Stop B2H Coal. v. Bureau of Land Mgmt.

552 F.Supp.3d 1101

STOP B2H COALITION, an Oregon nonprofit corporation, Greater Hells Canyon Council, an Oregon non-profit corporation, Carol "Fuji" Kreider, an individual, Jim Kreider, an individual, and Gail Carbiener, an individual, Plaintiffs,

v. BUREAU OF LAND MANAGEMENT, U.S. Department of the Interior, Jose Linares, State Director (Acting), BLM Oregon/Washington, U.S. Forest Service, and Tom Montoya, Forest Supervisor, Wallowa-Whitman National Forest, Defendants,andIdaho Power Co. and PacifiCorp, Intervenor-Defendants.

Case No. 2:19-cv-1822-SI

United States District Court, D. Oregon.

Signed August 4, 2021

David H. Becker, Law Office of David H. Becker, LLC, 4110 SE Hawthorne Boulevard #168, Portland, OR 97214; Oliver J. H. Stiefel and Maura C. Fahey, Crag Law Center, 3141 E. Burnside Street, Portland, OR 97214. Of Attorneys for Plaintiffs.

Paul E. Salamanca, Deputy Assistant Attorney General, and Krystal-Rose Perez, U.S. Department of Justice, Environment and Natural Resources Division, 150 M Street NE, Washington, DC 20002; Andrew A. Smith, U.S. Department of Justice, Natural Resources Section c/o United States Attorney's Office, P.O. Box 607, Albuquerque, NM 87103. Of Attorneys for Defendants.

Beth S. Ginsberg and James C. Feldman, Stoel Rives LLP, 600 University Street, Suite 3600, Seattle, WA 98101. Of Attorneys for Intervenor-Defendants.

OPINION AND ORDER

Michael H. Simon, District Judge.

TABLE OF CONTENTS

Introduction...1113

Standards...1114

A. National Environmental Policy Act...1114

B. Federal Land Policy and Management Act...1114

C. Administrative Procedure Act...1115

D. Motion for Summary Judgment in an APA Case...1116

E. Extra-Record Material...1116

Background...1117

Discussion...1117

A. Motion to Strike...1117

1. Documents Relating to Plaintiffs’ Motion to Compel an SEIS...1118

2. Documents Asserted to Summarize Information...1119

3. Documents Asserted to be Subject to Judicial Notice...1120

4. Documents Asserted to Fall Within the Lands Council Exceptions...1120

5. Conclusion...1121

B. Cross-Motions for Summary Judgment...1121

1. NEPA—SEIS...1121

a. Information about Greater Sage-Grouse population and harm...1122

b. Information about transmission line burial...1123

c. Information about the Mill Creek alternative...1124

d. Conclusion...1124

2. NEPA—Sage-Grouse...1124

a. Environmental Baseline...1124

i. Habitat acreage...1125

ii. Risk of extirpation...1127 iii. Greater Sage-Grouse distribution...1127

iv. Indirect effects of greater than 3.1 miles...1128

v. Winter habitat...1129

b. Mitigation...1130

i. Perch deterrents...1130

ii. Compensatory mitigation...1132

c. Cumulative Effects...1135

3. NEPA—Interpretative Center...1137

a. Burying a Segment of Line...1137

b. Mitigation...1140

4. NEPA—Mill Creek Violation...1141

a. Supplemental Draft EIS...1141

b. Analysis of effects...1143

5. FLPMA...1144

Conclusion...1144

INTRODUCTION

Plaintiffs Stop B2H Coalition, Greater Hells Canyon Council, Carol "Fuji" Kreider, Jim Kreider, and Gail Carbiener bring this action challenging the Final Environmental Impact Statement (FEIS) issued by Defendant Bureau of Land Management (BLM), the Record of Decision (ROD) issued by Defendant U.S. Department of the Interior (DOI), and the Rights-of-Way (ROWs) granted by BLM and DOI relating to the siting of a powerline transmission project. The proposed transmission line runs from Boardman, Oregon to the Hemingway Substation in Idaho (the B2H Project). The B2H Project was first proposed by Intervenor-Defendant Idaho Power Co. (Idaho Power), who has since been joined in the B2H Project by Intervenor-Defendant PacifiCorp (collectively, Intervenors). The B2H Project is a nearly 300-mile electrical transmission line that crosses over private, state, and federal land.

Plaintiffs allege that BLM and DOI (collectively, with named BLM official Jose Linares, Defendants) violated the National Environmental Policy Act of 1969¹ (NEPA) and the Federal Lands Policy Management Act of 1976² (FLPMA) in issuing the FEIS, ROD, and ROWs, and by failing to issue a supplemental draft supplemental environmental impact statement (EIS) before the FEIS and after the FEIS.³ Now before the Court are Plaintiffs’ motion for summary judgment and the cross-motions for summary judgment by Defendants and Intervenors. Also pending is the motion to strike extra-record materials filed by Defendants and joined by Intervenors. For the reasons discussed below, the Court grants in part and denies in part the motion to strike, denies Plaintiffs’ motion for summary judgment, and grants the cross-motions for summary judgment filed by Defendants and Intervenors.

STANDARDS

A. National Environmental Policy Act

NEPA "is our basic national charter for protection of the environment." 40 C.F.R. § 1500.1(a) (2017).⁴ "NEPA requires that ‘to the fullest extent possible ... all agencies of the Federal Government shall’ complete an environmental impact statement (EIS) in connection with ‘every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.’ " San Luis & Delta-Mendota Water Auth. v. Jewell (Jewell ), 747 F.3d 581, 640-41 (9th Cir. 2014) (alteration in original) (quoting 42 U.S.C. § 4332(2)(C) ). "In addition to the proposed agency action, every EIS must ‘[r]igorously explore and objectively evaluate all reasonable alternatives’ to that action. 40 C.F.R. § 1502.14(a). The analysis of alternatives to the proposed action is ‘the heart of the environmental impact statement.’ " Ctr. for Biological Diversity v. U.S. Dep't of Interior , 623 F.3d 633, 642 (9th Cir. 2010) (second citation omitted). The purpose of NEPA is twofold: (1) to ensure that agencies carefully consider information about significant environmental impacts; and (2) to guarantee relevant information is available to the public and decisionmakers at a time when decisionmakers retain a maximum range of options. See N. Plains Res. Council, Inc. v. Surface Transp. Bd. , 668 F.3d 1067, 1072 (9th Cir. 2011) ; and Pit River Tribe v. U.S. Forest Serv. , 469 F.3d 768, 785 (9th Cir. 2006). "In order to accomplish this, NEPA imposes procedural requirements designed to force agencies to take a ‘hard look’ at environmental consequences." Lands Council v. Powell , 395 F.3d 1019, 1027 (9th Cir. 2005) (citation omitted).

B. Federal Land Policy and Management Act

The FLPMA provides direction for the management of public lands. "In enacting FLPMA, ‘Congress declared that it is the policy of the United States to manage the public lands in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air, and atmospheric, water resource, and archeological values.’ " W. Watersheds Project v. Kraayenbrink , 632 F.3d 472, 498-99 (9th Cir. 2011) (quoting Ctr. for Biological Diversity v. U.S. Dep't of Interior , 581 F.3d 1063, 1075 (9th Cir. 2009) ). The FLPMA authorizes the grant of rights-of-way on public lands for transmission lines. 43 U.S.C. § 1761(a)(4). The FLPMA instructs that the terms and conditions for transmission lines shall: (1) carry out the purposes of the FLPMA and implementing rules and regulations; (2) "minimize damage to scenic and esthetic values and fish and wildlife habitat and otherwise protect the environment"; and (3) comply with state standards for health, safety, environmental protection, siting, construction, and operation, if those standards are more stringent. 43 U.S.C. § 1765(a). The statute also establishes that the terms and conditions may include requirements to: (1) protect federal property and economic interests; (2) manage efficiently the lands subject to or next to the right-of-way and protect users of the lands; (3) protect lives and property; (4) protect the interests of the individuals living in the general area who rely on the fish, wildlife, and other biotic resources for subsistence; (5) "require location of the right-of-way along a route that will cause least damage to the environment, taking into consideration feasibility and other relevant factors"; and (6) otherwise protect the public interest in the lands traversed by or next to the right-of-way. Id. § 1765(b).

C. Administrative Procedure Act

Under the Administrative Procedure Act (APA), a court must "hold unlawful and set aside agency action ... found to be—arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," or "without observance of procedure required by law." 5 U.S.C. § 706(2). "An agency must ‘examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.’ " Gill v. U.S. Dep't of Justice , 913 F.3d 1179, 1187 (9th Cir. 2019) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) ). Agency action is "arbitrary and capricious 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. , 463 U.S. at 43, 103 S.Ct. 2856 ; see also Gill , 913 F.3d at 1187. The basis for the agency's decision must come from the record. Gill , 913 F.3d at 1187.

A reviewing court's inquiry must be "thorough," but "the standard of review is highly deferential; the agency's decision is ‘entitled to a presumption of regularity,’ and [the court] may not substitute [its] judgment for that of the agency." Jewell , 747 F.3d at 601 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) ). Although a court's review is deferential, the court "must engage in a careful, searching review to ensure that the agency has made a rational analysis and decision on...