Quechan Tribe of the Fort Yuma Indian Reservation v. U.S. Dep't of the Interior, CASE NO. 12cv1167-GPC(PCL)

CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
Writing for the CourtGONZALO P. CURIEL
Docket NumberCASE NO. 12cv1167-GPC(PCL)
PartiesQUECHAN TRIBE OF THE FORT YUMA INDIAN RESERVATION, Plaintiff, v. UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Federal Defendants, OCOTILLO EXPRESS LLC, Defendant-Intervenor.
Decision Date27 February 2013

QUECHAN TRIBE OF THE FORT YUMA INDIAN RESERVATION, Plaintiff,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Federal Defendants,
OCOTILLO EXPRESS LLC, Defendant-Intervenor.

CASE NO. 12cv1167-GPC(PCL)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

DATED: February 27, 2013


ORDER DENYING PLAINTIFF'S
MOTION FOR SUMMARY
JUDGMENT; GRANTING
FEDERAL DEFENDANTS'
MOTION FOR SUMMARY
JUDGMENT; GRANTING
DEFENDANT-INTERVENOR
OCOTILLO'S MOTION TO
DISMISS AND FOR SUMMARY
JUDGMENT

[Dkt. Nos. 80, 111, 115.)

On May 14, 2012, Plaintiff filed a complaint against Federal Defendants 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. (Dkt. No. 1.) On August 31, 2012, Plaintiff filed a first amended complaint which added causes of action concerning events subsequent to the Record of Decision ("ROD"). (Dkt. No. 70.) On September 24, 2012, Plaintiff filed

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a motion for summary judgment. (Dkt. No. 80.) On December 10, 2012, Federal Defendants and Defendant-Intervenor Ocotillo Express filed an opposition and their cross-motions for summary judgment. (Dkt. Nos. 111, 115.) On December 24, 2012, Plaintiff filed a reply to its motion for summary judgment and opposition to Federal Defendants' cross-motion for summary judgment. (Dkt. No. 118.) Plaintiff also filed a reply in support of its motion for summary judgment and opposition to Ocotillo's cross-motion for summary judgment. (Dkt. No. 120.) On January 2, 2013, Ocotillo and Federal Defendants filed a reply to their cross-motions for summary judgment.1 (Dkt. Nos. 123, 124.)

A hearing on the cross motions for summary judgment was held on January 18, 2013. (Dkt. No. 126.) Thane Somerville, Esq. appeared on behalf of Plaintiff; Marissa Piropato, Esq. appeared on behalf of Federal Defendants; and Svend Brandt-Erichsen, Esq. and Nicholas Yost, Esq. appeared on behalf of Ocotillo. (Id.) After a thorough review of the administrative record, the applicable law, the parties' briefs, and hearing oral argument, the Court DENIES Plaintiff's motion for summary judgment; GRANTS Federal Defendants' motion for summary judgment; and GRANTS Defendant-Intervenor's motion to dismiss and for summary judgment.

Summary

Plaintiff brought suit alleging violations of the National Historic Preservation Act, ("NHPA"), Federal Land Policy and Management Policy Act, ("FLPMA"), National Environmental Policy Act, ("NEPA"), Archaeological Resources Protection Act, ("ARPA"), and Native American Graves Protection and Repatriation Act, ("NAGPRA"), under the Administrative Procedures Act ("APA"). Quechan challenges BLM's approval of the ROD allowing the construction of 112 wind turbines in an area that contains cultural and biological significance to the Tribe.

The Court's role in an APA case is to determine whether the BLM's approval of the ROD and grant of the ROW was arbitrary, capricious or an abuse of discretion." 5 U.S.C. § 706(2)(A). This is a highly deferential standard where the agency's action is presumed to be valid as long as there is a reasonable basis for its decision. Nw. Ecosystem Alliance v. U.S. Fish and Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007).

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Under NHPA, Plaintiff complains about its lack of involvement in the archaeological survey and the Section 106 consultation due to BLM. However, the administrative record reveals many attempts, starting regularly in 2010, were made by BLM to engage the Tribe in Section 106 government to government consultation. Plaintiff did not accept these repeated request until December 2011, towards the end of the approval process. Moreover, during the archeological survey, a survey crew went out daily with Native American consultants. Plaintiff has not shown that they were excluded from access to the "direct impact" survey areas.

Although Plaintiff alleges that BLM did not properly identify all historic properties, the record reveals that BLM hired an archaeological consultant and it began conducting an archaeological survey in September 2010, with a draft Survey issued in May 2011, and a final report issued in March 2012. The identification efforts were significant.

As to FLPMA, Plaintiff's argument that the Project for 112 wind turbines does not comply with the Class L designation and violates the VRM standard and will result in the unnecessary and undue degradation of the public lands is based on a narrow reading of the CDCA Plan and the caselaw. Numerous mitigation measures are mandated in the ROD to protect different resource values in order to comply with FLPMA and the CDCA Plan.

Under NEPA, the BLM stopped, looked and listened when it took a "hard look" at the cumulative effects of the Project with past, present and future projects; considered indirect growth-inducing effects of the Project; and did not have to analyze its "priority" renewable projects in the entire CDCA in a single Environmental Impact Statement ("EIS").

Moreover, BLM consulted and coordinated with other federal and state agencies and addressed compliance with federal and state standards. The State of California determined that there were no inconsistencies between the Project and state or local law. While the BLM admits there will be unavoidable adverse impacts on different resource values, numerous mitigation efforts were implemented to limit the impact of the Project and to be in compliance with federal, state and local laws.

Based on a careful review of the administrative record and the parties' briefs, the BLM's decision to approve the ROD was reasonable as it considered all relevant factors and provided an

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analysis that presented a rational connection between the facts found and the conclusions it made based on relevant law. Therefore, the Court concludes that the BLM's decision to approve the ROD was not arbitrary, capricious or an abuse of discretion.

Procedural Background

On May 14, 2012, Plaintiff Quechan Tribe of the Fort Yuma Indian Reservation, a federally recognized Indian Tribe, filed a complaint against Defendants United States Department of the Interior; United States Bureau of Land Management ("BLM"); Ken Salazar, Secretary of the Interior; Robert Abbey, Director, Bureau of Land Management; Teri Raml, District Manager, BLM California Desert District; and Margaret Goodro, Field Manager, BLM El Centro Field Office (collectively referred to as "Federal Defendants"). (Dkt. No. 1.)

On May 15, 2012, the Court granted Ocotillo Express LLC's ("Ocotillo") motion to intervene. (Dkt. No. 25.) On May 22, 2012, the Court denied without prejudice Plaintiff's ex parte motion for temporary restraining order and order to show cause why preliminary injunction should not issue. (Dkt. No. 48.) On August 31, 2012, Plaintiff filed a first amended complaint which added causes of action concerning events subsequent to the Record of Decision ("ROD"). (Dkt. No. 70.) In the first amended complaint, Plaintiff alleges violations under the Federal Land Policy and Management Act ("FLPMA"); National Environmental Policy Act ("NEPA"); National Historic Preservation Act ("NHPA"); Archaeological Resources Protection Act ("ARPA"); Native American Graves Protection and Repatriation Act ("NAGPRA"); Administrative Procedures Act ("APA"); applicable Interior regulations; and the California Desert Conservation Area ("CDCA") Plan based on BLM's approval, execution and implementation of the Project. (Id.)

On September 7, 2012, Federal Defendants filed a notice of filing a copy of the administrative record. (Dkt. No. 73.) On September 13, 2012, Federal Defendants filed under seal a DVD containing a portion of the administrative record. (Dkt. No. 77.) On October 4, 2012, Federal Defendants filed a hyperlinked administrative record index and a supplemental administrative record index reflecting eight documents that were inadvertently included in the privilege log as part of the initial administrative record filed on September 7, 2012. (Dkt. No. 84.)

On September 19, 2012, Ocotillo filed a motion to supplement the administrative record. (Dkt.

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No. 78.) On September 24, 2012, Plaintiff filed a motion for summary judgment. (Dkt. No. 80.) Concurrently, Plaintiff filed a request for judicial notice, or in the alternative, a motion to supplement the administrative record. (Dkt. No. 82.) On October 4, 2012, the case was transferred to the undersigned judge. (Dkt. No. 85.)

On November 14, 2012, the Court denied Ocotillo's motion to supplement the record. (Dkt. No. 104.) On November 15, 2012, the Court denied Plaintiff's motion to supplement the administrative record. (Dkt. No. 105.)

On November 26, 2012, Federal Defendants filed a DVD of the post-ROD implementation record. (Dkt. No. 106.) On November 29, 2012, Federal Defendants filed a DVD of the post-ROD implementation...

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