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Sierra Club v. Bureau of Land Management

United States Court of Appeals, Ninth Circuit

May 27, 2015

SIERRA CLUB; CENTER FOR BIOLOGICAL DIVERSITY; DEFENDERS OF WILDLIFE, Plaintiffs-Appellants,
v.
BUREAU OF LAND MANAGEMENT; JAMES KENNA, in his official capacity as California State Director, Bureau of Land Management; SALLY JEWELL [*], in her official capacity as Secretary of the Interior, Defendants-Appellees, NORTH SKY RIVER ENERGY, LLC, Intervenor-Defendant--Appellee

Argued and Submitted, San Francisco, California: February 5, 2015.

Page 1220

Appeal from the United States District Court for the Eastern District of California. D.C. No. 1:12-cv-01193-AWI-JLT. Anthony W. Ishii, Senior District Judge, Presiding.

SUMMARY[***]

Environmental Law

The panel affirmed the district court's judgment upholding the decision of the United States Bureau of Land Management to grant a right-of-way over federal land for a wind energy project developed on private land by intervenor North Sky River Energy, LLC.

The Wind Project was developed near Tehachapi, California; and the Road Project was initiated when North Sky applied to the BLM for a right-of-way to connect the Wind Project to an existing state highway. Because the Wind Project could be built without the federal Road Project, and because the federal Road Project had independent utility, the BLM concluded that the Wind Project was not subject to formal consultation under the Endangered Species Act, and need not be analyzed as a connected action under the National Environmental Policy Act.

The panel held that the Wind Project did not trigger BLM's duty to initiate consultation with the United States Fish and Wildlife Service under the Endangered Species Act. The panel also held that the Wind Project did not trigger BLM's duty to prepare an Environmental Impact Statement under the National Environmental Policy Act because the Wind Project was not a federal action or connected to the Road Project.

Matthew Vespa, Sierra Club, San Francisco, California; Jason C. Rylander (argued), Defenders of Wildlife, Washington, D.C.; Lisa T. Belenky, Center for Biological Diversity, San Francisco, California; and Babak Naficy, Law Offices of Babak Naficy, San Luis Obispo, California, for Plaintiff-Appellants.

Robert G. Dreher, Acting Assistant Attorney General, Jared Pettinato, Stephen Finn, Bradley H. Oliphant, and Lane N. McFadden (argued), Attorneys, United States Department of Justice, Environment and Natural Resources Division, Washington, D.C.; and Gregory Russell, United States Department of the Interior, Office of the Solicitor, Washington, D.C., for Defendants-Appellees.

Daniel J. Dunn (argued), Andrew L. Spielman, Jennifer L. Biever, and Margaret A. Parish, Hogan Lovells U.S. LLP, Denver, Colorado; and Zachary R. Walton, Christine W. Griffith, and Elizabeth L. Bridges, SSL Law Firm, LLP, San Francisco, California for Intervenor-Defendant--Appellee.

Before: Richard C. Tallman and Johnnie B. Rawlinson, Circuit Judges, and Raymond J. Dearie, Senior District Judge.[**] Opinion by Judge Rawlinson.

OPINION

Page 1221

RAWLINSON, Circuit Judge:

Plaintiffs-Appellants Sierra Club, Center for Biological Diversity, and Defenders

Page 1222

of Wildlife (collectively Sierra Club) appeal the district court ruling upholding the decision by the United States Bureau of Land Management (BLM) to grant a right-of-way over federal land (Road Project) for a wind energy project (Wind Project) developed on private land by Intervenor-Appellee North Sky River Energy, LLC (North Sky). Because the Wind Project does not trigger the (1) duty to consult under the Endangered Species Act (ESA) or (2) duty to prepare an Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA), we affirm the decision of the district court.

I. BACKGROUND

The Wind Project is a wind energy project developed by North Sky on more than 12,000 acres of private land located in the Sierra Nevada mountain range, northeast of Tehachapi, California. The Road Project was initiated when North Sky applied to the BLM for a right-of-way over federal land to connect the Wind Project to an existing state highway. The right-of-way (Road Project) would contain ...


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