BLM relied on a conceptual hydrogeological model (ECF No. 24-3) supported by a 46-day flow test that replicated the production volume and flow conditions analogous to operating the Phase I proposed 12 MW power plant to determine that the deep geothermal reservoir is not directly connected to the springs and that the springs will not be impacted by geothermal production. (Id. at 3-35 (test indicated “there were no apparent influences of pumping and injection activities observed at [the springs]”); see also EA, App. M (ECF No. 24-4).) BLM also assembled a technical working group comprised of BLM hydrologists and biologists, along with representatives of the U.S. Fish and Wildlife Service (“USFWS”), Nevada Department of Wildlife (“NDOW”), the Navy, and U.S. Geological Survey, and in collaboration with Ormat, to develop the ARMMP for post-approval monitoring that would supplement the pre-approval baseline monitoring and analysis conducted by Ormat. (Id. at 1-16; ECF No. 13-26, ARMMP at 2.) The ARMMP is intended to serve as a backstop in the event that uncertainties in the natural system result in unanticipated impacts to the springs. (See ECF No. 13-26 at 4; see also ECF No. 13-23 at 5.) The ARMMP requires Ormat to continue and enhance its baseline monitoring, sets “early warning” thresholds (such as water levels, temperature, and chemical composition), and, if those thresholds are reached, requires Ormat to implement mitigation measures, including but not limited to, modifying or ceasing pumping and injection activities. (See ECF No. 13-26 at 27-36.)^[2]

In 2017, Ormat entered into a PPA that allows Ormat to sell power from projects coming online before the end of 2022 at a fixed price of $75 per megawatt hour (“MWh”). (ECF No. 6-1 ¶ 17.) This rate is approximately $15 per MWh above current market rates. (Id. ¶¶ 17-18.) If the Project does not begin delivering 12 MW of power by the end of December 2022, Ormat stands to lose up to $30 million in revenue over 20 years. (ECF No. 24-1 ¶ 14.) Ormat provided a construction schedule for the Project beginning on January 6 and completing work in December 2022. (Id. ¶ 4, Attachment 2.) Upon questioning at hearing, counsel for Ormat stated that Ormat would not be able to complete construction within six months. (Tr. at 68:13-15.)

LEGAL STANDARD

An injunction is “an extraordinary remedy” awarded only “upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). A plaintiff bears the burden to “establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20. This test lays “out four conjunctive tests, not a four-factor balancing test, using the word ‘likely' to modify the success-on-the-merits test in exactly the same way as the irreparable-harm test.” Guzy v. Guzy, No. 3:19-CV-00129-RCJ-CBC, 2019 U.S. Dist. LEXIS 51874, at *8 (D. Nev. Mar. 26, 2019). “If success on the merits is merely possible, but not at least reasonably probable, no set of circumstances with respect to the other prongs will justify preliminary relief.” SEC v. Banc de Binary, Ltd., 964 F.Supp.2d 1229, 1233 (D. Nev. 2013).

ANALYSIS

Applying this test, the Court finds that a preliminary injunction beyond 90 days is not appropriate because the Court cannot find that Plaintiffs are likely to succeed on the merits and after 90 days, the balance of the harms tips sharply to Ormat.

I. Plaintiffs Have Not Demonstrated that They Are Likely to Succeed on the Merits.

Plaintiffs allege that BLM did not comply with the National Environmental Policy Act (“NEPA”) and did not adequately consider tribal concerns under the American Indian Religious Freedom Act (“AIRFA”), Religious Freedom Restoration Act (“RFRA”), and associated federal policies. Given the facts presented at hearing and in the parties' briefing, the Court cannot find that Plaintiffs are likely to succeed on the merits of these claims at this early stage in the litigation.

A. The Court cannot determine at this stage whether Plaintiffs failed to establish that the NEPA Claims Are Likely to Succeed.

NEPA requires that agencies prepare an Environmental Impact Statement (“EIS”) for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C); 40 C.F.R. § 1502.3.^[3] Not every major Federal action requires an EIS. If an agency prepares an Environmental Assessment (“EA”), and concludes that project impacts will be insignificant, it may issue a Finding of No. Significant Impact. See 40 C.F.R. §§ 1501.3, 1501.4(c)-(e), 1508.9. “In reviewing an agency's finding that a project has no significant effects, courts must determine whether the agency has met NEPA's hard look requirement, ‘based [its decision] on a consideration of the relevant factors, and provided a convincing statement of reasons to explain why a project's impacts are insignificant.'” Bark v. U.S. Forest Serv., 958 F.3d 865, 869 (9th Cir. 2020) (citation omitted).

An agency's NEPA compliance is reviewed under the Administrative Procedure Act (“APA”). San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014). Courts may set aside agency action only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Although this review is “searching and careful, ” the “standard is narrow, and [the Court] cannot substitute [its] own judgment for that of the [agency].” Ocean Advocs. v. U.S. Army Corps of Eng'rs, 402 F.3d 846, 858 (9th Cir. 2004) (citation omitted).

Plaintiffs allege multiple defects in BLM's NEPA analysis. First Plaintiffs allege that BLM failed to adequately gather baseline data or set an environmental baseline to support the EA. (ECF Nos. 13 & 14 at 17.) NEPA generally requires an EA to “succinctly describe the environment of the area(s) to be affected, ” ...