Summit Lake Paiute Tribe v. United States Bureau of Land Management ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 22 2012
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
SUMMIT LAKE PAIUTE TRIBE OF No. 11-70336
NEVADA; WARNER BARLESE,
Chairman of the Summit Lake Paiute
Tribe,
Petitioners, MEMORANDUM *
v.
UNITED STATES BUREAU OF LAND
MANAGEMENT,
Respondent,
RUBY PIPELINE, L.L.C.,
Respondent-Intervenor.
On Petition for Review of an Order of the
Bureau of Land Management
Argued and Submitted October 11, 2011
Portland, Oregon
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: BERZON and N.R. SMITH, Circuit Judges, and SMITH, District Judge.**
The Summit Lake Paiute Tribe (the Tribe) filed a Petition for Review
challenging the Bureau of Land Management’s (BLM) decision to amend the
rights of way and temporary use permits granted to Ruby Pipeline, L.L.C.
(“Ruby”). That decision re-routed a four-mile segment of the pipeline, shifting it
roughly one half mile north of its original route.
1. Mootness:
Ruby and BLM argue that, because the construction of the pipeline is now
complete, the Tribe’s National Historic Preservation Act and National
Environmental Policy Act challenges are moot. In determining mootness, “the
question is not whether the precise relief sought . . . is still available. The question
is whether there can be any effective relief.” Nw. Envtl. Def. Ctr. v. Gordon, 849
F.2d 1241, 1244–45 (9th Cir. 1988) (quoting Garcia v. Lawn, 805 F.2d 1400, 1403
(9th Cir. 1986)); see also Neighbors of Cuddy Mountain v. Alexander, 303 F.3d
1059, 1065 (9th Cir. 2002).
The majority of the harm the Tribe sought to avoid in this case stemmed
from the construction of the pipeline. At oral argument, Petitioners stated that they
**
The Honorable William E. Smith, District Judge for the U.S. District
Court for the District of Rhode Island, sitting by designation.
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are not seeking to have the pipeline moved, as digging it up and burying it again
would only cause more damage. Nevertheless, effective relief is still available as
long as the ongoing effects the pipeline continues to have on the Tribe’s cultural
property, such as the effects of maintaining the pipeline’s right of way or lingering
effects from construction, can be mitigated. We conclude that the Tribe’s claims
are not moot to the extent that further mitigation could provide relief, while those
claims that depend on re-routing the pipeline are moot. Below, we review
mootness under this standard for each claim raised.
2. National Historic Preservation Act (NHPA):
a. The Tribe argues that BLM violated the NHPA and its accompanying
regulations by (1) not consulting with the Tribe; (2) not considering its proposed
re-routing in good faith; and (3) not analyzing the impacts the re-route would have
on the Tribe’s cultural properties. Because remedying these alleged defects could
potentially lead to the development of new mitigation measures, these claims are
not moot.
b. The Tribe argues that BLM did not adequately consult with it regarding
the proposed re-route, depriving it of its right to “participate in the resolution of
adverse effects” as required by the regulations. 36 C.F.R. § 900.2(c)(2)(ii)(A). In
addressing the adequacy of consultation, we consider both the consultation on the
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re-routing and the consultation that was conducted in connection with the initial
approval of the project. See Te-Moak Tribe of Western Shoshone of Nevada v. U.S.
Dep’t of the Interior, 608 F.3d 592, 608–09 (9th Cir. 2010). Indeed, it was BLM’s
consultation with the Tribe, which started at least as early as January 2009, that led
it to propose the re-route in the first place, and BLM conducted four site visits with
the Tribe to try to ascertain the boundaries of the traditional cultural property. We
hold that this process, taken as a whole, fulfilled BLM’s consultation obligation.
c. The Tribe next argues that BLM did not conduct good faith research to
determine the boundaries of the Tribe’s traditional cultural property (“TCP”),
observing, in particular, that BLM did not conduct any background research. As
the Tribe acknowledges, however, a survey of the re-route was conducted, and that
survey determined that the re-route “avoids direct impacts to the Summit Lake
TCP.” The regulations specify that a “reasonable and good faith effort . . . may
include background research, consultation, oral history interviews, sample field
investigation, and field survey.” 36 C.F.R. § 800.4(b)(1). There is no requirement
that a good faith effort include all of these things, and a thorough field survey, as
was conducted here, is at least as reliable as background research. The regulations
also permit the agency to “take into account past planning, research, and studies,”
id.; the research conducted during consideration of the project as a whole did
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include background research. We therefore conclude that BLM made the required
“reasonable and good faith effort” to identify historic properties.
d. Lastly, the Tribe argues that BLM failed to analyze the effects the re-
route would have on its traditional cultural property (TCP). BLM’s determination
of NEPA adequacy for the re-route, however, did analyze the re-route’s impact on
the TCP, including its impact as compared with the original route. Furthermore,
BLM’s analysis resulted in a determination of a boundary for the Tribe’s TCP, and
the re-route was outside that boundary. We hold that BLM did analyze the
pipeline’s impacts on the Tribe’s TCP.
3. National Environmental Policy Act (NEPA):
a. The Tribe maintains that BLM violated NEPA by failing to supplement
its environmental impact statement before approving the re-route. As with the
NHPA claims, supplementation could lead to further study of the pipeline’s
impacts and the development of new mitigation measures. This claim is therefore
not moot.
b. An agency must supplement an environmental impact statement if “the
agency makes substantial changes in the proposed action that are relevant to
environmental concerns; or there are significant new circumstances or information
relevant to environmental concerns and bearing on the proposed action or its
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impacts.” 40 C.F.R. § 1502.9(c)(1); see also Marsh v. Oregon Natural Resources
Council, 490 U.S. 360, 373 (1989). In considering the re-route, BLM prepared a
“determination of NEPA adequacy,” which concluded that no supplementation to
the environmental impact statement was necessary.
We have approved of the use of such “determination” documents as the
BLM prepared here, see Price Rd. Neighborhood Ass'n v. United States Dep't of
Transp., 113 F.3d 1505, 1510 (9th Cir. 1997), while noting that they are not to
replace supplemental environmental assessments or impact statements and may
only be used “for the purpose of determining whether new information or changed
circumstances require the preparation of a supplemental EA or EIS.” Idaho
Sporting Congress Inc. v. Alexander, 222 F.3d 562, 566 (9th Cir. 2000). When an
agency takes the requisite “hard look” and “determines that the new impacts will
not be significant (or not significantly different from those already considered),
then the agency is in full compliance with NEPA.” North Idaho Community Action
Network v. U.S. Dept. of Transp., 545 F.3d 1147, 1154–55 (9th Cir. 2008). Such
determinations will only be set aside if they are arbitrary and capricious. Id. at
1155.
The Tribe contends that BLM’s TCP boundaries, established after the final
environmental impact statement was completed, are wrong, and that the pipeline,
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even as re-routed, still passes through the TCP. The legal adequacy of BLM’s
determination that it need not supplement the environmental impact statement turns
on its contrary factual conclusion regarding the size of the TCP, resulting in its
repeated assertion that the re-routed pipeline “avoids direct impacts to the Summit
Lake TCP.” If this latter statement is accurate, it was reasonable to conclude that
the circumstances after the proposed re-routing would not be significantly different
from those when the environmental impact statement was drafted, as no TCP
would be impacted after the re-route. In other words, the existence of the TCP was
certainly significant new information, but if the pipeline avoided it entirely, then its
effects would not be significantly different from those discussed in the
environmental impact statement, and no supplementation would be required. In this
case, determining the size of the TCP, and the determination that the re-routed
pipeline passed outside it, was the type of threshold factual inquiry that may be
made in a “determination” document.
The BLM’s factual conclusion regarding the boundaries of the TCP was not
arbitrary and capricious. BLM and the Tribe worked together to sketch out the
boundaries of the TCP. When the Tribe suggested that the TCP was larger than
that acknowledged by BLM, BLM conducted a series of site visits in which the
Tribe had an opportunity to bring to BLM’s attention sites that would suggest a
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larger TCP. None were found. While the Tribe blames BLM for its failure to
locate any sites indicating a larger TCP during these site visits, BLM’s reliance on
the visits and on the pedestrian survey of the re-route conducted by Ruby’s cultural
resources subcontractor was not arbitrary and capricious. The record also shows
that BLM considered the Tribe’s main evidence for a larger TCP, the Bengston
report, and determined that its own site visits and surveys were more reliable.
In short, BLM’s conclusion regarding the size of the TCP was reasoned and
thorough; while it may have been arguable, it was not arbitrary and capricious.
Taking this conclusion as accurate, it was reasonable to conclude that the impacts
of the re-route would not be “significantly different from those already considered”
in the environmental impact statement. North Idaho, 545 F.3d at 1155. We
therefore conclude that BLM did not act arbitrarily and capriciously in determining
that no supplement to the environmental impact statement was necessary.
The petition for review is DENIED.
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