Oregon Natural Desert Ass'n v. Jewell
840 F.3d 562
| 9th Cir. | 2016Background
- The Echanis Wind Energy Project: proposed 104 MW wind farm (40–69 turbines) on private land in Harney County, Oregon, plus a 46-mile North Steens 230-kV transmission line crossing BLM lands; BLM prepared an FEIS and ROD approving the Project.
- Project area lies in/near Steens Mountain Protection Area, which the Steens Act directs BLM to manage to conserve ecological integrity, including "genetic interchange." 16 U.S.C. § 460nnn.
- Greater sage‑grouse are sagebrush‑obligate birds whose winter survival depends on exposed sagebrush; populations have declined and connectivity is important for long‑term persistence.
- BLM did not conduct winter surveys at the Echanis site; it extrapolated from nearby East/West Ridge surveys and concluded Echanis lacked wintering sage‑grouse habitat.
- ONDA challenged the FEIS/ROD under NEPA; district court granted summary judgment to BLM/Harney County/Columbia Energy Partners; Ninth Circuit partially reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of baseline winter survey for sage‑grouse at Echanis | ONDA: BLM failed to assess baseline winter use at Echanis and improperly extrapolated from other sites | Defendants: agency discretion and deference to BLM scientific judgment; mitigation addresses concerns | Reversed in part — FEIS arbitrary and capricious on winter baseline because extrapolation relied on inaccurate data (East Ridge had winter birds) and unsupported reasoning; remand required |
| Prejudice and remedy (vacatur) | ONDA: baseline error materially affected decisionmaking and outcome; may require vacatur | Defendants: mitigation measures cure any error; vacatur unnecessary | Court: error prejudiced informed decisionmaking and outcome (Category‑1 status would bar development); remand with instructions to vacate the ROD unless district court finds rare circumstances to keep action in force pending reconsideration |
| Genetic connectivity analysis (distinct from habitat fragmentation) | ONDA: FEIS failed to address genetic connectivity between sage‑grouse populations | Defendants: ONDA failed to exhaust this argument; FEIS addressed habitat connectivity/fragmentation generally | Affirmed as to this issue — ONDA did not adequately raise genetic connectivity during comment period, so claim is unexhausted and not reviewable |
| Exhaustion requirement scope | ONDA: importance of genetic interchange (Steens Act, guidance) made issue obvious; no need to use specific term | Defendants: commenters must present distinct issue to the agency; general connectivity comments insufficient | Court: exhaustion required; general references to connectivity/fragmentation were too vague to alert BLM to the specific genetic‑connectivity concern |
Key Cases Cited
- Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (standard for arbitrary and capricious review of agency NEPA analyses)
- Northern Plains Res. Council v. Surface Transp. Bd., 668 F.3d 1067 (9th Cir. 2011) (necessity of baseline inventories for sage‑grouse wintering areas)
- Half Moon Bay Fisherman’s Marketing Ass’n v. Carlucci, 857 F.2d 505 (9th Cir. 1988) (EIS inadequate for failing to establish baseline conditions)
- Barnes v. U.S. Dep’t of Transportation, 655 F.3d 1124 (9th Cir. 2011) (exhaustion requires comments specific enough to alert agency to issue)
- Great Basin Mine Watch v. Hankins, 456 F.3d 955 (9th Cir. 2006) (administrative exhaustion requirement for NEPA challenges)
- Humane Soc’y of U.S. v. Locke, 626 F.3d 1040 (9th Cir. 2010) (vacatur standards and rare‑circumstances exception)