MEMORANDUM OPINION AND ORDER ON PARTIES' MOTIONS AND CROSS MOTIONS FOR SUMMARY JUDGMENT
This is an action for injunctive relief by plaintiffs Sierra Club, Center for Biological Diversity, and Defenders of Wildlife ("Plaintiffs") against defendants James Kenna in his official capacity, United States Bureau of Land Management and Ken L. Salazar in his official capacity ("Federal Defendants") and Intervenor-Defendant North Sky River Energy, LLC ("NSRE") (collectively, "Defendants"). Plaintiffs' complaint seeks judicial review of a decision by defendant Bureau of Land Management ("BLM") to grant right of way to NRSE for a route over federal land connecting a state road with a wind energy project located entirely on private land.
Plaintiffs' complaint alleges the grant of right of way was made in violation of the National Environmental Policy Act ("NEPA") and the Endangered Species Act ("ESA"). Currently before the court are motions and cross-motions by all parties for summary judgment. Federal subject matter jurisdiction exists pursuant to 28 U.S.C. § 1331. Venue is proper in this court.
FACTUAL BACKGROUND/UNDISPUTED MATERIAL FACTS
Defendant-Intervenor NSRE, a developer of wind-power projects, proposes to develop 12,781 acres of entirely private land situated at the southern end of the Sierra Nevada mountain range north-east of Tehachapi, California, for the purpose of wind power generation (the "Wind Project") . The Wind Project is anticipated to contain up to 102 wind turbines and have a maximum electrical output of up to 300 megawatts. The parties agree that the operation of wind turbines inevitably results in some level of avian fatalities due to the collision of birds with moving turbine blades. In this regard there are three bird species that are of particular interest to Plaintiffs' complaint; the California condor (Gymnogyps californicus), the southwestern willow flycatcher (Empidonax traillii extimus), and the golden eagle (Aquila chrysaetos). Of these three species the first two are listed as endangered under the California Endangered Species Act; Cal. Fish & Game Code § 2050 et seq., and the third species is federally protected under the Bald and Golden Eagle Protection Act, 16 U.S.C. § 668 et seq.
In December 2010, NSRE applied to BLM for a right of way over federal land for the purpose of establishing a road to service the Wind Project and for the purpose of establishing underground power transmission lines and fiber optic communications lines (hereinafter the "Road" or "Road Project"). BLM conducted an environmental assessment (EA) of the Road Project. In conducting the EA on the Road Project, BLM determination that its scope of review must be confined to the environmental impacts of the construction of the Road itself because the Road and Wind Projects are not connected. Thus, BLM concluded its EA could not incorporate the much broader impacts of the Road plus the Wind Project. BLM's EA resulted in a finding of no significant impact (FONSI) based on this narrower scope of review. Based on its FONSI and based on the undisputed fact that the establishment of the Road Project over federal land would involve less environmental impact than the establishment of access to the Wind Project over private land, BLM issued the requested right of way to NSRE.
BLM based its scope of review decision on the conclusion that the Road and Wind Project were not interdependent because the Wind Project would continue with or without the Road Project. BLM found that NSRE could and would obtain access to the Wind Project over private land should BLM deny the Road Project right of way application. BLM's conclusion that the Road and Wind Project are not interdependent is at the heart of Plaintiff's action. The facts that underlie BLM's decision are highly disputed. First and foremost, BLM's finding is based on NSRE's representation that if BLM were to decline to issue the requested right of way, the Project would nonetheless proceed over a roadway situated entirely on private property. There is no dispute that a route over private land has been planned and described by NSRE, that the private road would be 28 miles long as compared with a 10 mile long route for the Project Road. It is also not disputed that the private road would involve the construction of more new roadway than would be required for construction of the Project Road and that the total acreage of new, repaved, straightened and widened road, along with the total of acreage disturbed by the construction process would be greater for the private road. Plaintiffs' main contention is that BLM was clearly erroneous in finding that a route over private is feasible. Plaintiffs contend the route over private land is not feasible because of the large number of private property owners whose land would be traversed by the route and who had not, at the time of BLM's decision, granted access to NSRE. Plaintiffs also dispute BLM's finding that the Project Road would have value independent of its use as an access road for the Wind Project.
The parties have submitted statements of undisputed material facts that are far more extensive than what would be required to address the threshold question of whether BLM was clearly erroneous in its determination that the Road Project and the Wind Project are not interconnected such that a broader environmental review of the project would be required.
As will be discussed more completely infra, the determination of whether BLM was clearly erroneous is the sum and substance of Plaintiffs' complaint and of the parties cross-motions for summary judgment. For that reason the court will reproduce here only those few undisputed material facts that play on BLM's determination.
Most of the factual dispute relevant to the instant action is embodied in Federal Defendants' sixth proffered undisputed material fact and in Plaintiff's accompanying response: "BLM concluded that analyzing the Wind Project along with the Road Project under NEPA was useless because [NSRE] would have built the private Wind Project via the Private Road even if the BLM had denied the Road Project Application. AR20763. Doc. # 73-1 at ¶ 6. Plaintiffs respond:
Plaintiffs dispute this statement. The [Administrative Record] establishes that the private route required the consent of multiple private land owners and that NSRE had not obtained land control necessary to access the private lands and construct the road. See AR8968-69; AR 20861. Plaintiffs also dispute that BLM's analysis of the "Wind Project under NEPA was useless" because NSRE has elected to pursue the public lands rights-of-way, see AR20769-20780, and BLM has statutory authority to condition its grants to protect imperiled wildlife species. See 43 U.S.C. § 1761(a) & (b)(1), § 1765(a).
Federal Defendants' tenth proffered undisputed material fact alleges that in "December 2010, NSRE applied to the BLM for a right of way for the Road Project to support the Wind Project. EA1-1; DR 2. Plaintiffs respond:
Plaintiffs do not dispute that NSRE applied to BLM for rights-of-way across public lands in December 2010 in order to construct and operate a wind farm on adjacent private lands. See AR 20793-94. Plaintiffs dispute BLM's characterization of the "Road Project" and the "Wind Project" as separate actions because the public lands provide the only existing access to the site, see AR 17913-14; AR20797, are NSRE's most cost-effective means for accessing the site, see AR20794 and provide "the most direct and efficient access" to the site, see AR20757. The "Road Project" and "Wind Project" are, in fact, components of the larger, comprehensive scheme to develop renewable energy on the site.
The Federal Defendants allege that NSRE informed BLM that it would "pursue construction of private land access roads if the [Road Project] grant request is denied." Doc. # 73-1 at ¶ 13 (citing AR 20812). Plaintiffs do not dispute that NSRE made the quoted statement, but dispute that "BLM made any determination about whether NSRE could obtain land control necessary to construct the private route, whether the private route was economically feasible, or whether the private route met NSRE's project milestones." Id. (citing AR8968-69). Similarly, Plaintiffs do not dispute Federal Defendants' allegation that the "Wind Project" is entirely on private land and that "Kern County acted as the lead agency in reviewing the 'Wind Project's' potential environmental impacts pursuant to the California Environmental Quality Act (CEQA), Cal. Pub. Res. Code §§ 21000 et seq. AR11546." Doc. # 73-1 at ¶ 38. Rather, Plaintiffs dispute the Wind Project's characterization as "'private' since it relies on access roads constructed on public lands." Id.
The complaint in this action was filed on April 13, 2012. Plaintiffs moved for preliminary injunction on May 14, 2012, but that motion was withdrawn on August 28, 2012. Federal Defendants answered Plaintiffs' complaint on June 1, 2012. The motion by NSRE to intervene as defendant was granted on June 27, 2012. Plaintiff's filed their motion for summary judgment on September 7, 2012. Federal Defendants and NSRE filed their oppositions to Plaintiffs' motion and cross-motions for summary judgment on October 12, 2012. Plaintiffs filed their opposition to Defendants' cross-motions for summary judgment and reply to Defendant's opposition on October 26, 2012. Defendants filed their replies to Plaintiffs' opposition to November 9, 2012.
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Poller v. Columbia Broadcast System, 368 U.S. 464, 467 (1962); Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir. 1985); Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir. 1984).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Although the party moving for summary judgment always has the initial responsibility of informing the court, the nature of the responsibility varies "depending on whether the legal issues are ones on which the movant or the non-movant would bear the burden of proof at trial." Cecala v. Newman, 532 F.Supp.2d 1118, 1132-1133 (D. Ariz. 2007). When the moving party has the burden of proof at trial, that party must carry its initial burden at summary judgment by presenting evidence affirmatively showing, for all essential elements of its case, that no reasonable jury could find for the non-moving party. United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir.1991) (en banc); Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986); see also E.E.O.C. v. Union Independiente De La Autoridad De Acueductos Y ...