Desert Protective Council, Nonprofit Corp. v. U.S. Dep't of the Interior

927 F.Supp.2d 949

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.

Case No. 12cv1281–GPC (PCL).

United States District Court, S.D. California.

Feb. 27, 2013.

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-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 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 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...