Home » Case Summaries » 2016 » Oregon Natural Desert Ass’n v. Jewell, 823 F.3d 1258 (9th Cir. 2016)

 
 

Oregon Natural Desert Ass’n v. Jewell, 823 F.3d 1258 (9th Cir. 2016)

 

 

In this case, the Oregon Natural Desert Association and the Audubon Society of Portland (collectively, ONDA)[1] sued the Secretary of the Interior, Sally Jewell, as well as the Bureau of Land Management (collectively, BLM) in the United States District Court for the District of Oregon. ONDA challenged a wind-energy development project under the National Environmental Policy Act[2] (NEPA) on the ground that BLM’s environmental impact statement (EIS) did not adequately assess the project’s impact on the greater sage grouse.[3] Columbia Energy Partners (the project developer) and Harney County intervened as defendants. The district court granted summary judgment in favor of the defendants.[4] On appeal, the Ninth Circuit reversed in part and remanded to the district court.

In April 2007, Columbia Energy Partners obtained a conditional use permit from Harney County in Oregon to develop the Echanis Wind Energy Project (the Project). Because the proposed right-of-way for the Project’s transmission line crossed public lands administered by BLM, the Project was subject to review under NEPA, which in turn mandated that BLM prepare an Environmental Analysis and, if necessary, an EIS.[5] BLM eventually prepared and published a Final EIS (FEIS) approving a new overhead electric transmission line on BLM-managed land connected to wind turbines on a 10,500-acre tract of privately owned land on Steens Mountain. Steens Mountain lies at the center of one of the last remaining “strongholds of contiguous sagebrush habitat essential for the long-term persistence of greater sage-grouse.”[6]

BLM’s draft EIS suggested that the proposed turbines, transmission lines, and associated access roads would likely physically divide and fragment sage grouse habitat. The draft EIS also found that the transmission line would provide perches for predatory raptors such as hawks and eagles. ONDA submitted comments in response to the draft EIS. In the FEIS, BLM surveyed sage grouse populations at two similar sites near the Project site, but conducted no such survey at the site itself. ONDA challenged the FEIS as inconsistent with NEPA.[7] Specifically, ONDA alleged that 1) BLM had erred by failing to evaluate the baseline conditions at the Project site, having relied instead on extrapolations based on nearby sites; and 2) in the FEIS, BLM erred by failing to assess genetic connectivity between each sage grouse population.[8] The Ninth Circuit, reviewing BLM’s actions under the Administrative Procedure Act’s (APA) “arbitrary and capricious” standard,[9] determined that the data collected from at least one of the alternative sites was not only inaccurate, but that it reflected an opposite conclusion than the one drawn by BLM.[10]

First, the Ninth Circuit held that the FEIS did not comply with NEPA. The court explained that BLM had a duty to assess the actual baseline conditions at the Project site because impacts to sage grouse were the principle concern during the environmental review. The court found that BLM erred not only due to its reliance on habitat data only from nearby sites, but also because some of the data collected was inaccurate. The court held that these errors rendered BLM’s conclusions based on that data arbitrary and capricious. In addition, the court held that BLM’s errors were not harmless because the incomplete and inaccurate data materially affected the outcome of the environmental review process.

The Ninth Circuit rejected the defendants’ argument that mitigation measures adopted in the FEIS cured prejudice resulting from the faulty analysis. The court reasoned that the mitigation measures did not cure the errors’ adverse impact on informed decision making and public participation in the review process, and also that BLM did not know what impacts to mitigate since those impacts were not properly established. As such, the Ninth Circuit reversed the district court’s entry of summary judgment for the defendants.

Second, the Ninth Circuit held that the issue of genetic connectivity was not subject to review since ONDA failed to exhaust administrative remedies as required by the APA.[11] ONDA argued that it had no obligation to specifically raise the issue of cross-population genetic connectivity at the administrative review stage because the draft EIS’s flaws were “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.”[12] However, the court reasoned that because ONDA did not use the phrase “genetic connectivity” anywhere in its comments or raise any specific concern regarding “genetic interchange” between separate sage grouse populations, ONDA did not put BLM sufficiently on notice that it should address the issue in the FEIS. As such, the Ninth Circuit held that BLM appropriately responded to comments regarding habitat connectivity and fragmentation.

In sum, the Ninth Circuit held that the district court erred in granting summary judgment in favor of the defendants because BLM’s environmental review did not adequately assess baseline sage grouse numbers during winter at the Project site, and that BLM’s error was not harmless. The court finally held that because ONDA did not bring the issue of genetic connectivity between sage grouse populations to BLM’s attention during the agency’s review process, BLM’s failure to respond specifically to that issue was not subject to review.

 

 

 

Footnotes    (↵ returns to text)

  1. Plaintiffs included the Oregon Natural Desert Association and the Audubon Society of Portland.
  2. National Environmental Policy Act of 1969, 42 U.S.C. §§ 432–4370h (2012).
  3. 40 C.F.R. § 1502.15.
  4. Or. Nat. Desert Ass’n v. Jewell, No. 3-12-cv-00596-MO, 2013 WL 5101338, at *1 (D. Or. Sept. 11, 2013).
  5. 40 C.F.R. §§ 1508.18, 1502.15.
  6. Or. Nat. Desert Ass’n v. Jewell, 823 F.3d 1258, 1261 (9th Cir. 2016).
  7. 40 C.F.R. §§ 1500.1, 1502.15.
  8. Id. ONDPA argued that “genetic connectivity” refers to “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.” Or. Nat. Desert Ass’n, 823 F.3d at 1267.
  9. 5 U.S.C. § 706(2)(A) (2012).
  10. BLM’s FEIS concluded there were no sage grouse present following the winter months at either of the nearby sites and thus it assumed there also would not be sage grouse present at the Project site. However, the court determined there were in fact sage grouse present at one of the nearby sites following the winter months suggesting that BLM’s assumption concerning the Project site was not only based on inaccurate data, but was incorrect.
  11. 5 U.S.C. § 704.
  12. Or. Nat. Desert Ass’n, 823 F.3d at 1269; see Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 765 (2004) (stating that an “agency bears the primary responsibility to ensure that it complies with NEPA . . . and an EA’s or 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”).
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