United States District Court, S.D. California
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Bryan R. Snyder, Law Office of Byran R. Snyder APC, San Diego, CA, Frank R. Jozwiak, Thane D. Somerville, Morisset Schlosser Jozwiak and McGaw, Seattle, WA, for Plaintiff.
U.S. Attorney CV, U.S. Attorneys Office Southern District of California, San Diego, CA, Marissa A. Piropato, Ayako Sato, U.S. Department of Justice, Washington, DC, for Defendants.
Kevin T. Haroff, Marten Law PLLC, Matthew G. Adams, Nicholas C. Yost, SNR Denton LLP, San Francisco, CA, Svend A. Brandt-Erichsen, Marten Law, Seattle, WA, for Intervenor Defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; GRANTING FEDERAL DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT-INTERVENOR OCOTILLO'S MOTION TO DISMISS AND FOR SUMMARY JUDGMENT [Dkt. Nos. 80, 111, 115.]
GONZALO P. CURIEL, District Judge.
On May 14, 2012, Plaintiff filed a complaint against Federal Defendants challenging the United States Department of the Interior's approval of the May 11, 2012 Record of Decision (" ROD" ) approving the Ocotillo Wind Energy Facility Project (" OWEF" or " Project" ), a utility-scale wind power project in the Sonoran Desert in Imperial County, California. (Dkt. No. 1.) On August 31, 2012, Plaintiff filed a first amended complaint which added causes of action concerning events subsequent to the Record of Decision (" ROD" ). (Dkt. No. 70.) On September 24, 2012, Plaintiff filed a motion for summary judgment. (Dkt. No. 80.) On December 10, 2012, Federal Defendants and Defendant-Intervenor Ocotillo Express filed an opposition and their cross-motions for summary judgment. (Dkt. Nos. 111, 115.) On December 24, 2012, Plaintiff filed a reply to its motion for summary judgment and opposition to Federal Defendants' cross-motion for summary judgment. (Dkt. No. 118.) Plaintiff also filed a reply in support of its motion for summary judgment and opposition to Ocotillo's cross-motion for summary judgment. (Dkt. No. 120.) On January 2, 2013, Ocotillo and Federal Defendants filed a reply to their cross-motions for summary judgment. (Dkt. Nos. 123, 124.)
A hearing on the cross motions for summary judgment was held on January 18, 2013. (Dkt. No. 126.) Thane Somerville, Esq. appeared on behalf of Plaintiff; Marissa Piropato, Esq. appeared on behalf of Federal Defendants; and Svend Brandt-Erichsen, Esq. and Nicholas Yost, Esq. appeared on behalf of Ocotillo. ( Id. ) After a thorough review of the administrative record, the applicable law, the parties' briefs, and hearing oral argument, the Court DENIES Plaintiff's motion for summary judgment; GRANTS Federal Defendants' motion for summary judgment; and GRANTS Defendant-Intervenor's motion to dismiss and for summary judgment.
Plaintiff brought suit alleging violations of the National Historic Preservation Act, (" NHPA" ), Federal Land Policy and Management Policy Act, (" FLPMA" ), National Environmental Policy Act, (" NEPA" ), Archaeological Resources Protection Act, (" ARPA" ), and Native American Graves Protection and Repatriation Act, (" NAGPRA" ), under the Administrative Procedures Act (" APA" ). Quechan challenges BLM's approval of the ROD allowing the construction of 112 wind turbines in an area that contains cultural and biological significance to the Tribe.
The Court's role in an APA case is to determine whether the BLM's approval of the ROD and grant of the ROW was arbitrary, capricious or an abuse of discretion." 5 U.S.C. § 706(2)(A). This is a highly deferential standard where the agency's action is presumed to be valid as long as there is a reasonable basis for its decision. Nw. Ecosystem Alliance v. U.S. Fish and Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir.2007).
Under NHPA, Plaintiff complains about its lack of involvement in the archaeological survey and the Section 106 consultation due to BLM. However, the administrative record reveals many attempts, starting regularly in 2010, were made by BLM to engage the Tribe in Section 106 government to government consultation. Plaintiff did not accept these repeated request until December 2011, towards the end of the approval process. Moreover, during the archeological survey, a survey crew went out daily with Native American consultants. Plaintiff has not shown that they were excluded from access to the " direct impact" survey areas.
Although Plaintiff alleges that BLM did not properly identify all historic properties, the record reveals that BLM hired an archaeological consultant and it began conducting an archaeological survey in September 2010, with a draft Survey issued in May 2011, and a final report issued in March 2012. The identification efforts were significant.
As to FLPMA, Plaintiff's argument that the Project for 112 wind turbines does not comply with the Class L designation and violates the VRM standard and will result in the unnecessary and undue degradation of the public lands is based on a narrow reading of the CDCA Plan and the caselaw. Numerous mitigation measures are mandated in the ROD to protect different resource values in order to comply with FLPMA and the CDCA Plan.
Under NEPA, the BLM stopped, looked and listened when it took a " hard look" at the cumulative effects of the Project with past, present and future projects; considered indirect growth-inducing effects of the Project; and did not have to analyze its " priority" renewable projects in the entire CDCA in a single Environmental Impact Statement (" EIS" ).
Moreover, BLM consulted and coordinated with other federal and state agencies
and addressed compliance with federal and state standards. The State of California determined that there were no inconsistencies between the Project and state or local law. While the BLM admits there will be unavoidable adverse impacts on different resource values, numerous mitigation efforts were implemented to limit the impact of the Project and to be in compliance with federal, state and local laws.
Based on a careful review of the administrative record and the parties' briefs, the BLM's decision to approve the ROD was reasonable as it considered all relevant factors and provided an analysis that presented a rational connection between the facts found and the conclusions it made based on relevant law. Therefore, the Court concludes that the BLM's decision to approve the ROD was not arbitrary, capricious or an abuse of discretion.
On May 14, 2012, Plaintiff Quechan Tribe of the Fort Yuma Indian Reservation, a federally recognized Indian Tribe, filed a complaint against Defendants United States Department of the Interior; United States Bureau of Land Management (" BLM" ); Ken Salazar, Secretary of the Interior; Robert Abbey, Director, Bureau of Land Management; Teri Raml, District Manager, BLM California Desert District; and Margaret Goodro, Field Manager, BLM El Centro Field Office (collectively referred to as " Federal Defendants" ). (Dkt. No. 1.)
On May 15, 2012, the Court granted Ocotillo Express LLC's (" Ocotillo" ) motion to intervene. (Dkt. No. 25.) On May 22, 2012, 2012 WL 1857853, the Court denied without prejudice Plaintiff's ex parte motion for temporary restraining order and order to show cause why preliminary injunction should not issue. (Dkt. No. 48.) On August 31, 2012, Plaintiff filed a first amended complaint which added causes of action concerning events subsequent to the Record of Decision (" ROD" ). (Dkt. No. 70.) In the first amended complaint, Plaintiff alleges violations under the Federal Land Policy and Management Act (" FLPMA" ); National Environmental Policy Act (" NEPA" ); National Historic Preservation Act (" NHPA" ); Archaeological Resources Protection Act (" ARPA" ); Native American Graves Protection and Repatriation Act (" NAGPRA" ); Administrative Procedures Act (" APA" ); applicable Interior regulations; and the California Desert Conservation Area (" CDCA" ) Plan based on BLM's approval, execution and implementation of the Project. ( Id. )
On September 7, 2012, Federal Defendants filed a notice of filing a copy of the administrative record. (Dkt. No. 73.) On September 13, 2012, Federal Defendants filed under seal a DVD containing a portion of the administrative record. (Dkt. No. 77.) On October 4, 2012, Federal Defendants filed a hyperlinked administrative record index and a supplemental administrative record index reflecting eight documents that were inadvertently included in the privilege log as part of the initial administrative record filed on September 7, 2012. (Dkt. No. 84.)
On September 19, 2012, Ocotillo filed a motion to supplement the administrative record. (Dkt. No. 78.) On September 24, 2012, Plaintiff filed a motion for summary judgment. (Dkt. No. 80.) Concurrently, Plaintiff filed a request for judicial notice, or in the alternative, a motion to supplement the administrative record. (Dkt. No. 82.) On October 4, 2012, the case was transferred to the undersigned judge. (Dkt. No. 85.)
On November 14, 2012, 2012 WL 5512383, the Court denied Ocotillo's motion to supplement the record. (Dkt. No. 104.) On November 15, 2012, 2012 WL 5612368, the Court denied Plaintiff's motion
to supplement the administrative record. (Dkt. No. 105.)
On November 26, 2012, Federal Defendants filed a DVD of the post-ROD implementation record. (Dkt. No. 106.) On November 29, 2012, Federal Defendants filed a DVD of the post-ROD implementation administrative record under seal. (Dkt. No. 109.)
On December 10, 2012, Federal Defendants and Defendant-Intervenor Ocotillo Express filed an opposition and their cross-motions for summary judgment. (Dkt.Nos.111, 115.) On December 24, 2012, Plaintiff filed a reply to its motion for summary judgment and opposition to Federal Defendants and Ocotillo's cross-motions for summary judgment. (Dkt.Nos.118, 120.) On January 2, 2013, Ocotillo and Federal Defendants filed a reply to their cross-motions for summary judgment. (Dkt.Nos.123, 124.)
On December 19, 1980, the Department of the Interior (" Interior" ) approved a Record of Decision (" ROD" ) for the California Desert Conservation Area (" CDCA" ) which established a " longrange, comprehensive plan for the management, use, development, and protection of over 12 million acres of public land...." (OWEF  5914.) On October 9, 2009, Ocotillo applied to the Bureau of Land Management (" BLM" ) and to the County of Imperial to construct and operate a wind energy facility on public land within the CDCA. (OWEF 5261.) In February 2012, the Department of the Interior created a Proposed Plan Amendment & Final Environmental Impact Statement/Final Environmental Impact Report for the Ocotillo Wind Energy Facility analyzing the impact of a 12,484 acre right-of-way over public land in favor of Ocotillo to build 155 wind turbine generators (" Final EIS" ). (OWEF 804, 825.) On May 11, 2012, Interior approved a Record of Decision for the Ocotillo Wind Energy Facility and Amendment to the California Desert Conservation Area Plan (" ROD" ) which approves a 10,151 acre right-of-way over public land in favor of Ocotillo to build 112 wind turbine generators. (OWEF 109.) On May 8, 2012, a Memorandum of Agreement (" MOU" ) was entered into by the California State Historic Preservation Historic Office, the Advisory Council on Historic Preservation, the BLM, the Army Corps of Engineers and Ocotillo Express as part of the ROD in order to mitigate and minimize adverse impacts of the OWEF project on cultural resources. (OWEF 222.)
A. Standard of Review
The Administrative Procedures Act (" APA" ) governs judicial review of agency actions under NHPA, FLPMA, and NEPA. See 5 U.S.C. § 706; see also Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 778 (9th Cir.2006) (NEPA and NHPA); Oregon Natural Res. Council Fund v. Brong, 492 F.3d 1120, 1124 (9th Cir.2007) (FLPMA and NEPA). An agency's decision must be upheld under judicial review unless the court finds that the decision or action is " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Actions that are approved " without observance of procedure required by law" are also subject to be set aside upon judicial review. 5 U.S.C. § 706(2)(D).
The standard is " highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision."
Nw. Ecosystem Alliance v. U.S. Fish and Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir.2007) (citation omitted). Agency action is valid if the agency " considered the relevant factors and articulated a rational connection between the facts found and the choices made." Arrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir.2008) (citations omitted); see also Nat'l Wildlife Fed. v. U.S. Army, 384 F.3d 1163, 1170 (9th Cir.2004) (an agency must present a " rational connection between the facts found and the conclusions made." ). The burden is on Plaintiff to show any decision or action was arbitrary and capricious. See Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976).
B. National Historic Preservation Act (" NHPA" )
Under the NHPA, Plaintiff presents two arguments. First, Plaintiff argues that the BLM failed to adequately identify all historic properties prior to approval. Second, it contends that the BLM failed to adequately consult the Tribe prior to the Project's approval.
" Section 106 of NHPA is a ‘ stop, look, and listen’ provision that requires each federal agency to consider the effects of its programs." Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 805 (9th Cir.1999).
Under NHPA, a federal agency must make a reasonable and good faith effort to identify historic properties, 36 C.F.R. § 800.4(b); determine whether identified properties are eligible for listing on the National Register based on criteria in 36 C.F.R. § 60.4; assess the effects of the undertaking on any eligible historic properties found, 36 C.F.R. §§ 800.4(c), 800.5, 800.9(a); determine whether the effect will be adverse, 36 C.F.R. §§ 800.5(c), 800.9(b); and avoid or mitigate any adverse effects, 36 C.F.R. §§ 800.8(e), 800.9(c). The Forest Service must confer with the State Historic Preservation Officer (" SHPO" ) and seek the approval of the Advisory Council on Historic Preservation (" Council" ).
1. Identify All Historic Properties Prior to Approval
Under the regulations implementing NHPA, the agency must identify the historic properties within the affected area. 36 C.F.R. § 800.4. 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).
Plaintiff appears to argue that delineation of the project site was arbitrarily changed during the archaeological survey in order to accommodate the Project so that the survey area where the wind turbines would be built were excluded from analysis in the " direct impact" areas and were considered " indirect impact" areas. (OWEF 24776-777.) Defendants argue that they conducted robust identification efforts along with significant mitigation measures.
After the Project's archaeological consultant, Tierra Environmental Services, Inc. (" Tierra" ), surveyed the Project area, it released a draft Preliminary Historical Resources Reconnaissance Survey/Evaluation in May 2011. (OWEF 39822-848.) Subsequently, the final report entitled
" Historical Resources Evaluation and Impact Analysis for the Ocotillo Express Wind Energy Project Imperial County, California" was issued. (OWEF 39822.)
In a report entitled " Final Class II & III Inventory Research Design and Work Plan for the Ocotillo Express Wind Energy Project," dated August 2, 2010, Tierra explained that it had been commissioned to conduct a BLM Class III intensive heritage resources survey of the 8,000-acre direct impact Area of Potential Effect (" APE" ) and a Class II sample survey of 20 percent, or 1,400 acres, of the 7,000-acre indirect impact APE. (OWEF 38959; 38985.) " The primary goal of the survey was to identify and thoroughly document all significant prehistoric and historic resources in the project area and to discuss these resources in terms of regional research issues." (OWEF 38959.) The survey work focused on areas of direct impact and surrounding buffer areas. (OWEF 38959.)
The report explains that
[o]f those 15,000 acres, approximately 8,000 acres are anticipated by the BLM to be subject to direct impacts of the construction and operation of the turbines. This is referred to as the " direct impact APE" . The remaining 7,000 acres are anticipated to receive indirect impacts, referred to as the " indirect impact APE" . The direct impact APE includes all areas where ground-disturbing activities may take place, plus a 500-foot buffer.
(OWEF 38959; see also OWEF 38985.)
The final EIS also provides that
The direct impact APE includes all areas where ground-disturbing activities may take place, including turbine locations, transmission corridors, staging areas, access roads, and other supporting infrastructure and improvements, along with a 500-foot buffer surrounding all facilities.
Contrary to Plaintiff's assertions, the direct impact areas included areas where the wind turbines would be constructed. Therefore, Plaintiff's argument is without merit.
Second, Plaintiff contends that tribal monitors were not allowed to survey areas identified as " direct impact" areas. It argues that when tribal representatives were finally allowed access in late April 2012, they found and notified BLM of new/unrecorded sites and isolates. Defendants argue that tribal representatives participated in the archaeological resource survey.
Beginning in September 2010, Tierra conducted an intensive archeological survey for the direct impact area and a representative portion of the area of indirect impacts. (OWEF 949.) In March 2012, Tierra issued an Archaeological Survey Report (" Report" ) on the Project. (SEALED OWEF 59166.) According to the report, Native American monitors were present during the entire survey effort. (SEALED OWEF 59217, 59219, 59349-470.) Archaeological fieldwork began on September 27, 2010 and each day, a survey crew which consisted of a field director or crew chief plus one to three field archaeologists and Native American consultants went into the Project areas. (SEALED OWEF 59217.) The Report contains a section entitled " Native American Participation in Archaeological Survey which shows that regional tribes were invited to participate in the field surveys and provides detailed information about the communication and involvement ...