Onda v. Sally Jewell ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OREGON NATURAL DESERT No. 13-36078
ASSOCIATION; AUDUBON SOCIETY
OF PORTLAND, D.C. No.
Plaintiffs-Appellants, 3:12-cv-00596-MO
v.
ORDER AND
SALLY JEWELL, Secretary of the AMENDED
Interior; BUREAU OF LAND OPINION
MANAGEMENT,
Defendants-Appellees,
COLUMBIA ENERGY PARTNERS,
LLC; HARNEY COUNTY,
Intervenor-Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, Chief District Judge, Presiding
Argued and Submitted March 10, 2016
Portland, Oregon
Filed May 26, 2016
Amended October 20, 2016
2 ONDA V. JEWELL
Before: Raymond C. Fisher, Marsha S. Berzon,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Berzon
SUMMARY*
Environmental Law
The panel amended its opinion, filed on May 26, 2016,
and reversed in part the district court’s summary judgment in
favor of defendants in an action challenging under the
National Environmental Policy Act a wind-energy
development project on the ground that the U.S. Bureau of
Land Management’s environmental review of the project did
not adequately address impacts to the greater sage grouse;
and remanded.
The panel held that BLM’s review did not adequately
assess baseline sage grouse numbers during winter at the
proposed Echanis wind energy facility in Harney County,
Oregon. The panel also held that the BLM’s error was not
harmless. Accordingly, the panel reversed the district court’s
entry of summary judgment in favor of the BLM, Harney
County, and Columbia Energy Partners, the project
developer, as to that issue.
The panel also held that because plaintiffs did not bring
the issue of inter-population or genetic connectivity between
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ONDA V. JEWELL 3
sage grouse populations to the BLM’s attention during the
environmental review process, the issue was not exhausted
and is not now subject to review.
The panel remanded to the district court with instructions
to vacate the Secretary of the Interior’s Record of Decision
unless the district court determines that this is the rare
circumstance where the agency action should remain in force
until the action is reconsidered or replaced.
COUNSEL
Peter M. Lacy (argued), Oregon Natural Desert Association,
Portland, Oregon; Laurence J. Lucas, Boise, Idaho; David H.
Becker, Portland, Oregon, for Plaintiffs-Appellants.
John C. Cruden, Assistant United States Attorney General,
Washington D.C.; Ty Bair, Allen M. Brabender, & Peter
Krzywicki (argued), United States Department of Justice,
Washington D.C.; Veronica Larvie, Office of the Solicitor,
Department of the Interior, Salt Lake City, Utah, for
Defendants-Appellees.
Jonathan M. Norling, Portland, Oregon, for Intervenor-
Appellee Columbia Energy Partners.
Dominic M. Carollo (argued), Ronald S. Yockim, Yockim
Carollo LLP, Roseburg, Oregon, for Intervenor-Defendant-
Appellee Harney County.
4 ONDA V. JEWELL
ORDER
The opinion filed on May 26, 2016, and reported at 823
F.3d 1258 is hereby amended. The amended opinion will be
filed concurrently with this order.
The opinion is amended as follows:
1. On 823 F.3d at 1270, after add 626 F.3d 1040, 1053 n.7 (9th Cir. 2010). Whether,
and when, construction of the transmission line and wind
turbine complex will go forward absent vacatur may be
relevant to that determination.>
2. On 823 F.3d at 1270, the final line of the opinion is
changed to:
The Petition for Panel Rehearing is DENIED. No further
petitions for rehearing or petitions for rehearing en banc will
be entertained.
ONDA V. JEWELL 5
OPINION
BERZON, Circuit Judge:
Renewable energy projects, although critical to the effort
to combat climate change, can have significant adverse
environmental impacts, just as other large-scale developments
do. Here, the Oregon Natural Desert Association and the
Audubon Society of Portland (collectively, “ONDA”)
challenge a wind-energy development on the ground that the
U.S. Bureau of Land Management’s (“BLM”) environmental
review of the project did not adequately address impacts to
the greater sage grouse, a relatively large ground-dwelling
bird once abundant in the western United States. Greater
sage grouse depend on sagebrush habitat for their survival.
The challenged project entails the construction of wind
turbines and a right-of-way across a sagebrush landscape in
southeastern Oregon’s Harney County.
We conclude that the BLM’s review did not adequately
assess baseline sage grouse numbers during winter at the
Echanis site, where the wind turbines are to be installed. As
to that point, we reverse the district court’s entry of summary
judgment in favor of the BLM, Harney County, and
Columbia Energy Partners, the project developer. We also
conclude, however, that ONDA did not exhaust its argument
regarding genetic connectivity, and so we affirm as to that
issue.
6 ONDA V. JEWELL
I.
A. The Project
The Echanis Wind Energy Project “is a 104-megawatt
(MW) wind energy facility that would be constructed on a
10,500-acre privately-owned tract” on Steens Mountain in
Harney County, Oregon. BLM, North Steens 230-kV
Transmission Line Project Final Environmental Impact
Statement (Oct. 2011) (“FEIS”) ES-1. Between 40 and 69
wind turbines would be built on the Echanis site. FEIS ES-
11, 2-21, 3.1-2; see FEIS 2-22–23. The North Steens 230-kV
Transmission Line, which involves “the construction,
operation, and maintenance of a new [230-kilovolt] overhead
electric transmission line and associated facilities on BLM-
administered land,” would transport energy from the turbines
to the electrical grid. FEIS ES-1–2. The entire
undertaking—that is, both the transmission line and the
turbine complex—(“the Project”), was approved in the
BLM’s FEIS and Record of Decision (“ROD”) here
challenged.
Columbia Energy Partners received a conditional use
permit from Harney County to develop the Project,
commissioned several studies of the Project, and secured a
20-year agreement to sell energy generated by the wind
facility.1 FEIS ES-1. Because the right-of-way for the
transmission line crosses public lands administered by the
BLM, and the construction of the turbines is a “connected
action,” 40 C.F.R. § 1508.25(a)(1), the entire Project is
1
This agreement, along with certain other ancillary facets of the Project,
has since been cancelled. The parties assure us, however, that if the
Project survives environmental review, it will go forward.
ONDA V. JEWELL 7
subject to environmental review under the National
Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321, et
seq. See FEIS 1-1.
The Echanis site was chosen because “[i]nitial site
reconnaissance revealed wind-swept areas well exposed to
prevailing west winds and – where present – significant
‘flagging’ of vegetation, indicating a robust westerly wind
resource.” FEIS app. F at 6. This preliminary assessment
was confirmed after a meteorological tower was erected at the
site. Id. After considering three alternatives, the BLM chose
a route for the transmission line and associated infrastructure
that would cut across, in part, the Steens Mountain
Cooperative Management and Protection Area (“Steens
Protection Area”). See, e.g., FEIS ES-3, ES-11, 1-4–5.
B. Steens Mountain
Steens Mountain is many miles long and nearly 10,000
feet in elevation at its highest point. In 2000, Congress
enacted the Steens Mountain Cooperative Management and
Protection Act (“Steens Act”), which, among other things,
established the Steens Protection Area and the Steens
Mountain Wilderness Area. FEIS 1-19; see 16 U.S.C.
§ 460nnn, et seq. “The purpose of the [Steens Protection
Area] is to conserve, protect, and manage the long-term
ecological integrity of Steens Mountain for future and present
generations.” 16 U.S.C. § 460nnn-12(a). Under the Steens
Act, the “ecological integrity” that must be conserved,
protected, and managed includes “the maintenance of . . .
genetic interchange.” 16 U.S.C. § 460nnn(5)(B). Steens
Mountain, home to many sagebrush communities, lies near
the center of one of the last remaining “strongholds of
8 ONDA V. JEWELL
contiguous sagebrush habitat essential for the long-term
persistence of greater sage-grouse.”
C. Greater Sage Grouse
The greater sage grouse is a sagebrush-obligate bird,
meaning that it relies on sagebrush for its survival year-
round. FEIS 3.5-22; Oregon Department of Fish & Wildlife,
Greater Sage-Grouse Conservation Assessment and Strategy
for Oregon: A Plan to Maintain and Enhance Populations
and Habitat, Draft, March 1, 2011 (“Sage Grouse Strategy”)
at 8. Sage grouse use different aspects of sagebrush habitats
for various purposes. FEIS 3.5-22. For instance, at leks,
“open areas surrounded by sagebrush,” male sage grouse strut
and compete for female mates, displaying their elaborate
plumage. FEIS 3.5-22; Sage Grouse Strategy at 8. In
addition, sage grouse use sagebrush habitats for nesting and
brood rearing. FEIS 3.5-22.
Sagebrush habitat is also essential for winter survival of
sage grouse. “During the winter months, [the] greater sage-
grouse’s diet consists almost entirely of sagebrush leaves and
buds.” FEIS 3.5-23. To facilitate sagebrush consumption,
sage grouse in the winter months “tend toward areas with
high canopy and taller sagebrush plants . . . . Sagebrush must
be exposed at least 9.8 to 11.8 inches (25 to 30 cm) above the
snow level to provide adequate forage and cover.” FEIS 3.5-
23. “[I]f sagebrush is covered with snow, greater sage-grouse
will move to areas where the sagebrush is exposed . . . . The
availability of sagebrush above the snowpack is critical to the
survival of greater sage-grouse through the winter.” FEIS
3.5-23–24; see also Sage Grouse Strategy at 10.
ONDA V. JEWELL 9
Once abundant across much of the western United States
and Canada, the greater sage grouse now lives in “continually
declining” and “increasingly separate” populations. FEIS
3.5-22. Since the 1950s, the overall population of sage
grouse has declined by somewhere between 45% and 80%.
Id. “Habitat loss and fragmentation are the primary cause[s]
for long-term changes in [sage grouse] population abundance
and distribution.” Sage Grouse Strategy at 1. As a
consequence, “[m]aintenance of connectivity and reduction
of fragmentation of sagebrush habitats is key to the long-term
welfare of all . . . sagebrush associated species.” Id. at 4.
Oregon is unique in that, “[c]ompared to other states within
the range of sage-grouse, [it] has large expanses of
contiguous habitat with minimal threats of fossil fuel
exploration or development.” Id. at x. “Oregon sage-grouse
populations and sagebrush habitats likely comprise nearly
20% of the North American range wide distribution.” Id. at
2.
D. Environmental Review
The impacts of the Project on sage grouse were by far the
most significant concern during the environmental review
process at issue here. In the draft environmental impact
statement (“DEIS”), FEIS, and ROD, the BLM adopted
information, guidance, and mitigation measures concerning
the sage grouse from the Oregon Department of Fish &
Wildlife’s Mitigation Framework and Sage Grouse Strategy
documents. FEIS ES-19, 3.5-21, 3.5-25–26; see C.A. Hagen,
Mitigation Framework for Sage-Grouse Habitats, Aug. 23,
2011 (“Mitigation Framework”).
In response to the DEIS, ONDA submitted to the BLM
numerous comments on a variety of issues, supporting the
10 ONDA V. JEWELL
comments with scientific studies, wildlife management
materials, and other documents. After the comment period
ended, the BLM issued the FEIS and ROD, selecting the
North Route transmission line as the preferred alternative to
be implemented.2 FEIS ES-3. The North Route line would
be approximately 46 miles long, connecting an electric
substation at the Echanis site with an interconnection station
near Crane, Oregon. FEIS ES-3.
Of relevance here, the FEIS acknowledged the “potential
conflict between wind energy development and greater sage-
grouse winter foraging habitats, because the windswept ridges
that keep sagebrush exposed during winter months could also
be ideal locations for wind energy development.” FEIS 3.5-
25. Despite this concern, no surveys were conducted to
determine if sage grouse are present at the Echanis site during
the winter months of November through April. Instead, the
BLM assumed, based on surveys done at the nearby East
Ridge and West Ridge sites, that no grouse use the Echanis
site during winter.3 FEIS 3.5-25, 3.19-4. The FEIS stated
that “no greater sage-grouse were found” at the East and West
Ridge sites between late December and April, during the
period of snow accumulation. FEIS 3.5-25. It explained:
2
Although the entire Project includes both the transmission line and the
wind turbines, the proposed action alternatives varied only as to the route
the transmission line would take. Harney County issued the permit to
build the wind turbines at the Echanis site, which is private land, so the
proposed turbines would be built there and nowhere else. For that reason,
other than the no-action alternative, the FEIS and ROD did not consider
alternative sites for the turbines.
3
The East and West Ridge sites were originally also slated for wind-
energy development, but applications for those projects were withdrawn.
FEIS 3.19-2–3.
ONDA V. JEWELL 11
The East Ridge and West Ridge projects are
similar but potentially at even lower
elevations [than is the Echanis site]. . . .
Because the Echanis Project area is generally
covered with snow earlier and later in the
season because of it’s [sic] relatively higher
elevation, it is reasonable to extrapolate
winter use from the surveys at the East Ridge
and West Ridge sites. Therefore, based upon
these data, greater sage-grouse are assumed
not to utilize the Echanis Project Area for
winter habitat from the time that the
vegetation is covered with snow until
snowmelt, roughly December through April.
FEIS 3.5-25.
As to connectivity concerns, the transmission lines and
associated access and maintenance roads would physically
divide sage grouse habitat, and the lines would provide
perches for predatory raptors (such as hawks and eagles) and
corvids (such as ravens, crows, and jays). See Sage Grouse
Strategy at 47–48. Accordingly, the FEIS assumed that
grouse would avoid and be displaced from areas near
transmission lines and poles. FEIS 3.5-43–44. This
displacement, combined with possible avoidance of some
areas due to noise or other project-related disturbances, would
result in habitat fragmentation, as the lines transect otherwise
contiguous grouse habitat. FEIS 3.5-43, 3.5-80.
E. This Litigation
After the FEIS and ROD issued, ONDA filed a complaint
in the U.S. District Court for the District of Oregon,
12 ONDA V. JEWELL
challenging environmental review of the Project under
NEPA. Harney County and Columbia Energy Partners
intervened. The parties then filed cross-motions for summary
judgment.4 Ultimately, the court granted the defendants’
motions for summary judgment and denied ONDA’s.
We reverse the district court’s ruling.
II.
ONDA asserts that the BLM’s review of the Project did
not comply with NEPA, “our basic national charter for
protection of the environment.” 40 C.F.R. § 1500.1(a). The
centerpiece of environmental review under NEPA is the
environmental impact statement (“EIS”), in which the
responsible federal agency describes the proposed project and
its impacts, alternatives to the project, and possible mitigation
for any impacts. See 40 C.F.R. §§ 1500.1, 1502.15. NEPA
imposes procedural requirements on federal agencies
undertaking review; it does not mandate outcomes.
WildEarth Guardians v. Mont. Snowmobile Ass’n, 790 F.3d
920, 924 (9th Cir. 2015).
NEPA challenges are reviewed under the Administrative
Procedure Act (“APA”). Id. Under the APA, we ask whether
the agency’s action was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A). An agency’s action can be set aside
4
In support of its motion, the district court permitted ONDA to
supplement the record with expert declarations. The defendants object to
ONDA’s reliance on these declarations. The declarations do not affect our
decision, so we do not address the objection.
ONDA V. JEWELL 13
as arbitrary and capricious only if the agency
relied on factors Congress did not intend it to
consider, entirely failed to consider an
important aspect of the problem, or offered an
explanation that runs counter to the evidence
before the agency or is so implausible that it
could not be ascribed to a difference in view
or the product of agency expertise.
Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008)
(en banc) (citations omitted), overruled on other grounds by
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
A. Baseline Winter Conditions
ONDA first contends that the BLM erred in failing
directly to assess baseline conditions at the Echanis site,
instead relying on an extrapolation from nearby sites to
conclude that there is no greater sage grouse winter habitat at
Echanis.
The establishment of a “baseline is not an independent
legal requirement, but rather, a practical requirement in
environmental analysis often employed to identify the
environmental consequences of a proposed agency action.”
Am. Rivers v. FERC, 201 F.3d 1186, 1195 n.15 (9th Cir.
1999). An EIS must “succinctly describe the environment of
the area(s) to be affected . . . by the alternatives under
consideration,” 40 C.F.R. § 1502.15, and “insure that
environmental information is available to public officials and
citizens before decisions are made and before actions are
taken,” id. § 1500.1(b) (emphases added). “Accurate
scientific analysis . . . [is] essential to implementing NEPA.”
Id.
14 ONDA V. JEWELL
Applying these principles, several cases have found
environmental analyses insufficient for failing to establish an
environmental baseline. Indeed, as to another project planned
for sage grouse territory, the BLM submitted comments to the
U.S. Department of Transportation (“DOT”) urging DOT to
assess baseline winter sage-grouse populations along a rail
line. See N. Plains Res. Council v. Surface Transp. Bd.,
668 F.3d 1067, 1084 (9th Cir. 2011). Specifically, with
regard to DOT’s EIS, the BLM commented that “[w]ith the
increasing importance of sage grouse, more discussion on
sage grouse is needed, including discussion on wintering
areas . . . . Sage grouse inventories need to be conducted at
least two miles from any proposed disturbance.” Id.
Northern Plains Resource Council agreed with the BLM that
DOT did not adequately assess baseline conditions for the
challenged project. Id. at 1083–85. Similarly, Half Moon
Bay ruled that analysis in an EIS was inadequate because it
failed to assess baseline underwater conditions at a site where
it was proposed dredged materials would be dumped. Half
Moon Bay Fisherman’s Marketing Ass’n v. Carlucci,
857 F.2d 505, 510 (9th Cir. 1988).
Under Northern Plains Resource Council and Half Moon
Bay, the BLM had a duty to assess, in some reasonable way,
the actual baseline conditions at the Echanis site. Baseline
conditions were particularly important here because impacts
to sage grouse were by far the most significant concern
during environmental review, and the unique features of
winter habitat are essential to sage-grouse survival. See, e.g.,
Sage Grouse Strategy at 47, 83. Baseline conditions at the
Echanis site thus warranted comprehensive study in the FEIS.
The FEIS did not report on any observations of the
Echanis site surveying winter sage grouse use of the area.
ONDA V. JEWELL 15
Instead, the FEIS assumed that sage grouse are absent from
the site during winter. FEIS 3.5-25. To justify this
assumption, the FEIS relied on data from the East and West
Ridge sites, located near the Echanis site but at generally
lower elevations. Id. In doing so, the FEIS asserted that,
although 36 sage grouse were found at the East Ridge site on
December 17, 2008 and nine birds were found on the West
Ridge site on December 11, “no greater sage-grouse were
found later in December, or in January, February, March, or
April, during the time that snow had accumulated.” Id. The
FEIS then explained that its extrapolation from surveys at
these sites was reasonable because the “potentially” lower
elevation of the sites, as compared to the Echanis site,
indicated that it is more likely that snow would accumulate at
Echanis earlier and dissipate later in winter. It is less likely,
the FEIS asserted, that sage grouse use the Echanis site than
the East and West Ridge sites in winter. Id. A fundamental
flaw infects this reasoning.
Contrary to what the FEIS stated, four sage grouse were
found at the East Ridge site—the surveyed site closer to
Echanis—during February, indicating that some sage grouse
do spend the winter there. The FEIS thus did not comply
with the requirement to provide “[a]ccurate scientific
analysis,” which is “essential to implementing NEPA,”
40 C.F.R. § 1500.1(b), or with the agency’s obligation to
“insure the professional integrity, including scientific
integrity, of the discussions and analyses in [EISs],” id.
§ 1502.24.
Further, that some grouse were found at the East Ridge
site in mid-winter greatly undermines the validity of the
BLM’s assumed absence of sage grouse at the Echanis site.
Given that grouse do use the East Ridge site during the
16 ONDA V. JEWELL
winter, the BLM’s own extrapolation method should have
resulted in assuming the birds’ presence, not their absence.
The record as a whole confirms the validity of this
contrary assumption. Christian Hagen, the Oregon
Department of Fish & Wildlife scientist who prepared the
Mitigation Framework, suggested that, if grouse were still
present at the East and West Ridge sites in December, the
conditions were probably right to spend the entire winter
there; in fact, as noted, grouse were present in February.
Further, several sources on which the FEIS relied, and the
FEIS itself, acknowledge that the wind-swept character of the
Echanis site—the aspect of the site that makes it ideal for
wind-energy generation—suggests it could be good winter
habitat for sage grouse, despite its “potentially” higher
elevation, as snow there may be blown off sagebrush and
exposed for grouse to eat. See, e.g., FEIS 3.5-25, app. F at 6;
Sage Grouse Strategy at 47. And scientists and cooperating
agencies recommended to the BLM either that actual winter
surveys of sage grouse be conducted or, if not, that the BLM
assume sage grouse were present at the Echanis site during
the entire winter. See, e.g., Sage Grouse Strategy at 86.
In short, the FEIS’s inaccurate data concerning the closer
East Ridge site that was surveyed rendered its assumption
concerning the winter presence of sage grouse at the Echanis
site arbitrary and capricious. See Lands Council, 537 F.3d at
987.
The defendants maintain that the BLM is owed special
deference when undertaking scientific or technical analysis
within its purview, which it is. See Lands Council, 537 F.3d
at 993. But deference does not excuse the BLM from
ensuring the accuracy and scientific integrity of its analysis,
ONDA V. JEWELL 17
a NEPA requirement. See 40 C.F.R. §§ 1500.1(b), 1502.24.
The defendants also posit that invalidating the BLM’s
assessment of winter conditions at Echanis, and therefore
requiring the BLM to gather better information, would
essentially impose a procedural requirement not derived from
NEPA. But we do not hold that habitat extrapolations from
one site to another are impermissible. Instead, our holding is
that any such extrapolation must be based on accurate
information and defensible reasoning.
The errors in the BLM’s analysis were not harmless. See
Tucson Herpetological Soc’y v. Salazar, 566 F.3d 870, 880
(9th Cir. 2009). The inaccurate information and unsupported
assumption materially impeded informed decisionmaking and
public participation. See id.; cf. Montana Snowmobile,
790 F.3d at 926. Without appropriate data regarding sage
grouse use of the Echanis site during the winter, whether
direct or via a supportable extrapolation, it was not possible
to begin to assess whether sage grouse would be impacted
with regard to access to viable sagebrush habitat in the winter
months.
In addition, had the BLM assumed the Echanis site
provides winter sage grouse habitat, rather than that it does
not, the site would be deemed “Category-1 Habitat” pursuant
to the Sage Grouse Strategy and Mitigation Framework.
Under that designation and the mitigation measures adopted
in the FEIS and ROD, the Project would not go forward
there.5 FEIS 3.5-53; ROD 14–15; see Sage Grouse Strategy
5
The Sage Grouse Strategy, which the BLM relied on for its sage
grouse conservation approach, FEIS ES-19, 3.5-25–26, identifies winter
habitat as “Category-1,” meaning that it is “essential for greater sage-
grouse populations and is limited by the inability to mitigate for habitat
18 ONDA V. JEWELL
at 83, 86; Mitigation Framework at 1–2. In that respect, the
BLM’s analysis materially affected the outcome of
environmental review. See Idaho Wool Growers Ass’n v.
Vilsack, 816 F.3d 1095, 1104 (9th Cir. 2016).
The defendants urge that the mitigation measures adopted
in the FEIS cured any potential prejudice resulting from a
faulty baseline analysis.6 Mitigation measures, however,
while relevant to the adequacy of an environmental analysis,
see City of Sausalito v. O’Neill, 386 F.3d 1186, 1212–13 (9th
Cir. 2004), are not a panacea for inadequate data collection
and analysis. More specifically, they do not address the
loss . . . in [a] reasonable time frame, and is irreplaceable.” Sage Grouse
Strategy at 86. Pursuant to that designation, the “mitigation goal . . . is no
loss of either habitat quality or quantity,” so impacts are to be “avoid[ed]
through [the use of] alternatives to the proposed development action,” or,
if impacts cannot be avoided through the use of alternatives, there should
be “[n]o authorization of the proposed development action.” Id. In
addition, the Mitigation Framework recommends that impacts to
Category-1 Habitat “with documented sage-grouse presence” be avoided,
as such habitat is “both essential and irreplaceable.” Mitigation
Framework at 1–2.
6
The FEIS and ROD incorporated the sage grouse mitigation measures
recommended in the Mitigation Framework. See FEIS ES-18–19. These
measures include the no-impact recommendation for Category-1 Habitat,
described supra n.5, as well as a “no net loss with a net benefit” strategy,
leading to the rehabilitation of approximately 9,000 acres of non-Project-
area sagebrush habitat to make up for the habitat potentially lost within the
Project-area. FEIS ES-18–19; see Mitigation Framework at 1–2, 5–6. To
effect these measures, the BLM, Harney County, and Columbia Energy
Partners could take measures to improve the quality of grouse habitat,
including could securing conservation easements for or purchasing
particular mitigation sites. Mitigation Framework at 6. In addition,
modeling and monitoring strategies would be used to assess the
effectiveness of proposed and implemented rehabilitation of given areas,
respectively. See, e.g., id. at 2, 5.
ONDA V. JEWELL 19
concerns relevant to the prejudice analysis: the error’s effect
on informed decisionmaking and public participation, and on
the outcome of the decision. See, e.g., Cal. Wilderness Coal.
v. U.S. Dep’t of Energy, 631 F.3d 1072, 1093 (9th Cir. 2011).
Here, with baseline conditions inadequately established, the
public was not able to tailor its comments to address concerns
regarding the potential winter presence of sage grouse at the
Echanis site. Nor was the BLM’s explanation of the impacts
to winter grouse habitat adequately informed. Having no
reasonable assessment as to whether sage grouse are present
at the Echanis site in winter, the BLM could not assess the
Project’s impacts to them, qualitatively or quantitatively.
And with the impacts on sage grouse not properly established,
the BLM did not know what impacts to mitigate, or whether
the mitigation proposed would be adequate to offset damage
to wintering sage grouse. Most importantly, had the BLM
assumed the presence of sage grouse, rather than their
absence, the Echanis site would be deemed Category-1
Habitat, and the mitigation measures adopted in the FEIS and
ROD would not allow development to go forward there.
Given the BLM’s prejudicial error, the district court’s
entry of summary judgment in favor of the defendants must
be reversed.
B. Genetic Connectivity
ONDA next asserts that the FEIS erroneously failed to
address genetic connectivity between sage grouse
populations. “Genetic connectivity” means the extent to
which separate populations of a species are able to share
genes and thereby to maintain a healthy genetic diversity
within each population. The defendants argue that ONDA
failed to exhaust this argument during environmental review.
20 ONDA V. JEWELL
They also point out that the FEIS and ROD adequately
addressed the more general issue of habitat connectivity and
fragmentation. We agree with the defendants.
Judicial review is available for NEPA challenges under
the APA only if the NEPA plaintiffs exhaust their
administrative remedies. Great Basin Mine Watch v.
Hankins, 456 F.3d 955, 965 (9th Cir. 2006); see 5 U.S.C.
§ 704. ONDA did not use the term “genetic connectivity” in
its comments on the draft EIS, nor did it make specific
arguments about that issue, separately from the more general
issues of habitat connectivity and fragmentation.
The closest ONDA came to raising the genetic
connectivity argument as a distinct issue was the following
comment to the BLM:
According to [the U.S. Fish & Wildlife
Service’s] candidate species listing decision,
leks within 18 km (11.2 miles) of each other
have common features, such as genetic
characteristic[s] (genetic evidence proves that
exchange between different leks by individual
birds has not been restricted), compared to
leks farther away. [The U.S. Fish & Wildlife
Service] used this distance to determine
connectivity between lek sites. Because
Echanis and the transmission line alternatives
fall within the parameters of connectivity,
there will likely be impacts on the ability for
sage-grouse to move across the landscape to
lek sites for breeding and courtship.
ONDA V. JEWELL 21
Comment Letter from ONDA to BLM (September 17, 2010),
at 35–36 (“ONDA Comment Letter”) (footnote omitted).
Notably, the foregoing statement mentions the issue of
genetic exchange only as a premise to assert that the Project
will affect connectivity in general. This statement, although
related to genetic connectivity concerns, is not
sufficient—particularly in light of ONDA’s otherwise
extremely comprehensive comments—to alert the BLM that
ONDA was asking for a genetic connectivity analysis
regarding separate sage grouse populations.
In one of its comment letters ONDA, quoted a BLM
instruction memorandum, which articulated BLM policy
regarding the designation of priority habitat for various
wildlife species, as stating that “[p]riority habitat will be
areas of high quality habitat supporting important sage-grouse
populations, including those populations that are vulnerable
to localized extirpation but necessary to maintain range-wide
connectivity and genetic diversity.” ONDA Comment Letter
at 25 (emphasis added) (quoting BLM, IM 2010-071,
Gunnison and Greater Sage-grouse Management
Considerations for Energy Development (2010)). In context,
this statement was insufficient to put the BLM on notice that
ONDA sought discussion of the genetic connectivity issue as
such. The overall comment of which the statement was a part
asserted that the DEIS did not demonstrate that the BLM
properly followed its own statutory, regulatory, and guidance
mandates. The comment referred to “range-wide
connectivity” and “genetic diversity” only as a subpremise of
its insistence that the BLM should follow mandates regarding
the designation of priority habitat for many species, including
sage grouse. This opaque comment was not adequately
specific to alert the BLM that it should analyze the
22 ONDA V. JEWELL
substantively distinct issue of cross-population genetic
connectivity.
Elsewhere, ONDA’s comments address connectivity and
fragmentation at length, but only in a general sense, not
specifically with regard to cross-population genetic
connectivity. See ONDA Comment Letter at 22 (noting that
the Project will “riddle[]” core sage grouse habitat in the
Steens Protection Area with turbines, transmission lines,
roads, and other infrastructure), 26 (noting the BLM policy
that “it is imperative that fragmentation and degradation of
. . . greater sage-grouse habitat not continue to the point that
sustainable sage-grouse populations can no longer be
supported”), 33 (“Habitat fragmentation and disturbance
across much of the sage-grouse’s range has contributed to
significant population declines over the past century. If
current trends persist, many local populations may disappear
in the next several decades, with the remaining fragmented
population vulnerable to extinction.”), 34–35 (referring to
habitat fragmentation), 36 (referring to “connectivity
corridors”), 37 (referring to “new habitat loss and
fragmentation”), 38 (noting “habitat loss, fragmentation, or
degradation” concerns), 39 (referring to “the need for
excluding habitat-fragmenting activities from sage-grouse
core habitat”), 80–82 (referring to habitat fragmentation), 86
(referring to habitat fragmentation and degradation); Letter
from ONDA to Secretary, Dep’t of Interior (November 15,
2011), at 1 (referring to habitat fragmentation and a
“fragmented population”); Letter from ONDA to Secretary,
Dep’t of Interior (July 21, 2011), at 2, (“fragment vital
habitat”), 3 (“loss of irreplaceable habitat . . . due to
fragmentation”), 5 (“wildlife habitat connectivity”);
Supplemental Comment Letter from ONDA to BLM (January
26, 2011), at 2 (“[H]arm to sage-grouse on Steens would be
ONDA V. JEWELL 23
exacerbated by habitat fragmentation . . . .”). Because
ONDA’s comments refer only to overall habitat connectivity
and fragmentation, they were too vague to raise the specific
genetic connectivity issue regarding separate populations as
a distinct concern. Great Basin Mine Watch, 456 F.3d at 967.
Barnes v. U.S. Department of Transportation confirms
that ONDA’s comments were inadequate to exhaust the
genetic connectivity issue. See 655 F.3d 1124, 1133, 1135
(9th Cir. 2011). Barnes ruled that where a commenter could
have been “more expansive or more detailed with his
comments,” he nonetheless adequately raised his concerns
regarding increased air traffic by specifically noting the
“increased air traffic” the project would cause. Id. at 1133.
By contrast, Barnes held that commenters did not adequately
raise the issue of impacts caused by a potential new control
tower, because the comments “did not include one single
reference to a new control tower.” Id. at 1135. Here, ONDA
did not use the phrase “genetic connectivity” anywhere in its
comments, nor did it raise any distinct concern regarding
genetic interchange between otherwise separate sage grouse
populations. Under Barnes, therefore, ONDA did not put the
BLM sufficiently on notice that it should address genetic
connectivity in the FEIS.
Contrary to ONDA’s assertion, genetic connectivity and
the distinction between genetic connectivity and habitat
connectivity are not such obvious issues that ONDA had no
obligation to raise them to the agency. ONDA cites
Department of Transportation v. Public Citizen for the
proposition that “an EIS’s flaws might be so obvious that
there is no need for a commentator to point them out
specifically in order to preserve its ability to challenge a
proposed action.” See 541 U.S. 752, 765 (2004). But Public
24 ONDA V. JEWELL
Citizen decided that the issue of alternatives to the project
under review was not so obvious that it did not have to be
exhausted. See id. If the analysis of alternatives in Public
Citizen was not an obvious issue, then the much more specific
issue of genetic connectivity, as well as the fairly nuanced
distinction between genetic connectivity and habitat
connectivity, are also not that “obvious.”
ONDA also cites the Steens Act’s reference to “genetic
interchange,” 16 U.S.C. § 460nnn(5)(B); several passages in
the Sage Grouse Strategy, Sage Grouse Strategy at 10, 57;
discussion by the U.S. Fish & Wildlife Service in its March
2010 determination not to list the sage grouse as an
endangered species; and mention in the proposed Resource
Management Plan and Final Environmental Impact Statement
for the Andrews Management Area, which covers some of the
land that the proposed right of way would cross, to suggest
that genetic connectivity is an important issue and therefore
that the FEIS should have discussed it. But where no other
exceptions to the exhaustion requirement are met, the
importance of genetic connectivity to the health and
wellbeing of the greater sage grouse does not excuse ONDA
from raising the issue to the BLM so that the agency could
“give the issue meaningful consideration.” Great Basin Mine
Watch, 456 F.3d at 965 (citations omitted).7
7
ONDA has not argued that the BLM had “independent knowledge” of
a genetic connectivity impact of the Project, so that exhaustion was not
required. See Barnes, 655 F.3d at 1132. Nor has ONDA argued that other
commenters raised the issue of genetic connectivity, and therefore that it
did not have to exhaust the issue. See, e.g., Shasta Res. Council v. U.S.
Dep’t of Interior, 629 F. Supp. 2d 1045, 1052 (E.D. Cal. 2009). At most,
ONDA cites sections of the U.S. Fish & Wildlife Service’s March 2010
decision not to list the sage grouse as endangered to suggest that genetic
connectivity was a live issue in this administrative process. The
ONDA V. JEWELL 25
ONDA cites Oregon Natural Desert Association v.
Bureau of Land Management, 625 F.3d 1092, 1112 (9th Cir.
2008), for the proposition that the Steens Act’s mention of the
BLM’s duty to manage the long-term ecological integrity of
the Steens Protection Area, including the maintenance of
genetic interchange, indicates that the BLM had to discuss
genetic connectivity in the FEIS. But the statutes at issue in
Oregon Natural Desert Association specifically required the
BLM to undertake review of certain issues, not, as is the case
with the Steens Act, to undertake management. Because the
Steens Act does not impose a requirement to review the issue
of genetic interchange, Oregon Natural Desert Association is
not pertinent.
Although ONDA never raised the genetic connectivity
issue, as such, to the BLM, it suggests that it did so by
making a distinction between inter-population connectivity
(essentially the issue of genetic connectivity) and intra-
population connectivity. Not so. Although ONDA now
clearly distinguishes between inter- and intra-population
connectivity, its comments to the BLM did not mention that
distinction. For that reason as well, the comments were
simply not “structure[d] . . . [to] alert[] the agency to
[ONDA’s] positions and contentions.” Barnes, 655 F.3d at
1132 (citations and alterations omitted).
ONDA also maintains that it raised the inter-population
connectivity issue by pointing to what it calls the Steens
Mountain connectivity corridor. But ONDA did not
specifically identify the Steens Corridor in its comments; it
only referred generally to “connectivity corridors.” Again,
discussion in that decision, however, is not a comment on this Project’s
impact on genetic interchange.
26 ONDA V. JEWELL
ONDA did not point to the inter-population connectivity issue
as a separate, more specific concern that the BLM should
address in the FEIS.
In short, ONDA never raised the issue of cross-population
genetic connectivity, specifically, to the BLM, either by using
the term “genetic connectivity” or by making the inter- versus
intra-population connectivity distinction, or by referring to
the Steens Corridor. The BLM responded to comments
regarding habitat connectivity and fragmentation issues at the
level of detail at which those comments were presented. See
FEIS 3.5-22–23, 3.5-25–26. Because ONDA never brought
the issue of inter-population or genetic connectivity to the
BLM’s attention during the environmental review process, we
conclude that the issue was not exhausted and is not now
subject to review.8, 9
III.
For the foregoing reasons, we reverse the district court’s
entry of summary judgment in part. We remand this action to
the district court with instructions to vacate the Secretary of
the Interior’s Record of Decision unless the district court
determines that this is one of the “rare circumstances, when
8
ONDA made the inter-population connectivity argument clearly
enough to the district court that it ruled on the issue. It thus was not
waived. See State of Ariz. v. Components Inc., 66 F.3d 213, 217 (9th Cir.
1995).
9
We note that the exhaustion analysis in this case is unusual, as the
issue of genetic connectivity is a technical, specific issue that in this
context required clear differentiation from the general habitat connectivity
issue. The same mode of analysis might not apply to cases involving the
exhaustion of more generic issues.
ONDA V. JEWELL 27
[it is] advisable that the agency action remain in force until
the action can be reconsidered or replaced . . . .” Humane
Soc’y of U.S. v. Locke, 626 F.3d 1040, 1053 n.7 (9th Cir.
2010). Whether, and when, construction of the transmission
line and wind turbine complex will go forward absent vacatur
may be relevant to that determination.
REVERSED and REMANDED.