Oregon-California Trails Ass'n v. Walsh

467 F.Supp.3d 1007

OREGON-CALIFORNIA TRAILS ASSOCIATION, a nonprofit corporation; Western Nebraska Resources Council, a nonprofit corporation; Hanging H East, L.L.C., a limited liability corporation; Whitetail Farms East, L.L.C., a limited liability corporation, Petitioners,

v.Noreen WALSH, Reg'l. Director, Mountain-Prairie Region, U.S. Fish and Wildlife Service; David Bernhardt, Secretary, U.S. Department of the Interior; Aurelia Skipwith, Director, U.S. Fish and Wildlife Service, Respondents, andNebraska Public Power District, Intervenor-Respondent.

Civil Action No. 19-cv-1945-WJM

United States District Court, D. Colorado.

Signed June 17, 2020

Elizabeth Leigh Lewis, Eubanks & Associates, LLC, Washington, DC, William Stewart Eubanks, II, Meyer Glitzenstein & Eubanks LLP, Fort Collins, CO, for Petitioners.

Bridget Kennedy McNeil, U.S. Department of Justice-Denver-ENRS Environment & Natural Resources Section, Denver, CO, Sarah Izfar, U.S. Department of Justice, Washington, DC, for Respondents.

Murray Dov Feldman, Holland & Hart LLP-Boise, Boise, ID, for Intervenor-Respondent.

ORDER AFFIRMING IN PART AND VACATING IN PART AGENCY ACTION

William J. Martínez, United States District Judge

The United States Fish & Wildlife Service ("Service") has issued a permit to the Nebraska Public Power District ("Power District") to incidentally "take" (kill or otherwise significantly disturb) the endangered American burying beetle (sometimes referred to in this Order simple as the "beetle"). Such take will happen through construction and operation of a 225-mile electrical transmission line in Nebraska known as the "R-Project." Petitioners—various organizations whose interests may be negatively affected if the R-Project is built—argue that the Service's choice to issue the incidental take permit violates portions of the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq. ; the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4231 et seq. ; and the National Historic Preservation Act ("NHPA"), 54 U.S.C. §§ 300101 et seq. Petitioners thus bring this lawsuit under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq. , to have the incidental take permit set aside.

This is an unusually complicated case. The R-Project has been in various planning stages for eight years, and the administrative record is correspondingly enormous.

(See ECF Nos. 17–22.) The record is also oddly organized and difficult to navigate. More frustrating, however, are the parties’ arguments. Many are of the underdeveloped, "see what sticks" variety; many are inexcusably belated (i.e. , arguments Petitioners make for the first time in their reply brief); and there are a surprising number of seemingly relevant arguments not made.

Having bushwhacked for weeks through this thicket, the Court finds, for the reasons explained below, that a large number of Petitioners’ challenges are without merit. The Court agrees with Petitioners, however, as to the following:

• the Service inadequately considered the effects of the R-Project on the O'Fallon's Bluff segment of the Oregon and California Trail;

• the Service unlawfully excluded potential wind turbine development in Antelope County, Nebraska, from its analysis (an error which infects various other analyses under the ESA, NEPA, and the NHPA); and

• one portion of a "programmatic agreement" entered into to address NHPA matters is arbitrary and capricious, at least on this record.

As a consequence, the Court will set aside the Service's decision to grant the June 12, 2019 incidental take permit, meaning said permit will be vacated.

Also before the Court are two motions to file amicus briefs. (ECF Nos. 26, 27.) The Court will deny these motions.

TABLE OF CONTENTS

I. APA STANDARDS...––––

II. BACKGROUND...––––

III. STANDING...––––

IV. DIRECT EFFECTS ON BIRD SPECIES...––––

A. Preliminary Clarification...––––

B. Whooping Cranes...––––

1. Relevant Legal Standards...––––

2. The Service's Conclusion Regarding "Take" Through Power Line Collision...––––

3. The Service's Conclusion Regarding "Take" Through Habitat and Behavioral Disturbances...––––

C. Interior Least Terns and Piping Plovers...––––

1. Additional Background...––––

2. Analysis...––––

V. EFFECTS OF WIND POWER...––––

A. Relevant Legal Standards...––––

1. ESA § 10 (Incidental Take Permit)...––––

2. ESA § 7 (Consultation)...––––

3. NEPA...––––

B. Additional Background...––––

C. Analysis...––––

1. Framing the Arguments...––––

2. Whether Wind Power is an Indirect Effect in These Circumstances...––––

3. Prejudicial Error...––––

VI. ALTERNATIVE ROUTES & CONFIGURATIONS...––––

A. Additional Background...––––

B. Analysis: NEPA...––––

1. Relevant Legal Standards...––––

2. Adequate Consideration of Alternatives...––––

C. Analysis: ESA § 10...––––

1. Relevant Legal Standards...––––

2. "Minimize and Mitigate" to the "Maximum Extent Practicable"...––––

VII. THE BEETLE...––––

A. Additional Background...––––

B. Analysis...––––

C. Beetles and Wind Power...––––

VIII. HISTORIC RESOURCES...––––

A. Legal Standards...––––

B. Additional Background...––––

C. Analysis...––––

IX. AMICUS BRIEFS...––––

X. REMEDY...––––

XI. CONCLUSION...––––

I. APA STANDARDS

The Service's actions under the ESA, NEPA, and NHPA may be reviewed under the APA. The APA empowers a reviewing court to "set aside" agency action if it is, among other things, "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Generally, an agency decision violates this standard

if the agency has relied on factors which Congress has 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.

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). A reviewing court should engage in a "thorough, probing, in-depth review," Wyoming v. United States , 279 F.3d 1214, 1238 (10th Cir. 2002) (citation omitted), with its review of the merits "generally limited to ... the administrative record," Custer Cnty. Action Assoc. v. Garvey , 256 F.3d 1024, 1027 n.1 (10th Cir. 2001).

However, "[t]he scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n , 463 U.S. at 43, 103 S.Ct. 2856. The Court confines its review "to ascertaining whether the agency examined the relevant data and articulated a satisfactory explanation for its decision, including a rational connection between the facts found and the decision made." Colo. Wild v. U.S. Forest Serv. , 435 F.3d 1204, 1213 (10th Cir. 2006).

II. BACKGROUND

The following is a general overview of the R-Project, the Service's consideration of it, the disputes that arose during the Service's consideration, and the Service's ultimate decision. The Court will provide much greater factual detail as it becomes relevant in the various analysis sections, below.

In January 2012, a quasi-governmental entity known as the Southwest Power Pool (a regional electric reliability council under the supervision of the Federal Energy Regulatory Commission, see ECF No. 34 at 17)¹ concluded that Nebraska needs a new east-west 345 kV electrical transmission line "chiefly to provide access for wind development in Cherry [County, in north-central Nebraska], but this line also [will] provide[ ] parallel paths for key contingencies in Nebraska for west to east flows, relieve[ ] congestion, increase[ ] transfer capability, and mitigate[ ] reliability concerns." (LIT CITED_026788.)²

In April 2012, the Southwest Power Pool directed the relevant regional utility—in this case, the Power District—to plan and construct the new transmission line and associated infrastructure. (Id. at 18627.) These tasks comprise the R-Project. Specifically, the Power District was directed to construct

a new 345 kilovolt (kV) transmission line that will extend from [the Power District's Gerald Gentlemen] Substation [which is just south of Interstate 80, approximately halfway between North Platte and Ogallala] north to a new 345 kV substation to be located in or near Cherry County, and then extend eastward to another new 345 kV substation to be located in Holt County, which is to interconnect with Western Area Power Administration's ... existing Fort Thompson [South Dakota] to Grand Island [Nebraska] 345 kV line that is located on the eastern border of Holt County.

(Id. ) Later, the Southwest Power Pool and the Power District dropped the idea of a new substation in Cherry County in favor of expanding an existing substation near Thedford, Nebraska, in Thomas County. (Id. )

Over the summer of 2012, the Power District "experienced extreme peak load growth that resulted in load shedding to the customers in north-central Nebraska because of the lack of transmission capacity in that area. During the irrigation season when load was shed, [the Power District] was forced to lease expensive mobile generators to serve the irrigation customers." (NEPA_002443.) The Power District represents that this was the result of "severe drought conditions." (ECF No. 37 at 12.) In any event, the Southwest Power Pool concluded that the R-Project is needed "to increase reliability and decrease congestion," "[e]ven if no wind projects were [to be] built." (NEPA_002443; see also LIT CITED_018627.)

For the next couple of years, the Power District pursued a process required by state law for determining the route of the new transmission lines. (See LIT CITED_016898–900; id. at 32225–35; CORRESPONDENCE_000301.) The Power District also began consulting with the Service about an incidental take permit for the American burying beetle, and possibly the whooping crane. (HCP_000001–2.) By the end of 2013, however, the expected permit was narrowed to just the beetle. (CORRESPONDEN...