Western Watersheds Project et al v. Bureau of Land Management

Filing 78

ORDER. IT IS ORDERED that Ps' 66 motion for an injunction pending appeal is DENIED. Signed by Judge Howard D. McKibben on 4/28/2011. (Copies have been distributed pursuant to the NEF - PM)

1
2
3
4
5
6
7
8
9
10
11
12

UNITED STATES DISTRICT COURT

13

DISTRICT OF NEVADA

14
15
16
17
18
19
20
21
22

WESTERN WATERSHEDS PROJECT and
)
CENTER FOR BIOLOGICAL DIVERSITY, )
)
Plaintiffs,
)
)
vs.
)
)
BUREAU OF LAND MANAGEMENT,
)
)
Defendant, and
)
)
SPRING VALLEY WIND LLC,
)
)
Defendant-Intervenor. )
_________________________________ )

3:11-cv-00053-HDM-VPC

ORDER

23

Plaintiffs have filed a motion for injunction pending appeal

24

under Federal Rule of Civil Procedure 62(c) and Federal Rule of

25

Appellate Procedure 8(a)(1).

26

Land Management (BLM) and Spring Valley Wind, LLC have opposed the

27

motion.

28

brief.

(Docket No. 66-1)

(Docket Nos. 73, 74)

Defendants Bureau of

Plaintiffs have waived their reply

(Docket No. 77)
1

1

I.

Standard of Review

2

Pursuant to Fed. R. Civ. P. 62(c), the court may suspend, modify,

3

restore, or grant an injunction while an appeal is pending. Fed. R.

4

App. P. 8(a)(1) requires a motion to stay be filed in the district

5

court before a party may seek relief from the Ninth Circuit. Lands

6

Council v. Packard, 391 F. Supp. 2d 869, 870 (D. Idaho 2005).

7

It appears the Ninth Circuit currently recognizes two standards

8

for injunctions pending appeal. The more stringent standard requires

9

analyzing: (1) whether plaintiffs established a strong likelihood of

10

success on the merits; (2) whether the balance of irreparable harm

11

favors plaintiffs; and (3) whether the public interest favors granting

12

the injunction. Warm Springs Dam Task Force v. Gribble, 565 F.2d 549,

13

551 (9th Cir. 1977).

14

similar to that required for a preliminary injunction under Fed. R.

15

Civ. P. 65. Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983).

16

This standard requires plaintiffs demonstrate “either a likelihood of

17

success on the merits and the possibility of irreparable injury, or

18

that serious questions going to the merits were raised and the balance

19

of hardships tips sharply in [plaintiffs’] favor.” Sega Enterprises,

20

Ltd. v. Accolade, Inc., 977 F.2d 1510, 1517 (9th Cir. 1989).1

The less stringent standard employs a showing

21
22
23
24
25
26
27
28

1

The Ninth Circuit reviews a district court’s decision denying a request for

a preliminary injunction for abuse of discretion. Earth Island Inst. v. Carlton,
626 F.3d 462, 468 (9th Cir. 2010).

“A district court abuses its discretion if in

denying [such] a request ... it bases its decision on an erroneous legal standard
or clearly erroneous findings of fact.” Id.
“limited and deferential.” Id.

2

Thus, the Ninth Circuit’s review is

1
2

II.

Discussion
On March 28, 2011, this court entered orders denying plaintiffs’

3

motion

4

injunction (Docket No. 24) and granting defendant Spring Valley Wind’s

5

motion to strike the extra-record declaration of Merlin D. Tuttle

6

(Docket No. 50). (Docket Nos. 62, 61) The court held that plaintiffs

7

had failed to show a likelihood of success on the merits, the

8

possibility of irreparable harm, and that the balance of equities or

9

public interest tipped in their favor. (Docket No. 62) The court also

10

held that the Tuttle Declaration should be stricken from the record

11

because it did not fall within any of the four exceptions under which

12

the court may consider extra-record evidence.

for

a

temporary

restraining

order

and/or

a

preliminary

(Docket No. 61)

13

In bringing their motion for an injunction pending appeal (Docket

14

No. 66-1), plaintiffs have not raised any new issues beyond those

15

already presented to and adjudicated by this court on plaintiffs’

16

application for injunctive relief (Docket No. 24). Because the court

17

has already reviewed and rejected these arguments when it issued its

18

order on the motion for a temporary restraining order and/or a

19

preliminary injunction (Docket No. 62) and its order striking the

20

Tuttle Declaration (Docket No. 61), it is unnecessary to revisit those

21

same issues in depth.

22
23

See Lands Council, 391 F. Supp. 2d at 871.

In reviewing its decision, the arguments of the parties, and the
administrative record, the court finds and concludes as follows:

24

A.

25

NEPA

Success on the Merits
requires

the

preparation

of

an

environmental

impact

26

statement (EIS) when an agency’s actions will significantly affect the

27

quality of the environment. 42 U.S.C. § 4332(2)(c).

28

an environmental assessment, the agency determines that the action
3

If in preparing

1

will have no significant impact, an EIS is not required.

2

§ 1508.9(a).

3

adoption of mitigation measures to offset potential environmental

4

impacts. National Parks & Conservation Assoc. v. Babbitt, 241 F.3d

5

722, 733-34 (9th Cir. 2001).

6

‘mitigate the project's effects, they need not completely compensate

7

for adverse environmental impacts.’”

8

United States Army Corps of Eng’rs, 22 F.3d 1105, 1121 (9th Cir.

9

2000).

10

1.

11

40 C.F.R.

A decision to forego an EIS may be justified by the

If “significant measures are taken to

Wetlands Action Network v.

Impacts on Sage Grouse and Bats

The sage grouse population will not be significantly impacted by

12

project activities in this case.

13

quality sage-brush within the project’s boundaries already make the

14

area unappealing habitat to local sage grouse. The closest lek is 1.5

15

miles from the project site, is separated from the site by State

16

Highway 893, and averages only three birds per year. (EA 59)

17

Telemetry data for the area also confirms that there is no sage grouse

18

activity

19

determined that construction would

20

percent of the total habitat and permanently disturb only 1.1 percent

21

of the total habitat. (EA 105-106)

22

for

23

predators, and limiting project activities during sage grouse mating

24

seasons and near active leks will significantly reduce any potential

25

impact of the project on the sage grouse.

26

within

sage-brush

Nor

will

the

project’s

enhancement,

the

Present range fragmentation and low

boundaries.

Further,

the

EA

temporarily disturb only 3.8

Mitigation measures such as funds

anti-perching

Brazilian

Id.

devices

free-tailed

bat

to

ward

population

off

be

27

significantly impacted by project activities. The project area is not

28

a permanent roosting site for the bats. (EA 62)
4

The closest bat cave

1

is the Rose Guano Cave located four miles east of the project site.

2

(EA 61) That cave is only a seasonal migratory stop-over for the bats

3

two months out of the year. Id. During their fall migration, the bats

4

remain at the cave for only four days. Id.

5

bats’ nightly foraging pattern takes them to high altitudes away from

6

the project site. (EA 61-62)

7

In

addition,

the

BLM

undertook

a

While at the cave, the

comprehensive

review

of

8

available scientific reports regarding the bats’ vulnerability to wind

9

turbine mortality through barotrauma or collision while compiling the

10

EA. (PAR 96, 109, 1546, 1222, 1229, 1234, 1237-1239) The BLM also

11

studied bat mortality rates from 11 wind energy facility studies that

12

focused on facility and habitat sites similar to Spring Valley. (EA

13

app. F, at 24) Based on the data presented and potential concerns

14

raised in these studies, the BLM properly developed a detailed process

15

for addressing potential impacts on bats.

16

in detail in the EA, particularly in the Avian and Bat Protection Plan

17

(ABPP). Id. at 14-31.

18

Technical Advisory Committee of experts on-sight to monitor bat

19

mortality levels, a radar detection system to monitor bat flight

20

patterns and foraging habits, and turbine speed curtailments and shut

21

downs to be utilized during periods of high bat movement in the area.

22

Curtailment initially will be utilized during the “highest use periods

23

of August 1 through September 31, from sunset to 4 hours after

24

sunset.” Id. at 17.

25

the implementation of up to five turbine curtailment mitigation phases

26

if the designated bat mortality threshold is met. Id. at 22-23. These

27

phases contemplate up to 1,080 hours of cut-in speed curtailment and

28

turbine shutdowns for up to 37,500 hours. Id. at 25.

That process is set forth

It includes mitigation measures such as a

The proposed adaptive management process governs

5

These measures

1

have been shown to reduce bat mortality by 53 to 87 percent. (EA 98)

2

Thus, if these mitigation measures are implemented, the project’s

3

impacts on bats will not be significant.

4

short-term disturbance during construction of vegetation in habitat

5

that may provide foraging area to bats is 336.9 acres or 3.9 percent

6

of the total available foraging area within the project boundaries.

7

(EA 96)

8

habitat that may provide foraging area to bats and represents only 1.3

9

percent of the project area. Id.

In addition, the predicted

The long-term disturbance would include only 111.1 acres of

10

The BLM’s decision to forego issuing an EIS is justified by the

11

adoption of significant mitigation measures to offset potential

12

environmental impacts. Babbitt, 241 F.3d at 733-34. These measures are

13

supported by analytical data referenced in the administrative record

14

and they adequately buffer against any potential negative impacts.

15

Mitigation measures need not “completely compensate for adverse

16

environmental impacts.”

17

Further,

18

management plans that, like the ABPP in this case, monitor the real

19

environmental effects of a project and allow the BLM to adapt its

20

mitigation measures in response to the trends observed. See Theodore

21

Roosevelt Conserv. P’ship v. Salazar, 616 F.3d 497, 517 (D.C. Cir.

22

2010); Friends of the Payette v. Horseshoe Bend Hydroelectric Co., 988

23

F.2d 989, 993 (9th Cir. 1993).

24

or act arbitrarily or capriciously in preparing and relying on the EA.

25
26

NEPA

2.

Wetlands Action Network, 222 F.3d at 1121.

specifically

allows

agencies

to

utilize

adaptive

The BLM did not abuse its discretion

Tiering

The BLM did not abuse its discretion in relying on the Wind PEIS.

27

“Tiering, or avoiding detailed discussion by referring to another

28

document containing the required discussion, is expressly permitted”
6

1

and encouraged under NEPA, so long as the tiered-to document has been

2

subject to NEPA review. 40 C.F.R. § 1502.02. A n y n e w i s s u e s t h a t

3

developed after the Wind PEIS was published were addressed in detail

4

in the final EA.

5

site specific data on bats and sage grouse. (EA 52-53, 58-63, 96-98,

6

101-102, 105-111, 151-153, 165, 167)

7

with turbines, barotrauma, bat flight patterns and height, the Fish

8

and Wildlife Service’s decision to list sage grouse as “warranted” for

9

the endangered species list, and telemetry data concerning active and

The EA specifically supplements the Wind PEIS with

The EA considered bat collision

10

inactive leks in the project area. (EA 97, 108-109, 58-59)

11

also considered the mitigation measures proposed by the Wind PEIS and

12

implemented the ones most suited for the project site. (EA 160-173)

13

An EA need not consider all mitigation measures proposed in a PEIS.

14

Measures should be evaluated objectively and on a site specific basis

15

before being implemented. (Wind PEIS 5-1) Tiering the EA to the Wind

16

PEIS was proper.

17
18

3.

The BLM

Cumulative Impacts

The EA also considered the cumulative impacts of the project on

19

wildlife resources. 40 C.F.R. § 1508.27(b)(7).

20

of cumulative impacts includes a detailed table that discusses past

21

actions, present actions and future actions that may cumulatively

22

impact the environment. (EA 148-151)

23

the environment such as ranching and grazing. Id.

24

that adjustments may need to be made to maintain habitat quality of

25

other species in the area, such as utilizing existing fencing and

26

vegetation treatment. Id.

27

foreseeable actions that could contribute to cumulative impacts. (EA

28

151) They are: (1) the Southern Nevada Water Authority Groundwater

The EA’s discussion

These include other impacts to
The EA also notes

The EA also identified five reasonably

7

1

Development Project; (2) the NextEra Wind Energy Development; (3) the

2

Ely Wind (Antelope Range) project; (4) the Wilson Creek Wind project;

3

and (5) continued grazing in the area. Id.

4

and activities will incrementally increase the cumulative impacts of

5

the Spring Valley Wind project, after careful consideration of all the

6

factors, the BLM determined that when combined with the significant

7

mitigation measures outlined in the ABPP, the result would be only a

8

small percentage change in effects. Id.

9

tiers to the Wind PEIS and notes that “direct, indirect and cumulative

Although these projects

Moreover, the EA properly

10

impacts”

11

“discussions of impacts on each affected source.” (EA 148) Indeed,

12

impacts on bats and sage-grouse are addressed in more detail in other

13

sections of the EA. (EA 81-122, 96-98, 101-102, 108-110, app. F) By

14

considering other foreseeable actions in the region, tiering to the

15

Wind PEIS, incorporating new scientific data into its final decision,

16

and articulating substantial mitigation measures, the BLM sufficiently

17

considered the cumulative impacts of the project.

18

circumstances it is proper to defer to the BLM’s expert conclusion.

19

are

4.

20

Courts

“quantified

where

possible”

in

its

individual

Under these

Tuttle Declaration
reviewing

an

agency

decision

are

limited

to

the

21

administrative record. Fla. Power & Light Co. v. Lorion, 470 U.S. 729,

22

743-44 (1985). This means that “[j]udicial review of an agency

23

decision typically focuses on the administrative record in existence

24

at the time of the decision and does not encompass any part of the

25

record that is made initially in the reviewing court.” Lands Council

26

v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005). The evidence presented

27

in the Tuttle Declaration attacks the adequacy of the BLM's review of

28

bat

mortality

risks

related

to

wind
8

energy

facilities

and

the

1

sufficiency of its mitigation measures. The Tuttle Declaration relies

2

heavily on data from a Texas Gulf Wind Facility study.

3

that study was finalized in January 2011 and was not before the BLM

4

when it issued its decision in this case in October 2010.

5

be considered by the court, the Tuttle Declaration must fall into at

6

least one of four limited exceptions that permit a court to consider

7

extra-record evidence: (1) when an agency has failed to consider all

8

relevant factors, (2) when an agency has relied on documents not in

9

the record, (3) when the evidence is required to explain highly

10

technical subject matter, or (4) when an agency has acted in bad

11

faith. Id.

The data from

Thus, to

12

Plaintiffs contend the court should have considered the Tuttle

13

Declaration under two of the four exceptions – (1) the consideration

14

of relevant factors and (2) the explanation of technical subject

15

matter. However, the declaration does not fall into either of these

16

exceptions. Id.

17

necessary to determine “whether the agency has considered all relevant

18

factors and has explained its decision” in this case. Id.

19

administrative record indicates that the BLM reviewed 11 wind projects

20

in the western U.S. with habitats similar to Spring Valley. (EA app.

21

F, at 24) Based on the bat mortality rates determined in these

22

studies, the BLM concluded that the bat mortality threshold for the

23

Spring Valley Wind project would be 2.56 bats per turbine per year

24

after taking into consideration the extensive mitigation measures to

25

be implemented to ensure this threshold is not exceeded. Id. One of

26

the studies considered is the Judith Gap study in Montana, which

27

presents a bat mortality rate approximately five times higher than

28

that proposed in this case and similar to that indicated in the Texas

First, the admission of extra-record evidence is not

9

The

1

Gulf Wind data. Id. The administrative record also includes three

2

published bat studies that acknowledge bat vulnerability to wind

3

turbine mortality, either through barotrauma or collision. See e.g.

4

Baerwald, et al, "Barotrauma is a Significant Cause of Bat Fatalities

5

at Wind Turbines," (published 1/1/2008); Arnett, et al, "Effectiveness

6

of Changing Wind Turbine Cut-in Speed to Reduce Bat Fatalities at Wind

7

Facilities," 2008 Annual Report (published 4/1/2009); Baerwald, et al,

8

"A Large-Scale Mitigation Experiment to Reduce Bat Fatalities at Wind

9

Energy Facilities," (published 2009). Thus, the BLM reviewed numerous

10

wind energy and bat related studies similar to the Texas Gulf Wind

11

study and considered many factors relating to the risk of bat

12

mortality at the Spring Valley Wind Facility.

13

Second, the evidence in the Tuttle Declaration is not necessary

14

to explain technical terms or complex subject matter. Id. The Tuttle

15

Declaration does not consider any new issues or scientific evidence

16

not already raised or addressed by the BLM and included in the

17

administrative record and admissible exhibits already presented by the

18

parties in this case.

19

The Tuttle Declaration was not offered to fill holes in the BLM’s

20

analysis or explain complex subject matter.

21

critique of the BLM’s decision and to dispute the merits of that

22

decision.

23

rationalization either for sustaining or attacking the Agency’s

24

decision.”

25

Cir. 1980).

26

Declaration before making its finding of no significant impact. Any

27

questions raised regarding bat mortality levels at the project site

28

were considered in depth by the BLM when it reviewed 11 bat mortality

It was offered as a

Parties may not use “post-decision information as a new

Ass’n of Pac. Fisheries v. EPA, 615 F.2d 794, 811-12 (9th
It was not necessary for the BLM to consider the Tuttle

10

1

studies at wind energy facilities similar to the project site at issue

2

in this case.

3

mitigation measures to the project to reduce impacts on bats.

4

Accordingly, the plaintiffs have failed to show that the court abused

5

its discretion in striking the Tuttle Declaration.2 Lands Council, 391

6

F. Supp. 2d at 870-871; Karuk Tribe of California v. U.S. Forest

7

Service, 2011 WL 1312564 (9th Cir. April 7, 2011).

8

had admitted the Tuttle Declaration, the court would have concluded

9

that such evidence was insufficient to warrant the issuance of a

10

preliminary injunction. Plaintiffs have failed to meet their burden

11

of demonstrating success on the merits.

In addition, the BLM went to great lengths to tailor

Even if the court

12

B.

13

For the reasons set forth above, irreparable injury to the sage

14

grouse population seems unlikely. Habitat fragmentation does not pose

15

a substantial risk in this case and there are no active leks within

16

the project area. Indeed, new telemetry data collected immediately

17

prior to beginning construction on this project showed that there was

18

no sage grouse activity in the two leks closest to the project site.

19

(D’Aversa 3d Decl. ¶ 6)

20

a sage grouse was observed was 5 miles. Id. In addition, although the

21

greater sage grouse is a “candidate species” for the endangered

22

species list, it has not been prioritized. (EA 58) In the fall of

Irreparable Harm

The closest distance to the project at which

23
24
25
26
27
28

2

The court would note that this declaration was filed by the plaintiffs

without first attempting to receive leave of court to do so.

Nor did the plaintiffs

request that the BLM re-open the administrative proceedings to consider this extrarecord Tuttle Declaration discussing the new Texas Wind Facility data prior to
filing it with the court.

11

1

2010, the Nevada Department of Wildlife allowed hunting of sage grouse

2

throughout most of Nevada, including Spring Valley. (Harrison Decl.

3

¶ 4)

4

boundaries, the lack of sage grouse use of the project area, the BLM’s

5

mitigation measures, and Spring Valley Wind’s commitment to enhance

6

existing habitat, it is unlikely the sage grouse population will

7

suffer irreparable harm if the injunction is denied.

8
9

Given the poor quality of sagebrush habitat within the project

In addition, the initial stages of development of the project
pose no threat to the bats.

Any risk to the bat population arises

10

from operational wind turbines.

11

operational until at least April 1, 2012. (Inlow Decl. ¶ 16)

12

is no risk of irreparable harm to the bats before a decision on the

13

merits of this case is determined.

14

operational, the data and mitigation measures presented by the BLM in

15

the EA indicate that the bat population will not face irreparable or

16

significant harm.

17

abundant bat populations in the United States and over one million

18

bats stop-over in the Great Basin area each year. (EA 52) “To equate

19

the death of a small percentage of a reasonably abundant ... species

20

with irreparable injury ... is to ignore the plain meaning of the

21

word.” Fund for Animals v. Frizzell, 530 F.2d 982, 987 (D.C. Cir.

22

1975).

The wind turbines will not be
There

Even once the wind turbines are

Notably, the free-tailed bat is one of the most

23

Finally, plaintiffs have not demonstrated that allowing the

24

project to proceed at this stage would hinder, in any way, the court’s

25

ability

26

imminent. Bureaucratic momentum does not create immediate, irreparable

27

injury.

28

now cannot form the basis of an injunction at this stage.

to

prevent

irreparable

injury

at

the

point

it

becomes

Future injury or conjectural hypothetical injury months from

12

See

1

Goldie’s Bookstore, Inc. v. Superior Court, 739 F.2d 466, 472 (9th

2

Cir. 1984); Park Vill. Apt. Tenants Ass’n v. Mortimer Howard Trust,

3

2001 U.S. App. LEXIS 3683, *29 (9th Cir. Feb. 25, 2011).

4

C.

5

The environmental interests are outweighed by other interests in

6

this case. Delaying this project would harm federal renewable energy

7

goals and delay Nevada’s economic recovery.

8

concede, Congress and the President have clearly articulated that

9

clean energy is a necessary part of America’s future and it is

Balance of Hardships and Interests

As the plaintiffs

10

important to Nevada’s economic and clean energy goals.

11

this was a very important factor to consider, particularly in light

12

of the time constraints on the availability of federal funding, in

13

deciding whether to issue an injunction. The project would power over

14

40,000 Nevada homes, provide millions of dollars in property tax

15

revenue, and generate over 220 new jobs with priority to Nevada

16

residents and over $20 million in wages. (D’Aversa 2d Decl. ¶ 3;

17

Hardie Decl. ¶ 16)

18

Wind from obtaining federal funding and tax credits. Id. ¶ 10. Without

19

these financial incentives, it is likely the project would not be

20

built. Id. If the project is not built, Nevada will not be able to

21

take advantage of the much needed economic and renewable energy

22

benefits

23

unemployment rate of 14.9 percent, compelling evidence has been

24

presented that Nevada cannot afford to lose these benefits. (D’Aversa

25

2d Decl. ¶ 3)

the

In this case,

An injunction would likely prevent Spring Valley

project

will

bring to this

state.

With

a

state

26

In contrast, for the reasons set forth above, any disturbance of

27

the sage-grouse and bat habitats will be minimal and will not

28

significantly impact the environment.
13

While the public also has a

1

strong interest in preserving the environment and protecting species

2

like the free-tailed bats and greater sage-grouse, that interest in

3

this case, at this stage in the proceedings, is outweighed by the

4

other public interests articulated above.

5

As a final note, it is important to consider that the Spring

6

Valley Wind Project is a tiered renewable energy development.

7

activities presently being litigated concern only the first phase of

8

the development -- that is, one wind farm with only 60 to 70 wind

9

turbines, not the 1,000 turbines plaintiffs claim will be built.

The

10

Before expanding this renewable energy development the BLM would,

11

under NEPA, be required to conduct a new, supplemental environmental

12

assessment before approving construction. 43 C.F.R. §§ 1610, 2807.20;

13

43 U.S.C. § 1761;http://www.blm.gov/ca/st/en/info/nepa/ibca9874.html.3

14

Thus, if the scope of the project is altered, a re-evaluation of the

15

BLM’s decision is required. Id. At that time, the BLM will have site-

16

specific information relating to the mitigation measures that will be

17

of critical importance in making an assessment as to whether a new or

18

supplemental EA or an EIS will be required before the scope of the

19

project is altered.

20
21
22
23
24
25
26
27

3

Additional NEPA analysis, that is, a new or supplemental EA or EIS, is

required when: (1) the proposed action has not been addressed previously, is in a
new location, or involves a significant modification to an existing action; (2) the
proposed action has been considered in a programmatic EIS or EA but a site-specific
analysis is needed; or (3) there is significant new information, a major new issue,
or a substantial change in circumstances relating to potential environmental effects
of the proposed action.

28
14

1

III. Conclusion

2

The court holds that plaintiffs have failed to demonstrate a

3

likelihood of success on the merits, applying either the Lopez

4

standard or the Warm Springs standard.

5

failed to show that the environment will be adversely affected or will

6

suffer irreparable harm if an injunction is not issued, or that

7

serious questions going to the merits were raised such that the

8

balance of hardships and interests tips in their favor.

9

plaintiffs have failed to establish that the court’s decision to

10

strike the Tuttle Declaration was an abuse of the court’s discretion.

11

Accordingly, the plaintiffs’ motion for an injunction pending appeal

12

(Docket No. 66-1) is DENIED.

In addition, plaintiffs have

13
14

IT IS SO ORDERED.

15

DATED: This 28th day of April, 2011.

16
17

____________________________
UNITED STATES DISTRICT JUDGE

18
19
20
21
22
23
24
25
26
27
28
15

Finally,