Loss of View is Not a Taking, Even in Beverly Hills

The mere loss of a homeowners’ unobstructed view, without any physical intrusion onto their properties, does not constitute a compensable taking. Boxer v. City of Beverly Hills, 246 Cal. App. 4th 1212 (2016).

In 1989, the City planted 31 coastal redwood trees in a park adjacent to Spalding Drive in Beverly Hills. In 2005, nearby homeowners complained to the City that the growing trees had begun to block previously unobstructed views of downtown Los Angeles, the Hollywood Sign, the Griffith Observatory, and other landmarks. They claimed the City had failed to trim and maintain the trees as intended and that further growth would entirely block the views from their property as well as exacerbate an existing fire hazard. The trees were not located on plaintiff homeowners’ properties, nor did plaintiffs allege any physical intrusion, occupation or invasion of, or physical damage to, their properties.

The homeowners brought an inverse condemnation suit against the City of Beverly Hills seeking damages and injunctive relief based on impairment of the views from their backyards. Without a physical intrusion onto their property, the homeowners relied on a theory of “intangible intrusion,” arguing that “because a ‘property owner’s loss of view is an aspect of compensable damage’ in eminent domain cases, the impairment of their views [was] a harm sufficient to support their inverse condemnation claims.”

The court rejected as “simply wrong” the argument that damage to the value of plaintiffs’ properties, such as from an impaired viewshed, establishes a compensable taking. The mere existence of a diminution in the value of the plaintiff’s property does not establish a compensable taking — it is an element of the measure of just compensation when such taking or damaging is otherwise proved.

The court also rejected plaintiffs’ contention that impairment of a view alone can constitute a taking. The court was unpersuaded by several cases addressing compensation for a loss of view because those cases also involved a physical taking of the claimant’s property. Several California cases discuss a “right” to visibility, but impairment of this right by government action was always “tethered to a compensable claim of impaired physical access.” Plaintiffs failed to identify authority for the proposition that a reduction in visibility, per se, required the payment of compensation. Intangible intrusions onto property such as a reduction in view may give rise to an inverse condemnation claim only where there is some burden on the property that is direct, substantial, and peculiar to the property itself.

The court undertook a lengthy discussion of Regency Outdoor Advertising, Inc. v. City of Los Angeles, 39 Cal. 4th 507 (2006), in which an advertising company leasing property along a Los Angeles boulevard claimed that palm trees planted by the City along the median reduced the visibility of its billboards. The California Supreme Court rejected the company’s inverse condemnation claim, holding that “impairment to visibility does not, in and of itself, constitute a taking of, or compensable damage to, the property in question.” Impairment of a “visibility right” might warrant compensation, but the company had no such right. The court noted it would be especially difficult to establish a visibility right as against trees planted on City property, since planting trees could be viewed as an application of land-use regulations and police power, including “the government’s well-established prerogative to plant trees on its own property.”

In Boxer, the homeowners attempted to distinguish Regency as concerning “a view of property, rather than a view from property” (emphasis in original). The court found this distinction to be of little consequence in light of the well-established principle of California law that a “landowner does not have a right to an unobstructed view over adjoining property.” As in Regency, the court declined to find the homeowners had a “visibility right,” stating that while private parties or a legislative body could create a right to an unobstructed view, the courts would not imply such a right.

Failure to Discover An Agency’s Approval Of An Exempt Project Does Not Extend The Time To File CEQA Lawsuit

The First District Court of Appeal has ruled that the accrual of a claim that a public agency exemption determination violated CEQA is not postponed by the plaintiff’s failure to discover the violation. Communities for a Better Environment et al. v. Bay Area Air Quality Management District, No. A143634 (1st Dist., July 19, 2016; modified Aug. 10, 2016).

Communities for a Better Environment brought an action against the Bay Area Air Quality Management District challenging  BAAQMD’s determination that its approval of a permit authorizing a rail-to truck transloading facility to switch from loading ethanol to crude oil was exempt from CEQA.

In July 2013, BAAQMD had found its approval was an exempt ministerial action, but did not file a Notice of Exemption.  Two months later, the transloading facility began transloading crude oil.  Over the next few months, BAAQMD modified several conditions of the permit and ultimately issued another permit incorporating the modifications.  CBE subsequently filed its lawsuit against BAAQMD.

During the trial court proceedings, BAAQMD argued that CBE’s petition was time-barred because it was filed more than 180 days after the issuance of the first permit, the time to file suit specified by statute when no Notice of Exemption is filed. CBE responded that a “discovery rule” should apply, which would mean that the limitations period did not begin to run until CBE first became aware of the operational change in January, 2014.  The trial court rejected CBE’s claim and dismissed the case as time-barred because it was filed more than 180 days after BAAQMD’s decision to approve the project.

The court of appeal agreed, holding that a discovery rule cannot be applied to postpone the running of the CEQA’s statutory limitations periods because the specified time periods are dates on which the public is deemed to have constructive notice of a potential CEQA violation.

The court of appeal distinguished the situation from a case decided by the California Supreme Court three decades ago, and a recent court of appeal case, in which the plaintiffs successfully argued a challenge was not time-barred because substantial changes had been made to the project after the initial approval. The court of appeal observed that in both cases the courts determined “that an action accrues on the date a plaintiff knew or reasonably should have known of the project only if no statutory triggering date has occurred.” CBE, however, “offered no theory” demonstrating that the applicable triggering date in the statute did not occur.

The court of appeal held that CBE’s contention that the discovery rule could delay the statutory triggering date ran counter to the general principle that CEQA’s statutes of limitation specify dates a plaintiff is deemed to have constructive notice of a potential CEQA violation. A plaintiff’s lack of actual notice of the violation is irrelevant.  Accordingly, the court of appeal upheld the trial court’s dismissal of CBE’s petition.

The court of appeal’s decision reinforces the strong public interest underlying CEQA’s short statutes of limitation. As the court of appeal stated, a discovery exception could not be read into the statute without violating “‘the Legislature’s clear determination that the public interest is not served unless CEQA challenges are promptly filed and diligently prosecuted.’”


General Plan Sustainability Requirements Doom Wal-Mart Project

Finding a variety of legal errors, including failure to comply with a city policy requiring on-site electricity generation “to the maximum extent feasible,” a court of appeal has overturned the City of Victorville’s approvals for a Wal-Mart project.  Spring Valley Lake Ass’n v. City of Victorville, No. D069442 (4th Dist., June 15, 2016).  The court found:

  1. The project approvals were inconsistent with the City’s general plan;
  2. The environmental impact report’s analysis of greenhouse gas emissions was inadequate;
  3. The city council failed to make findings required by the Subdivision Map Act; and
  4. The city was required to recirculate the EIR due to changes in its air quality and hydrology/water quality analyses.

General Plan.  The court held the project was inconsistent with two sustainability provisions of the city’s general plan.  The first was a program requiring “all new commercial or industrial development to generate electricity on-site to the maximum extent feasible.”  The project did not include any on-site electricity generation; the EIR stated that incorporation of rooftop solar systems would make the project economically infeasible absent significant government credits and incentives, which could not be assured.  The court held this explanation did not constitute substantial evidence that solar power generation or other alternatives (such as wind power, which the EIR did not discuss) were completely infeasible.

The second general plan requirement was a 15% improvement on 2008 Title 24 standards for all new construction.  The EIR showed that the project would “currently” achieve only a 10% improvement, but would comply with new energy efficiency standards at the time of construction, and then would “likely” meet the 15% requirement.  The court held that this, too, was inadequate.

The court agreed with the city that a project need not conform perfectly with each and every general plan policy, but applied the rule that a project is inconsistent with a general plan “if it conflicts with a general plan policy that is fundamental, mandatory, and clear.”  The court held that the city’s on-site electricity generation requirement constituted such a policy, and therefore the city’s finding that the project was consistent with its general plan was not supported by substantial evidence.

EIR Greenhouse Gas Analysis.  The court held the EIR’s GHG emissions analysis was inadequate because it relied in part on the conclusion that the project would achieve the 15% improvement in energy efficiency required by the city’s general plan, whereas the EIR itself stated that the project might not do so.

Subdivision Map Act.  The Map Act requires a city to deny approval of a parcel map if it makes any of seven findings.  These findings are stated in the negative, e.g., “the proposed map is not consistent with applicable general and specific plans….”  In approving the Wal-Mart project, the city did not make findings on these seven topics, reasoning that the findings requirement applied only if the city were denying rather than approving the parcel map.  Citing a 1975 California Attorney General opinion, which had never been overturned by the Legislature, the court held that the city was required to address the seven findings in its approval of the parcel map.

EIR Recirculation.  The city revised four of the DEIR’s analyses in the Final EIR, but determined that the document did not need to be recirculated for further public comment.  As to biology and traffic, the court agreed, but it found significant new information regarding air quality and hydrology/water quality that should have led to recirculation.  The change in the air quality chapter was the addition of the general plan consistency analysis described above. The court stated that because the analysis did not support the finding that the project was consistent with the general plan requirement, and because the public did not have the opportunity to comment, the EIR should have been recirculated.  The hydrology/water quality analysis suffered from a different problem; according to the court, the Final EIR showed a “complete redesign” of the project’s stormwater management plan, and 26 pages of EIR text were replaced with 350 pages of technical reports and a conclusion.  The court held that these revisions deprived the public of a meaningful opportunity to comment.

The Spring Valley Lake case illustrates the difficulties cities and counties face as they use their general plans to promote general sustainability and greenhouse gas reduction goals and later try to implement these in the context of specific development projects.  The case falls in line with other recent appellate decisions — such as those requiring extensive analysis of energy use under CEQA Guidelines Appendix F — demonstrating increased judicial scrutiny of public agencies’ commitments to sustainability.

Public/Private Partnerships: New Guidance on Designating the CEQA Lead Agency

With public/private partnerships becoming more common, a California appellate court has outlined – with a new test – how to determine the CEQA lead agency for a project in which a private entity partners with multiple public agencies. Center for Biological Diversity v. County of San Bernardino (G051058) 4th Dist., May 10, 2016.

Cadiz, Inc. partnered with Santa Margarita Water District, San Bernardino County, and Fenner Valley Mutual Water Company – a private, nonprofit entity Cadiz formed – to pump fresh groundwater from an aquifer below Cadiz’s Mojave Desert property to customers in nearby counties. The purpose of the project was to conserve groundwater and improve water supplies to California communities. The county and water district entered into an agreement designating the water district as the lead agency and the county as a responsible agency for environmental review purposes.

Several environmental organizations challenged the project’s approval, alleging that the water district was improperly designated as the lead agency. They argued that the county, rather than the water district, should have been the lead agency because the county had general governmental powers to approve or exempt the project from the county’s permitting requirements for pumping.

The court of appeal held that the water district was properly designated as the lead agency. Where there is more than one public agency involved in a project, the CEQA Guidelines delineate which should be the lead agency. Section15051 (a) of the Guidelines provides that if a public agency will carry out the project, that agency shall be the lead agency even if the project is located in another agency’s jurisdiction. Subsection (b) states that if a nongovernmental entity will carry out the project, then the public agency with the greatest responsibility for supervising or approving the project as a whole shall be the lead. Subsection (c) provides that if there is more than one public agency that satisfies (b), then the lead agency shall be the one which acts first on the project. And subsection (d) provides that if more than one public agency has a substantial claim to be the lead agency, they may enter into an agreement designating which will serve as lead.

The court found that while the water district hadn’t acted first, it satisfied the other three tests in Guidelines section 15051. Having closely examined the water district’s responsibilities in comparison to Cadiz and the county, the court determined that “[t]he final EIR provide[d] sufficient evidentiary support for the designation of [the water district] as the lead agency based on its cooperative partnership with Cadiz in implementing, carrying out, supervising, and approving the Project as a whole.”

The court cited, among other things, the water district’s responsibilities of obtaining financing; approving design, construction, and project terms; and managing and overseeing the project operation. Although the county had authority over pumping, the court recognized that the project encompassed more than that and that the water district had more authority over the project as a whole. The court also concluded the agreement the water district and county had entered into properly designated the water district as lead agency because an agency need not have an equal or greater claim to be lead agency, but merely a substantial one in order to be designated by agreement. Additionally, the court noted, the lead agency may benefit from a project as long as it remains able to provide the information necessary for environmental review.

The court also provided guidance – in the form of a new test based on section 15051 – for analyzing projects conducted in partnership between a public agency and a nongovernmental entity. It held that, in a public/private partnership, the lead agency may be either “(1) the public agency that is a part of the public/private partnership, or (2) the public agency with the greatest responsibility for supervising or approving the project as a whole.” Citing the evidence in the EIR, the court ruled that the water district was properly designated as the lead agency under either prong of the new test.

This opinion demonstrates the close attention that must be paid to different agencies’ responsibilities when determining the lead agency for a project. It also confirms that an agency with a limited purpose may be designated lead agency on a project if it is “the public agency that shoulders primary responsibility for creating and implementing a project . . . even though other public agencies have a role in approving or realizing it.”


Fish and Wildlife Service Agrees to Deadline for Monarch Butterfly Listing Decision

The U.S. Fish and Wildlife Service has agreed to decide by June 30, 2019, whether to list the monarch butterfly under the Endangered Species Act. The agreement is part of a settlement of a lawsuit by the Center for Biological Diversity and Center for Food Safety that sought to obtain a legally binding deadline for the listing decision. Under the settlement agreement, the agency must propose protection for the monarch, deny protection or assign it to the “candidate” waiting list for protection by the June 2019 deadline.

Long-term declines in the overwintering Eastern population of monarch butterflies are significantly increasing the probability that they may become extinct over the next twenty years according to U.S. Geological Survey and Scripps Institution of Oceanography research published earlier this year. The USGS Study, published in the journal Scientific Reports, found that the Eastern migratory monarch population declined by 84 percent between 1997 and 2015. Based on this information, the study indicated there is a substantial probability – between 11 and 57 percent – of “quasi-extinction” of the species over the next two decades. A quasi-extinct population is one with so few remaining individuals that recovery is effectively impossible — while the remaining numbers may survive for a short time, the population as a whole will inevitably become extinct.

The monarch’s long, multi-generational journey between central Mexico and the summer breeding grounds in the U.S. and southern Canada is celebrated in all three countries, but gives rise to shared management responsibilities. Previously published research indicates that the most effective way to increase monarch butterfly numbers is to focus on the restoration of their breeding habitat in the northern U.S. and southern Canada. The recent population declines have been primarily attributed to the loss of breeding habitat, particularly in the United States. Monarchs depend on several species of milkweed to provide food for developing larvae. Milkweed abundance has declined significantly as a result of a combination of herbicide use, climate change, insecticides (including neonicotinoids) and other factors.

Thoughts on how individuals and the development community can help restore the monarch’s critical habitat are contained in the accompanying article by Perkins lawyer Laura Godfrey Zagar.

How Developers Can Help Save the Monarch Butterfly (and Why They Should)

The monarch butterfly is heading quickly towards extinction for a simple reason: it does not have enough food to eat on its migration path.

Every fourth generation of this remarkable creature undertakes a migration of up to 3,000 miles to warmer climates such as California, Mexico, and the Gulf Coast until it is time to start a new generation in northern ranges. On their long journey they eat only one plant, milkweed, which used to be common and abundant throughout the country. Use of herbicides and elimination of milkweed in landscaping and agricultural fields have undermined the monarch butterfly’s food sources.

The good news is that, in contrast to many endangered species, whose recovery requires extensive and expensive habitat restoration and preservation, the monarch’s path to recovery is relatively straightforward but requires a simple effort of the collective whole throughout the nation: plant milkweed!

Milkweed is easy to grow, is relatively drought tolerant once established, and has a beautiful array of flowers that would fit in well in many landscapes. I can personally attest that milkweed can be grown by the most challenged gardener, as I now have six plants flourishing in our yard. Our milkweed plants are also a main attraction for children visiting our house, who like to check up on their black and yellow striped caterpillar friends. Many nurseries are now stocking milkweed suitable for the local climate, but you can also find them online, including through Annie’s Annuals, and have plants and seeds shipped directly to you.

Why should the development community care about the plight of the monarchs? The U.S. Fish and Wildlife Service just entered into a binding agreement to decide by June 2019 whether to list the species on the Endangered Species Act. The ramifications of a potential listing of the monarch could be significant for projects of all sizes – from the largest infrastructure project to the smallest residential development. The Endangered Species Act is considered the “bulldog” of the environmental laws. It prohibits any person from committing a “take” of a listed species, which is broadly defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” While permits are available for incidental take of a listed species, the permitting process can take months and even years to complete, and often requires costly conservation measures to mitigate for potential impacts to a species. Violations of the statute can result in potential criminal and civil penalties. Of greater concern is the highly-protective injunction standard that tips the balance towards conservation of the species, and which is often used by project opponents to stop controversial projects while a lawsuit challenging the project is pending.

Based on the monarch butterflies’ extensive range throughout the nation, the possible consequences on the development community of a listing are vast. There is potential habitat in nearly every region of our country, and take of a monarch butterfly could be likely to occur on a broad range of development projects. The challenges that the wind industry have faced along the long migration path of the endangered whooping crane demonstrate how challenging preservation of a migratory species can be.

Thus, the development community should join the fight and coordinate efforts with federal, state, and local agencies to encourage the cultivation of milkweed needed to support a thriving monarch population along the migration route. Indeed, a memorandum of understanding was just inked by officials from Minnesota, Iowa, Missouri, Kansas, Oklahoma, Texas, and the federal government to improve the monarch habitat along Interstate 35, and to develop a branding campaign to informally name it the “Monarch Highway.”

Options for bettering monarch habitat include the use milkweed in landscaping for parks, housing developments, and commercial areas. Developers could also think more creatively, such as raising awareness of the need for milkweed in the agricultural community or offering free milkweed plants in key communities along the migration route for residents interested in cultivating the plants at their homes. The Fish and Wildlife service has a website with details, photos and information on how developers, individuals and communities can get involved.  While such efforts may not eliminate all the threats to the monarch butterfly, they could go a long way in reversing the downward trend of the species to avoid a listing under the Endangered Species Act.

Quieting title to groundwater rights does not necessarily require quantification of prescriptive losses

The Sixth District Court of Appeal has ruled that a judgment quieting title to overlying rights to groundwater in times of basin surplus does not require quantification of the specific amount of prescriptive rights that may previously have been established against each overlying landowner.  City of Santa Maria v. Adam, et al., No. H041133 (Sixth Dist. June 24, 2016).

As part of a broader groundwater basin adjudication, owners of land overlying the Santa Maria Valley Groundwater Basin sought a judgment quieting title to their overlying water rights as against the City of Santa Maria and other public water appropriators. The trial court had previously found that certain of the appropriators had acquired prescriptive rights to groundwater, in specified quantities, as against the landowner group. However, it rejected the landowners’ argument that the judgment necessarily needed to quantify the prescriptive right  as against each landowner.

The appellate court agreed, concluding that where a groundwater basin is in a condition of surplus, a judgment quieting title need not quantify the proportionate share of prescriptive loss attributable each landowner. The prescriptive rights acquired by each municipal purveyor had been quantified by the trial court. These rights had been acquired during a period several decades earlier during which the groundwater basin had been in a condition of temporary overdraft. At the time plaintiffs sought to quiet title, however, it was undisputed that the basin was in a condition of surplus — i.e., there was sufficient groundwater for the reasonable and beneficial needs of both overlying parties and appropriators.

Under these circumstances, the court concluded, there was no need to quantify the specific prescriptive loss attributable to each overlying user in order to quiet title. The appropriators’ prescriptive rights were established against the aquifer as a whole, not just against the specific landowners’ overlying rights. The fact that such prescriptive rights had been acquired had no practical effect in times of surplus — the landowners would not have been able to enjoin parties from appropriating water, regardless of whether or not those parties had obtained prescriptive rights. It would only be in times of overdraft that prescriptive rights would become pertinent. Because overlying rights are both correlative and based on reasonable and beneficial use, they may change over time. In times of future overdraft, the landowners would be required to determine their proportionate correlative share of basin groundwater rights with other overlying landowners. At that time, the proportionate prescriptive right enforceable against each of the landowners would have to be quantified.  The need did not arise before then.

Indian Gaming Act and NEPA Irreconcilable, Ninth Circuit Rules

The Ninth Circuit has held that the National Indian Gaming Commission’s approval of a tribal gaming ordinance does not require review under the National Environmental Policy Act because there is an irreconcilable conflict between NEPA and the Indian Gaming Regulatory Act.  Jamul Action Committee v. Chaudhuri, No. 15-16021 (9th Cir., June 9, 2016).

The Indian Gaming Regulatory Act provides that before an Indian tribe can conduct gaming on its land, the tribe must first enact a gaming ordinance that describes how the tribe will operate its gaming facilities. The ordinance must then be approved by the Gaming Commission. The Jamul Indian Village (Tribe), a federally recognized Indian tribe in California, enacted a gaming ordinance and obtained Gaming Commission approval, which was challenged for failure to comply with NEPA.

The Ninth Circuit began its analysis by identifying “two circumstances where an agency need not complete an EIS even in the presence of a major federal action and despite an absence of express statutory exemption”: (1) where doing so would create an irreconcilable conflict with the substantive statute at issue; and (2) where a substantive statute displaces NEPA’s procedural requirements. This case, the court concluded, fell into the first category because the Act requires that the Gaming Commission to approve or disapprove a gaming ordinance no later than 90 days after the tribe submits the ordinance, and if it does not approve or disapprove within that time, the ordinance is deemed approved by operation of law. This short time period, the court concluded, was insufficient to accommodate the demands of NEPA review.

In reaching this conclusion, the court first acknowledged that it has been generally reluctant to find a statutory conflict between NEPA and other federal statutes in order not to undermine Congress’ intent that the NEPA apply broadly. There can be no irreconcilable conflict, for example, when a deadline is imposed by the agency rather than by Congress or when “the triggering act for a short statutory time table” is under the agency’s control. An irreconcilable conflict occurs only where Congress has determined the period within which the agency must act and the event that triggers the beginning of the period.

The deadline for approval of a gaming ordinance is imposed by Congress, not the Gaming Commission. Moreover, the event that triggers the 90-day period under which the Commission must act is a tribe’s submission of the ordinance, an event over which the Commission has no control.

After determining that the Act was potentially irreconcilable with NEPA, the court further determined that it would be impossible for the Gaming Commission to prepare an EIS within the Act’s required timeframe. Under previous Ninth Circuit precedent, the court assumed that it takes an agency at least one year to prepare an environmental impact statement. Not standing on precedent alone, however, the court calculated the environmental review timeline based on both statutory and regulatory requirements and concluded that “assuming it takes no time to respond to the public’s views on scope and implementation, prepare a draft EIS, and incorporate public comments into the final EIS, the shortest time frame in which NIGC could prepare an EIS would be one hundred and twenty days.” This, the court held, gave rise to a clear and irreconcilable conflict between the mandatory agency deadline imposed by Congress and NEPA.

Ninth Circuit Upholds BLM’s Approval of Renewable Wind Energy Project

On the heels of a decision nullifying the Bureau of Land Management’s approval of a wind energy project under the National  Environmental Policy Act (reported on here),  the Ninth Circuit rejected a challenge to BLM approval of another wind turbine project, finding it consistent with NEPA, the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act.  Protect Our Communities Foundation v. Jewell, No. 14-55666 (9th Cir., June 7, 2016).

Plaintiffs challenged BLM’s decision to grant a right-of-way permitting Tule Wind, LLC, to construct and operate a renewable wind energy project on federal lands in southeastern San Diego County.

Tule Wind’s original project involved the construction of 128 wind turbines and supporting infrastructure. The BLM ultimately granted a right-of-way for a more modest facility, eliminating 33 turbines. In addition, several turbines were repositioned to reduce the risk of avian collisions. The project’s required mitigation measures included an 85-page Avian and Bat Protection Plan, developed in conjunction with the BLM and the U.S. Fish and Wildlife Service.  The plan relied on scientific literature and research studies, including field surveys in the project area conducted by Tule Wind over a period of several years. Plaintiffs nonetheless argued that the project would harm birds in violation of the MBTA and Eagle Act. Plaintiffs also challenged the adequacy of the BLM’s review of the project’s environmental impacts under NEPA.

In affirming the district court rejection of the challenge, the Ninth Circuit concluded that liability under the Migratory Bird Treaty Act does not extend to an agency acting in a purely regulatory capacity. The court held that the Act “does not contemplate attenuated secondary liability on agencies like the BLM that act in a purely regulatory capacity, and whose regulatory acts do not directly or proximately cause the ‘take’ of migratory birds within the meaning of [the statute].”  In the court’s view, the BLM merely authorized Tule Wind to construct and operate the project. It therefore did not act to “take” migratory birds within the MBTA’s meaning. For similar reasons, the BLM was not liable for any Eagle Act violations independently committed by right-of-way grantees.

As an alternative argument, plaintiffs claimed the BLM’s action was “contrary to law” within the meaning of the Administrative Procedure Act, since it permitted Tule Wind to engage in otherwise lawful activities that would lead to incidental migratory bird fatalities. The court again disagreed, concluding that the BLM’s regulatory role in this case was too far removed from the ultimate legal violation and therefore could not be independently in violation of the APA.

The Ninth Circuit also rejected plaintiff’s various NEPA claims, determining that (1) the project’s purpose and need statement contained in the Environmental Impact Statement was sufficiently broad, (2) the BLM had discretion to dismiss alternatives for the project, (3) the mitigation measures were sufficiently detailed and contained adequate baseline data, and (4) the EIS took the requisite “hard look” at the project’s environmental impacts.

Court of Appeals Nullifies Environmental Review of Wind Energy Project

Observing that “[r]enewable energy projects, although critical to the effort to combat climate change, can have significant adverse environmental impacts,” a Ninth Circuit panel has invalidated the environmental review of a major wind turbine project by the Bureau of Land Management. The court held that the BLM did not adequately consider the project’s impacts on the greater sage grouse because the Environmental Impact Statement failed to assess baseline sage grouse numbers during the winter months. Oregon Natural Desert Association v. Jewell, No. 13-36078 (9th Cir. May 26, 2016).

The greater sage grouse is a relatively large ground-dwelling bird that relies on sagebrush for its survival year-round. As part of the proposed Echanis Wind Energy Project in southeastern Oregon, the BLM selected a transmission line that cut across, in part, the Steens Mountain Cooperative Management and Protection Area, which is located near the center of one of the last remaining strongholds of contiguous sagebrush habitat.

In particular, sage brush habitat is essential for winter survival of sage grouse. The Final EIS acknowledged the project’s potential impact during winter months, but despite the concern, no surveys were conducted to determine if sage grouse were present at the Echanis site during the winter months. Instead, the BLM relied on surveys done at nearby sites and, from those surveys, assumed that no grouse used the Echanis site during winter.

The Ninth Circuit concluded that the BLM had improperly extrapolated data from the nearby surveys rather than conducting a survey at the actual Echanis site to see if sage grouse were present there. The court acknowledged that under NEPA, the establishment of a baseline “is not an independent legal requirement,” but rather a “practical requirement.”  Nonetheless, the court cited several cases finding environmental analyses deficient for failing to establish an environmental baseline. The court also cited the BLM’s own comments on another project, in which the BLM had urged another agency to assess baseline winter sage-grouse populations.

Compounding this extrapolation flaw, the extrapolated data was itself incorrect. Contrary to what the Final EIS stated, four sage grouse in fact were found at the nearby site, and the Final EIS therefore did not comply with NEPA’s requirement to provide “[a]ccurate scientific analysis.” In the court’s view, the fact that some sage grouse were found at the nearby site in mid-winter “greatly undermines the validity of the BLM’s assumed absence of sage grouse at the Echanis site.”

The court held that the Final EIS’s inaccurate data concerning the nearby site “rendered its assumption concerning the winter presence of sage grouse at the Echanis site arbitrary and capricious.” Had the BLM assumed the presence (rather than the absence) of sage grouse at the Echanis site, the site would have been deemed Category-1 Habitat, and the Project would not have gone forward there. Thus, errors in the BLM’s analysis were not harmless, and “materially impeded informed decisionmaking and public participation.”