Protect Our Communities Found. v. Salazar
| Decision Date | 06 November 2013 |
| Docket Number | CASE NO. 12cv2211-GPC(PCL) |
| Parties | THE PROTECT OUR COMMUNITIES FOUNDATION, BACKCOUNTRY AGAINST DUMPS and DONNA TISDALE, Plaintiffs, v. KEN SALAZAR, in his official capacity as Secretary of the United States Department of the Interior; ROBERT ABBEY, in his official capacity as Director of the United States Bureau of Land Management; MARGARET L. GOODRO, in her official capacity as El Centro Field Office Manager for the United States Bureau of Land Management; UNITED STATES BUREAU OF LAND MANAGEMENT, a federal agency; and UNITED STATES DEPARTMENT OF THE INTERIOR, a federal agency, Defendants, OCOTILLO EXPRESS LLC, Defendant-Intervenor. Defendant. |
| Court | U.S. District Court — Southern District of California |
Plaintiffs The Protect Our Communities Foundation; Backcountry Against Dumps; and Donna Tisdale filed a complaint challenging the United States Department of the Interior's approval of the May 11, 2012 Record of Decision ("ROD") approving the Ocotillo Wind Energy Facility Project ("OWEF" or "Project"), a utility-scale wind power project in the Sonoran Desert in Imperial County, California. The complaint alleges Defendants violated the National Environmental Policy Act ("NEPA"); the Federal Land Policy and Management Act ("FLPMA"); and the Migratory Bird Treaty Act ("MBTA") and seeks relief under the Administrative Procedures Act ("APA").
On September 11, 2012, Plaintiffs filed a complaint for declaratory and injunctive relief against Defendants United States Department of the Interior ("Interior"); United States Bureau of Land Management ("BLM"); Ken Salazar, Secretary of the Interior; Robert Abbey, Director, U.S. Bureau of Land Management; and Margaret L. Goodro, Field Manager, BLM El Centro Field Office (collectively referred to as "Federal Defendants"). (Dkt. No. 1.) On October 4, 2012, the case was transferred to the undersigned judge. (Dkt. No. 10.) On October 22, 2012, the Court granted the joint motion for permissive intervention of Defendant-Intervenor Ocotillo Express, LLC ("Ocotillo"). (Dkt. No. 13.)
On December 11, 2012, January 23, 2013, and May 20, 2013, the administrative record was lodged with the Court. (Dkt. Nos. 20, 21, 24.) On June 17, 2013, Plaintiffs filed a motion for summary judgment. (Dkt. No. 25.) On July 17, 2013, Federal Defendants and Ocotillo filed their cross motions for summary judgment. (Dkt. Nos. 28, 30.) On August 16, 2013, Plaintiffs filed their oppositions. (Dkt. Nos. 37, 38.) Federal Defendants and Ocotillo filed their replies on September 6, 2013. (Dkt. Nos. 39, 40.)
On December 19, 1980, the Department of the Interior approved a Record of Decision ("ROD") for the California Desert Conservation Area ("CDCA") whichestablished a "long-range, comprehensive plan for the management, use, development, and protection of over 12 million acres of public land . . . ." (OWEF1 5914.) On October 9, 2009, Ocotillo applied to the Bureau of Land Management ("BLM") and to the County of Imperial to construct and operate a wind energy facility on public land within the CDCA. (OWEF 5261.) In February 2012, Interior created a Proposed Plan Amendment & Final Environmental Impact Statement/Final Environmental Impact Report ("Final EIS" or "FEIS/FEIR") for the Ocotillo Wind Energy Facility analyzing the impact of a 12,484 acre right-of-way ("ROW") over public land in favor of Ocotillo to build 155 wind turbine generators. (OWEF 804, 825.) On May 11, 2012, Interior approved an ROD for the Ocotillo Wind Energy Facility and Amendment to the California Desert Conservation Area Plan which approves a 10,151 acre right-of-way over public land in favor of Ocotillo to build 112 wind turbine generators. (OWEF 109.)
The Administrative Procedures Act ("APA") governs judicial review of agency actions under FLPMA, and NEPA. See 5 U.S.C. § 706; see also Oregon Natural Res. Council Fund v. Brong, 492 F.3d 1120, 1124 (9th Cir. 2007) (FLPMA and NEPA); Audubon Soc. of Portland v. U.S. Fish and Wildlife Serv., No. 04-670-KI, 2005 WL 1713086, at *4 (D. Or. July 21, 2005) ("MBTA"). An agency's decision must be upheld under judicial review unless the court finds that the decision or action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Actions that are approved "without observance of procedure required by law" are also subject to be set aside upon judicial review. 5 U.S.C. § 706(2)(D).
"An agency decision is arbitrary and capricious if, among other things, it '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 agencyexpertise.'" Native Ecosystems Council v. Weldon, 697 F.3d 1043, 1053 (9th Cir. 2012) (citation omitted). The standard is "highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision." Nw. Ecosystem Alliance v. U.S. Fish and Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007) (citation omitted). Agency action is valid if the agency "considered the relevant factors and articulated a rational connection between the facts found and the choices made." Arrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir. 2008) (citations omitted); see also Nat'l Wildlife Fed v. U.S. Army, 384 F.3d 1163, 1170 (9th Cir. 2004) (). The burden is on Plaintiff to show any decision or action was arbitrary and capricious. See Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976).
The NEPA requires agencies considering "major Federal actions significantly affecting the quality of the human environment" to prepare and issue an environmental impact statement ("EIS"). Brong, 492 F.3d at 1132 (citing 42 U.S.C. § 4332(C)). The statement must "provide full and fair discussion of significant environmental impacts and shall inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment." 40 C.F.R. § 1502.1. The Court's role is to ensure that the agency took a "hard look" at the potential environmental consequences of the proposed project. Brong, 492 F.3d at 1132 (citation omitted). "We review an EIS under a rule of reason to determine whether it contains a 'reasonably thorough discussion of probable environmental consequences.'" Selkirk Conserv. Alliance v. Forsgren, 336 F.3d 944, 958 (9th Cir. 2003). The court does not substitute its judgment for that of the agency. Id. The NEPA does not contain substantive environmental standards, nor does the Act mandate that agencies achieve particular substantive environmental results. Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157, 1166 (9th Cir. 2003).
Plaintiffs argue that the BLM's purpose and need statement is contrary to law because it adopted the applicant's goal as its own, and as a result, restricted BLM's consideration of alternatives. Federal Defendants and Ocotillo argue that BLM's purpose and need statement complies with NEPA and it considered reasonable range of alternatives.
An EIS must discuss "reasonable alternatives" to the proposed project. 42 U.S.C. § 4332(2)(C)(iii); 40 C.F.R. § 1502.14 () The "rule of reason" applies to the choice of alternatives as well as the extent to which the EIS must discuss each alternative. Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C. Cir. 1991) (quoting State of Alaska v. Andrus, 580 F.2d 465, 475 (D.C. Cir. 1978)). The environmental impact statement need not consider an infinite range of alternatives, only reasonable or feasible ones. 40 C.F.R. § 1502.14(a)-(c). "The agency must look at every reasonable alternative within the range dictated by the nature and scope of the proposal." Friends of Se's Future v. Morrison, 153 F.3d 1059, 1065 (9th Cir. 1998); see also Idaho Conserv. League v. Mumma, 956 F.2d 1508, 1520 (9th Cir. 1992). The "existence of a viable but unexamined alternatives renders an environmental impact statement inadequate." Alaska Wilderness Recreation & Tourism Ass'n v. Morrison, 67 F.3d 723, 729 (9th Cir. 1995). As for alternatives which were eliminated from detailed study, the agency must briefly discuss the reason for their exclusion. 40 C.F.R. § 1502.14(a).
40 C.F.R. § 1502.13 requires that the EIS "shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action." 40 C.F. R. § 1502.13. The purpose and need of a project dictates the range of "reasonable" alternatives. City of Carmel-by-the-Sea v. U.S. Dep't. of Transp., 123 F.3d 1142, 1155 (9th Cir. 1997). While agencies are afforded discretion to define the purpose of a project, an agency cannot define itsobjective in reasonably narrow terms in order to avoid the requirement that relevant alternatives be considered. Friends of Se's Future, 153 F.3d at 1066. An agency's statement of purpose is reviewed under a reasonableness standard. NPCA v. BLM, 606 F.3d 1058, 1070 (9th Cir. 2010). In determining its purpose and need statement, the agency must consider the statutory context of the proposed action and the applicant's private objectives. Alaska Survival v. Surface Transp. Bd., 705 F.3d 1073, 1085 (9th Cir. 2013); see also NPCA, 606 F.3d at 1070. Courts must consider "whether the purpose and need statement is reasonable in light of the [applicant's] goals and the statutory context." Alaska Survival, 705 F.3d at 1085.
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