Community Advocates for Renewable Energy Stewardship v. United States Department of the Interior et al

Filing 37

ORDER: This case is DISMISSED for lack of standing by Plaintiff Community Advocates for Renewable Energy Stewardship. The Court lacks subject matter jurisdiction to proceed in this case. Signed by Judge William Q. Hayes on 9/21/2012. (mdc) Modified on 9/26/2012 - Case remains open with pending motion # 36, per chambers. (mdc)

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FILED'

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SEP 25 2012

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CLERK, U.S. D

8OUl1tERN DISTAl
W

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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COMMUNITY ADVOCATES FOR
RENEWABLE ENERGY
STEWARDSHIP,

CASE NO. 12cv1499 WQH-MDD
ORDER

Plaintiff,

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vs.
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UNITED STATES DEPARTMENT OF
THE INTERIOR; UNITED STATES
BUREAU OF LAND MANAGEMENT;
KEN SALAZAR, Secretary of the
Interior; ROBERT ABBEY, Director,
Bureau of Land Management; TERI
RAMAL, District Manager, BLM
California Desert District; MARGARET
GOODRO, Field Manager, BLM EI
Centro Field Office; OCOTILLO
EXPRESS LLC; PATTERN
RENEWABLES LP; PATTERN
ENERGY GROUP LP; PATTERN
ENERGY GROUP LLC,

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Defendants.
HAYES, Judge:

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The matters before the Court are 1) the Ex Parte Motion for Temporary Restraining
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Order and Order to Show Cause Why Preliminary Injunction Should Not Issue (ECF No. 12)

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and 2) the Supplemental Motion for Temporary Restraining Order and Order to Show Cause
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Why Preliminary Injunction Should Not Issue (ECF No. 25) filed by Plaintiff Community
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Advocates for Renewable Energy Stewardship ("CARES").
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BACKGROUND

On May 14,2012, Plaintiff initiated this action by filing a Complaint. On July 18,2012,

3 Plaintiff filed a First Amended Complaint ("Complaint") against the United States Department
4 of Interior; the United States Bureau ofLand Management ("BLM"); Ken Salazar, Secretary
5 of the Department ofInterior; Robert Abbey, Director ofBLM; Teri RamI, District Manager
6 ofBLM California Desert District; Margaret Goodro, Field Manager ofBLM EI Centro Field
7 Office ("Federal Defendants") and Pattern Energy Group LP, Pattern Energy Group LLC,
8 Pattern Renewables LP, and Ocotillo Express LLC ("Pattern Defendants"). (ECF No. 23).
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In the Complaint, Plaintiff asserts claims under the Administrative Procedures Act

10 ("APA"), Federal Land Policy and Management Act ("FLPMA"), National Environmental
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Policy Act ("NEPA"), California Desert Conservation Area ("CDCA") Plan, Safe Drinking

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Water Act, and Executive Order 12898. Plaintiff alleges that the Ocotillo Wind Energy

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Facility ("OWEF"), a proposed utility-scale wind energy development in Imperial County,

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California, did not follow wind development mandates established by BLM to comply with

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NEPA and FLPMA. Plaintiff alleges that "[p]roject specific topographic maps, designs and

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engineering packages were not submitted [by Pattern Defendants] during the NEPA

17 environmental review process. Without this information, NEPA, the APA, and FLPMA were
18 violated, which means the BLM could not legally approve the Project for construction." Id.
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at 2. Plaintiff alleges that BLM did not follow their own regulations and "illegally amended

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the California Desert Conservation Area Plan to allow wind energy development in an

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ineligible area without the required wind resources." Id. at 3. Plaintiff alleges that Pattern

22 Defendants illegally commenced construction without required permits, constructed an
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unapproved water storage pond, and illegally pumped water from a federally-protected water

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supply. Plaintiff alleges that the OWEF project discriminates against low-income populations.

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On June 29, 2012, Plaintiff filed an Ex Parte Motion for Temporary Restraining Order.

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(ECF No. 12). Plaintiff seeks a temporary restraining order and preliminary injunction
... halting Defendants from constructing and/or developing the Ocotillo Wind
Energy Facility ("Project") on federally-protected lands at issue in this case. This
restraming order and injunction should restrain and enjoin Defendants from: (I)
issuing Notices to Proceed or other authorizations for continued construction and
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development of the Project; andlor (2) construction, grading, mobilization, or
ground-disturbing actiVIties on the Project.

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Id. at 2. Plaintiff seeks this injunction on the following grounds:
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(1) Defendant PATTERN failed to comply with NEP A and the BLM Wind
Energy Plan of Development and did not submit scaled topographic maps and
project-specific engineering and design packages as part of the NEPAIEIS
process; and (2) the project area is ineligible for a land use Plan Amendment for
wind energy development because the stated wind speeds in the record are below
the BLM's programmatic wind speed thresholds.

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7 Id. at 2. On July 9, 2012, Federal Defendants and Pattern Defendants filed oppositions
8 contending that Plaintifflacks standing, failed to avail itself of administrative remedies in the
9 project review process, fails to show irreparable harm, and has not demonstrated a likelihood
10 of success on the merits of its claims. (ECF Nos. 19,20). On July 12,2012, Plaintiff filed a
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reply. (ECF No. 22).

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On July 25, 2012, Plaintiff filed a Supplemental Motion for Temporary Restraining

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Order. (ECF No. 25). Plaintiff seeks an identical temporary restraining order and preliminary

14 injunction against Defendants on the following grounds:
Pattern Enerw has violated the FLPMA, specifically section 1765( a) and (b), in
four ways: (1) by not preparing engineered structural foundation desIgns prior to
approval; (2) by not preparing a final civil engineering grading plan prior to
approval; (3) by grading new access roads that exceed the maximum disturbance
wiath under the Right of Way grant, and (4) by siting wind turbines too close
together in violation of the Right of Way grant.

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Id. at 2. On August l3, 2012, Federal Defendants and Pattern Defendants filed oppositions
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again contending that Plaintifflacks standing, failed to avail itself of administrative remedies
in the project review process, fails to show irreparable harm, and has not demonstrated a

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likelihood of success on the merits of its claims. (ECF Nos. 28, 29). On August 20,2012,
Plaintiff filed a reply. (ECF No. 30).

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On September 7, 2012, the Court heard oral argument. (ECF No. 33).
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DISCUSSION

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I.

Standing

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Defendants contend that Plaintifflacks standing to assert its claims. Federal Defendants
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contend that the Complaint fails to explain "how Plaintiffor its members will suffer'concrete,
particularized, and actual or imminent' injury as a result of Federal Defendants' alleged
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wrongdoing .... [N]o particular member with standing is identified either in the Complaint or

2 in the instant motion .... [T]he Complaint lacks any allegations as to CARES' purpose, how
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that purpose will be affected by the Project, or how the claim asserted or the relief requested

4 does not require the participation of individual members in the lawsuit." (ECF No. 20 at 20)

5 (citations omitted). Federal Defendants contend that "Plaintiffs alleged injury is a generalized
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grievance not tethered to a potential injury to Plaintiff or its members." (ECF No. 28 at 14).

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Pattern Defendants contend that Plaintiff"has not even alleged, let alone offered evidence to

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support, the facts necessary to demonstrate standing to pursue any of its claims." (ECF No.

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19 at 6).

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Plaintiff contends that "[t]he question of standing is not relevant to the issues at hand

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of whether serious questions have been raised on the merits that require this project to be

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enjoined." (ECF No. 22 at 10). However, "in a abundance of caution" (ECF No. 30 at 11),

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Plaintiff submits the declaration of its counsel, William Pate, who states:

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CARES currently has sixteen members, all ofwhom, including myself, are part
or full-time residents of Ocotillo, Nomirage or Coyote Wells, and/or 'property
owners. Members include an engineer and two retired California Supenor Court
judges. CARES members have recreated and used the Project Area for over
three decades ....
The geographic proximity to and use of the Project Area will cause harm to
CARES members in the form of ... noise, view obstruction, decreased and/or
condemned property values, flooding, water contamination and the associated
health effects of wind turbines and exposure to EMFs from DC current.
(ECF No. 30-1 at 2).

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The doctrine ofstanding "requires federal courts to satisfy themselves that the plaintiff
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has alleged such a personal stake in the outcome ofthe controversy as to warrant his invocation
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of federal-court jurisdiction." Summers v. Earth Island Institute, 555 U.S. 488, 493 (2009)
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(quotations omitted). Plaintiff bears the burden of showing that he has standing. Id. When
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the plaintiff is not himself the object of the challenged government action, standing is not
precluded but is substantially more difficult to establish. Lujan v. Defenders ofWildlife, 504
U.S. 555, 562 (1992). lfthe plaintiffbefore a federal court lacks standing to pursue its claims,
the court lacks jurisdiction to proceed. See id. at 560-61.

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To have standing under Article III, a plaintiff must establish that "( I) it has suffered an
2 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not
3 conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the
4 defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be
5 redressed by a favorable decision." Pacific Rivers Council v. U.S. Forest Service, - F.3d-,
6 2012 WL 2333558 at

* 7 (June 20,2012; 9th Cir. 2012), quoting Friends ofthe Earth, Inc. v.

7 Laidlaw Envtl. Servs., 528 U.S. 167, 180-81 (2000). "Speculative injury does not constitute
8 irreparable injury sufficient to warrant granting a preliminary injunction ... A plaintiff must do

9 more than merely allege imminent harm sufficient to establish standing; a plaintiff must
10 demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief."
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Caribbean Marine Services Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988); see Lujan,

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504 U.S. at 573-74 ("[A] plaintiff raising only a generally available grievance about

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government-claiming only harm to his and every citizen's interest in proper application ofthe

14 Constitution and laws, and seeking relief that no more directly and tangibly benefits him than
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it does the public at large-does not state an Article III case or controversy"); see Benton

16 Franklin Riverfront Trailway & Bridge Comm. v. Skinner, 914 F.2d 1496, 1990 WL 140515
17 at 1 (9th Cir. 1990) (unpublished) ("Standing cannot be established simply by pleading that the
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government must be administered according to law").
An organization may sue on behalf ofits members ''when its members would otherwise

20 have standing to sue in their own right, the interests at stake are germane to the organization's
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purpose, and neither the claim asserted nor the relief requested requires the participation of

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individual members in the lawsuit." Laidlaw, 528 U.S. at 181. Standing "is not an ingenious

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academic exercise in the conceivable ... [but] requires ... a factual showing ofperceptible harm

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.... In part because of the difficulty of verifYing the facts upon which such probabilistic

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standing depends, the Court has required plaintiffs claiming an organizational standing to

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identifY members who have suffered the requisite harm .... " Summers, 555 U.S. at 499

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(quotations omitted).

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"While generalized harm to the forest or the environment will not alone support

2 standing, if that harm in fact affects the recreational or even the mere esthetic interests of the
3 plaintiff, that will suffice." Id. at 494. To sustain standing on the basis of aesthetic and
4 recreational injury, it would be sufficient to show that plaintiff had "repeatedly visited an area
5 affected by a project, that he had concrete plans to do so again, and that his recreational or
6 aesthetic interests would be harmed if the project went forward .... [A] vague desire to return
7 to the area without any description of concrete plans, or indeed any specification ofwhen the
8 some day will be does not support a finding of actual or imminent injury." Wilderness Soc.,
9 Inc. v. Rey, 622 F.3d 1251, 1256 (9th Cir. 2010) (quotations omitted); see also Pacific Rivers

* 8 (" ...Summers demands more than a showing of a general

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Council, 2012 WL 2333558 at

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intention of returning .... The member must' show[ ] that he is likely to encounter an affected

12 area ... in his future visits' ... [and] 'allege that his future enjoyment is ... threatened by the ...
13 Project. m( emphasis in original)).
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In this case, Plaintiff CARES is an organization of unknown purpose and largely

15 unidentified membership. One CARES member has been identified on the record; it is
16 Plaintiff s counsel who states that he is a "part or full-time resident of Ocotillo, Nomirage or
17 Coyote Wells, and/or [a] property owner" and that "CARES members have recreated and used
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the Project Area for over three decades." (ECF No. 30-1 at 2). Pate does not indicate where

19 he lives in proximity to the OWEF project, where and when he has recreated in that area,
20 whether he has "concrete plans" to revisit that particular area in the future, or any non21

speculative injury he has suffered as a result ofconstruction ofthe project. See Rey, 622 F.3d

22 at 1256. Pate's declaration fails to "demonstrate immediate threatened injury as a prerequisite
23 to preliminary injunctive relief." Baldrige, 844 F.2d at 674.
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At oral argument, Plaintiffs counsel identified himself as an individual member and

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stated that a number of CARES members were present in the audience. The statement of

26 counsel at oral argument fails to establish that Pate or any other named member "would
27 otherwise have standing to sue in their own right." Laidlaw, 528 U.S. at 181. There is no
28 evidence regarding the purpose of CARES as an organization or that the interests at stake in
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this case are germane to that purpose. See Laidlaw, 528 U.S. at 181. Similarly there is no
2 evidence that "neither the claim asserted nor the relief requested requires the participation of
3 individual members in the lawsuit." Id. Based on the record, the Court finds that Plaintiff fails
4 "to identity members who have suffered the requisite harm." Summers, 555 U.S. at 499. The
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Court concludes that Plaintiff has not "alleged such a personal stake in the outcome of the

6 controversy as to warrant ... invocation of federal-court jurisdiction." Id. at 493.
7 II.

Failure to Exhaust Administrative Remedies

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Defendants contend that Plaintiff s claims should be dismissed for failure to exhaust

9 administrative remedies available through the Department ofInterior appeals process and that
10 Plaintiff waived its claims when it failed to provide comments during the public notice and
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comments process. Federal Defendants contend that Department ofInterior regulations specity

12 that any interested party may protest a planning approval or amendment, and that the party
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must do so within thirty days of the publication of the notice of the Environmental Impact

14 Statement ("EIS"). Federal Defendants assert: "it does not appear that Plaintiff participated
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in the planning process .... Nor did CARES protest the CDCA Plan amendment associated with

16 the OWEF." (ECF No. 20 at21). Pattern Defendants assert that "CARES did not submit any
17 comments on the [Final]EIS at all." (ECF No. 29 at 13). Pattern Defendants contend that "[a]
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party that fails to raise ... an issue during NEPA's notice and comment process has failed to

19 exhaust its administrative remedies and thereby waives the right to challenge the agency
20 decision on that issue through judicial review." (ECF No. 19 at 17).
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Plaintiff contends that "[t]he public need not raise as an issue during the approval

22 process that BLM and Pattern must comply with the law ... That said, issues and concerns over
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the proposed shallow foundations of 2 to 8 feet in depth were raised in public comments."

24 (ECF No. 30 at 11). Plaintiff asserts that "members of CARES did timely submit a protest
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letter of the proposed Plan Amendment, inclusive of one in the record dated April 8,2012."

26 (ECF No. 22 at 11). At oral argument, Plaintiff stated that Pate and his family submitted
27 emails and a letter about the project but that the emails and letter cannot be found on the public
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"Persons challenging an agency's compliance with NEPA must 'structure their

2 participation so that it ... alerts the agency to the [parties'] position and contentions,' in order
3 to allow the agency to give the issue meaningful consideration." Dep't 0/ Transp. v. Pub.
4 Citizen, 541 U.S. 752, 764-65 (2004) (quoting Vermont Yankee Nuclear Power Corp. v.
5 Natural Res. De! Council, Inc., 435 U.S. 519, 553 (1978»); see also Idaho Sporting Congress,
6 Inc. v. Rittenhouse, 305 F.3d 957, 965 (9th Cir. 2002) ("The rationale underlying the
7 exhaustion requirement is to avoid premature claims and to ensure that the agency possessed
8 of the most expertise in an area be given first shot at resolving a claimant's difficulties.").
9 However, a litigant need not personally raise an issue at the administrative level so long as the
10 issue was raised by another party and the agency had the opportunity to consider the obj ection.
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Conservation Congress v. US. Forest Service, 555 F .Supp.2d 1093, 1106 (E.D.Cai. 2008).

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Where agency rules establish administrative remedies or appeals, the agency action is

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subject to judicial review "[w]hen an aggrieved party has exhausted all administrative remedies

14 expressly prescribed by statute or agency rule." Darbyv. Cisneros, 509 U.S. 137, 146 (1993);
15 see also BioDiversity Conservation Alliance v. Bureau o/Land Mgmt., 608 F.3d 709, 714 (10th
16 Cir. 2010) ("[A] party challenging an agency action must first exhaust any administrative
17 remedies"); Winnemem Wintu Tribe v. Us. Dept. o/Interior, 725 F .Supp.2d 1119, 1139 (E.D.
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Cal. 2010) ("[T]o bring a claim under the AP A for a violation of the NEP A, plaintiffs must

19 show that they have exhausted available administrative remedies prior to bringing an action
20 in federal court.").
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A party's failure to object to an agency action can result in the forfeiture or waiver of

22 that objection after the public review and commentary period has expired. Dep't o/Transp.,
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541 U.S. at 764-65 (holding, "[b]ecause respondents did not raise these particular objections

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... [the agency] was not given the opportunity to examine any proposed alternatives ....

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Respondents have therefore forfeited any [such] objection .... "); see also North Idaho Cmty.

26 Action Network v. Us. Dept. o/Transp., 545 F.3d 1147, 1156 n.2 (9th Cir. 2008) (holding,
27 "because the tunnel alternative was not raised and identified until ... well after the notice and
28 comment periods for the ... EIS and ... EA closed, any objection to the failure to consider that
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1 alternative has been waived.").
The appeals and protest procedures for proposed BLM resource management plan

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amendments are outlined in 43 C.F.R. § 1610.5-2. Those regulations specify that:
(a) Any person who participated in the planning process and has an interest
which is or may be adversely affected by the approval or amendment of a
resource management plan may protest such approval or amendment ....

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(1) The protest shall be in writing and shall be filed with the Director. The
protest shall be filed within 30 days ofthe date the Environmental Protection
Agency published the notice of receipt of the final environmental impact
statement containing the plan or amendment in the Federal Register ....

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(2) The protest shall contain: (i) The name, mailing address, telephone
number and interest of the person filing the protest; (il) A statement of the
issue or issues being protested; (iii) A statement of the part or parts of the
plan or amendment bemg protested; (iv) A copy ofall documents addressing
the issue or issues that were submitted during the planning process by the
protesting party or an indication ofthe date the Issue or issues were discussed
for the record; and (v) A concise statement explaining why the State
Director's decision is believed to be wrong ....

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43 C.F.R. § 1610.5-2.

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Plaintiff fails to provide any documents in the record that support the assertion that its

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members submitted emails and letters during the public comments process for the OWEF

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Project. Plaintiff fails to provide any documents in the record that support the assertion that

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its members and other members of the public raised the same objections in the public

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comments process that Plaintiff raises in its moving papers. Based on the record before the

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Court, Plaintiff fails to demonstrate that it exhausted administrative remedies prior to seeking

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judicial review or that it structured its participation in the administrative process so as to alert

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the agency to the specific objections, allowing the agency to meaningfully consider the issue.

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See Dep '( ojTransp. , 541 U.S. at 764-65.

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III

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III

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III

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III

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III
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CONCLUSION
IT IS HEREBY ORDERED that this case is DISMISSED for lack of standing by

3 Plaintiff Community Advocates for Renewable Energy Stewardship. The Court lacks subject
4 matter jurisdiction to proceed in this case.
5 DATED:
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9/2(// z-.­
WILLIAM Q. HAYE
United States Distric udge

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