Or. Natural Desert Ass'n v. Jewell

Decision Date26 May 2016
Docket NumberNo. 13-36078,13-36078
Citation840 F.3d 562
Parties Oregon Natural Desert Association ; Audubon Society of Portland, Plaintiffs–Appellants, v. Sally Jewell, Secretary of the Interior; Bureau of Land Management, Defendants–Appellees, Columbia Energy Partners, LLC; Harney County, Intervenor–Defendants–Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Peter M. Lacy (argued), Oregon Natural Desert Association, Portland, Oregon; Laurence J. Lucas, Boise, Idaho; David H. Becker, Portland, Oregon, for PlaintiffsAppellants.

John C. Cruden, Assistant United States Attorney General, Washington D.C.; Ty Bair, Allen M. Brabender, & Peter Krzywicki (argued), United States Department of Justice, Washington D.C.; Veronica Larvie, Office of the Solicitor, Department of the Interior, Salt Lake City, Utah, for DefendantsAppellees.

Jonathan M. Norling, Portland, Oregon, for IntervenorAppellee Columbia Energy Partners.

Dominic M. Carollo (argued), Ronald S. Yockim, Yockim Carollo LLP, Roseburg, Oregon, for IntervenorDefendantAppellee Harney County.

Before: Raymond C. Fisher, Marsha S. Berzon, and Paul J. Watford, Circuit Judges.

ORDER

The opinion filed on May 26, 2016, and reported at 823 F.3d 1258

is hereby amended. The amended opinion will be filed concurrently with this order.

The opinion is amended as follows:

1. On 823 F.3d at 1270

, after we reverse the district court's entry of summary judgment in part. > add We remand this action to the district court with instructions to vacate the Secretary of the Interior's Record of Decision unless the district court determines that this is one of the “rare circumstances, when [it is] advisable that the agency action remain in force until the action can be reconsidered or replaced....” Humane Soc'y of U.S. v. Locke , 626 F.3d 1040, 1053 n.7 (9th Cir. 2010). Whether, and when, construction of the transmission line and wind turbine complex will go forward absent vacatur may be relevant to that determination. >

2. On 823 F.3d at 1270

, the final line of the opinion is changed to: >

The Petition for Panel Rehearing is DENIED . No further petitions for rehearing or petitions for rehearing en banc will be entertained.

OPINION

BERZON

, Circuit Judge:

Renewable energy projects, although critical to the effort to combat climate change, can have significant adverse environmental impacts, just as other large-scale developments do. Here, the Oregon Natural Desert Association and the Audubon Society of Portland (collectively, ONDA) challenge a wind-energy development on the ground that the U.S. Bureau of Land Management's (BLM) environmental review of the project did not adequately address impacts to the greater sage grouse, a relatively large ground-dwelling bird once abundant in the western United States. Greater sage grouse depend on sagebrush habitat for their survival. The challenged project entails the construction of wind turbines and a right-of-way across a sagebrush landscape in southeastern Oregon's Harney County.

We conclude that the BLM's review did not adequately assess baseline sage grouse numbers during winter at the Echanis site, where the wind turbines are to be installed. As to that point, we reverse the district court's entry of summary judgment in favor of the BLM, Harney County, and Columbia Energy Partners, the project developer. We also conclude, however, that ONDA did not exhaust its argument regarding genetic connectivity, and so we affirm as to that issue.

I.
A. The Project

The Echanis Wind Energy Project “is a 104–megawatt (MW) wind energy facility that would be constructed on a 10,500–acre privately-owned tract” on Steens Mountain in Harney County, Oregon. BLM, North Steens 230–kV Transmission Line Project Final Environmental Impact Statement (Oct. 2011) (“FEIS”) ES–1. Between 40 and 69 wind turbines would be built on the Echanis site. FEIS ES–11, 2-21, 3.1–2; see FEIS 2-22–23. The North Steens 230–kV Transmission Line, which involves “the construction, operation, and maintenance of a new [230–kilovolt] overhead electric transmission line and associated facilities on BLM–administered land,” would transport energy from the turbines to the electrical grid. FEIS ES–1–2. The entire undertaking—that is, both the transmission line and the turbine complex—(“the Project”), was approved in the BLM's FEIS and Record of Decision (“ROD”) here challenged.

Columbia Energy Partners received a conditional use permit from Harney County to develop the Project, commissioned several studies of the Project, and secured a 20–year agreement to sell energy generated by the wind facility.1 FEIS ES–1. Because the right-of-way for the transmission line crosses public lands administered by the BLM, and the construction of the turbines is a “connected action,” 40 C.F.R. § 1508.25(a)(1)

, the entire Project is subject to environmental review under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321, et seq .See FEIS 1–1.

The Echanis site was chosen because [i]nitial site reconnaissance revealed wind-swept areas well exposed to prevailing west winds and—where present—significant ‘flagging’ of vegetation, indicating a robust westerly wind resource.” FEIS app. F at 6. This preliminary assessment was confirmed after a meteorological tower was erected at the site. Id. After considering three alternatives, the BLM chose a route for the transmission line and associated infrastructure that would cut across, in part, the Steens Mountain Cooperative Management and Protection Area (“Steens Protection Area”). See , e.g. , FEIS ES–3, ES–11, 1–4–5.

B. Steens Mountain

Steens Mountain is many miles long and nearly 10,000 feet in elevation at its highest point. In 2000, Congress enacted the Steens Mountain Cooperative Management and Protection Act (“Steens Act), which, among other things, established the Steens Protection Area and the Steens Mountain Wilderness Area. FEIS 1–19; see 16 U.S.C. § 460nnn, et seq .

“The purpose of the [Steens Protection Area] is to conserve, protect, and manage the long-term ecological integrity of Steens Mountain for future and present generations.” 16 U.S.C. § 460nnn–12(a). Under the Steens Act, the “ecological integrity” that must be conserved, protected, and managed includes “the maintenance of ... genetic interchange.” 16 U.S.C. § 460nnn(5)(B). Steens Mountain, home to many sagebrush communities, lies near the center of one of the last remaining “strongholds of contiguous sagebrush habitat essential for the long-term persistence of greater sage-grouse.”

C. Greater Sage Grouse

The greater sage grouse is a sagebrush-obligate bird, meaning that it relies on sagebrush for its survival year-round. FEIS 3.5–22; Oregon Department of Fish & Wildlife, Greater Sage–Grouse Conservation Assessment and Strategy for Oregon: A Plan to Maintain and Enhance Populations and Habitat , Draft, March 1, 2011 (“Sage Grouse Strategy ”) at 8. Sage grouse use different aspects of sagebrush habitats for various purposes. FEIS 3.5–22. For instance, at leks, “open areas surrounded by sagebrush,” male sage grouse strut and compete for female mates, displaying their elaborate plumage. FEIS 3.5–22; Sage Grouse Strategy at 8. In addition, sage grouse use sagebrush habitats for nesting and brood rearing. FEIS 3.5–22.

Sagebrush habitat is also essential for winter survival of sage grouse. “During the winter months, [the] greater sage-grouse's diet consists almost entirely of sagebrush leaves and buds.” FEIS 3.5–23. To facilitate sagebrush consumption, sage grouse in the winter months “tend toward areas with high canopy and taller sagebrush plants.... Sagebrush must be exposed at least 9.8 to 11.8 inches (25 to 30 cm) above the snow level to provide adequate forage and cover.” FEIS 3.5–23. [I]f sagebrush is covered with snow, greater sage-grouse will move to areas where the sagebrush is exposed.... The availability of sagebrush above the snowpack is critical to the survival of greater sage-grouse through the winter.” FEIS 3.5–23–24; see also Sage Grouse Strategy at 10.

Once abundant across much of the western United States and Canada, the greater sage grouse now lives in “continually declining” and “increasingly separate” populations. FEIS 3.5–22. Since the 1950s, the overall population of sage grouse has declined by somewhere between 45% and 80%. Id. “Habitat loss and fragmentation are the primary cause[s] for long-term changes in [sage grouse] population abundance and distribution.” Sage Grouse Strategy at 1. As a consequence, [m]aintenance of connectivity and reduction of fragmentation of sagebrush habitats is key to the long-term welfare of all ... sagebrush associated species.” Id. at 4. Oregon is unique in that, [c]ompared to other states within the range of sage-grouse, [it] has large expanses of contiguous habitat with minimal threats of fossil fuel exploration or development.” Id. at x. “Oregon sage-grouse populations and sagebrush habitats likely comprise nearly 20% of the North American range wide distribution.” Id. at 2.

D. Environmental Review

The impacts of the Project on sage grouse were by far the most significant concern during the environmental review process at issue here. In the draft environmental impact statement (“DEIS”), FEIS, and ROD, the BLM adopted information, guidance, and mitigation measures concerning the sage grouse from the Oregon Department of Fish & Wildlife's Mitigation Framework and Sage Grouse Strategy documents. FEIS ES–19, 3.5–21, 3.5–25–26; see C.A. Hagen, Mitigation Framework for Sage–Grouse Habitats , Aug. 23, 2011 (“Mitigation Framework ”).

In response to the DEIS, ONDA submitted to the BLM numerous comments on a variety of issues, supporting the comments with scientific studies, wildlife management materials, and other documents. After the comment period ended, the BLM issued the FEIS and ROD, selecting the North Route transmission line as the preferred alternative to be implemented.2

FEIS ES–3....

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