Western Watersheds Project v. Bureau of Land Management

FILED
NOT FOR PUBLICATION JUL 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WESTERN WATERSHEDS PROJECT No. 11-15799
and CENTER FOR BIOLOGICAL
DIVERSITY, D.C. No. 3:11-cv-00053-HDM-
VPC
Plaintiffs - Appellants,
v. MEMORANDUM*
BUREAU OF LAND MANAGEMENT,
Defendant - Appellee,
and
SPRING VALLEY WIND LLC,
Intervenor-Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, Senior District Judge, Presiding
Argued and Submitted July 11, 2011
San Francisco, California
Before: HUG, SILVERMAN, and GRABER, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Plaintiffs appeal the district court’s order denying their motion for a
preliminary injunction. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).
We agree with the reasons thoughtfully expressed by the district court and find no
abuse of discretion.
We have pendent appellate jurisdiction over the district court’s order striking
the declaration of Plaintiffs’ expert. Hendricks v. Bank of Am., N.A., 408 F.3d
1127, 1134 (9th Cir. 2005). Reviewing for abuse of discretion, we affirm.
AFFIRMED.
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FILED
JUL 15 2011
Western Watersheds Project v. Bureau of Land Management, No. 11-15799 C. DWYER, CLERK
MOLLY
U.S. COURT OF APPEALS
GRABER, Circuit Judge, concurring in part:
I concur in the result. I write separately, however, to express my concern
about the district court’s conclusion that Plaintiffs are unlikely to succeed on the
merits. "A plaintiff seeking a preliminary injunction must establish that he is likely
to succeed on the merits, that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 129 S. Ct. 365, 374 (2008).
I agree with the majority that the district court did not abuse its discretion by
determining that the project’s construction is unlikely to cause irreparable harm to
bats or sage grouse. Nor did the district court err when balancing the equities in
Defendants’ favor or when considering the public’s interest in the project.
In my view, however, Plaintiffs are likely to succeed on the merits because
the BLM failed adequately to consider the potentially significant cumulative
impacts of the project and other reasonably foreseeable future actions. The
National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4332(2)(C),
requires federal agencies to prepare a full Environmental Impact Statement ("EIS")
"if substantial questions are raised as to whether a project may cause significant
degradation of some human environmental factor." Blue Mountains Biodiversity
Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998) (internal quotation
marks and ellipses omitted). An agency must consider 10 "intensity" factors,
including potentially significant cumulative impacts, to determine whether an EIS
is necessary. 40 C.F.R. § 1508.27(b).
Although a good start, the BLM’s cumulative impacts analysis was legally
insufficient. The BLM’s Environmental Assessment ("EA") included a table, which
the district court characterized as "detailed." That table, however, states little more
than the names of all reasonably foreseeable future projects, their locations, the
number of wind turbines expected at each project, whether transmission lines would
be necessary, and the number of acres that would be disturbed for each project.
Based on the BLM’s estimates, future projects will add another 995 wind turbines
to the region, of which 225 would be in Spring Valley. In addition to including the
table, the EA’s section on cumulative impacts notes that the foreseeable actions
"would result in further mortality" to bats from collisions and barotraumas and that
"[c]umulative impacts to bats are anticipated to be similar to those described for
birds; however, because of the proximity to Rose Guano Cave, there is the potential
for a somewhat larger percent increase in mortality for Brazilian free-tailed bats."
Further, the EA remarks that, "because of the great distances Brazilian free-tailed
bats are known to migrate and the addition of multiple wind energy facilities to the
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north and south of the [Spring Valley Wind Energy Facility], there is the potential
for a somewhat larger percent increase in mortality for Brazilian free-tailed bats
throughout eastern Nevada."
With regard to sage grouse, the EA states only that "past and present actions
have contributed to the direct loss of habitat" and "habitat fragmentation" and that
foreseeable future actions "would contribute up to 5,810 acres of short- and
long-term habitat loss and even greater habitat fragmentation" which, when
combined with this project, "represents approximately 3.3% of available greater
sage-grouse habitat . . . in Spring Valley." That is all.
The BLM’s statements regarding "further mortality," "a somewhat larger
percent increase in mortality," and "greater habitat fragmentation" are precisely the
type of "[g]eneral statements about possible effects and some risk" that we have
rejected as legally insufficient in the absence of an explanation as to why more
definitive information was unavailable. Klamath-Siskiyou Wildlands Ctr. v. BLM,
387 F.3d 989, 993 (9th Cir. 2004) (internal quotation marks omitted); see id. at 994(rejecting as insufficient statements that a particular environmental factor was
"unchanged," "improved," or "degraded" and whether the change was "major" or
"minor"). The BLM did not explain why it could not estimate the number of bat
fatalities that would occur at the additional facilities, just as it had for the current
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project. Further, the BLM made no attempt to analyze habitat fragmentation,
stating only that it would be "greater."
In addition to suffering from a lack of quantitative analysis, the EA’s
cumulative impact statement provides no useful discussion of the actual effect that
this project and future projects would have on bat or sage grouse populations. See
id. at 994–95 (a quantitative analysis of direct impacts is not a "sufficient
description of the actual environmental effects that [may] be expected"). The
BLM’s recitation of the number of wind turbines to be erected and the acres of
habitat to be destroyed is legally insufficient, just as the tally of acres logged or
roads built was legally insufficient in Klamath-Siskiyou. Id.Moreover, tiering to the 2005 Final Programmatic EIS on Wind Energy
Development on BLM Administered Lands in the Western United States ("Wind
PEIS") does not cure the EA’s lack of analysis. With regard to the cumulative
impacts on bats and birds caused by wind energy development in 11 western states,
the Wind PEIS states only:
On the basis of bird and bat monitoring studies at existing wind energy
projects, the contribution of wind projects to the cumulative impacts on
birds and bats would likely be minimal in comparison with population
declines from other causes (e.g., habitat loss or fragmentation).
However, some species could incur population-level effects.
That statement is as general and conclusory as the analysis appearing within the EA.
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See id. at 997 (tiering to an EIS was insufficient to cure an EA’s shortcomings
where the EIS contained only general statements about the cumulative effects of
logging in the area but mentioned no information specific to the timber sales at
issue).
Finally, the EA’s "discussion of the [project’s] direct effects in lieu of a
discussion of cumulative impacts is inadequate." Te-Moak Tribe of W. Shoshone
of Nev. v. U.S. Dep’t of Interior, 608 F.3d 592, 604 (9th Cir. 2010). Even assuming
that the BLM’s mitigation measures will reduce the mortality rate to 192 bats per
year, which is not at all certain, such a seemingly minor number may have
significant effects. See 40 C.F.R. § 1508.7 ("Cumulative impacts can result from
individually minor but collectively significant actions taking place over a period of
time."). Even if the habitat loss and fragmentation caused by the current project are
minimal and involve only low-quality habitat, that minimal harm must be
considered in light of the estimated loss of 5,810 additional acres. The BLM failed
to perform such an analysis and, in my view, Plaintiffs are therefore likely to
succeed on the merits of their NEPA claims.
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