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Desert Protective Council v. United States Dept. of the Interior

United States District Court, S.D. California

February 27, 2013

DESERT PROTECTIVE COUNCIL, a California nonprofit corporation; Laborers' International Union of North America Local Union No. 1184, an organized labor union; Hector Casillas, an individual; and John Norton, an individual, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR; Ken Salazar, Secretary, U.S. Department of the Interior; United States Bureau of Land Management; Robert Abbey, Director, U.S. Bureau of Land Management; Teri Raml District Manager, BLM California Desert District; Margaret Goodro, Field Manager, BLM El Centro Field Office; County of Imperial, California; Board of Supervisors of the County of Imperial; Ocotillo Express LLC, a wholly-owned subsidiary of Pattern Energy Group LP, a Delaware Limited Partnership; Pattern Energy Group LP, a Delaware Limited Partnership, Defendants.

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Laurens H. Silver, California Environmental Law Project, Mill Valley, CA, Michael Robert Lozeau, Richard Drury, Lozeau Drury LLP, Oakland, CA, for Plaintiffs.

Ayako Sato, Rickey Doyle Turner, Jr., U.S. Department of Justice, Denver, CO, Marissa A. Piropato, Department of Justice, Washington, DC, Anne E. Mudge, Michael H. Zischke, Rachel Rands Jones, Robert Charles Hales, Cox Castle & Nicholson LLP, Kevin T. Haroff, Marten Law PLLC, Nicholas C. Yost, Snr Denton LLP, San Francisco, CA, Svend A. Brandt-Erichsen, Marten Law, Seattle, WA, for Defendants.

ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND GRANTING FEDERAL DEFENDANTS' AND OCOTILLO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFFS' MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT

GONZALO P. CURIEL, District Judge.

On May 25, 2012, Plaintiffs filed a complaint against Defendants. (Dkt. No. 1.) On August 3, 2012, Plaintiffs filed an amended complaint 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. 28.) Plaintiffs challenge BLM's grant of a right-of-

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way (" ROW" ) for the Project and the Plan Amendment to the California Desert Conservation Area (" CDCA" ) permitting the Project. ( Id. ) On December 28, 2012, Plaintiffs filed a revised motion for summary judgment. (Dkt. 80.) On January 4, 2013, Federal Defendants and Defendants Pattern Energy Group, LP and Ocotillo Express, LLC filed an opposition and their cross-motions for summary judgment. (Dkt. Nos. 83, 84.) On January 18, 2013, Plaintiffs filed their reply and opposition to all Defendants' cross-motion for summary judgment. (Dkt. No. 88.) On February 1, 2013, all Defendants filed their reply to their cross-motions for summary judgment. (Dkt. Nos. 96, 98.)

In addition, on January 22, 2013, Plaintiffs file a motion for leave to file a second amended complaint. (Dkt. No. 93.) Federal Defendants filed an opposition on February 8, 2013. (Dkt. No. 100.) Plaintiffs filed a reply on February 13, 2013. (Dkt. No. 101.)

A hearing on the cross motions for summary judgment was held on February 22, 2013. (Dkt. No. 104.) Michael Lozeau, Esq. appeared on behalf of Plaintiffs Laborers' International Union of North America Local Union No. 1184, Hector Casillas and John Norton; and Laurens Silver, Esq. appeared on behalf of Plaintiffs Desert Protective Council, Jim Pelley, and Parke Ewing. Marisa Piropato, Esq. and Luke Miller, Esq. appeared on behalf of Federal Defendants. Svend Brandt-Erichsen, Esq. and Nicholas Yost, Esq. appeared on behalf of Ocotillo Defendants. After a thorough review of the administrative record, the applicable law, the parties' briefs, and hearing oral argument, the Court DENIES Plaintiffs' motion for summary judgment; GRANTS all Defendants' motions for summary judgment; and DENIES Plaintiffs' motion for leave to file a second amended complaint.

Summary

Plaintiffs filed an amended complaint alleging violations of the National Environmental Protection Act, (" NEPA" ), and the Federal Land Policy and Management Act (" FLPMA" ) under the Administrative Procedures Act (" APA" ). They contest the availability of scientific studies to the public, the scientific integrity underlying the FEIS/FEIR and argue that turbine curtailment should be applied to all raptors. Under FLPMA, Plaintiffs, under different theories, essentially seek an order from the Court requiring the BLM to avoid the killing of any raptor or owl for the Project.

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).

As it relates to the issues in this case, the BLM conducted a thorough review of the potential impacts on birds, bats and golden eagles. BLM conducted numerous studies and surveys by experts over a several year period, it consulted and coordinated with other federal and state agencies, it addressed compliance with federal and state standards, it addressed comments during the public comment period, and adopted mitigation measures, such as the Burrowing Owl Migration and Monitoring Plan, Golden Eagle Conservation Plan, and the Avian and Bat Protection Plan, to avoid or substantially reduce the impact of the Project.

Based on an in-depth review of the administrative record and the parties' briefs, the Court finds that the BLM's decision to grant the ROW and approve the ROD was

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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 grant the ROW and approve the ROD was not arbitrary, capricious or an abuse of discretion.

Procedural Background

On August 3, 2012, Plaintiffs Desert Protective Council; Laborers' International Union of North America Local Union No. 1184 (" LIUNA" ); Hector Casillas; John Norton; Jim Pelley; and Parke Ewing filed a first amended complaint against Defendants United States Department of the Interior (" Interior" ); United States Bureau of Land Management (" BLM" ); Ken Salazar, Secretary of the Interior; Robert Abbey, Director, U.S. Bureau of Land Management; Teri Raml, District Manager, BLM California Desert District; Margaret Goodro, Field Manager, BLM El Centro Field Office (collectively referred to as " Federal Defendants" ); Ocotillo Express, LLC, a wholly-owned subsidiary of Pattern Energy Group LP; and Pattern Energy Group, LP (" Ocotillo Defendants" ). (Dkt. No. 28.) Plaintiffs allege violations of the Administrative Procedures Act (" APA" ), Federal Land Policy and Management Act (" FLPMA" ), National Environmental Policy Act (" NEPA" ), Bald and Golden Eagle Protection Act (" BGEPA" ), and violation of California Business and Professions Code § 17200 et seq. On the same day, Plaintiffs filed a motion for preliminary injunction. (Dkt. No. 27.) On September 28, 2012, District Judge Hayes denied the motion for preliminary injunction. (Dkt. No. 54.)

On October 4, 2012, Federal Defendants filed a copy of the administrative record. (Dkt. No. 55.) On the same day, the case was transferred to the undersigned judge. (Dkt. No. 57.)

On November 20, 2012, Plaintiffs filed a motion for summary judgment. (Dkt. No. 63.) Subsequently, Federal Defendants and Ocotillo Defendants filed a motion to strike the extra-record declaration of Scott Cashen. (Dkt. Nos. 66, 68.) Plaintiffs filed an opposition on December 13, 2012. (Dkt. No. 71.) Defendants filed a reply on December 18, 2012. (Dkt. Nos. 72, 73.) On December 21, 2012, 2012 WL 6678056, the Court granted all Defendants' motion to strike the extra-record declaration of Scott Cashen and set a new briefing schedule for Plaintiffs to re-file their opening brief without reference to Cashen's declaration and accompanying exhibits. (Dkt. No. 79.)

On December 28, 2012, Plaintiffs filed a revised brief in support of their motion for summary judgment. (Dkt. No. 80.) On January 1, 2013, Federal Defendants and Ocotillo Defendants filed an opposition and their cross-motions for summary judgment. (Dkt. Nos. 83, 84.) On January 18, 2013, Plaintiffs filed their reply and opposition to all Defendants' cross-motion for summary judgment. (Dkt. No. 88.) On February 1, 2013, Federal Defendants and Ocotillo Defendants filed their reply to their cross-motions for summary judgment. (Dkt. Nos. 96, 98.)

Factual Background

On December 19, 1980, the Department of the Interior approved a Record of Decision (" ROD" ) for the California Desert Conservation Area (" CDCA" ) which established a " long-range, comprehensive plan for the management, use, development, and protection of over 12 million acres of public land...." (OWEF [1] 5914.) On October 9, 2009, Ocotillo applied to the Bureau of Land Management (" BLM" ) and to

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the County of Imperial to construct and operate a wind energy facility on public land within the CDCA. (OWEF 5261.) In February 2012, Interior created a Proposed Plan Amendment & Final Environmental Impact Statement/Final Environmental Impact Report (" Final EIS" or " FEIS/FEIR" ) for the Ocotillo Wind Energy Facility (" Project" ) analyzing the impact of a 12,484 acre right-of-way over public land in favor of Ocotillo to build 155 wind turbine generators. (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 which approves a 10,151 acre right-of-way over public land in favor of Ocotillo to build 112 wind turbine generators. (OWEF 109.)

Discussion

A. Standing

Federal Defendants argue that LIUNA cannot assert representational standing and that the individual LIUNA members have not established standing.[2] Plaintiffs disagree.

Article III, section 2 of the United States Constitution requires that a plaintiff have standing to bring a claim. In order " to satisfy Article III' s standing requirements, a plaintiff must show (1) it has suffered an ‘ injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). The party seeking federal jurisdiction has the burden of establishing its existence. Lujan, 504 U.S. at 561, 112 S.Ct. 2130.

" An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Friends of the Earth, 528 U.S. at 181, 120 S.Ct. 693 (citing Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)); see also Ecological Rights Fdn. v. Pacific Lumber Co., 230 F.3d 1141, 1147 (9th Cir.2000). An organization can assert the standing of its members but must provide " specific allegations establishing that at least one identified members suffered or would suffer harm" and " generalized harm ... will not alone support standing." Western Watersheds Project v. Kraayenbrink, 632 F.3d 472, 483 (9th Cir.2011) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009)).

1. Injury in Fact

Environmental plaintiffs sufficiently allege injury in fact when they contend that they " use the affected area and are persons ‘ for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity." Friends of the Earth, Inc., 528 U.S. at 183, 120 S.Ct. 693. A desire to observe an animal species, even for purely esthetic purposes, is a cognizable interest supporting standing. Lujan, 504 U.S. at 560, 112 S.Ct. 2130. A person can establish " injury in fact" by showing a " connection to the area of concern sufficient to make credible the contention that the person's future life

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will be less enjoyable— that he or she really has or will suffer in his or her degree of aesthetic or recreational satisfaction— if the area in question remains or becomes environmentally degraded." Ecological Rights Fdn., 230 F.3d 1141, 1149-50 (9th Cir.2000) (An individual who visits Yosemite National Park once a year to hike or rock climb and regards that visit as the highlight of his year is not precluded from litigating to protect the environmental quality of Yosemite Valley simply because he cannot visit more often).

Here, Plaintiffs present the declaration of John Norton, a member of LIUNA. (Dkt. No. 88-1.) Norton states that he visits the site of the Project to do recreational target shooting. ( Id. ¶ 4.) He first visited the site about eight years ago and visited more recently six months ago. ( Id. ¶ 4.) He enjoys being out in the desert surrounded by wildlife and mountains and likes to put himself in the place of the original settlers as they crossed the desert. ( Id. ) While recreating at the site, he has enjoyed observing hawks, vultures and other birds flying around. ( Id. ¶ 9.) He has recently recalled seeing a hawk and was concerned about the threats posed to hawks, burrowing owls and other birds from the spinning turbines. ( Id. ¶ 10.) Norton has watched the transformation of the area since construction began and has strong feelings about losing the beautiful area of the desert and that a little piece of desert paradise around Ocotillo no longer exists. ( Id. )

The Court concludes that LIUNA has sufficiently established an injury of fact by one of its members under the standing requirement. See Western Watersheds Project, 632 F.3d at 483.

2. Interests at Stake Are Germane to the Organization's Purpose

Federal Defendants assert that Plaintiffs have not shown that environmental interests are germane to LIUNA's organizational purpose. Plaintiffs contend that LIUNA has established that LIUNA's interests include advocating for environmentally sustainable projects in furtherance of their members' recreational interests and quality of life. (Dkt. No. 88-2, Smith Decl. ¶¶ 4-5.)

The Complaint alleges that LIUNA is a non-profit laborers and public service employees union with numerous members living in Imperial County. (Dkt. No. 28, FAC ¶ 10.) LIUNA represents construction workers and public service employees in many setting, including collective bargaining, seeking employment, training programs, legal rights, job safety and workplace fairness. ( Id. ¶ 14.) It advocates for programs and policies that promote good jobs and a healthy working environment for workers and their families. ( Id. ) Its advocacy involves participating in and where appropriate challenging Projects that would result in harmful environmental effects or the violation of environmental laws. ( Id. ) John Smith, Business Manager/Secretary-Treasurer for LIUNA states that it works with local and national environmental organization to advocate for environmentally sustainable projects and jobs. (Dkt. No. 88-2, Smith Decl. ¶¶ 2, 4.) LIUNA has joined with the Sierra Club and the Natural Resources Defense Council to form the Blue-Green Alliance which supports the creation of " green jobs," which are jobs within the environmental field that can improve the environment and create good quality, living wage jobs. ( Id. ¶ 5.) As expressed in speeches by its leaders, LIUNA's partnership with the Sierra Club and the Natural Resources Defense Council, will provide its members with training to obtain " green jobs" with federal prevailing wages and health care benefits and skills. ( Id., Exs. A, B.) LIUNA's purpose is to advocate for its members

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in obtaining jobs with a good quality, living wage environment in addition to promoting a better community through " green jobs."

In one case, the court explained that " even though Plaintiffs have alleged that environmental concerns are germane to CURE's purpose, they have not presented any evidence or argument that the interests at stake in this litigation are germane to the purposes of its member labor unions; and " purely economic interests ... do not fall within NEPA's zone of interests." Cal. Unions for Reliable Energy v. U.S. Dept. of Interior, CV 10-9932-GW(SSx), 2011 WL 7505030, *7 (C.D.Cal.2011).

The interests at stake in the first amended complaint concern the impact of the Project on numerous species of animals including avian and bat. LIUNA's organizational interest does not support these issues. While its purpose is to promote a cleaner environment through the work of its members, its purpose is not to protect the avian and bat species. Accordingly, the Court concludes that LIUNA has not shown that the environmental effects of the OWEF are germane to its purpose. Consequently, LIUNA does not have standing to pursue these claims.

As to the individual members John Norton and Hector Casillas, only John Norton has provided a declaration to support his standing in the matter.[3] John Norton has established an injury in fact, that the injury is traceable to the challenged action and the injury will be remedies by a favorable decision. See Friends of the Earth, 528 U.S. at 180-81, 120 S.Ct. 693. The Court concludes that John Norton has established standing but Hector Casillas has not established standing.

B. Standard of Review

The Administrative Procedures Act (" APA" ) governs judicial review of agency actions under FLPMA, and NEPA. See 5 U.S.C. § 706; see also 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).

C. Exhaustion

Federal Defendants argue that Plaintiffs did not exhaust the claim that the ROW must contain specific terms and conditions

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prohibiting any incidental take of raptors in light of section 3503.5 of the California Department of Fish and Game Code (" CDFG" ) and the necessity of turbine curtailment. Ocotillo also argues that Plaintiffs failed to exhaust the same claim alleged by Federal Defendants that the BLM is legally obligated to prohibit the Project from incidentally killing any raptors or owls. Moreover, Ocotillo alleges two additional claims were not exhausted. First, Plaintiffs did not exhaust the allegation that the BLM failed to make literature available to the public about data on other wind projects and that the BLM's raptor count improperly compared data that excluded turkey vultures with data from other sites that included turkey vultures.

The APA requires plaintiffs to exhaust their administrative remedies before bringing suit in federal court. 5 U.S.C. § 704. " The purpose of the exhaustion doctrine is to allow the administrative agency in question to exercise its expertise over the subject matter and to permit the agency an opportunity to correct any mistakes that may have occurred during the proceeding, thus avoiding unnecessary or premature judicial intervention into the administrative process." Buckingham v. Sec. of the U.S. Dept. of Agriculture, 603 F.3d 1073, 1080-81 (9th Cir.2010) (citation omitted). Although " claimants who bring administrative appeals may try to resolve their difficulties by alerting the decision maker to the problem in general terms, rather than using precise legal formulations" claimants are still obligated to raise their problem " with sufficient clarity to allow the decision maker to understand and rule on the issue raised." Id. (quoting Idaho Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957, 965 (9th Cir.2002)).

An issue may be raised by any person during the administrative process and need not be raised by the party filing the complaint. Portland Gen. Elec. Co. v. Bonneville Power Admin., 501 F.3d 1009, 1024 (9th Cir.2007) (court will not invoke the waiver rule in reviewing a notice-and-comment proceeding if an agency has had an opportunity to consider the issue even if the issue was raised by someone other than the petitioning party); see also Wyoming Lodging & Rest. Ass'n v. U.S. Dept. of Interior, 398 F.Supp.2d 1197, 1210 (D.Wyo.2005); Comm. Advocates for Renewable Energy Stewardship v. U.S. Dept. of Interior, No. 12cv1499 WQH(MDD), 2012 WL 4471562, at *6 (S.D.Cal. September 23, 2012).

1. ROW Claim

The claim that the ROW grant must contain specific terms and conditions prohibiting any incidental take of raptors in light of section 3503.5 of CDFG Code and turbine curtailment was brought up during the public comment period. (OWEF 57371-72.) On March 28, 2012, LIUNA wrote to the Imperial County Planning Development Services Department. (OWEF 57365.) The letter states that the " FEIR fails to impose all feasible mitigation measures and environmentally superior alternatives." (OWEF 57370.)

Many of these species are listed under state and/or federal endangered species laws. For example, the willow flycatcher is federally listed as endangered and state-listed as endangered (FE and SE, respectively). It is also present on the project site, as indicated above (" (present)" ). Thus, the project proponent will have to obtain incidental take authorization for any take of this or any other species that is listed as endangered or threatened under state or federal endangered species laws.
Furthermore, many species that will be impacted by the project are protected under other state and federal laws. For

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example, the golden eagle and the bighorn sheep are each " fully protected" species under California's Fish and Game Code (FGC) Sections 3511(a),(b)(7) and 4700(a),(b)(2). Thus, the project must provide assurance that no take of these species will occur. The project does not do this— instead, it admits that individual golden eagles will in fact be taken ...

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