Western Watersheds Project et al v. Bureau of Land Management

Filing 110

ORDERED : 1. That the Parties' Joint Motion to Dismiss is GRANTED; 2. That the Settlement Agreement is hereby incorporated into this Order and is included as an attachment to this Order; and 3. That this Court shall have continuing , ancillary jurisdiction to enforce this Order and the terms of the incorporated Settlement Agreement, but that jurisdiction will end five years after the Spring Valley Wind Energy Facility begins operations; and 4. This action is hereby DISMISSED with prejudice. Signed by Judge Howard D. McKibben on 3/29/2012. (Copies have been distributed pursuant to the NEF - DRM)

Case 3:11-cv-00053-HDM -VPC Document 109-1

Filed 03/23/12 Page 2 of 13

1

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA

2
3
4
5
6
7
8
9
10
11
12

WESTERN WATERSHEDS PROJECT, and
CENTER FOR BIOLOGICAL DIVERSITY,

)
)
)
Plaintiff,
)
)
v.
)
)
BUREAU OF LAND MANAGEMENT,
)
)
Defendant,
)
)
and
)
)
SPRING VALLEY WIND LLC,
)
)
Defendant-Intervenor.
)
_________________________________________ )

No. 3:11-CV-53-HDM-VPC
Judge Howard D. McKibben
ORDER
[PROPOSED] ORDER

13
14

The Court has before it the Parties’ Joint Motion to Dismiss. Having reviewed and

15

considered the motion, and for good cause shown, the Court concludes that it is appropriate

16

under the facts presented. Accordingly, IT IS ORDERED

17

1.

That the Parties’ Joint Motion to Dismiss is GRANTED;

18

2.

That the Settlement Agreement is hereby incorporated into this Order and is

19
20

included as an attachment to this Order; and
3.

That this Court shall have continuing, ancillary jurisdiction to enforce this Order

21

and the terms of the incorporated Settlement Agreement, but that jurisdiction will end five years

22

after the Spring Valley Wind Energy Facility begins operations; and

23

4.

This action is hereby DISMISSED with prejudice.

24

IT IS SO ORDERED.

25
26
27
28

Dated: This 29th day of March, 2012. _______________________
______________________
HOWARD D. MCKIBBEN
UNITED STATES DISTRICT JUDGE

Case 3:11-cv-00053-HDM -VPC Document 109-1

Filed 03/23/12 Page 3 of 13

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

ATTACHMENT A

Case 3:11-cv-00053-HDM -VPC Document 109-1

i Kristin F. Ruether,pro hac vice

'Advocates for the West
2
P.O. Box 1b12
3 Boise, ID $3741
4

Ph:(2Q$)342-7024x. 2Q8
[e-mail]

5 (flddirio~ral attorneys orz next page}

6

Atto1•neyfor Plaintiffs T3'esterrr Watersheds
7 Project and Centerfor Biological Diversity

8 S~~end A. Brandt-Erichsen,pr•o hac vice

WA BarNo.23923
svendbe c~martenlaw.com
10 Masten Law PLLC
1 I91 Second Avenue, Suite 220a
11 Seattle, WA 981Q1
Telephone:[phone]
12
Facsimile:[phone]
9

13

(Additional atto~•neys oar ~ze~t page)

Filed 03/23/12 Page 4 of 13

IGNACIA S. MORENO
Assistant Attarnay General
DAVID NEGRI

JARED S.PETTINATO
Trial. Aiiarneys
United States Department ofJustice
~nviroi~ment and Natural Resources
Division
clo U.S. Attorney's Office

800 Park Bivd., Suite 6Q0
Boise, Idaho 83712(Negri)
P.U. Box 663
Washington,D.C. 20Q9~4-063(Pettinato}
[phone](Negri}
[phone] (Petlinato}
{202)353-0274 {fax}
David.Negi~i~a usdoj.gov
[e-mail]~
(Additional attorfreys on ~~exl page}
Attorrre}~sfor the Fede~•al Defendalzt

14

~Ittar•ney, Deferadarzt-Intervetzot• Spring Palley
fof~
15 Wind LLC
1fi

FN THE UNITED STATES DISTRICT COURT
I'OR THE DISTRICT OF NEVADA

'17
~.S
19

WESTERN WATERSHEDS PROJECT,and
CENTER FOR BIOLOGICAL DN~RSITY,

za

Plaintiff,

21

No. 3:11-CV-53-HDM-VPC

Judge Haw~ard D. McKibben

V.

z2

SETTLEMENT AGIt~~MENT
BUREAU OF LAND MANAGEn4ENT,

23

Defendant,
24'.

and
25

LLC,
26 SPRING VALLEY WIND
Z7I

z81

Defendant-Intervenor.

Case 3:11-cv-00053-HDM -VPC Document 109-1

3
4

David H. Becker, pro hac vice
Law (?ffice ofDavid H. Becker,LLC 917 SW
Oak St, Suite 4U9 Portland, OR 47205
[e-mail]

5 ~ Christopher W.Mixson,NV Bar No. 10685

6
7

8
9
10

Wolf,Riflcin, Shapiro,Schulman & Rabkia~,
LLP
3556 E. Russell Rd.
Las Vegas, NV 89120
[e-mail]

Filed 03/23/12 Page 5 of 13

STEVEN W.MYHRE
Atfiorney for the United States,
Acting Under Authorifiy Conferred by 2$
U.S.C. ~ 515
District ofNevada
I30LLY VANCE
Assistant United States Attorney
1170 W.Liberty Street, Suite 600
Reno,NV $9501
Adc~itiorral attorneys,far- the Federal Defendant

Additional attorneysfvr~ Plaintiffs T~eslerrz
Watefsheds Project and Centerfor Biolagic~rl
Diversity

11

Sylvia Harrison, NV Bar No.4106
sharrisan(c~,mcdonaldcazano.com
13 Debbie Leonard;NV Bar.. Na. 8260
[e-mail]
14 McDonald Cazano Wilson LLP
l OQ West Liberty Street, lOtl1 Floor
15 PO Box 2670
Reno,NV 89505
16
Telephone:{775)788-24Q4
Facsimile:(775} 788-2020
17~
12

18
19

Additional atlorneysfor• Defendtrnt-Intet•vnor
Siring Palley mind LLC

20
21

WHEREAS,on January 25,2011, Western Watersheds Project ancE Center for Biological

zz
23

z4

Di~lersity {V4~estern Watersheds} filed this lawsuit against the Bureau. of Land Mana~einent
(BLM};
WHEREAS Plaintiffs sought declaratory and injunctive relief relating to the BLM'S

25

approval of the Spring Valley Wind Energy Facility {the Facility);
26

V4THEREAS, on Mardi 4, 2011, this Court granted Spring Valle}J Vl~ind LLC's (Spring
27

Valley Wind)motion to intervene as a defendant;

j

~

28

SETTLEMENT AGREEMENT
No. 3
:11-CV-53-HDM-VPC

-2-

Case 3:11-cv-00053-HDM -VPC Document 109-1

Filed 03/23/12 Page 6 of 13

1

`NHEREAS #his Court denied Western Watersheds's motion for a temporary restraining

z

order/preliminary injunction on March 28, 2011, and the United States Court of Appeals for the

3

Ninth Circuit upheld this Court an July 15,2011;and
WHEREAS the Parties have reached agreement oii the terms of a settlement that .,they

4
5

consider to be ajust, fair, adequate, and equitable resolution ofthe issues in tiie case.
NOW, THETZEFORE, Westeni Watersheds, die BLM, and Spring Valley Wind Hereby

5
7

(
enter this Settiement Agreement the Agreement)and agree as follows:

8

A.

RELEASE

9

1~Vestern Watersheds- hereby fully releases the United States and Spring Valley Wind

~.0

from all claims regarding the Springy Valley V~ind Energy Facility that were included ar could

11

have been inc[nded in the lawsuit entitled Wester t~ I~atersheds Project, Center for Biological

32

Diversity, Confederated Tribes ofthe Goslzute Resen~~tior~, Duclnvatet~ Shoshone Tt•ibe, and Ely

13

Shoshone Tribe v Bureau ofLand.11%fctnagernent, No. 3:11-cw53{D. Neti~. Jan. 2~, 2011),Compl.

19

(La~~vsuit),ECF No. 1, and firom all claims regarding the Spring Valle37 Wind Energy Facility that

15

are based on the Texas Gulf Wind studies referred to by Dr. Merlin D. Tuttle iii Paragt~aph 12 of

16

his first declaration; ECF Nfl. 30.

17

B.

FACILITY OPERATION AND RES~ARCFI PROVISIONS

18

1.

After the initial three years of bird and bat mortality.surveys provided for in § 4.1 offihe

3.9

Facility's. Avian and Bat Protection Plan {ABPP), AR9220-9267,'Spring Valley V~ind wilt

20

conduct a mortality survey for bats only.during tl~e fall season {August and September) of the

21

fourth year following construction and a mortaGit~r suiveSJ fir birds and bats in the fifth yelr

zz following construction. Tl~e first follow-up inoi~tality survey for birds and mats provided for by
23 ' the ABPP will occur in the seventh year following construction. Thy next follow-tip mortality

z4

survey for birds and bats will be accelerated and occur iii the tenth year following construction.

25

Thereafter, Spring Valley Wind will complete follow-up surveys every ~~e years, as ABPP § 4.l

26 .requires. Tlie Technical Advisozy Committee {TAC} Fnay.recommend reductioais in survey

z7 parameters during these subsequent surveys -based on the initial three years of survey data, so
28

long as at least two quarters are monitored in each survey year,
SETTLEMEI~IT AGREEMENT
No:3:1 I-CV-53-HDM-VPC

-3~

Case 3:11-cv-00053-HDM -VPC Document 109-1

i 2.

Filed 03/23/12 Page 7 of 13

ABPP § 4.7 requires Spring Valle}r Wind to submit annual reports to.the TAC Lead eacl~

2

year o~ Facility opera#ion. Every year; when Spring Valley Wind sends the TAC Lead the

3

annual reports, it will also send to the TAC Lead (1)a summary of bat arrival and departure data

~~ that it Iias collected with the infrared beam-break system ~t the entrance of the Rose Guano

Cave, ABPP § 3.1,and (2)the radar datti that it has oollected pursuant to ABPP § 3.I.
3.

Spring Valley Wind will contribute up to $50,000 to the cost of a study of the use of the

Rase Guano Cave by Brazilian (also called Mexican) free-tailed bats. Spring Valley Wind wil!
reques€ Dr. Richard Sherwin to complete one additional year of data for t ie population study of
9

the Rose Guano cave he `reported in "A Study on tl~e use of Rose Guano Cave, Nevada by

~a

}:
Mexican Free-TailEd Bats {Tadarida brasiliensis 'See, e,g., ABPP §§ 3.2.8, 3.3,6; 8.0. If Dr.

~,z i Sherwin is unavailable to cantplete that additional year of study, Spring Valle}~ Wind wit! fund,
°12

up to $50,000, one year ofa similar study through a researcher approved by the TAC.

1.3

4.

24

protrides"its consent for the BLIVI Authorized Officer to implement under tl~e t~BPP mitigation

1S

protocols a third additional mitigation phase within a single year if the Facility again e:cceeds

16

within such }'ear the ABPP § 5.2-designated mortality tl3resllolds after implementing the second

17

additional mitigation phase during such year.

~8

S.

19

the end of that year will remain in effect for the subsequent }'ear, unless or unfit the BLM

A.s the first btallet~ point in ABPP § 5.3.1 con#emplates, Spring Valley Wind hereby

The fins[ mitigation phase implemented duri~~g any year under the ABPP and in effect at

zo Autlxnrizing Officer decides, in her sole discretion ancf uj~on her consideration of any Tt~.0
21

recomrnezidations,that a change in the n~i~igation pI~ase is warranted.

22

&.

z~

following infomlatioxi zt is sending to the TAC Lead to [e-mail] and

24

lbelei~[e-mail] within twenty business days of transmiftin~ such information

25

to the TAC Lead:

26

a.

For the first three years of Facility operations, Springy Vatle}~ Wind will send #lie

z~
zs

The single curtailment study under ABPP § 3.3 that .Spring Valley V~ind will
complete between August I zhrougli September• 30 ofthe first year ofoperation;

b.

Biweekly mortality survey data under ABPP § 4.1 or Section B.l of this

SETTLEMENT AGREEMENT
No. 3:11-CV-53-HDM-VPC

-4.

Case 3:11-cv-00053-HDM -VPC Document 109-1

Filed 03/23/12 Page 8 of 13

Agreement;

1
2

c.

AnaBat Acoustic.survey data under ABPP § 4.4;

3

d.

Raptor Nest Sun~eys under ABPP § 4.5;

a

e.

Avian point count sun~eys-Under ABI'P § 4.6;

5

f.

Annual reports. under AI3PP § 4.7, which will incltade the information described in

Section B.2 oftlus A~reernent;

6

For the first two years ofFacitity operatio~tis, the BLM will send the following documents

7

7.

8

to [e-mail] and [e-mail] KTitl~in twenty 'business

9''' days ofreceiving or ~euerating those documents:
10

a.

Any operations, inoni#ai~ing, or research {not personnel or administrative)

11

recommendations tl~e TAC Lead sends to tl~e BLM Authorized Offcer pursuant

12

to ABP'at §§ 2.Q or 5.0; and

13

b.

Any operations, maiutoring, ar . research (not personnel ar administrative)

14

"decision on what measure{s} to require for implementation," the BLM

15

Authorized Officer 1nai~es under ABPP ~§ 2,4 or 5.0.

16

The. BLM will, not send particular documents if the BLM preliminarily determines that. the

17

documents could be subject to an exemption under the Ereedoin of Information Act (FOIA), 5

18

U.S.C. § 552. If it withholds any documents,~it will continue reviewing t~ZOSe documents and,

19 .

when it completes its revie«r, ifi will send any documeiYts iaot suUject to a 1~OIA eaeniption, If,

20

after that review, the BLM concludes ftiat any tiocurnent is. subject to a r4IA exemption, it will

za.:

send notice that it continues to withiioId documents.

2Z

S.

23

Plaintiff group} sends a request only for doouments (a) that tI~e BLM has not already sent Yo

24

Wes#em V~aterslzeds (both Plaintiff groups) and (b)from either category Iisted in Section 13.7 of i

25

this Agreement; and {Z) Western Watersheds{either Plain#iff group) sends that request to the

26

BLM, Ely District, Schell Field Office Manager; ilzen (3} the BLM -~~ill send, ~~vithin tr~~ent~~

27

business

For the third through.fi$h years of Facility operaEions, if(1) Western Visa#ersheds (either

days

of ~ receipt

of

that

request,

to

[e-mail]

and

lbelenky@viologica~di~ersity.or~ copies. of tl~e requested documents: Tl~e BLM will not send
SETTLEMENT AGREEMENT
No. 3:11-CV-S3-HDM-VPC

-S-

Case 3:11-cv-00053-HDM -VPC Document 109-1

Filed 03/23/12 Page 9 of 13

1

particular documents ifthe BLM preliminarily deternunes that the documents could be subject to

2

an exemption under FOTA. If it withholds arny dac~unents, it will continue reviewing those

3

documents and, when it completes that review, it wil! send any withheld documents not subject

4

to a FOIA exemption. If, after that review,the BLM concludes that any document is subject to a

• 5. FOIA exemption,it will send notice that it contunues to withhoEd documents.

tUl agreements identified iii Agreement Section B are with respect to and limited to the

6

9,

7

Facility.

8

G

COURT'S 3URISDICTION .

9

1.

The Parties will submit to the Court (1) tYte signed Agreemen# (2) the attached Joint

10

Motion to Dismiss, and {3) the attached proposed order that `would dismiss these cases vi+ith

11

prejudice pursuant to Federal Rule of Civil Procedure 41(x)(2) and- subject to the Court's

~.z ancillary jurisdictzan as speaifed in Section C.3 of the Agreennent for the first five years of
13
:14

Facility operations. See Kokkonen v. G:ra~~dian Life lns. Co., 511 U.S. 375 (1994). The Parties
will file these documents within IS days ofthe-final signature executing this Agreement.
This Agreement and the obligations under it will become effective upon the Court's entry

15

2.

16

of the Proposed Order granting the Joinf Motion to Dismiss. Paragraph B.3 will expire upon

17

Spring Valley Wind completing its last payment to~~ard fhe referenced study. Paragrapl2s B.6

18

and B.7 vcrill expire after the third and second year ofFacility operations,respectively. Paragraph

19

B.8 will expire aftex the fifth year of Facility operations. The rernainirig provisions of this

20 Agreement shall expire upon Facility decommissioning,
23.

3.

22

disagree on the interpretation, performance, or alleged' nonperformance of any aspect of this

23

Agreement, the dissatisfed Party shall provide ;the other Poetics writCen notice ofthe dispute acid

2A~,

a request For perfarmance or negotiations, The Parties shall confer to'resolve the dispute within

25

twenty business days after xeceipt of tie notice, ox such time thereafter as is mutually agreed

~s upon.

If Western Watersheds, the Bureau of Land Mapagement, or Spring Valley Wind

If the Parties are unable to resolve the dispute within forty bti~siness days after receipt of

27

tl~e notice, ar such time thereafter~as is mutuatty'agreed upon, any Party may petition the Court

28

to resolve the dispute. The Court may consider such future requests as it deems appropriate, but 'I

SETTLEMENT AGREEMENT
Na. 3:1 I-CV-53-HDM-VPC

-6-

Case 3:11-cv-00053-HDM -VPC Document 109-1

Filed 03/23/12 Page 10 of 13

1. far any alleged violations of Sections B.G; B.7 and B.8, the Parties agree that the sole and
2

exclasive remedy can lie in direction by the Court for the responsible Party #o .provide the

3; information required by the.. applicable provision of this Agreement. further, the Forties agree
4 ~! that aantempt of court is not an available remedy for ar~y violation of this Agreement, and the
5 i ~ Parkes kx►owingly waive any right that they might lave to seek an order of contempt for any
6

I I such violation.

7 I D.

LIMITATIONS

8

1.

This Agreement represents the entirety of the cominitmeilts flf Western Watersheds,. the

9

BLM,and Spring Valley Wind, theix agents,their successors.and assigns, and anyone acting on

is their behalf in the Lawsuit with regard to settlement. Any other prior or contemporaneous
~~ ~ representations or understandings not explicitly contained in this Agreement,.whether wrii~en or
12

oral, are of no further legal ar equitable force or effect.

~13

2.

14

admission by any Party to any fact, claim, or defense in any issue,in tlus lawsuit. In particular,

15

Spring Valley Wind and the BLM have voluntarily adopted the operational acid monitoring

16

in Sections B.1 to B.4 to provide an.additiana! margin of safely for the Spring Valley

17

Wind Energy Facility, and they deny that tl~e ABPP was deficient in any manner and deny that

The Agreement is the result of compromise and set#lement and does not represent an

18_ ~ any similar measures would be necessary for any future projects. Litcev~~se, Western Watersheds
19

(both Plaintiff groups} has voluntarily agreed to the terms ofthis set#tement and denies..that it

20

provides any evidence that.the ABPP or Facility's NEPA analysis was Iegally adequate or That

22

similar measures r~rould be adequate for anyfuture projects. The Agreement has no precedential i

Z2

value and shall no# be citEd in oily other litigation except as necessary to enforce the terms ofthe

23

A~reexr~en~

z4 3.

Each Party and its attorneys have carefully and fully reviewed tills Agreement. Further,

25

each Party and its attorneys leave revised, or had an apportunit}r to revise, this Agreement.

zs

Aecordi~igly, die normal rule of construction to the effect that any ambiguities are to I,~ resolved

27

against the drafting Farfy does not apply to interpretations ofthis Agreement.

28

4.

Each Party to this Agreement shall be responsible for paying the attorney fees and costs

SETTLEMENT AGREEMENT
No. 3:11-CV-53-I-iDM-Vl'C

-7-

Case 3:11-cv-00053-HDM -VPC Document 109-1

Filed 03/23/12 Page 11 of 13

1

that it leas incurred in prosecuting or defending this action and the fees and costs tv carry out the

2

terms ofthis Agreement.

3

S.

4.

commitment or requirernen# #hat Federal Defendants obligate or pay funds, or take any. other

S

actions iii contravention of the Anti-Deficiency Act, 31 U.S.C. § I34i or any other applicable

6

i1w.

7

6.

8',

federal official to promulgate or amend regulations.

9

7.

Nothing in this Seftlenlent Agreement sl~all be interpreted as, or shall constitute, a

Nothing in the terms of this Agreement shall be construed to limit or deny dle pav~~er ofa

A fully executed copy ofthis Agreement shall be deemed an original far all purposes,and

10

this Agreement may be executed in one or more coun#erparts, each of which shall be an original,

11

but all of which shall constitute one instrument.

12

E.

MUDIFICATI4NS T4 AGREEMENT
Tlvs Agreement sha[1 not be modified except by wri€ten approval of at[ the Parties and

13

14'', upon providingjoint notice ofany modifications to -the Court.
15

F.

AUTHURIZATION

-

16

The undersigned representatives ofthe Parties certify that they are fully authorizer! by the

17

respectiti~e Parties whom they represent to agree to the terms and conditions oft[ie Agreement

18

and to legally bind such Parties to it.

19

Dated: Mardi 23,2Q12,

20

Kristin r. Ruether,pro lrac vice
Adt~acates for the West
P.O. Box 1612
Boise,ID 83701
Pli: {208} 342-7024 x. 208
kruetlyer rr advocateswest.org

21
22
23
24

David H. Becker,pro hoc vice
Law Office ofDavid H.Becker, LLC 9I7 SW Oak St,
Suite 409 Portland, OR 97205
davebeckerlaw t(r~,gmail.com

25~
26
27

Christopher W. Mixson, NV BarNa. 1Q685
Wolf,Riflcin, Sl3apira, Schulman & Rabkin, LLF

28

SETTLEMENT'AGREEMENT
No.3:11-CV-53-HDM-VPC

-$-

Case 3:11-cv-00053-HDM -VPC Document 109-1

Filed 03/23/12 Page 12 of 13

355G E. Russell Rd.
Las Vegas,NV 89I2Q
cmixson@«+rslawyers.com

2
3

Attorneysfor Plainti,f,~s Western Watersheds Project and
Centerfor• Biological Div sity

4

~~
5

Svend A. randt-Erichsen,pro hac vice
WA BarNo.23923
[e-mail]
'Marten Law PLLC
1191 Second Avenue, Suite 2200

6
7
8

Seattle, WA 98101
Telephone:[phone]QU
Facsimile:[phone]
Sylvia Harrison,NV Bar Na.4i06
sharrisanQa mcdonaldcarano.com
Debbie Leonard, NV Bar. No.8264
dleonard a~ncdonaldcaxario.cam
McDonald Carano Wilson LLP
100 West'Liberty Street, 1Qth Floor
PO Box 2b70
Reno;NV 89505
TelE~laone:{775)7$8-2Q00
Facsimile:{775)788-202Q

9
10
Z1
12 ~
13
14
15
16

Altof•rreysfo~~ Spring Palley I3~ind LLC

17
18

STEVEN W.MYHRE
Attorney for tl~e United States,
Ac#ing Under Authority Conferred by 28 U.S.C. § SIS
Dis#rict ofNevada
HOLLY VANC~
.
Assistant United States Attorney
100 W.Libert}~ Street, Suite b00
Rena,NV 89501
IGNACIA S. MORENO
Assi nt Attorney GeFieral
~
DAD NEGRI ,-, ~

19
20
21
22
23
24

z~
is

JA D S.PETTINATD
T tai Attorneys
nited States Department of Justice
Environment and Natural Resources Division

27
28 I

SETTLEMENT AGREEMENT
No. 3:1 I-CV-53-HDM-VPC

Case 3:11-cv-00053-HDM -VPC Document 109-1

Filed 03/23/12 Page 13 of 13

Natural Resources Section
c/a U.S. Attorney's Office
80Q Paxk I31vd., Suite 604
Boise, Idalifl 83712(Negri}
P.O. Box 663
Washington, D.C. 20044-0663(Pettinato)
{208} 334-1936 {Ne;ri)
(2Q2)30~-0203 {Pettinato}

1
2

3
4

s

~2oz~ ass-a2~4 ~r~~

s
7

[e-mail]
[e-mail]

8

Attof•rieysfor the Federal Defenda~~ts

9

sa
11
12
13
14
15
Z6
17
18
19

zo
za.
zz
zs
2a
Zs
z~
~~
zs
SETTLEMENT AG1t~EM~NT
Na. 3:12-CV-53-HDM-VPC

_gyp_