Home » Case Summaries » 2015 » Sierra Club v. U.S. Bureau of Land Management, 786 F.3d 1219 (9th Cir. 2015)

 
 

Sierra Club v. U.S. Bureau of Land Management, 786 F.3d 1219 (9th Cir. 2015)

 

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In this case, the Sierra Club and other organizations[1] (collectively, Sierra Club) challenged the United States Bureau of Land Management’s (BLM) decision to grant North Sky River Energy, LLC (North Sky) a right-of-way across BLM land, alleging that BLM violated the Endangered Species Act (ESA)[2] by failing to consult with the United States Fish and Wildlife Service (FWS) regarding the effects of the project. Sierra Club also alleged that BLM violated the National Environmental Policy Act (NEPA)[3] by failing to prepare an Environmental Impact Statement (EIS). The district court found for BLM after determining that North Sky would have completed the Wind Project regardless of whether BLM approved the Road Project because North Sky had a feasible alternative, and that the BLM-approved Road Project had independent utility. On appeal, the Ninth Circuit affirmed the district court’s ruling. Additionally, the Ninth Circuit found that BLM did not act arbitrarily or capriciously when it changed its initial position that consulting with FWS might be required.

The Sierra Club challenged two North Sky projects: first, a wind energy project (Wind Project) developed by North Sky on 12,000 acres of private land located outside of Tehachapi, California; and second, North Sky’s proposed use of BLM land for a right-of-way connecting the Wind Project with an existing state highway (Road Project). North Sky also contemplated an alternative right-of-way traversing private land (Private Road Option). Ultimately North Sky opted for the Road Project, finding that the Private Road Option would disturb vegetation and wildlife habitat.

Initially, BLM believed that the ESA required BLM to consult with FWS when reviewing the Road Project proposal. However, after North Sky submitted the Private Road Option, BLM concluded the Private Road Option was a viable alternative to the Road Project. This determination obviated the ESA’s consultation requirement because it meant the viability of North Sky’s operation was not dependent on BLM approval. BLM issued an environmental assessment which found that the Road Project would have no significant environmental impact, and found that the Road Project would provide dust control, reduce erosion, and control unauthorized vehicle access to the Pacific Crest Trail. Based on these findings, BLM issued a permit for the Road Project.

After the permit was issued, Sierra Club sued BLM, alleging its decision to issue a permit for the Road Project violated the ESA and NEPA. North Sky intervened and the parties cross-moved for summary judgment. The district court granted summary judgment for BLM, holding that BLM’s decision to issue the permit was not arbitrary or capricious. The Ninth Circuit reviewed the district court’s grant of summary judgment de novo.

The first issue on appeal was whether the ESA required BLM to consult with FWS regarding impacts of the Wind Project prior to approving the Road Project. The ESA consultation requirement is triggered only by federal agency action.[4] ESA consultation ensures that a federal agency considers the direct and indirect effects of its action on a protected species or critical habitat, as well as the effects of other activities that are interrelated or interdependent with the proposed action.[5] At the outset, the court determined that the Wind Project was not a federal agency action because it involved a private company developing private land without federal funds, and the Wind Project was not dependent on BLM approval of the Road Project. BLM was, therefore, not required to consult with FWS on the Wind Project’s direct effects. The court noted that the Road Project was a federal agency action, and that BLM had properly consulted the ESA on the Road Projects direct effects.

The Ninth Circuit then considered whether the effects of the Wind Project were indirect effects of the Road Project, or whether the Wind Project was an interrelated or interdependent activity with the Road Project, either of which would require consultation with FWS. First, the court determined that the Wind Project was not an indirect effect of the Road Project because the Road Project was not a cause of the Wind Project. Rather, North Sky could have completed the Wind Project without BLM involvement by moving forward with the Private Road Option. Second, the court found that the Wind Project was not interrelated or interdependent with the Road Project because, as the court noted, the Road Project was not a “but for” cause of the Wind Project. In addition, the court found that the Road Project had independent utility because it promised to improve dust control, reduce erosion, and control unauthorized vehicle access to the Pacific Crest Trail. Accordingly, the Ninth Circuit held that BLM was not required to consult with FWS regarding the direct, indirect, or interrelated effects of the Wind Project.

The second issue on appeal was whether BLM had a duty to prepare an EIS under NEPA. An EIS is required for any “major Federal action significantly affecting the quality of the human environment.”[6] An EIS must address the impacts of connected actions.[7] The Ninth Circuit repeated its finding that BLM’s decision was not a major federal action because BLM had no control or responsibility over the Wind Project. In addition, the court explained that Wind and Road Projects were not connected, cumulative, or similar actions.[8] Two actions are unconnected if each of two projects has an “independent utility,” which is determined by asking if each would have taken place with or without the other.[9] Because the Road Project had the additional utility of dust control, storm water control, and limiting access to the Pacific Crest Trail, the Road Project had independent utility from the benefit to North Sky. Moreover, North Sky would have developed the Wind Project with or without the Road Project due to the available Private Road Option.

Finally, the court found that BLM had not acted arbitrarily and capriciously when it disregarded its initial decision to consult with FWS because 1) BLM’s initial position was not a published regulation or official policy,[10] and 2) BLM adequately justified its change of view by demonstrating that the Private Road Option would provide North Sky with private access to the Wind Project.

In sum, the Ninth Circuit held that BLM did not violate the ESA because the Wind Project was not a federal agency action and the Wind Project was independent from the Road Project. The court also held that BLM did not violate NEPA in its failure to prepare an EIS because the two projects had independent utility and were not connected actions. Accordingly, the court affirmed the district court’s ruling.

 

 

 

Footnotes    (↵ returns to text)

  1. Plaintiff-appellants included the Center for Biological Diversity and Defenders of Wildlife.
  2. Endangered Species Act of 1973, 16 U.S.C. §§ 1531–1544 (2012).
  3. National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4370h (2012).
  4. 16 U.S.C. § 1536(a) (2012).
  5. 50 C.F.R. § 402.02 (2015).
  6. 42 U.S.C. § 4332(2)(C) (2012).
  7. 40 C.F.R. § 1508.25(a)(1) (2015).
  8. Sierra Club only argued that the Road and Wind Projects were connected, obviating the need to discuss whether the projects were cumulative or similar actions. In dicta, the court did note that North Sky’s analysis of wind farms within 25 miles of the right-of-way sufficiently addressed the cumulative effect of the two projects.
  9. Cal. ex rel. Imperial Cty. Air Pollution Control Dist. v. U.S. Dep’t of the Interior, 767 F.3d 781, 795 (9th Cir. 2014) (internal quotation marks omitted).
  10. See Fed. Commc’ns Comm’n v. Fox Television Stations, Inc. (Fox), 556 U.S. 502, 514–16 (2009) (explaining that, in order for an agency change to be subjected to further review, the change must be a change in official policy).
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