Bundorf et al v. Salazar et al

Filing 132

ORDER that Plaintiffs' Motions for Clarification and for Vacatur 97 , 99 , 101 are granted. The Record of Decision, Final Environmental Impact Statement, and the Biological Opinion are vacated. Further ordered that 100 Plaintiffs' Mo tion for Permanent Injunction is denied. Further ordered that 105 Defendants' Motion for Reconsideration is denied. Finally, the Clerk is directed to issue an amended judgment to reflect that the Court grants summary judgment in favor of Plaintiffs and vacates the Record of Decision, the Final Environmental Impact Statement, and the Biological Opinion. Signed by Judge Miranda M. Du on 10/30/15. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JUDY BUNDORF, an individual; FRIENDS
OF SEARCHLIGHT DESERT AND
MOUNTAINS; BASIN AND RANGE
WATCH; ELLEN ROSS, an individual; and
RONALD VAN FLEET, SR., an individual,

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Plaintiffs,
v.

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S.M.R. JEWELL, Secretary of the Interior;
BUREAU OF LAND MANAGEMENT; U.S.
FISH & WILDLIFE SERVICE,

ORDER
(Pls.’ Motion to Amend/Correct – dkt. no.
97; Pls.’ Motion for Vacatur – dkt. no. 99;
Pls.’ Motion for Permanent Injunction –
dkt. no. 100; Pls. Motion for Clarification
– dkt. no. 101; Defs.’ Motion for
Reconsideration – dkt. no. 105)

Defendants,

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v.

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Case No. 2:13-cv-00616-MMD-PAL

SEARCHLIGHT WIND ENERGY, LLC,
Defendant-Intervenor.

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I.

SUMMARY

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The parties dispute whether a federal agency’s decision to authorize two rights-of-

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way (“ROWs”) for the Searchlight Wind Energy Project (“Project”) in southern Nevada

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violates several federal environmental and administrative laws. Plaintiffs Judy Bundorf,

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Friends of Searchlight Desert and Mountains, Basin and Range Watch, Ellen Ross, and

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Ronald Van Fleet, Sr., seek clarification or reconsideration of an Order (dkt. no. 90) that

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this Court issued on February 3, 2015, in which the Court remanded a Record of

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Decision and its underlying documents for amplification of the administrative record

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(“Remand Order”). (Dkt. no. 97.)1 Plaintiffs additionally ask for clarification or amendment

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and reconsideration of a Minute Order issued February 18, 2015 (dkt. no. 93), and an

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entry of final judgment on February 19, 2015 (dkt. no. 96). (Dkt. no. 97 at 9.) Defendants

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S.M.R. Jewell, Bureau of Land Management (“BLM”), and U.S. Fish and Wildlife Service

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(“FWS”) (collectively, “Federal Defendants”) ask the Court to reconsider the Remand

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Order and the Court’s entry of final judgment.2 (Dkt. no. 105 at 2.) The Court has

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reviewed the parties’ responses and replies (dkt. nos. 107, 108, 109, 113, 114, 115, 116,

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117, 125).

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For the reasons discussed below, the Court grants Plaintiffs’ Motions for

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Clarification and for Vacatur (dkt. nos. 97, 99, 101), and denies Plaintiffs’ Motion for

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Permanent Injunction (dkt. no. 100). The Court further denies Federal Defendants’

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Motion for Reconsideration (dkt. no. 105).

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II.

BACKGROUND

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A detailed factual background of this lawsuit appears in the Remand Order. (Dkt.

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no. 90 at 2-5.) Because the parties are familiar with the undisputed facts underlying this

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case, the Court will not repeat them here.

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This matter’s procedural posture is more complex. Plaintiffs initiated this lawsuit in

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April 2013, asserting claims under the Administrative Procedure Act (“APA”), the

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National Environmental Policy Act (“NEPA”), and the Endangered Species Act (“ESA”),

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among other federal statutes. (Dkt. no. 1 at 25-29.) Plaintiffs filed an amended complaint

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In addition to seeking clarification, Plaintiffs moved for vacatur and a permanent
injunction in the same document. Pursuant to this district’s Local Rules, Plaintiffs filed
the same document four times — once for each motion. (Dkt. nos. 97, 99, 100, 101.) For
clarity and ease of reference, the Court will cite dkt. no. 97 in discussing these motions.
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Defendant-Intervenor Searchlight Wind Energy, LLC (“Searchlight”), joined
Federal Defendants’ Motion for Reconsideration (dkt. no. 106), Federal Defendants’
responses to Plaintiffs’ motions for clarification, vacatur, and permanent injunction (dkt.
no. 110), and Federal Defendants’ reply in support of their Motion for Reconsideration
(dkt. no. 126).
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in January 2014, adding a claim under the Migratory Bird Treaty Act (“MBTA”). (Dkt. no.

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36 at 31.)

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Plaintiffs, Federal Defendants, and Searchlight filed competing motions for

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summary judgment. (Dkt. nos. 40, 62, 80.) Federal Defendants, joined by Searchlight,

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also moved to strike extra-record declarations that Plaintiffs offered in support of their

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motion for summary judgment. (Dkt. nos. 53, 78.) After holding a hearing on these

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motions on November 24, 2014 (dkt. no. 89), the Court issued the Remand Order on

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February 3, 2015. (Dkt. no. 90.) The Remand Order granted, in part, and denied, in part,

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one of Federal Defendants’ motions to strike; the Court denied the other motion to strike.

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(Id. at 7-12.) The Court found that Federal Defendants had not fully explained certain

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conclusions that appear in the underlying Record of Decision (“ROD”), Final

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Environmental Impact Statement (“FEIS”), and the Biological Opinion (“BiOp”), and

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remanded the ROD, the FEIS, and the BiOp for further explanation. (Id. at 8-11, 18.)

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Absent additional explanation from Federal Defendants, the Court found that it could not

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reach the merits of Plaintiffs’ claims under NEPA, the ESA, and other federal statutes.

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(Id. at 15, 17.) The Court further declined to address the merits of Plaintiff’s remaining

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claims under the ESA, FLPMA, the BGEPA and the MBTA. (Id. at 17.) The Court did

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conclude, however, that Federal Defendants were required to prepare a Supplemental

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Environmental Impact Statement (“SEIS”) in light of new information on golden eagle

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populations in the Project area. (Id. at 15-17.)

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Plaintiffs now seek clarification and reconsideration of the Remand Order,

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insisting that the Court relied on faulty dicta in making the “unprecedented” decision that

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a remand for further explanation was appropriate. (Dkt. no. 97 at 7, 10-14.) They suggest

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that the Court effectively reached the merits of their NEPA and ESA claims by identifying

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explanatory gaps in the Remand Order. (See id. at 17-25.) Those gaps, they argue,

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necessitate vacatur of the ROD, the FEIS, and the BiOp. (Id. at 17, 33.) Federal

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Defendants, by contrast, argue that the Court erred in relying on extra-record

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declarations to “fly speck” the FEIS for minor deficiencies. (Dkt. no. 105 at 6 (quoting Or.
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Envtl. Council v. Kunzman, 817 F.2d 484, 492 (9th Cir. 1987)).) They ask the Court to

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reconsider its decision to remand the ROD, the FEIS, and the BiOp, and to require the

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preparation of an SEIS. (See id. at 2-3.)

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III.

LEGAL STANDARD

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Although not mentioned in the Federal Rules of Civil Procedure, motions for

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reconsideration may be brought under Rules 59(e) and 60(b). Rule 59(e) provides that

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any motion to alter or amend a judgment shall be filed no later than 28 days after entry

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of the judgment. Fed. R. Civ. P. 59(e). The Ninth Circuit has held that a Rule 59(e)

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motion for reconsideration should not be granted “absent highly unusual circumstances,

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unless the district court is presented with newly discovered evidence, committed clear

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error, or if there is an intervening change in the controlling law.” Marlyn Nutraceuticals,

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Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (quoting 389

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Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). Under Rule 60(b),

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a court may relieve a party from a final judgment, order, or proceeding only in the

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following circumstances: (1) mistake, inadvertence, surprise, or excusable neglect; (2)

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newly discovered evidence; (3) fraud; (4) the judgment is void; (5) the judgment has

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been satisfied; or (6) any other reason justifying relief from the judgment. Fed. R. Civ. P.

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60(b); see also De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 880 (9th Cir.

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2000) (noting that the district court’s denial of a Rule 60(b) motion is reviewed for an

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abuse of discretion).

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A motion for reconsideration is properly denied when the movant fails to establish

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any reason justifying relief. Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985)

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(holding that a district court properly denied a motion for reconsideration in which the

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plaintiff presented no arguments that were not already raised in his original motion).

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Reconsideration is not a mechanism for parties to make new arguments that could

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reasonably have been raised in their original briefs, see Kona Enters. v. Estate of

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Bishop, 229 F.3d 877, 890 (9th Cir. 2000), and it is not “intended to give an unhappy

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litigant one additional chance to sway the judge.” Durkin v. Taylor, 444 F. Supp. 879,

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889 (E.D. Va. 1977).

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IV.

ANALYSIS
Plaintiffs’ Motions for Clarification and for Vacatur

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A.

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The Court agrees with Plaintiffs that clarification of the Remand Order is

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appropriate. First, Plaintiffs point out that the Remand Order suggests that the Court

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remanded only the administrative record, which was not the focus of Plaintiffs’ lawsuit.

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(Dkt. no. 97 at 10-14.) To the extent that the Remand Order indicates that the Court

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remanded the administrative record, the Court now clarifies that the remand applies to

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the ROD, the FEIS, and the BiOp, as explicitly noted in the conclusion of the Remand

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Order. (See dkt. no. 90 at 18.)

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Second, and more important, Plaintiffs emphasize that remanding the ROD, the

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FEIS, and the BiOp without vacatur essentially gives Federal Defendants two bites at the

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apple — they can offer post-decision explanations to fill the analytical gaps the Court

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identified in the Remand Order. (See dkt. no. 97 at 22-28.) This was not the intent of the

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Remand Order. Rather, the Order sought to assess whether, as the APA requires,

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Federal Defendants “examine[d] the relevant data and articulate[d] a satisfactory

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explanation for [their] action including a ‘rational connection between the facts found and

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the choice made.’” Humane Soc’y of U.S. v. Locke, 626 F.3d 1040, 1048 (9th Cir. 2010)

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(quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463

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U.S. 29, 43 (1983)). The Order found that Federal Defendants had not fully explained

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certain conclusions and that the administrative record did not sustain the decision to

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grant the ROWs. (Dkt. no. 90 at 8-11, 18.)

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Where an agency offers even a curt explanation “indicat[ing] the determinative

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reason for the final action taken,” the agency’s decision must “stand or fall on the

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propriety of that finding.” Camp v. Pitts, 411 U.S. 138, 143 (1973) (per curiam). “If that

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finding is not sustainable on the administrative record made, then the [agency’s] decision

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must be vacated and the matter remanded to [the agency] for further consideration.” Id.

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(citing SEC v. Chenery Corp., 318 U.S. 80 (1943)).

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The Court finds that vacatur of the ROD, the FEIS, and the BiOp is necessary.

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As enumerated in the Remand Order, the Court has concluded that analytical gaps exist

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throughout the wildlife analyses underlying the ROD, the FEIS, and the BiOp. (Dkt. no.

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90 at 9-11.) As the Court explained in the Remand Order, FWS and BLM should, at a

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minimum, address gaps in the FEIS’s and BiOp’s analyses, including (1) the density of

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desert tortoises, the adverse effects on desert tortoise habitat due to noise, and the

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remuneration fees and blasting mitigation measures for desert tortoises; (2) the status of

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FWS’s recommendations regarding eagle take permitting and an Eagle Conservation

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Plan; and (3) BLM’s conclusions about risks to bald eagles, protocols for golden eagle

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surveys, and risks to and mitigation measures for bat species. (Id at 15.) Given the

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Court’s conclusion that those gaps frustrated the Court’s assessment and warranted

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further explanation from Federal Defendants, the Court will vacate the ROD, the FEIS,

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and the BiOp.

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In short, the wildlife findings discussed in the Remand Order are not “sustainable

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on the administrative record made” and “further explanation is necessary” to allow the

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Court to properly assess the agency’s decision. Camp, 411 U.S. at 143. The Court

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therefore vacates the ROD, the FEIS, and the BiOp.3
Federal Defendants’ Motion for Reconsideration

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B.

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Federal Defendants argue that the ROD, the FEIS, and the BiOp sufficiently

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explain the decision to grant the ROWs. (Dkt. no. 105 at 4-24.) They also contend that

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no new information on golden eagles warrants the preparation of an SEIS. (Id. at 24-29.)

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Their Motion for Reconsideration, however, primarily rehashes the same arguments that

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Federal Defendants raised — or could have raised — in the earlier summary judgment

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briefing. This is not enough to warrant reconsideration of the Remand Order, see Kona

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Because the Court has granted Plaintiffs’ Motion for Vacatur, the Court will deny
Plaintiffs’ alternative request for a permanent injunction. (Dkt. no. 100.)
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Enters., 229 F.3d at 890, and the Court will accordingly deny Federal Defendants’

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Motion for Reconsideration.

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V.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several

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cases not discussed above. The Court has reviewed these arguments and cases and

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determines that they do not warrant discussion as they do not affect the outcome of the

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parties’ motions.

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It is therefore ordered that Plaintiffs’ Motions for Clarification and for Vacatur (dkt.

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nos. 97, 99, 101) are granted. The Record of Decision, Final Environmental Impact

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Statement, and the Biological Opinion are vacated.
It is further ordered that Plaintiffs’ Motion for Permanent Injunction (dkt. no. 100) is
denied.
It is further ordered that Defendants’ Motion for Reconsideration (dkt. no. 105) is
denied.

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Finally, the Clerk is directed to issue an amended judgment to reflect that the

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Court grants summary judgment in favor of Plaintiffs and vacates the Record of

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Decision, the Final Environmental Impact Statement, and the Biological Opinion.

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DATED THIS 30th day of October 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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