Oregon Natural Desert Association et al v. Salazar et al
Filing
80
OPINION AND ORDER: Because I find that BLMs decision was not arbitrary and capricious, I grant BLMs motion 51 for summary judgment. For the same reason, I also grant CEPs motion 46 for summary judgment and Harney Countys motion 44 for summary judgment. I deny ONDAs motion 37 for summary judgment. I also deny the motions [48, 53] to strike extra-record declarations filed by BLM and CEP. Signed on 9/11/13 by Judge Michael W. Mosman. (dls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
OREGON NATURAL DESERT
ASSOCIATION, and AUDUBON
SOCIETY OF PORTLAND,
No. 3:12-cv-00596-MO
Plaintiffs,
OPINION AND ORDER
v.
SALLY JEWELL, Secretary of the Interior,
and BUREAU OF LAND MANAGEMENT,
Defendants,
COLUMBIA ENERGY PARTNERS, LLC,
And HARNEY COUNTY,
Intervenor-Defendants.
MOSMAN, J.,
Plaintiffs, the Oregon Natural Desert Association and the Audubon Society of Portland
(collectively “ONDA”), alleged that defendants, the Bureau of Land Management and the
Secretary of the Interior (collectively “BLM”), violated the National Environmental Policy Act
1 – OPINION AND ORDER
(“NEPA”), 42 U.S.C. §§ 4321 et seq., when they issued a Final Environmental Impact Statement
(“FEIS”) and Record of Decision (“ROD”) approving the grant of a right-of-way for the North
Steens Transmission Line associated with the Echanis Wind Energy Project. ONDA challenges
BLM’s decision pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701–706. The
developer of the project, Columbia Energy Partners, LLC (“CEP”), and the local government
entity, Harney County, intervened in support of BLM.
Currently before the court are motions for summary judgment from each of the parties—
ONDA [37], Harney County [44], CEP [46], and BLM [51]—and motions from BLM [53] and
CEP [48] to strike portions of the declarations and exhibits attached to ONDA’s motion for
summary judgment. The central issue in this case is whether BLM’s FEIS and the associated
ROD complied with NEPA. 1
ONDA raises seven main reasons for which the agency’s decision should be overturned:
I.
BLM failed to consider the impact of the project on fragmentation and
connectivity of sage-grouse habitat.
II.
BLM failed to follow its own policies relating to sage-grouse and golden eagles.
III.
The FEIS contained inadequate information about the impacts of the project on
sage-grouse and golden eagles.
IV.
BLM failed to consider and respond to other agencies’ critical comments.
V.
BLM failed to specify required mitigation measures and relied on the assumption
that Harney County would require mitigation for the impacts to private land.
VI.
BLM failed to analyze the effectiveness of the proposed mitigation measures.
VII.
BLM failed to allow public comment on the wholesale changes it made between
the Draft and Final EIS.
1
I dismiss ONDA’s claim under the Steens Act and the Federal Lands Policy and Management Act because no party
has briefed these claims and ONDA has acknowledged that this claim should be dismissed. (Pl. Reply Br. [57] at 2
n.1.)
2 – OPINION AND ORDER
On the first issue, I find that BLM adequately considered the project’s impacts on
fragmentation and connectivity. The FEIS acknowledges that sage-grouse would be affected by
fragmentation and the importance of connectivity to the persistence of the species. It contains a
reasonably thorough discussion of the scientific literature surrounding fragmentation and
discloses conflicting authority. Although the FEIS does not discuss connectivity separately, its
analysis of fragmentation necessarily addresses connectivity because the two concepts are
inherently intertwined.
On the second issue, I find that BLM did not arbitrarily and capriciously fail to follow its
own policies. A careful analysis reveals that BLM complied with all of the policies that ONDA
says it violated, even those that were not applicable.
On the third issue, I find that BLM’s surveys and data were adequate. The agency
obtained enough information that it could make a reasonable decision to proceed with the
project, after requiring mitigation.
On the fourth issue, I find that BLM adequately considered and responded to comments
from other agencies. BLM was not required to accede to all of its sister agencies’ requests.
Furthermore, many of the critical comments cited by ONDA were made early in the NEPA
process, and by the time the ROD was released, the sister agencies’ comments were more
positive.
On the fifth issue, I find that BLM was not required to specify required mitigation
measures and was entitled to rely on Harney County to impose mitigation on private land. An
agency need not have a fully developed and enforceable mitigation plan in place before it can
act. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353 (1989). Furthermore,
an agency may rely on the state or local agency that has jurisdiction over the area in question to
3 – OPINION AND ORDER
implement appropriate mitigation. See id. Here, BLM actually conditioned issuance of a Notice
to Proceed on Harney County requiring a Habitat Mitigation Plan. BLM did all it was required
to do and more.
On the sixth issue, I find that BLM’s assessment of mitigation effectiveness was
sufficient. The FEIS discusses the effectiveness of some mitigation measures and the
effectiveness of other measures is obvious. Because it adopted what the parties agree is the best
and most recent document on sage-grouse mitigation—the Oregon Department of Fish and
Wildlife’s Mitigation Framework—BLM was not required to discuss the effectiveness of each
mitigation measure therein. Similarly, BLM alleviated the need for an in-depth discussion of
eagle, bird, and bat mitigation effectiveness by adopting an adaptive management approach,
which provided for an ongoing analysis of mitigation effectiveness.
On the seventh issue, I find that BLM was not required to request public comment on the
FEIS, despite making many changes and additions. Additionally, ONDA was permitted by
regulation to comment on the FEIS and chose not to do so. See 40 C.F.R. § 1503.1.
As a result of my findings on these issues, I deny ONDA’s motion for summary judgment
and grant BLM’s motion for summary judgment. CEP and Harney County filed motions for
summary judgment asserting essentially the same arguments as BLM, and for the same reasons
that I grant BLM’s motion, I also grant their motions. I deny the motions to strike.
THE NATIONAL ENVIRONMENTAL POLICY ACT
The National Environmental Policy Act (“NEPA”) requires that when a major federal
action would significantly impact the quality of the human environment, the action agency must
prepare an Environmental Impact Statement (“EIS”) to consider the environmental impacts of
4 – OPINION AND ORDER
and alternatives to the proposed action. 2 42 U.S.C. § 4332(C). NEPA is a procedural statute that
does not impose any substantive requirements or mandate a particular outcome. Robertson, 490
U.S. at 350. The purpose of NEPA is to ensure that the agency and the public have available and
consider the relevant information. See, e.g., Or. Natural Desert Ass’n v. Bureau of Land Mgmt.,
625 F.3d 1092, 1099 (9th Cir. 2010).
An EIS is prepared in stages. In the initial “scoping” stage, the agency accepts public
comments about what the EIS should cover. 40 C.F.R. § 1501.7. Then it prepares a Draft EIS
(“DEIS”) and accepts public comment on that document. 40 C.F.R. Pts. 1502 & 1503. The
agency must respond to the comments received and include its responses in the Final EIS
(“FEIS”). Id. The agency must consider the FEIS before taking the proposed action. In the final
step in the process, the agency issues a Record of Decision (“ROD”) announcing its final
decision and the reasons for it. 40 C.F.R. § 1505.2.
Under NEPA, the agency is required to take a “hard look” at the environmental effects of
its actions. Marsh v. Or. Natural Res. Council, 490 U.S. 360, 374 (1989). An EIS must
“provide full and fair discussion of significant environmental impacts” of the proposed actions.
40 C.F.R. § 1502.1. Courts employ a “rule of reason” and ask whether the EIS contains a
“reasonably thorough discussion of the significant aspects of the environmental consequences.”
Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1071 (9th Cir. 2002)(citation omitted).
BACKGROUND
The agency action at issue in this case is the BLM’s decision to grant a right-of-way for
the North Steens 230-kV Transmission Line Project. The transmission line is necessary to
connect the proposed Echanis Wind Energy Project in Harney County, Oregon, to the power
2
In situations where the action would not have a significant impact, the agency can prepare a less-intensive
Environmental Assessment instead of a full-blown EIS. Here, the BLM immediately acknowledged that the impacts
of this action would be significant and went directly to an EIS.
5 – OPINION AND ORDER
grid. Approximately 12 miles of the 46-mile transmission line would cross public land
administered by the BLM, covering a total of 246.24 acres of public land. AR 00013; AR
01899.
The Echanis Project is located on Steens Mountain in southeastern Oregon. Steens
Mountain is a vast and scenic mountain that extends for 50 miles, reaching an elevation of 9700
feet. It provides recreational opportunities as well as valuable habitat for wildlife, including
sage-grouse and golden eagles. (Pl. Opening Br. [37] at 3–4.) Impacts to these two species are
at the heart of ONDA’s challenge.
The Echanis Project is sited entirely on 10,362 acres of private land. AR 01896.
Echanis will be a 104-megawatt facility containing 40 to 69 wind turbines. AR 01951. Harney
County has issued a Conditional Use Permit to the developer CEP to proceed with the project.
However, because the project would not be constructed without the transmission line right-ofway, BLM considered the entire project to be a federal action for purposes of the NEPA
analysis. 3 CEP initially proposed two additional wind developments—the East Ridge and West
Ridge Projects—but it withdrew those proposals in 2009 and officially canceled the additional
projects in 2011, citing business, regulatory, and environmental concerns. AR 00014.
CEP submitted an application for a right-of-way in December 2008. BLM published a
notice of intent to prepare an EIS on July 27, 2009. The DEIS was released in July 2010. After
receiving and considering comments from other agencies and the public, BLM released the FEIS
on October 21, 2011, and the ROD on December 28, 2011. BLM granted the right-of-way to
CEP on March 16, 2012, and issued a limited Notice to Proceed on May 21, 2012. However, the
Notice to Proceed was revoked on February 22, 2013, because the project was on hold due to this
3
Whether or not to “federalize” a project, that is to consider the private project along with the federal action in the
NEPA analysis, is an oft-litigated issue. Here, BLM decided to federalize the Echanis Project right away, and
ONDA applauds this decision. Tr. Oral Argument July 22, 2013, at 5.
6 – OPINION AND ORDER
litigation. Currently, CEP retains the right-of-way but has no right to undertake any construction
or pre-construction activities until it obtains a new Notice to Proceed from BLM.
As the lead agency, BLM is ultimately responsible for the production and content of the
EIS. During the NEPA process, BLM worked closely with CEP and Harney County, and with
the United States Fish and Wildlife Service (“FWS”) and the Oregon Department of Fish and
Wildlife (“ODFW”). ONDA submitted comments during the initial scoping process and also
commented on the DEIS.
I.
Sage-Grouse
The greater sage-grouse is a “Candidate Species” that warrants protection under the
Endangered Species Act but has not been listed as threatened or endangered because FWS
concluded that listing the species was precluded by the higher priority needs of other species.
AR 02185; AR 16098. Although the Endangered Species Act does not protect sage-grouse at
this time, FWS encourages voluntary conservation efforts, AR 02185, and the species is covered
by several of BLM’s internal policies. Recently, ODFW released two documents related to
Oregon’s sage-grouse: Greater Sage-Grouse Conservation Assessment and Strategy for Oregon:
A Plan to Maintain and Enhance Populations and Habitat (“Conservation Strategy”) and
Implementing Habitat Mitigation for Greater Sage-Grouse Under the Core Area Approach
(“Mitigation Framework”). AR 02183; AR 02188. BLM relied heavily on these documents in
preparing the FEIS, stating that they represent the best available science. AR 02183; AR 02187.
Although sage-grouse populations are declining nationwide, the population in Oregon is
“secure” and “doing relatively well.” AR 02184–85. Sage-grouse require suitable habitat for
persistence, and the Steens Mountain area contains important, high-quality sage-grouse habitat.
AR 02184. Habitat fragmentation is a key factor in sage-grouse population decline, and the
7 – OPINION AND ORDER
FWS determined that maintaining habitat connectivity is essential to the persistence of the
species. AR 16104–11. Renewable energy development has contributed to degradation of sagegrouse habitat. AR 02185.
Sage-grouse congregate in an open area called a “lek” for mating displays and then
disperse, usually 2 to 4 miles but up to 12.5 miles from the lek, for nesting. AR 02183–88. In
the summer females and chicks inhabit wetland areas where they feed on plants and insects, and
during the winter, the birds reside in areas where sagebrush extends above the snow because
their winter diet consists entirely of sagebrush leaves and buds. AR 02185; AR 16103–05. One
lek, the Little Kiger Lek, is located as close as 1.2 miles from the Echanis Project access road,
but due to topography is not within sight of the project. AR 02205; Tr. Oral Argument July 22,
2013 (“Tr.”) at 52. No known leks are located within 3 miles of the turbine site. AR 02205.
II.
Golden Eagles, Other Birds, and Bats
Golden eagles are protected under the Bald and Golden Eagle Protection Act and the
Migratory Bird Treaty Act, and evidence suggests that golden eagle populations may be
declining throughout their range. AR 02190. Golden eagles are known to be present in the
project area. AR 02190. Four inactive nests were discovered within the Echanis Project site,
and 14 eagles were spotted along the transmission line route during surveys. AR 02190–91.
The FEIS states that golden eagles would be directly affected by the project through both
disturbance and mortality. AR 01905. Because the project is expected to kill golden eagles,
CEP must obtain a “take” permit from FWS under the Bald and Golden Eagle Protection Act.
AR 01971.
Although ONDA’s concerns center around the impacts to golden eagles, it is also
concerned about impacts to other avian species and bats. Tr. at 5. In addition to golden eagles,
8 – OPINION AND ORDER
the FEIS discusses other special status raptor species, but concludes that they would rarely be
present in the project area as it does not match their habitat needs. AR 02206. Five special
status bat species were identified in surveys at the Echanis Project site. AR 02204. The
combined Avian and Bat Protection Plan and Eagle Conservation Plan (“Avian Plan”), which is
incorporated in the FEIS, addresses all avian and bat species. AR 02204–05.
LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). In challenges to final agency action under the Administrative Procedure Act, summary
judgment is appropriate for deciding the legal issue of whether the agency could reasonably have
found the facts as it did. See Occidental Eng’g Co. v. Immigration & Naturalization Serv., 753
F.2d 766, 770 (9th Cir. 1985).
When reviewing agency action under the Administrative Procedure Act, the courts asks
whether the action was “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A); Friends of the Earth v. Hintz, 800 F.2d 822, 831
(9th Cir. 1986). Review under this standard is narrow, and a court is not to substitute its
judgment for that of the agency. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983). The court must evaluate “whether the decision was based on a
consideration of the relevant factors and whether there has been a clear error in judgment.”
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). An agency action is
arbitrary and capricious “if the agency has relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of the problem, offered an explanation
for its decision that runs counter to the evidence before the agency, or is so implausible that it
9 – OPINION AND ORDER
could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle
Mfrs. Ass’n, 463 U.S. at 43.
Courts are at their most deferential when reviewing scientific judgments and analyses
within the agency’s expertise. Lands Council v. McNair, 629 F.3d 1070, 1074 (9th Cir. 2010)
(citing Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983)).
“When specialists express conflicting views, an agency must have discretion to rely on the
reasonable opinions of its own qualified experts even if, as an original matter, a court might find
contrary views more persuasive.” Marsh, 490 U.S. at 378.
ANALYSIS
I.
BLM adequately considered the impact of the project on fragmentation and
connectivity of sage-grouse habitat.
One of ONDA’s concerns with regard to the Echanis Project is that access roads and
other development associated with the project and the transmission line will fragment sagegrouse habitat and decrease connectivity in the Steens Mountain area. ONDA argues that the
FEIS fails to assess the impacts of the project on fragmentation and connectivity of sage-grouse
habitat. (Pl. Opening Br. [37] at 33–34.) ONDA also argues that the FEIS misinterprets the
scientific literature and fails to apply it meaningfully. (Pl. Opening Br. [37] at 34.) In his extrarecord declaration and the attached exhibits, ONDA’s expert Dr. Miller uses maps to
demonstrate the project’s effect on fragmentation and connectivity. (Miller Decl. [42] at ¶¶ 44–
70; Exs. A, D–L.)
Habitat fragmentation occurs when a contiguous block of a species’ habitat is divided
into smaller parts. Fragmentation may decrease connectivity—the continuity that enables
members of a species to move between habitat areas and is important to maintaining genetic
10 – OPINION AND ORDER
diversity. Habitat fragmentation has been recognized as a factor in the decline of sage-grouse
populations. AR 16112.
After reviewing the record, I find that the agency’s discussion of habitat fragmentation
was adequate. The FEIS acknowledges that sage-grouse can be displaced from their habitat due
to fragmentation. AR 02205; AR 02226. It also states that habitat connectivity is essential for
persistence of the species. AR 02185. The FEIS cites three scientific documents on which it
relied for sage-grouse information—ODFW’s Conservation Strategy, FWS’s Notice of 12-Month
Findings for Petitions to List the Greater Sage-Grouse, and Greater Sage-Grouse: Ecology and
Conservation of a Landscape Species and Its Habitats. AR 02183–84. The FEIS also discloses
conflicting authority. AR 02227. Based on the scientific information that it reviewed, BLM
concluded that, “fragmentation by rarely traveled dirt roads has not been shown to have a
negative influence upon lek persistence.” AR 03032–33.
The concepts of fragmentation and connectivity are inherently intertwined. ONDA
acknowledges this in its briefing when it states that the project “would fragment essential sagegrouse connectivity habitat on Steens Mountain.” (Pl. Opening Br. [37] at 34.)(emphasis in
original). By discussing habitat fragmentation while acknowledging the importance of
connectivity, the FEIS necessarily assesses the project’s impact on connectivity. I find that BLM
could have reasonably decided that fragmentation and connectivity are closely related, or even
inextricably intertwined, and chosen to discuss them together. In this matter of scientific
judgment, I defer to the agency’s expertise and decline to substitute my judgment for that of the
agency. See Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43; Lands Council, 629 F.3d at 1074.
11 – OPINION AND ORDER
II.
BLM’s actions did not conflict with its sage-grouse and eagle policies.
ONDA argues that BLM violated its own policies when it issued the ROD, making the
agency’s action arbitrary and capricious. (Pl. Opening Br. [37] at 37–40.) Specifically, ONDA
claims that BLM violated its Special Status Species Policy, National Sage-grouse Habitat
Conservation Strategy, two new sage-grouse Instruction Memoranda (“IMs”) issued on
December 27, 2011, and an Eagle IM. (Pl. Opening Br. [37] at 37–39.) I discuss each policy in
turn.
ONDA argues that BLM violated the Special Status Species Policy, SAR 000538, by
failing to ensure that issuance of the right-of-way would not contribute to the need to list sagegrouse under the Endangered Species Act. However, the FEIS contains a thorough discussion of
special status species, and it does not indicate that this project will contribute to the need to list
any of these species. AR 02180–91. I am neither authorized nor qualified to make an
independent determination that this project may contribute to the need to list sage-grouse under
the Endangered Species Act, so I defer to BLM’s expertise. 4 See Lands Council, 629 F.3d at
1074. I decline to hold that BLM’s decision violated the Special Status Species policy and was
thus arbitrary and capricious.
ONDA argues that BLM violated its National Sage-grouse Habitat Conservation
Strategy, SAR 000995, by failing to use the best available science. However, in the FEIS, BLM
stated that ODFW’s Conservation Framework, which it followed, represents the best available
science. AR 02183. I decline to decide what constitutes the best available science, and I defer to
the agency on this point. See Lands Council, 629 F.3d at 1074.
4
ONDA partially bases its argument on critical comments that FWS provided on the DEIS. (Pl. Opening Br. [37] at
37.) This evidence is not persuasive because FWS’s comments on the DEIS do not reflect the agency’s opinion of
the project and analysis as finalized and approved in the FEIS and ROD.
12 – OPINION AND ORDER
ONDA argues that BLM violated two IMs regarding sage-grouse that were issued one
day before the ROD was signed by failing to mention, consider, or adhere to the policies
contained in the IMs. It is unsurprising that the FEIS and ROD fail to discuss documents that
emerged one day before the ROD was finalized, and BLM’s action was not arbitrary and
capricious in light of this time frame. Moreover, BLM complied with the substance of the IMs,
neither of which is actually applicable to the actions at issue in this case. IM 2012-044 provides
that BLM should consider relevant conservation measures when amending land use plans in
sage-grouse habitat. AR 00257. The agency action at issue here is not the amendment of a land
use plan, and therefore IM 2012-044 does not apply. IM 2012-043 provides that BLM should
seek to maintain, enhance, or restore priority habitat for sage-grouse. AR 00261. This IM
applies to permit applications where BLM has issued or will issue a DEIS. AR 00262. IM 2012043 does not apply to the situation at hand where an FEIS had already been issued and a ROD
was issued one day after the IM. Regardless, BLM complied with this IM by coordinating with
ODFW, applying ODFW’s Conservation Strategy and Mitigation Framework, and imposing a
no-net-loss-net-benefit standard for sage-grouse habitat. For all of the above reasons, I find that
BLM’s action was not arbitrary and capricious.
ONDA argues that BLM violated its Eagle IM by approving the ROD without a letter of
concurrence from FWS stating that the Avian Plan was adequate. However, the record does
contain a letter from FWS to BLM confirming that FWS had worked with CEP to develop an
Avian Plan. Furthermore, BLM is not obligated to follow the Eagle IM in this situation. BLM
only needed a letter of concurrence under the IM if its action required a take permit. Tr. at 56.
Here, BLM is not permitting the Echanis Project; Harney County is. BLM is simply analyzing
the Echanis Project as a connected action under NEPA. Therefore, BLM does not need a take
13 – OPINION AND ORDER
permit or a concurrence letter. Tr. at 56. Because ONDA’s broad allegations that BLM violated
its own policies are unfounded, as explained above, I find that BLM’s decision was not arbitrary
and capricious.
III.
The FEIS contained adequate information about the impacts of the project
on sage-grouse and golden eagles.
A.
Sage-grouse
BLM obtained information about sage-grouse using habitat mapping and surveys. Tr. at
42–43. ONDA argues that BLM’s surveys for sage-grouse and mapping of sage-grouse habitat
were inadequate, and therefore BLM did not have enough information about sage-grouse
presence in and use of the area to make an informed decision about how sage-grouse would be
impacted by the project. (Pl. Opening Br. [37] at 28–33.)
I find that BLM had adequate information. BLM conducted general avian use surveys at
the Echanis Project site from August 21 to November 9, 2007, in which “sage-grouse were
frequently flushed,” and a total of 37 sage-grouse were counted. AR 02186. From July 25 to 31,
2008, BLM conducted special status wildlife surveys at the Echanis site, which recorded 12
individual sage-grouse. AR 02186. BLM also surveyed the transmission line route for multiple
weeks in each of the four seasons, and those surveys turned up no sage-grouse. AR 02186; AR
02905–08. Finally, BLM consulted winter survey data from the East and West Ridge sites, both
of which are located at a lower elevation than the Echanis site. AR 02187. Although it only
surveyed the Echanis Project site between July and November, BLM believes that the data from
winter surveys at the lower elevation East and West Ridge sites enable it to infer that no sagegrouse use the higher elevation Echanis Project site in the winter. AR 02187. BLM also mapped
wildlife habitats using vegetation communities, land forms, and field assessments. AR 02091;
AR 02166.
14 – OPINION AND ORDER
The FEIS acknowledges that sage-grouse are present at the Echanis site and also assumes
that they are present at the transmission line route, despite the fact that no sage-grouse were
observed in surveys of the transmission line. The FEIS notes that the Little Kiger Lek is located
as close as 1.2 miles from the Echanis Project access road. AR 02205. However, no known leks
are located within 3 miles of the turbine site. AR 02205.
While the effects of wind energy development on sage-grouse populations have not been
adequately studied, the FEIS states that there is the potential for conflict. AR 02187. The FEIS
also acknowledges that oil and gas development have been found to negatively impact sagegrouse populations. AR 02187. BLM concludes, “[u]ntil empirical data are available that
quantify the effects of [wind energy development] on greater sage-grouse populations, interim
guidance from the ODFW is being used to quantify areas of impact of projects on greater sagegrouse.” AR 02205.
It is certainly correct, as ONDA asserts, that BLM could have done further surveys and
gathered additional data. But that is not the question before me. I must decide whether BLM
knew enough about sage-grouse so that its decision to proceed with the project was informed,
rather than arbitrary. NEPA does not require perfect information. BLM was not required to tally
up the exact number of birds in the affected area. Tr. at 10. What NEPA does require is for
BLM and the public to have information about reasonably likely significant impacts so they can
make an informed decision.
BLM dealt with the fact that it lacked complete information about sage-grouse by
assuming that sage-grouse were present throughout the project area at all times and requiring
mitigation accordingly. ONDA agrees that mitigation, even when it post-dates the ROD, can be
a reason for upholding an agency’s decision. Tr. at 17. I find that BLM had enough information
15 – OPINION AND ORDER
before it to infer that sage-grouse would be impacted. 5 BLM then made a reasonable decision to
impose mitigation measures and approve the project.
B.
Golden Eagles
ONDA also argues that BLM’s eagle surveys were inadequate and inaccurate. (Pl.
Opening Br. [37] at 42–44.) ONDA relies on the extra-record declaration of Dr. Smallwood, a
raptor expert, who criticizes BLM’s survey methods and data based on his professional
experience and on his 2012, post-ROD visit to the site. (Smallwood Decl. [41] ¶¶ 1, 4.) Many
of the issues in Dr. Smallwood’s declaration were raised to and addressed by the agency during
the DEIS comment period. Tr. at 58. BLM and CEP have moved to strike Dr. Smallwood’s
declaration. I deny that motion. 6 However, the declaration does not persuade me that BLM’s
decision was arbitrary and capricious.
I find that BLM undertook sufficient surveys to understand raptor presence in the area.
BLM surveyed for raptors as part of the general avian use surveys in August through November
of 2007. AR 02171. BLM also conducted nest surveys at the Echanis site and the transmission
line route, noting whether the nests were active or inactive. AR 02171–72. Although BLM did
not follow FWS’s recommendation to conduct nest surveys within 10 miles of the project, it did
respond to concerns raised by FWS and ODFW related to the turbine array, proximity of the
project to treed areas, and wind conditions conducive to soaring. AR 02208.
The FEIS acknowledges that raptors are present at the Echanis site, but states that they
were observed over canyons and away from ridges where turbines would be located. AR 02206.
5
As part of this decision, I defer to BLM’s reasonable and adequately-explained decision to make inferences about
sage-grouse winter use of the project area from the winter data gathered at the East and West Ridge sites, as this is a
matter of interpreting scientific data within the agency’s expertise.
6
Although I deny the motion, I am concerned by the practice of hiring experts to analyze and critique an EIS after
the ROD has been issued. Such an independent expert analysis should be presented to the agency in comments on
the DEIS or FEIS when the agency can take it into account, instead of after the agency has made its final decision
and issued the ROD.
16 – OPINION AND ORDER
The closest active golden eagle nest to the Echanis site was 2.5 miles away. AR 02206. The
FEIS evaluated the potential impacts on raptors by analyzing how a number of “Danger Zone
Factors” for wind energy projects, including topographic features and proximity to foraging sites
and prey, would apply at the Echanis site. AR 02207. BLM estimated golden eagle mortality
from the project at 1.7 eagles per year, using what it considers to be the best available
information. AR 02209.
The FEIS and ROD incorporate the Avian Plan, which takes an adaptive approach to
eagle conservation and mitigation. The Avian Plan provides for mandatory turbine curtailment
(temporary shut down) if wind conditions increase the likelihood of an eagle collision. AR
02200; AR 02973. The location and duration of curtailment would depend on the number and
location of documented eagle fatalities that have occurred up to that time. AR 02976. The
ultimate goal of the Avian Plan is no net loss of eagles. AR 02209. The Echanis Project will
also require a take permit from FWS which will be valid for five years. During this time, data
will be collected, and the permit conditions will be refined if necessary at the end of the period.
AR 02209.
I find that BLM had sufficient data about eagles in the area to enable it to determine that
eagles would be impacted and to decide to impose stringent mitigation measures. In light of the
data it had and the mitigation it required, I find that BLM’s decision was not arbitrary and
capricious.
IV.
BLM adequately considered and responded to other agencies’ critical
comments.
ONDA argues that BLM’s decision to issue the ROD and approve the project was
arbitrary and capricious because BLM failed to respond to critical comments from other agencies
and to act on those agencies’ recommendations. (Pl. Opening Br. [37] at 33, 42.) ONDA points
17 – OPINION AND ORDER
to examples throughout the record of FWS’s comments that the EIS lacked sufficient data and
that further surveys were necessary. See, e.g., AR 14689–90. For example, FWS’s comments on
the DEIS recommended eagle surveys within 10 miles of the project boundary. However, BLM
never obtained the additional data requested by FWS; it only surveyed within two miles of the
project.
Although BLM did not accede to FWS’s request for additional surveys, the FEIS does
specifically respond to many of FWS’s articulated concerns about impacts to eagles. In response
to FWS’s concern that eagles would not be able to pass through a “picket fence” turbine layout,
BLM provided calculations showing that there would be a 176-meter space between the turbines’
rotor areas. AR 02208. In response to FWS’s concern that the turbines would be located in
close proximity to treed areas, BLM consulted maps showing that nearly every turbine would
have a treeless buffer of at least 100 meters. AR 02208. In response to FWS’s concern that the
presence of seasonal winds might create soaring conditions which lead to collisions, BLM
determined from three years of on-site meteorological data that such conditions occur
infrequently. AR 02208.
FWS’s comments were most critical in the earlier stages of the NEPA process. On the
final drafts of the ROD, which presents all of the mitigation plans designed to address the
impacts and information deficiencies that concerned FWS and that are the basis of ONDA’s
challenge, FWS’s comments were favorable. FWS stated,
BLM has done an excellent job on this final draft product. We appreciate the
manner and extent to which our previous comments have been addressed. This
draft is much tighter than its first iteration. If we can get these last few issues
addressed and if the ROD is not weakened through subsequent revisions, we think
it can serve as an excellent model for application elsewhere; we will recommend
to our regional and national management that FWS should be prepared to support
it.
AR 00591.
18 – OPINION AND ORDER
FWS’s concerns, particularly those expressed during the earlier stages of the process, do
not by themselves invalidate the FEIS, see Akiak Native Cmty. v. U.S. Postal Serv., 213 F.3d
1140, 1146 (9th Cir. 2000), because there need not be a “unanimity of opinion among agencies.”
Alaska Survival v. Surface Transp. Bd., 705 F.3d 1073, 1088 (9th Cir. 2013). BLM did not have
to defer to FWS’s concerns, but it did need to consider and respond to them. See Akiak Native
Cmty., 213 F.3d at 1146.
I find that it did so. For example, as discussed previously, the FEIS explicitly responds to
some of FWS’s concerns by discussing the “picket fence” turbine layout, proximity of the
project to treed areas, and the presence of seasonal winds that might create soaring conditions
and lead to collisions. AR 02208. In response to FWS’s comments on earlier drafts that the
project would have significant unmitigated impacts to sage-grouse and eagles, BLM incorporated
mitigation plans in the FEIS and the ROD. See AR 02945. FWS’s critical comments early in the
EIS process do not mandate rejection of the FEIS or make BLM’s decision to proceed with the
project arbitrary and capricious.
V.
BLM was not obligated to have an enforceable mitigation plan in place when
it approved the project and was entitled to rely on the assumption that
Harney County would require mitigation for the impacts to private land.
ONDA challenges BLM’s failure to specify mitigation measures and its reliance on the
assumption that Harney County would require mitigation for impacts to private land. (Pl.
Opening Br. [37] at 47–48.) However, the record shows that the FEIS and the ROD do discuss
mitigation extensively. Also, BLM incorporated several mitigation and conservation plans in the
FEIS and the ROD, including the Avian Plan, a Habitat Mitigation Plan (“HMP”), a Weed
Management and Control Plan, a Revegetation Plan, and a Spill Prevention Plan. AR 00031-35;
AR 02945.
19 – OPINION AND ORDER
BLM also conditioned grant of the right-of-way on adoption of the HMP into CEP’s
permits from both BLM and Harney County. AR 00116; AR 00125. Harney County imposed
the elements of the HMP as Condition 8 to the Conditional Use Permit and has jurisdiction under
the permit to enforce it. AR 00036–37. This means that the same mitigation measures will be
required on public and private land.
NEPA requires that an EIS discuss mitigation in sufficient detail that environmental
consequences can be evaluated. Robertson, 490 U.S. at 351–52. Of course, because it is a
procedural statute, NEPA does not require that any harms actually be mitigated. See S. Fork
Band Council of W. Shoshone of Nev. v. U.S. Dep’t of Interior, 588 F.3d 718, 727 (9th Cir.
2009). The Supreme Court has clarified that the requirement that mitigation be discussed does
not mean mitigation plans must be fully formulated and enforceable before an agency can act.
Robertson, 490 U.S. at 353. Additionally, NEPA does not require the lead agency to obtain
assurance that third parties will implement particular mitigation measures. Id.
The Supreme Court has made clear that BLM need not have a fully-developed and
enforceable mitigation plan in place before it can act, so to the extent that ONDA is making that
argument, it fails. See id. BLM also does not have to be certain that Harney County will
implement the mitigation measures on private land. See id. Instead, BLM was entitled to
assume that Harney County would require mitigation and enforce the HMP as incorporated in the
Conditional Use Permit. BLM required mitigation for the impacts to public land and reasonably
assumed that Harney County would require mitigation on private land, so its decision was not
arbitrary and capricious. 7
7
Indeed, it is somewhat ironic that ONDA is challenging the sufficiency of BLM’s mitigation measures in this case
where BLM has taken the extraordinary measure of requiring mitigation on private land by making this a condition
of the right-of-way grant.
20 – OPINION AND ORDER
VI.
BLM adequately analyzed the effectiveness of the proposed mitigation
measures.
ONDA argues that BLM failed to analyze the effectiveness of the proposed mitigation
measures, in violation of NEPA. (Pl. Opening Br. [37] at 48.) The purpose of discussing
mitigation in the NEPA analysis is to evaluate whether environmental impacts can be avoided.
Robertson, 490 U.S. at 351–52. To serve this purpose, the discussion of mitigation must contain
an evaluation of “whether the proposed mitigation measures can be effective.” S. Fork Band,
588 F.3d at 727.
The effectiveness of many of the measures contained in the mitigation plans is obvious.
For example, reducing the number of noxious weeds and re-seeding with native vegetation such
as sagebrush will necessarily improve the sagebrush habitat on which sage-grouse rely. For
other mitigation measures, the FEIS provides specific details about the effectiveness. For
example, the FEIS states that transmission line marking devices “have been reported to reduce
[avian] collision mortalities by 40 to 90 percent.” AR 02234.
For the remaining sage-grouse mitigation measures, I find that it was not necessary for
BLM to independently analyze effectiveness because it adopted a HMP based on the ODFW
Mitigation Framework, which the parties and the cooperating agencies agree is a cutting-edge
document that represents the best science on sage-grouse conservation. 8 AR 00116; AR 03001;
AR 05119; Tr. at 20. The HMP includes methods such as modification of livestock grazing,
juniper control, weed control and related seeding, fire control, erosion control, habitat protection,
and broader habitat enhancement. Because the HMP required management according to the best
available mitigation plan, it was reasonable for BLM to proceed under the HMP without
8
In commenting on the FEIS, ODFW stated, “The Department and USFWS recommend use of the Department’s
Mitigation Framework as the best scientifically defensible methodology for identifying project affected area and
appropriate mitigation actions for sage-grouse and other wildlife.” AR 05119.
21 – OPINION AND ORDER
undertaking its own analysis of the effectiveness of each individual mitigation measure in the
plan.
BLM also was not required to analyze the effectiveness of individual eagle, bird, and bat
mitigation measures at the FEIS stage because it adopted the Avian Plan, which contemplated an
adaptive management approach with ongoing monitoring. AR 02946. In an adaptive
management scheme, ongoing monitoring and data collection inform decisions about the
effectiveness of past mitigation and what mitigation is necessary in the future. “Allowing
adaptable mitigation measures is a responsible decision in light of the inherent uncertainty of
environmental impacts, not a violation of NEPA. It is certainly not arbitrary or capricious.”
Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 517 (D.C. Cir. 2010).
The FEIS also provides for a Technical Advisory Committee, composed of
representatives from BLM, FWS, ODFW, CEP, and Harney County to provide advice and
recommendations for developing and implementing mitigation. AR 02197. This additional
safeguard will further ensure that mitigation efforts will be effective. For all of the above
reasons, I find that the FEIS’s discussion of mitigation and its effectiveness was not arbitrary and
capricious.
VII.
BLM was not required to allow public comment on the changes it made
between the Draft and Final EIS.
In response to comments on the DEIS and as a result of further study, BLM added pages
of new information to the FEIS. See, e.g., AR 02171–72; AR 02184–88; AR 02190–91. At oral
argument, ONDA clarified that one of its main objections to BLM’s action is that the agency
incorporated “wholesale changes” in the FEIS and did not request public comment on these
changes. Tr. at 15. ONDA argues that the changes to the FEIS were so significant that the
agency should have requested public comment.
22 – OPINION AND ORDER
However, the NEPA regulations do not require BLM to request public comment on a
FEIS. 40 C.F.R. § 1503.1. The regulation states, “An agency may request comments on a final
environmental impact statement before the decision is finally made. In any case other agencies or
persons may make comments before the final decision unless a different time is provided under
§ 1506.10.” 40 C.F.R. § 1503.1 (emphasis added). Under the regulations, BLM may but is not
required to request comments on an FEIS. Even if the agency does not request comments,
“agencies or persons” may comment before the final decision is issued. 40 C.F.R. § 1503.1
Here, the FEIS was released on October 21, 2011, and the ROD was issued on December 28,
2011. Though the regulations only require 30 days between issuance of the FEIS and the ROD,
40 C.F.R. § 1506.10(b)(2), there was a 68-day window here in which ONDA could have brought
its concerns to the agency’s attention in comments. 9
When new information emerges after the DEIS, it may be validly included in the FEIS
without recirculation. Wetlands Water Dist. v. U.S. Dep’t of Interior, 376 F.3d 853, 873 (9th Cir.
2004). This is consistent with the format of the NEPA regulations, which establish a system
where the agency will incorporate changes in the FEIS based on comments received on the
DEIS. If the agency were required to request further comments every time it made changes to
the FEIS, the process could become mired in an endless loop of comments and the resulting
changes until all parties were completely satisfied with the EIS or had collapsed behind the
tortoise at the finish line. This would have the effect of delaying agency action indefinitely,
which is not the purpose of NEPA.
The NEPA regulations do not contemplate this type of system, and I decline to impose on
the agency a requirement to request comment on the FEIS when the regulations are permissive.
Under 40 C.F.R. § 1503.1(b), ONDA had the opportunity to raise its concerns during the 68-day
9
ONDA’s failure to do so increases my concern about post-ROD expert opinion testimony. See supra note 6.
23 – OPINION AND ORDER
period between the FEIS and ROD. If this was insufficient time, ONDA could have requested
additional time to comment. It did neither of these things. Therefore, I find that BLM’s decision
not to request public comments on the FEIS was not arbitrary and capricious.
CONCLUSION
Because I find that BLM’s decision was not arbitrary and capricious, I grant BLM’s
motion [51] for summary judgment. For the same reason, I also grant CEP’s motion [46] for
summary judgment and Harney County’s motion [44] for summary judgment. I deny ONDA’s
motion [37] for summary judgment. I also deny the motions [48, 53] to strike extra-record
declarations filed by BLM and CEP.
IT IS SO ORDERED.
DATED this
11th
day of September, 2013.
/s/ Michael W. Mosman
MICHAEL W. MOSMAN
United States District Judge
24 – OPINION AND ORDER
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