Western Watersheds Project v. Sally Jewell , 601 F. App'x 586 ( 2015 )

FILED
NOT FOR PUBLICATION MAY 05 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WESTERN WATERSHEDS PROJECT, No. 13-55027
Plaintiff - Appellant, D.C. No. 2:11-cv-00492-DMG-E
v.
MEMORANDUM*
SALLY JEWELL**, in her official
capacity as Secretary of the United States
Department of the Interior, et al.,
Defendants - Appellees,
And
BRIGHTSOURCE ENERGY, INC.,
Intervenor-Defendant -
Appellee.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Sally Jewell is substituted for her predecessor, Kenneth Lee Salazar,
as Secretary of the United States Department of the Interior. Fed. R. App. P.
43(c)(2).
Argued and Submitted April 10, 2015
Pasadena, California
Before: KLEINFELD, BENAVIDES***, and CLIFTON, Circuit Judges.
Western Watersheds Project appeals the district court’s summary judgment
in favor of the Bureau of Land Management and Brightsource. We have
jurisdiction under 28 U.S.C.§ 1291 and affirm.
BLM took the requisite “hard look” at the impacts of the Ivanpah Solar
Electric Generating System (“Solar Project”) on the desert tortoise. That BLM
estimated tortoise populations based on surveys of only adult tortoises did not
render its analysis arbitrary. Juvenile tortoises and their eggs were difficult to
detect in population surveys, and the vast majority would die from causes unrelated
to the Solar Project before reaching reproductive age. BLM’s consideration of
impacts to the desert tortoise species, rather than individuals, was appropriate. See
Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1010 (9th Cir. 2006).
The district court did not abuse its discretion in excluding the extra-record
declaration of Dr. Connor and concluding he was not qualified as a desert tortoise
expert.
***
The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
2
BLM also adequately discussed the Solar Project’s impacts to desert tortoise
habitat fragmentation and connectivity. The final EIS qualitatively discussed both
fragmentation and loss of connectivity and quantified expected habitat loss.
Although not concentrated in a single subsection of the EIS, the analysis allowed
for informed decisionmaking and public participation. Cf. Nat’l Parks &
Conservation Ass’n v. Bureau of Land Mgmt., 606 F.3d 1058, 1073 (9th Cir.
2010).
BLM considered the cumulative impacts of the DesertXpress railway by
assuming it would require a 40-mile long by 500-foot wide corridor. Because the
DesertXpress route had not yet been identified when BLM analyzed its impacts,
BLM could not have been required to assess the possible impacts to desert tortoise
translocation from a plan that had not been sufficiently developed. See Envtl. Prot.
Info. Ctr., 451 F.3d at 1014 (noting that an agency cannot be required to do the
impractical where insufficient information is available).
It was not arbitrary for BLM to determine that the revised estimates of
tortoise population and anticipated mortality did not constitute significant new
information and therefore did not require a supplemental EIS. BLM adequately
explained its decision not to prepare a supplemental EIS in its Determination of
NEPA Adequacy. That more tortoises would be affected did not require the
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conclusion that the revised estimates significantly changed the impacts to the
tortoise species or make the Solar Project’s impacts highly controversial.
BLM also properly reviewed the Eldorado-Ivanpah Transmission Line as a
cumulative rather than as a connected project. Because timing precluded BLM
from combining the transmission line and the Solar Project in the same EIS, the
final EIS adequately incorporated the transmission line by describing its impacts
and referring the reader to the draft EIS for the transmission line. Cf. Northern
Plains Resource Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1088 (9th
Cir. 2011) (noting neither cumulative nor connected actions need be considered in
the same EIS when the timing of the applications precludes it). The agency’s
process did not reflect an effort to divide a project into multiple actions to hide
significant impacts. See id. at 1087.
BLM’s justifications for eliminating the Ivanpah Dry Lake and private lands
alternatives were sufficient. BLM explained the Ivanpah Dry Lake floods
periodically, dikes that might prevent flooding would be economically prohibitive,
and the site offers unique recreational opportunities. BLM also explained that
obtaining the private lands would be challenging, risky, and time consuming. The
only site that offered sufficient land was too expensive.
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Finally, BLM took a hard look at the Solar Project’s impacts to birds. BLM
identified potential impacts, discussed relevant scientific studies of similar bird
mortalities, and noted limitations in existing data. BLM also explained why the
McCrary study on bird mortality at a solar facility could not be translated into
mortality estimates for the Solar Project.
AFFIRMED.
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