II. Natural resources.

Position:Case summaries, part 2 - 2015 Ninth Circuit Environmental Review
 
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  1. Endangered Species Act

    1. Sierra Club v. U.S. Bureau of Land Management, 786 F.3d 1219 (9th Cir. 2015).

      In this case, the Sierra Club and other organizations (106) (collectively, Sierra Club) challenged the United States Bureau of Land Management's (BLM) decision to grant North Sky River Energy, LLC (North Sky) a right-of-way across BLM land, alleging that BLM violated the Endangered Species Act (ESA) (107) by failing to consult with the United States Fish and Wildlife Service (FWS) regarding the effects of the project. Sierra Club also alleged that BLM violated the National Environmental Policy Act (NEPA) (108) by failing to prepare an Environmental Impact Statement (EIS). The district court found for BLM after determining that North Sky would have completed the Wind Project regardless of whether BLM approved the Road Project because North Sky had a feasible alternative, and that the BLM-approved Road Project had independent utility. On appeal, the Ninth Circuit affirmed the district court's ruling. Additionally, the Ninth Circuit found that BLM did not act arbitrarily or capriciously when it changed its initial position that consulting with FWS might be required.

      The Sierra Club challenged two North Sky projects: first, a wind energy project (Wind Project) developed by North Sky on 12,000 acres of private land located outside of Tehachapi, California; and second, North Sky's proposed use of BLM land for a right-of-way connecting the Wind Project with an existing state highway (Road Project). North Sky also contemplated an alternative right-of-way traversing private land (Private Road Option). Ultimately North Sky opted for the Road Project, finding that the Private Road Option would disturb vegetation and wildlife habitat.

      Initially, BLM believed that the ESA required BLM to consult with FWS when reviewing the Road Project proposal. However, after North Sky submitted the Private Road Option, BLM concluded the Private Road Option was a viable alternative to the Road Project. This determination obviated the ESA's consultation requirement because it meant the viability of North Sky's operation was not dependent on BLM approval. BLM issued an environmental assessment which found that the Road Project would have no significant environmental impact, and found that the Road Project would provide dust control, reduce erosion, and control unauthorized vehicle access to the Pacific Crest Trail. Based on these findings, BLM issued a permit for the Road Project.

      After the permit was issued, Sierra Club sued BLM, alleging its decision to issue a permit for the Road Project violated the ESA and NEPA. North Sky intervened and the parties cross-moved for summary judgment. The district court granted summary judgment for BLM, holding that BLM's decision to issue the permit was not arbitrary or capricious. The Ninth Circuit reviewed the district court's grant of summary judgment de novo.

      The first issue on appeal was whether the ESA required BLM to consult with FWS regarding impacts of the Wind Project prior to approving the Road Project. The ESA consultation requirement is triggered only by federal agency action. (109) ESA consultation ensures that a federal agency considers the direct and indirect effects of its action on a protected species or critical habitat, as well as the effects of other activities that are interrelated or interdependent with the proposed action. (110) At the outset, the court determined that the Wind Project was not a federal agency action because it involved a private company developing private land without federal funds, and the Wind Project was not dependent on BLM approval of the Road Project. BLM was, therefore, not required to consult with FWS on the Wind Project's direct effects. The court noted that the Road Project was a federal agency action, and that BLM had properly consulted the ESA on the Road Projects direct effects.

      The Ninth Circuit then considered whether the effects of the Wind Project were indirect effects of the Road Project, or whether the Wind Project was an interrelated or interdependent activity with the Road Project, either of which would require consultation with FWS. First, the court determined that the Wind Project was not an indirect effect of the Road Project because the Road Project was not a cause of the Wind Project. Rather, North Sky could have completed the Wind Project without BLM involvement by moving forward with the Private Road Option. Second, the court found that the Wind Project was not interrelated or interdependent with the Road Project because, as the court noted, the Road Project was not a "but for" cause of the Wind Project. In addition, the court found that the Road Project had independent utility because it promised to improve dust control, reduce erosion, and control unauthorized vehicle access to the Pacific Crest Trail. Accordingly, the Ninth Circuit held that BLM was not required to consult with FWS regarding the direct, indirect, or interrelated effects of the Wind Project.

      The second issue on appeal was whether BLM had a duty to prepare an EIS under NEPA. An EIS is required for any "major Federal action significantly affecting the quality of the human environment." (111) An EIS must address the impacts of connected actions. (112) The Ninth Circuit repeated its finding that BLM's decision was not a major federal action because BLM had no control or responsibility over the Wind Project. In addition, the court explained that Wind and Road Projects were not connected, cumulative, or similar actions. (113) Two actions are unconnected if each of two projects has an "independent utility," which is determined by asking if each would have taken place with or without the other. (114) Because the Road Project had the additional utility of dust control, storm water control, and limiting access to the Pacific Crest Trail, the Road Project had independent utility from the benefit to North Sky. Moreover, North Sky would have developed the Wind Project with or without the Road Project due to the available Private Road Option.

      Finally, the court found that BLM had not acted arbitrarily and capriciously when it disregarded its initial decision to consult with FWS because 1) BLM's initial position was not a published regulation or official policy, (115) and 2) BLM adequately justified its change of view by demonstrating that the Private Road Option would provide North Sky with private access to the Wind Project.

      In sum, the Ninth Circuit held that BLM did not violate the ESA because the Wind Project was not a federal agency action and the Wind Project was independent from the Road Project. The court also held that BLM did not violate NEPA in its failure to prepare an EIS because the two projects had independent utility and were not connected actions. Accordingly, the court affirmed the district court's ruling.

    2. Cottonwood Environmental Law Center v. U.S. Forest Service, 789 F.3d 1075 (9th Cir. 2015).

      In this case, Cottonwood Environmental Law (Cottonwood) sued the United States Forest Service (USFS) in the United States District Court for the District of Montana. Cottonwood asserted that USFS violated the Endangered Species Act (ESA) (116) by failing to reinitiate consultation with the United States Fish and Wildlife Service (FWS) after FWS revised a critical habitat designation. Both parties filed cross-motions for summary judgment. While the district court ruled that USFS did violate the ESA by failing to reinitiate consultation, the court denied injunctive relief. The Ninth Circuit affirmed the district court, but also remanded to provide Cottonwood an opportunity to make a showing of irreparable harm as grounds for injunctive relief.

      The case centered on the Canada lynx, a cousin to the bobcat and a threatened species under the ESA. In 2006, FWS designated 1,841 square miles of land as critical habitat to the Canada lynx. However, none of that land was National Forest land, effectively exempting National Forest land from section 7 consultation. In 2007, USFS adopted the Northern Rocky Mountains Lynx Direction (Lynx Amendments), which set specific guidelines for permitting activities determined to have an adverse effect on Canada lynx. USFS initiated section 7 consultation with FWS to insure that any action taken would not adversely affect any endangered or threatened species, and FWS issued a Biological Opinion (BiOp) that determined that the management direction in the Lynx Amendment did not jeopardize the Canada lynx. In particular, the BiOp stated that no critical habitat was designated for the Canada lynx on federal lands, necessarily resulting in FWS concluding that no Canada lynx would be affected on federal land.

      Four months later, FWS announced that its critical habitat designation was improperly influenced by a previous employee, and as a result might not be scientifically accurate. In 2009, FWS revised its critical habitat designation from 1,841 to 39,000 square miles, and included eleven National Forests. Despite this significant change and addition of critical habitat in National Forests, USFS declined to reinitiate section 7 consultation with FWS on the Lynx Amendments. Subsequently, Cottonwood brought action against USFS. The district court ruled that USFS violated the ESA, but declined to provide injunctive relief. On appeal, the Ninth Circuit considered whether Cottonwood had standing to sue, whether the lawsuit was ripe for review, whether failing to reinitiate in section 7 consultation violated the ESA, and whether the Ninth Circuit could provide injunctive relief. The majority of the Ninth Circuit held that Cottonwood had standing to sue, the issue was ripe, and USFS violated the ESA. However, the Ninth Circuit affirmed the district court's denial of injunctive relief.

      The Ninth Circuit first held that Cottonwood had Article III standing (117) to sue. The court found that Cottonwood's declarations established that its...

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