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The Protect Our Communities Foundation v. Ashe

United States District Court, Ninth Circuit

November 20, 2013

THE PROTECT OUR COMMUNITIES FOUNDATION, BACKCOUNTRY AGAINST DUMPS, and DONNA TISDALE, Plaintiffs,
v.
DANIEL M. ASHE, Director of U.S. Fish and Wildlife Service; REN LOHOEFENER, Regional Director, Pacific Southwest Region, for U.S. Fish and Wildlife Service; JIM A. BARTEL, Field Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service; U.S. FISH AND WILDLIFE SERVICE, a federal agency; and UNITED STATES DEPARTMENT OF THE INTERIOR, a federal agency, Defendants. OCOTILLO EXPRESS LLC, Defendant-Intervenor, Defendant.

ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND GRANTING FEDERAL DEFENDANTS AND OCOTILLO'S MOTIONS FOR SUMMARY JUDGMENT [Dkt. Nos. 21, 24, 27.].

GONZALO P. CURIEL, District Judge.

Plaintiffs The Protect Our Communities Foundation; Backcountry Against Dumps; and Donna Tisdale ("Plaintiffs") filed a complaint challenging the United States Department of the Interior and U.S. Fish and Wildlife Service's issuance of a Biological Opinion ("BiOp") for the Ocotillo Wind Energy Facility Project ("OWEF" or "Project"), a utility-scale wind power project in the Sonoran Desert in Imperial County, California. The complaint alleges Defendants violated the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. and seeks relief under the Administrative Procedures Act ("APA"). Specifically, they challenge that the Biological Opinion's conclusion that the Project is not likely to jeopardize the continued existence of Peninsular Bighorn Sheep ("PBS") is inadequate and violates the ESA.

Procedural Background

On September 11, 2012, Plaintiffs filed a complaint for declaratory and injunctive relief against Defendants Daniel M. Ashe, Director of U.S. Fish and Wildlife Service; Ren Lohoefener, Regional Director, Pacific Southwest Region for U.S. Fish and Wildlife Service; Jim A. Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service; U.S. Fish and Wildlife Service, a federal agency; and United States Department of the Interior, a federal agency (collectively referred to as "Federal Defendants"). (Dkt. No. 1.) On October 4, 2012, the case was transferred to the undersigned judge. (Dkt. No. 5.) On October 22, 2012, the Court granted the joint motion for permissive intervention of Defendant-Intervenor Ocotillo Express, LLC ("Ocotillo"), the Project proponent. (Dkt. No. 10.)

On March 29, 2013 and June 21, 2013, the administrative record was lodged with the Court. (Dkt. Nos. 17, 20.) On July 17, 2013, Plaintiffs filed a motion for summary judgment. (Dkt. No. 21.) On August 16, 2013, Federal Defendants and Ocotillo filed their cross motions for summary judgment and oppositions to Plaintiffs' motion for summary judgment. (Dkt. Nos. 24, 27.) On September 6, 2013, Plaintiffs filed their oppositions and their replies to their motion for summary judgment. (Dkt. Nos. 29, 30.) Federal Defendants and Ocotillo filed their replies on September 27, 2013. (Dkt. Nos. 31, 32.)

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...." 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. (SAR 8036-37.) The original number of wind turbines proposed of 193 was reduced to 155 in order to minimize environmental impacts. (SAR 8037.) 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 analyzing the impact of a 12, 484 acre right-of-way ("ROW") over public land in favor of Ocotillo to build 155 wind turbine generators. (SAR 7994.) After extensive environmental analysis, the Project was further reduced to 112 wind turbines on 10, 151 acres of public lands. (Dkt. No. 21-3, Volcker Decl., Ex. 1, Record of Decision.) On May 11, 2012, the Department of the Interior approved a Record of Decision ("ROD") 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. (Id.)

The PBS, at issue, are a distinct population segment of the desert bighorn sheep ( Ovis canadensis nelsoni ) that live in the Peninsular ranges of southern California and Baja California, Mexico. (AR 1688.) The sheep numbered approximately 971 individuals in 1972 and 1, 171 individuals in 1974. (AR 5781.) By 1996, the Service estimated sheep populations at approximately 276 individuals. (AR 1689.) The reasons for the decline in population numbers were due to a combination of threats of the effects of disease and parasitism; low lamb recruitment and habitat loss, degradation, and fragmentation; and predation. (SAR 4324.) The PBS was federally listed as an endangered species on March 18, 1998. (AR 1688; 63 Fed. Reg. 13134.) On October 25, 2000, in order to address these threats, and pursuant to its authority under the ESA, the Fish and Wildlife Service ("FWS") approved a recovery plan for the sheep. (AR 5733.) The recovery strategy included three delisting criteria: 1) at least 25 ewes must be present in each of the nine regions... during each of 12 consecutive years; 2) the rangewide population must average 750 individuals (adults and yearlings) with a stable or increasing population trend over 12 consecutive years; and 3) regulatory mechanisms and land management commitment must be established to provide long-term protection and connectivity among all portions of habitat must be established so that PBS are able to move freely throughout the Peninsular Ranges. (AR 1711.)

In 2010, the PBS range-wide population increased to an estimated 955 sheep. (AR 1689.) In the BiOp, the FWS noted that the sheep population in Recovery Region 9 (Carrizo Canyon/Tierra Blanca/Coyote Mountain) numbered about 232 individuals, including "presumably far more than 25 ewes if one assumes a relatively balanced sex ratio" and is the largest of the nine populations identified in the recovery plan. (AR 1711.) As of April 2011, eight of the nine recovery regions supported at least 25 ewes as required by Recovery Criterion 1. (AR 6473-75.)

In order to minimize adverse effects to the PBS, BLM and Ocotillo redesigned the Project to avoid placing any facilities within and directly adjacent to steep, escape-route habitat" (AR 266.) Moreover, mandatory conservation measures were created to protect and conserve the sheep. (AR 267 (15 miles per hour speed limit)); (AR 268 (weed management plan to control nonnative weeds, night lighting minimization; education program; a Designated Biologist to ensure compliance; biological monitors during construction and operation activities)); (AR 269 (no construction during lambing season, from Jan. 1 through June 30, within.75 miles of identified lambing sites; development of sheep monitoring/reporting plan)); (AR 1684 ($200, 000.00 contribution towards a sheep study/research program)); (AR 1709-10 (restoration of Carrizo Marsh to restore important water source that is currently not suitable for sheep use)).

A. Standard of Review

The Administrative Procedures Act ("APA") governs judicial review of agency actions under the Endangered Species Act. See 5 U.S.C. § 706; see also Bennett v. Spear , 520 U.S. 154 (1997). 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).

"An agency decision is arbitrary and capricious if, among other things, it offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.'" Native Ecosystems Council v. Weldon , 697 F.3d 1043, 1053 (9th Cir. 2012) (citation omitted). 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 (1976).

A court will not vacate an agency's decision unless it has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Nat'l Ass. of Home Builders v. Defenders of Wildlife , 551 U.S. 644, 658 (2007) (citation omitted). "We will, however, uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.'" Id . (quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc. , 419 U.S. 281, 286 (1974)).

B. Endangered Species Act ("ESA")

Plaintiffs present four arguments in support of their motion for summary judgment. First, the Biological Opinion ("BiOp") is arbitrary and capricious because it improperly downplays the significance of lower elevation, valley-floor habitat for PBS. Second, the BiOP is arbitrary and capricious because it ignores evidence that bighorn sheep are poor dispersers. Third, the BiOP is arbitrary and capricious because it improperly downplays the potential for the project to cause stress and associated adverse effects. Lastly, the BiOP fails to use the best available scientific evidence.

The ESA was enacted to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, " and "to provide a program for the conservation" of such species. 16 U.S.C. § 1531(b). Section 7 of the ESA "prescribes steps that federal agencies must take to ensure that their actions do not jeopardize endangered ...


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