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Bundorf v. Jewell

United States District Court, D. Nevada

February 3, 2015

JUDY BUNDORF, an individual; FRIENDS OF SEARCHLIGHT DESERT AND MOUNTAINS; BASIN AND RANGE WATCH; ELLEN ROSS, an individual; and RONALD VAN FLEET, SR., an individual, Plaintiffs,
v.
S.M.R. JEWELL, Secretary of the Interior; BUREAU OF LAND MANAGEMENT; U.S. FISH & WILDLIFE SERVICE, Defendants,
v.
SEARCHLIGHT WIND ENERGY, LLC, Defendant-Intervenor.

ORDER (Pls.' Motion for Summary Judgment - dkt. no. 40) (Def.-Intervenor's Counter Motion for Summary Judgment - dkt. no. 62) (Defs.' Cross Motion for Summary Judgment - dkt. no. 80) (Defs.' Motion to Strike - dkt. no. 53) (Defs.' Motion to Strike - dkt. no. 78)

MIRANDA M. DU, District Judge.

I. SUMMARY

Plaintiffs Judy Bundorf, Friends of Searchlight Desert and Mountains, Basin and Range Watch, Ellen Ross, and Ronald Van Fleet, Sr., allege that Defendants S.M.R. Jewell, Bureau of Land Management ("BLM"), and U.S. Fish and Wildlife Service ("FWS") (collectively, "Federal Defendants") violated several environmental statutes in approving a wind energy project in Southern Nevada. Searchlight Wind Energy, LLC ("Searchlight"), the project's proponent, intervened as a defendant in November 2013.

Before the Court are Plaintiffs' Motion for Summary Judgment ("MSJ") (dkt. no. 40), Federal Defendants' Cross Motion for Summary Judgment ("Cross MSJ") (dkt. no. 80), and Searchlight's Counter Motion for Summary Judgment ("Counter MSJ") (dkt. no. 62).[1] The Court has reviewed the relevant oppositions (dkt. nos. 57, 59, 71) and replies (dkt. nos. 71, 77, 79).

Also before the Court are Federal Defendants' Motions to Strike Plaintiffs' extra-record evidence (dkt. nos. 53, 78). The Court has reviewed Plaintiffs' oppositions (dkt. nos. 73, 82), and Federal Defendants' reply (dkt. no. 75).[2] Searchlight joined Federal Defendants' first Motion to Strike (dkt. no. 68).

The Court held a hearing on the parties' pending motions on November 24, 2014. As a threshold matter, the Court grants, in part, and denies, in part, Federal Defendants' first Motion to Strike (dkt. no. 53) and denies Federal Defendants' second Motion to Strike (dkt. no. 78). The Court remands the administrative record ("AR") for further explanation from the appropriate federal agencies, and orders Federal Defendants to prepare a Supplemental Environmental Impact Statement ("SEIS"). In light of the remand, the Court declines to address the merits of the parties' other arguments in their motions for summary judgment. The Court therefore grants, in part, the MSJ, and denies the Cross MSJ and the Counter MSJ pending amplification of the AR.

II. BACKGROUND

The following facts are undisputed and appear primarily in the AR.[3] On March 13, 2013, former Secretary of the Interior Ken Salazar approved a Record of Decision ("ROD") authorizing - but not finalizing[4] - two right-of-ways ("ROWs") for the Searchlight Wind Energy Project ("Project") on lands administered by the BLM. (BLM-AR 1190, 1205.) The Project includes 87 Wind Turbine Generators ("WTG") capable of providing up to 200 megawatts of electricity and a switching station to connect the wind facility to the electrical gird. ( Id. at 1191, 1195-96.) The area associated with the Project covers approximately 18, 949 acres, with a footprint of 9, 331 acres; the ROD states that the Project's facilities will occupy between 152 and 160 acres. ( Id. at 1192, 1207.) Searchlight applied for the ROW to construct, operate, maintain, and decommission the wind facility while the Western Area Power Administration ("Western"), a federal agency, sought the ROW to carry out the same actions for the switching station. ( Id. at 3023, 3049.)

Searchlight began the ROW application process through a Plan of Development ("POD") submitted in January 2008 for a wind energy project of up to 156 WTGs. ( Id. at 839-906.) BLM had initiated a 60-day public scoping period in December 2008. ( Id. at 3415.) Searchlight issued a revised POD in March 2011 describing a scaled-down project involving 87 WTGs. ( Id. at 982.) BLM then issued a Draft Environmental Impact Statement ("DEIS") in January 2012, and commenced a 90-day public comment period that ended in April 2012. ( Id. at 3417.) Plaintiffs submitted comments on the DEIS in April 2012, and offered supplemental information in October 2012. ( Id. at 534, 4304, 4705.) BLM published a Final Environmental Impact Statement ("FEIS") in December 2012. ( Id. at 3019.)

The ROD's approval of the 87-WTG Project is based on the FEIS. ( Id. at 1204.) In addition to the approved 87-WTG Project, the FEIS explores two alternative scenarios: a 96-WTG Alternative and a No-Action Alternative. ( Id. at 3027.) BLM determined that the 96-WTG Alternative reflected the maximum number of turbines available to the Project. ( Id. at 3070.) BLM described the 87-WTG option as a minimum threshold below which the Project would become economically unfeasible; the 87-WTG Alternative was BLM's Preferred Alternative. ( Id. at 3069.) For both the 96-WTG Alternative and the 87-WTG Alternative, BLM assumed that the WTGs would reach a maximum height of 427.5 feet, with rotating blades spanning 331 feet in diameter. ( Id. at 3083-84.)

Located approximately 60 miles southeast of Las Vegas and 1.5 miles east of the Lake Mead National Recreation Area, the Project would stretch around the town of Searchlight along the northeast side of the Piute Valley. ( Id. at 3129.) This undeveloped area features Mojave Desert ecosystem that spreads across valleys, flats, washes, and hills and mountains locally known as the Searchlight Mountains. (Dkt. no. 40 at 9-10.) The Project is surrounded by a Desert Wildlife Management Area and the Piute-Eldorado Valley Area of Critical Environmental Concern, which BLM manages to protect critical habitat of the desert tortoise. (BLM-AR at 3057, 3188-89.)

Among other species, the FEIS identifies the desert tortoise, 16 bat species, and birds - including the golden eagle - as wildlife that would be affected by the Project. ( See id. at 3153-64.) Because the desert tortoise is a threatened species under the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544, BLM consulted with FWS to ensure that the Project is "not likely to jeopardize the continued existence of" the desert tortoise. 16 U.S.C. § 1536(a)(2). As a result of the consultation, FWS issued a Biological Opinion ("BiOp") in September 2012, concluding that "the action, as proposed, is not likely to jeopardize the continued existence of the species, and is not likely to adversely modify designated critical habitat." (BLM-AR at 170.) The BiOp included an Incidental Take Statement outlining non-discretionary measures for activities that could result in a taking that is "incidental to and not the purpose of the agency action." ( Id. at 171.) To mitigate the Project's adverse effects on desert tortoises, the FEIS lists the conservation measures laid out in the BiOp. ( Id. at 3281-85.) For mitigation measures for bat and bird species, the FEIS references a Bird and Bat Conservation Strategy ("BBCS") prepared by Duke Energy Renewables in October 2012.[5] ( Id. at 3288-90, 16145.)

Plaintiffs initiated this action in April 2013 pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706. Plaintiffs allege that in approving the ROD, Federal Defendants violated the National Environmental Policy Act ("NEPA"), the ESA, the Federal Land Policy and Management Act ("FLPMA"), the Bald and Golden Eagle Protection Act ("BGEPA") and the Migratory Bird Treaty Act ("MBTA"). (Dkt. no. 36.) Under § 706(2) of the APA, Plaintiffs allege that the ROD is arbitrary, capricious, an abuse of discretion, and contrary to law. 5 U.S.C. § 706(2)(A); (dkt. no. 36 ¶ 96). Among other remedies, Plaintiffs ask that the Court reverse, set aside, vacate, and remand the FEIS, BiOP, and ROD. (Dkt. no. 36 at 31-32.) Additionally, under § 706(1) of the APA, Plaintiffs allege that BLM must supplement the FEIS in light of new information on how industrial-scale energy projects, including wind energy projects, affect wildlife and human health. ( Id. ¶ 101.) Plaintiffs also seek temporary, preliminary, or permanent injunctive relief that would enjoin Defendants from allowing construction to commence. ( Id. at 32.)

III. MOTIONS TO STRIKE

As a threshold matter, Federal Defendants request that the Court strike two declarations that Plaintiffs submitted in support of their MSJ. (Dkt. nos. 53, 78.) The declarations (dkt. nos. 44, 72) are from Scott T. Cashen, a biological resources expert (the "Cashen Declarations"). Federal Defendants contend that the Cashen Declarations and accompanying exhibits amount to extra-record evidence that the Court cannot consider in reviewing the ROD. The Court disagrees.

A. Legal Standard

The Court reviews Federal Defendants' approval of the ROWs under the APA because the other statutes under which Plaintiffs challenge the ROD's approval do not create private rights of action. See, e.g., City of Sausalito v. O'Neill, 386 F.3d 1186, 1206-07 (9th Cir. 2004) (noting that NEPA, ESA, and MBTA lack provisions for judicial review). Plaintiffs seek relief under § 706(1) and § 706(2) of the APA - the former allows courts to "compel agency action unlawfully withheld or unreasonably delayed, " 5 U.S.C. § 706(1), while the latter enables courts to set aside a final agency action only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" 5 U.S.C. § 706(2)(A); Wilderness Soc'y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1059 (9th Cir. 2003) (en banc), amended by 360 F.3d 1374 (2004).

In determining whether to compel agency action under § 706(1), courts may look to evidence outside an agency's administrative record because "there is no final agency action to demarcate the limits of the record." Friends ...


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