Center for Biological Divers. v. Blm ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 22 2012
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
CENTER FOR BIOLOGICAL No. 10-72356
DIVERSITY,
Petitioner, MEMORANDUM *
v.
UNITED STATES BUREAU OF LAND
MANAGEMENT; U.S. FISH AND
WILDLIFE SERVICE,
Respondents,
RUBY PIPELINE, L.L.C.,
Respondent-Intervenor.
COALITION OF LOCAL No. 10-72552
GOVERNMENTS, ON BEHALF OF ITS
MEMBERS, INCLUDING LINCOLN
COUNTY, WYOMING,
Petitioner,
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
BUREAU OF LAND MANAGEMENT;
DEPARTMENT OF THE INTERIOR,
Respondents,
RUBY PIPELINE, L.L.C.,
Respondent-Intervenor.
WARNER BARLESE, Member, Summit No. 10-72762
Lake Paiute Tribe, Nevada, and Chairman,
Summit Lake Paiute Council, IBLM Nos. NVN-084650
OR-64807
Petitioner, UTU-82880
WYW-171168
v. (W0350)
UNITED STATES BUREAU OF LAND
MANAGEMENT; U.S. ARMY CORP OF
ENGINEERS; U.S. FISH AND
WILDLIFE SERVICE,
Respondents,
RUBY PIPELINE, L.L.C.,
Respondent-Intervenor.
FORT BIDWELL INDIAN No. 10-72768
COMMUNITY OF THE FORT
BIDWELL INDIAN RESERVATION OF
CALIFORNIA,
Petitioner,
2
v.
UNITED STATES BUREAU OF LAND
MANAGEMENT; U.S. FISH AND
WILDLIFE SERVICE; UNITED STATES
ARMY CORPS OF ENGINEERS,
Respondents,
RUBY PIPELINE, L.L.C.,
Respondent-Intervenor.
DEFENDERS OF WILDLIFE; SIERRA No. 10-72775
CLUB; GREAT BASIN RESOURCE
WATCH, IBLM No. CP09-54-000
Petitioners,
RUBY PIPELINE, L.L.C.,
Intervenor,
v.
UNITED STATES BUREAU OF LAND
MANAGEMENT; UNITED STATES
ARMY CORPS OF ENGINEERS; U.S.
FISH AND WILDLIFE SERVICE,
Respondents.
On Petition for Review of an Order of the
3
Bureau of Land Management, Fish and Wildlife Service, and Army Corps of
Engineers
Argued and Submitted October 11, 2011
Portland, Oregon
Before: BERZON and N.R. SMITH, Circuit Judges, and SMITH, District Judge.**
The Center for Biological Diversity (“CBD”),1 Coalition for Local
Governments (“CLG”), Fort Bidwell Indian Community (“Bidwell Tribe”), and
Summit Lake Paiute Tribe (“Paiute Tribe”) filed a Petition for Review challenging
the Bureau of Land Management’s (“BLM”) Record of Decision (“ROD”) and the
Army Corps of Engineers’s (“Corps”) Nationwide Permit (“NWP”) authorization
for the Ruby Pipeline Project (“pipeline” or “project”).2
1. National Environmental Policy Act (“NEPA”)
a.
Whether the Final Environmental Impact Statement (FEIS) failed to
“rigorously explore and objectively evaluate all reasonable alternatives,” 40 C.F.R
**
The Honorable William E. Smith, District Judge for the U.S. District
Court for the District of Rhode Island, sitting by designation.
1
CBD filed joint briefs with the Defenders of Wildlife, et al. We use the
acronym “CBD” to refer to both parties collectively.
2
CBD and the Paiute Tribe also raised claims under the Endangered Species
Act challenging the Fish and Wildlife Service’s Biological Opinion, on which
BLM partially based its ROD. We address those claims in a separate opinion
issued concurrently with this memorandum disposition.
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§ 1502.14(a), to the proposed route is moot. The pipeline is now complete, and
neither CBD nor the Bidwell Tribe seek to shift it, in whole or in part, to an
alternative route. At this point, an analysis of alternatives would no longer inform
decision-making regarding the pipeline’s location. Accordingly, no effective relief
is available for these claims, and they are moot. See Nw. Envtl. Def. Ctr. v.
Gordon, 849 F.2d 1241, 1244-45 (9th Cir. 1988).
b.
Whether the FEIS fell short of NEPA’s requirements by failing adequately
to analyze the project’s impacts on the Paiute Tribe’s cultural resources is also
moot. The pipeline was subsequently re-routed away from the cultural resources
the Tribe says BLM failed to study.
c.
In contrast, whether BLM failed to conduct a proper cumulative effects
analysis is not moot. An appropriate FEIS could still yield effective post-
construction relief in the form of mitigation. See Or. Natural Res. Council v. BLM,
470 F.3d 818, 821 (9th Cir. 2006).
The FEIS does not provide sufficient “quantified or detailed data,” Ecology
Center v. Castaneda, 574 F.3d 652, 666 (9th Cir. 2009), about the cumulative loss
of sagebrush steppe vegetation and habitat. See also Lands Council v. Powell, 395
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F.3d 1019, 1028 (9th Cir. 2005). With respect to past impacts, the FEIS provides
no information on how much acreage sagebrush vegetation used to occupy, or what
percentage of that has been destroyed by previous actions like grazing,3 which
makes it impossible to gauge the cumulative impact of destroying another 9,224.8
acres, as the pipeline is projected to do. See Klamath-Siskiyou Wildlands Ctr. v.
BLM, 387 F.3d 989, 994 n.1 (9th Cir. 2004). In addition, the FEIS concludes that
“[t]he additive effects of present and future projects would continue a trend toward
a reduction in [sagebrush and other] vegetative communities,” but does not
quantify or otherwise specify what those effects would be. The FEIS’s assertion
constitutes the type of “generalized conclusory statement,” Klamath-Siskiyou, 387
F.3d at 996, that this Court has found insufficient in cumulative effects analyses.
3
Reasoning that “grazing is considered part of the ecological regime” and
“not a project or projects,” the FEIS omits the past impacts of grazing from its
cumulative effects analysis. However, the FEIS also recognizes that grazing “has
occurred in the project area,” and is “highly destructive” to sagebrush habitat.
Grazing thus constitutes a “relevant prior . . . action[],” Ecology Ctr. v. Castaneda,
574 F.3d 652, 667 (9th Cir. 2009), whose impacts cannot be omitted from the
cumulative effects analysis. See also 40 C.F.R. § 1508.7.
6
Compare League of Wilderness Defenders Blue Mountains Biodiversity Project v.
Allen, 615 F.3d 1122, 1136 (9th Cir. 2010).4
The necessity of a thorough cumulative effects analysis with respect to
sagebrush is underscored by the FEIS’s recognition that “project impacts on
sagebrush steppe vegetation would be significant” because a “substantial amount
of sagebrush steppe habitat would be removed during construction.” The FEIS
also acknowledged that “[i]mpacts on the sagebrush steppe community, which is
the most dominant vegetation community crossed by the project, would be
long-term or permanent because this vegetation type could take as long as 50 years
or more to return to preconstruction conditions.” The FEIS’s cumulative impact
analysis thus falls short of what NEPA requires.
d.
Although not moot, see Or. Natural Res. Council, 470 F.3d at 821, the
Petitioners’ final NEPA claim lacks merit.
The FEIS omits data on “water body flow and width at crossing[s]” for some
bodies of water. But it establishes that most bodies of water crossed by the
4
Despite the federal respondents’ assurance in their brief that “[p]ast mining
impacts on sagebrush habitat and wildlife is subsumed in the discussion of those
resources,” it is unclear from the FEIS itself whether mining numbers among the
“other activities,” identified in the FEIS as having contributed to the cumulative
loss of sagebrush vegetation.
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pipeline are “intermittent drainages and washes [] that are expected to be dry at the
time of construction,” and that none of these contain “prevalent sensitive fish
species” or implicate “sensitive fisheries” issues, including “[r]isk of sedimentation
[to] downstream [] protected species.” The FEIS thus adequately considers the
impacts of the project’s water crossings.
2. National Historic Preservation Act (“NHPA”)
a.
The BLM engaged in adequate “government-to-government” consultation
with the Paiute Tribe in a timely manner, as required by the regulations
implementing section 106 of the NHPA. 36 C.F.R. §§ 800.2(c)(2); 800.1(c). The
Tribe received communications starting in March 2008 concerning the project.
And even assuming that government-to-government consultation did not begin
until the February 2009 meeting, the record shows that alternate routes were still
being considered at that time. In fact, the Sheldon route, which would have
avoided the Tribe’s traditional cultural property altogether, was analyzed
extensively in the January 2010 final environmental impact statement. BLM
therefore met its obligation to engage in timely, good faith consultation under the
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NHPA. See Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 806–07
(9th Cir. 1999).3
b.
BLM did not violate the NHPA by failing to “designate a lead Federal
agency” responsible for consultation. 36 C.F.R. § 800.2(a). While the regulations
do make clear that one agency official must retain “legal and financial
responsibility for section 106 compliance,” 36 C.F.R. § 800.2(a), they also
explicitly condone using “the services of applicants, consultants, or designees to
prepare information,” 36 C.F.R. § 800.2(a)(3). The regulations nowhere require
that all consultation be conducted by a single official, and in fact contemplate just
the type of multi-party approach used here. Cf. Te-Moak Tribe of Western
Shoshone v. Dep’t of Interior, 608 F.3d 592, 609–10 (9th Cir. 2010).
c.
Nor did BLM fail to mitigate the harm to the Bidwell Tribe’s traditional
cultural property. The NHPA, like NEPA, is a procedural statute; it does not
mandate substantive outcomes. See San Carlos Apache Tribe v. United States, 417
F.3d 1091, 1097 (9th Cir. 2005). BLM therefore satisfied its obligations under the
3
BLM did not fail to comply with the Guidelines for Conducting Tribal
Consultation, BLM Manual, H-8120-1. The overall consultation process included
the various types of consultation mandated by the Guidelines.
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NHPA by considering, in the memoranda of agreement that concluded the section
106 process, measures that would mitigate harm to the traditional cultural property
and adopting some of them.
d.
Finally, BLM did not violate the section 106 regulations by adopting a
phased approach to identifying historic properties. Where routing is at issue,
agencies may continue to defer “final identification and evaluation of historic
properties if it is specifically provided for in a memorandum of agreement.” 36
C.F.R. § 800.4(b)(2). The memoranda of agreement for Nevada and Oregon both
provide for a phased approach, as permitted by the regulations. The ROD made
clear that construction was not to begin until the memoranda were executed, and
the first notice to proceed allowing construction was not in fact issued until after
that. The phased approach therefore proceeded exactly as contemplated by the
regulations.
3. Clean Water Act (“CWA”)
a.
The Corps did not act arbitrarily and capriciously by authorizing the pipeline
under NWP 12 rather than requiring an individual permit. Under NWP 12, the
permittee must submit a written pre-construction notification, 33 C.F.R. § 330.1(e),
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which allows a Corps District Engineer to “review the proposed activity,” 33
C.F.R. § 330.1(d), and consult with the permittee, at which point the permittee may
“furnish information which satisfies the [District Engineer’s] concerns.” 33 C.F.R.
§ 330.5(d)(2).
The Corps was initially concerned that Ruby’s proposed crossing of Goose
Lake would be ineligible for NWP 12 and would thus require an individual permit,
but subsequently decided to authorize the entire project, including Goose Lake,
under NWP 12. Once the Corps exercises its discretion to decide that a project
requires an individual permit, it may “restore authorization under the NWPs” if it
“determines that [the] reason for asserting discretionary authority has been
satisfied by a condition, project modification, or new information.” 36 C.F.R. §
330.4(e)(3). That is what happened here: Ruby modified its crossing of Goose
Lake in response to the Corps’ early concerns, and specific modifications and
mitigation measures were adopted in the Corps’ statement of findings in support of
its decision to authorize the project under NWP 12. The regulatory requirements
were thus satisfied.
b.
The project met NWP 12’s general conditions 3, 15, and 20. General
Condition 3 provides that “activities in spawning areas during spawning seasons
11
must be avoided to the maximum extent practicable” and that “physical destruction
of an important spawning area [is] not authorized.” 72 Fed. Reg. at 11,191. The
Corps, after evaluating each of the pipeline’s over 1,000 stream crossings, ensured
that General Condition 3 was met.
General Condition 15 forbids any activity “in a component of the National
Wild and Scenic River System, or in a river officially designated by Congress as a
‘study river’ for possible inclusion in the system.” 72 Fed. Reg. 11,192. While
Twelvemile Creek in Oregon had been proposed for designation as a Wild and
Scenic River, it was not officially designated by Congress as a “study river.”
General condition 20 requires “compensatory mitigation at a one-for-one
ratio . . . for all wetland losses that exceed 1/10 acre.” 72 Fed. Reg. 11,193. To
constitute a loss within the meaning of General Condition 20, the fill must “change
an aquatic area to dry land.” 72 Fed. Reg. 11,196. Nothing in the record
establishes that such a “loss” will occur. At worst, .183 acres of wetlands of one
type will be converted into wetlands of another type. There was thus no violation
of General Condition 20.
c.
Finally, the Corps reasonably determined that the project would have “only
minimal individual and cumulative environmental impacts,” 33 C.F.R §
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323.2(h)(1). Using data provided by Ruby, the Corps analyzed both the individual
and cumulative impacts. It then made the required “reasoned predictions” that
these impacts would be minimal and the project would therefore qualify for NWP
12. See Ohio Valley Envtl. Coal. v. Bulen, 429 F.3d 493, 501 (4th Cir. 2005).
4. Federal Land Policy and Management Act (“FLPMA”)
The Bidwell Tribe contends that the route chosen caused “unnecessary or
undue,” 43 U.S.C. § 1732(b), destruction of cultural properties and sagebrush
habitat, but has not identified any “discrete agency action that [BLM] is required
to take” but did not. The Tribe’s FLPMA claim therefore fails. Norton v. S. Utah
Wilderness Alliance, 542 U.S. 55, 64 (2004); see Gardner v. BLM, 638 F.3d 1217,
1222 (9th Cir. 2011); Gros Ventre Tribe v. United States, 469 F.3d 801, 814 (9th
Cir. 2006).
5. Standing
The Coalition lacks standing to bring its NEPA challenge. There is no
evidence in the record indicating that Ruby’s agreement with the Western
Watersheds Project (“WWP”) to fund the purchase and relinquishment of grazing
permits was contingent on completion of the pipeline. Instead, the agreement
appears to have been conditioned upon withdrawal of WWP’s efforts “to litigate or
seek delay in the construction of the Ruby pipeline.” The causal link between
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BLM’s approval of the pipeline and the potential relinquishment of grazing permits
is too attenuated to support standing. See Simon v. E. Ky. Welfare Rights Org., 426
U.S. 26, 41-42 (1976).
***
We GRANT the petition for review with respect to Section 1.c of this
memorandum disposition and REMAND to BLM to undertake a revised
cumulative effects analysis that comports with NEPA. We DENY the petition
with respect to all remaining claims addressed herein.
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