II. Natural Resources

Environmental Law, Summer 2016 | Go to article overview

II. Natural Resources


A. 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. …

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