Desert Protective Council v. U.S. Department of the Interior , 630 F. App'x 705 ( 2015 )

FILED
NOT FOR PUBLICATION NOV 19 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DESERT PROTECTIVE COUNCIL, a No. 13-55561
California non-profit corporation; et al.,
D.C. No. 3:12-cv-01281-GPC-
Plaintiffs - Appellants, PCL
v.
MEMORANDUM*
U.S. DEPARTMENT OF THE
INTERIOR; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Argued and Submitted November 3, 2015
Pasadena, California
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
Plaintiffs appeal the district court’s judgment denying Plaintiffs’ motion for
summary judgment and granting Defendants’ motion for summary judgment. We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We review agency compliance with the National Environmental Policy Act
(“NEPA”) and the Federal Land Policy and Management Act (“FLPMA”) as
outlined in the Administrative Procedure Act (“APA”). Earth Island Inst. v. U.S.
Forest Serv., 697 F.3d 1010, 1013 (9th Cir. 2012). Under the APA, we may set
aside an agency action only if it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The district court
also reviewed this Bureau of Land Management (“BLM”) action under the
arbitrary and capricious standard. We review de novo the district court’s grant of
summary judgment. Gardner v. U.S. Bureau of Land Mgmt., 638 F.3d 1217, 1220
(9th Cir. 2011).
1. NEPA requires federal agencies to follow certain procedures and take a
“hard look” at environmental consequences. Idaho Conservation League v.
Mumma, 956 F.2d 1508, 1519 (9th Cir. 1992). NEPA regulations require agencies
to make “environmental information . . . available to public officials and citizens
before decisions are made,” 40 C.F.R. § 1500.1(b), and “insure the . . . scientific
integrity[] of the discussions and analyses in environmental impact statements
[(“EIS”)],” § 1502.24. NEPA also requires agencies to discuss appropriate
mitigation measures in an EIS “in sufficient detail to ensure that environmental
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consequences have been fairly evaluated.” Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 352 (1989).
The district court did not err in determining that the BLM complied with
NEPA, because the BLM sufficiently evaluated and disclosed the environmental
impacts of the Ocotillo wind energy facility project (the “Project”). Plaintiffs
contend that they were not provided with an opportunity for public comment on 34
raptor studies that were cited in the final Avian and Bat Protection Plan (“ABPP”),
but not in the draft ABPP. A mitigation plan, such as the ABPP, does not need to
be in final form to comply with NEPA’s procedural requirements. See Nat’l Parks
& Conservation Ass’n v. U.S. Dep’t of Transp., 222 F.3d 677, 681 n.4 (9th Cir.
2000). The draft EIS concluded that raptor use of the Project site was low and
provided supporting evidence.1 Plaintiffs commented on the draft EIS and did not
take issue with this conclusion. The final EIS was available for comment during
the 30-day protest period, and Plaintiffs did not comment on the final ABPP’s
comparison of raptor data, despite submitting comments on other aspects of the
1
The draft EIS included the results of raptor migration count and avian point
count surveys, and a Biological Technical Report, which concluded that the
collision risk of special status raptor species was low. The draft and final EIS also
cite the California Guidelines for Reducing Impacts to Birds and Bats from Wind
Energy Development (2007), a publicly available document that contains much of
the data from the 34 raptor studies cited in the final ABPP.
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final EIS. Accordingly, Plaintiffs have not shown that the BLM acted in an
arbitrary and capricious manner by not including certain raptor studies in the draft
ABPP.
Similarly, Plaintiffs have not shown that the methodologies used by the
BLM in conducting migration surveys were arbitrary or capricious. While
Plaintiffs question the BLM’s methodologies as they relate to the timing of raptor
migration surveys, the final EIS contains a reasoned analysis of the migration and
presence of Swainson’s hawks and other raptors at the Project site. We are “most
deferential when reviewing scientific judgments and technical analyses within the
agency’s expertise under NEPA” and will not “impose [ourselves] as a panel of
scientists.” See Native Ecosystems Council v. Weldon, 697 F.3d 1043, 1051 (9th
Cir. 2012) (internal citations and quotation marks omitted). Further, the BLM
included a reasonably complete discussion of mitigation measures in the final EIS.
It was not arbitrary and capricious for the final EIS to require turbine curtailment
for golden eagles and not other raptors, because the special legal status of golden
eagles justified different mitigation measures.
2. FLPMA authorizes the Department of Interior to grant rights-of-way across
public lands for various purposes, including for “systems for generation,
transmission, and distribution of electric energy.” 43 U.S.C. § 1761(a)(4). These
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grants must “require compliance with State standards for . . . environmental
protection . . . if those standards are more stringent than applicable Federal
standards.” § 1765(a)(iv). The grants must also include terms and conditions that
“minimize damage to . . . fish and wildlife habitat and otherwise protect the
environment.” § 1765(a)(ii).
The BLM did not act arbitrarily and capriciously in granting a right-of-way
for the Project. The right-of-way explicitly requires compliance with state law.
Contrary to Plaintiffs’ argument, the California Department of Fish and Wildlife
has not interpreted the California Fish and Game Code as requiring wind energy
facilities to prevent all bird and bat fatalities. The right-of-way also includes terms
and conditions minimizing damage to wildlife habitat and protecting the
environment. The right-of-way was not required to include turbine curtailment for
all raptor species as a mitigation measure. The Project adopted sufficient
mitigation measures designed to minimize damage to wildlife habitat.
3. “[B]ecause the presence of one party with standing is sufficient to satisfy
Article III’s case-or-controversy requirement,” we do not need to determine
whether the Laborers’ Union lacked organizational standing. Rumsfeld v. Forum
for Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006). The Laborers’
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Union’s claims and arguments were nonetheless fully presented to the district court
by its member Plaintiff.
4. In its initial complaint, Plaintiffs did not adequately plead certain NEPA
claims. Nonetheless, the district court made a merits determination on all of
Plaintiffs’ unpleaded claims during the summary judgment process. Defendants
also fully responded to all of the claims. Therefore, the district court did not abuse
its discretion in refusing to grant Plaintiffs leave to amend the complaint to add
these claims. Such amendment would have been futile and subject to dismissal.
See Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989).
AFFIRMED.
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