Legal Commentary on Planning and Development
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…
The Ninth Circuit Court of Appeals has held that a right-of-way for an access road over Bureau of Land Management (BLM) land to connect a wind project to a state highway did not trigger formal consultation under the Endangered Species Act because the proposed access road would not have significant impacts to the environment. Sierra Club v. Bureau of Land Management, 786 F.3d 1219 (9th Cir. 2015).
North Sky River Energy developed a wind project on 12,000 acres of private land in the Tehachapi area. North Sky applied to the BLM for a right-of-way across federal lands for an access road to connect the wind farm with a state highway. North Sky could have accessed the highway through a private road, but preferred the access road over BLM land because the private road required substantial grading and would have greater environmental impacts. If the BLM had denied North Sky’s application, North Sky could have pursued the private road option.
After reviewing North Sky’s application and evaluating the potential environmental impacts, the BLM issued an Environmental Assessment concluding that the proposed road project would not have significant environmental impacts. Therefore, the BLM concluded that it need not prepare an Environmental Impact Statement or formally consult with the Fish and Wildlife Service under the Endangered Species Act. The BLM’s determination depended in large part on its finding that the private-road option was a viable alternative to the BLM access road project and thus the wind project had independent utility from the BLM access road project. The BLM issued a permit for the BLM access road project.
Project opponents — the Sierra Club, the Center for Biological Diversity, and the Defenders of Wildlife — alleged that the BLM right-of-way violated the Endangered Species Act and the National Environmental Policy Act (NEPA). The primary basis for the project opponents’ arguments was the theory that the environmental impacts of the BLM access road project should have been considered together with those of the wind project. They argued that when the impacts of the wind project and the access road were considered together, there would be significant impacts requiring the preparation of an Environmental Impact Statement and formal consultation under the Endangered Species Act.
Continue Reading The Importance of Independence: The Ninth Circuit Provides Helpful Clarification on Connected Actions in the Energy Project Development Context
In a case the court described as pitting “an oyster farm, oyster lovers and well-known ‘foodies’ against environmentalists,” the Ninth Circuit has upheld denial of a preliminary injunction against the Interior Secretary’s decision not to extend a permit for commercial oyster farming at Point Reyes National Seashore. Drakes Bay Oyster Company v. Jewell, No.…
The Ninth Circuit Court of Appeals has confirmed two important points under the federal Endangered Species Act:
Conservation Congress v. U.S. Forest Service, No. 12-16452 (9th Cir. 2013). …
Friends and foes of fracking in California have, for the most part, fought their battles in the policy and legislative arenas. But the federal district court in San Jose recently chimed in, striking down four oil and gas leases issued by the Bureau of Land Management for 2,700 acres of federal lands overlying the Monterey…
On March 18, the U.S. Supreme Court decided to hear the case of United States Forest Service v. Pacific Rivers Council, in which the Ninth Circuit overturned an Environmental Impact Statement for a 2004 amendment to a programmatic framework governing a series of logging plans for national forest lands in the Sierra Nevada Mountains.…
In approving a project to repair a flood-damaged road in a national forest in Nevada, the U.S. Forest Service adopted a “Selected Alternative” that combined elements from three different alternatives that were evaluated in the Environmental Impact Statement for the project. In upholding the Forest Service’s approval, the Ninth Circuit rejected the project opponents’ claims …
In two recent cases involving challenges to U.S. Forest Service projects under the National Environmental Policy Act, the Ninth Circuit emphasized that courts must accord substantial deference to the environmental analysis conducted by federal agencies. Earth Island Institute v. U.S. Forest Service (9th Cir. Sept. 20, 2012), and Native Ecosystems Council v. Weldon (9th Cir. …
The U.S. Bureau of Reclamation is required by federal law to prepare Annual Operating Plans for the Glen Canyon Dam on the Colorado River in northern Arizona. But, the Ninth Circuit ruled, it is not required to conduct an environmental review each time is prepares such a Plan. Grand Canyon Trust v. U.S. Bureau of …
An alternatives analysis under NEPA may be valid even though only two very similar alternatives to the project are considered. In League of Wilderness Defenders-Blue Mountains Biodiversity Project v. United States Forest Service, the Ninth Circuit upheld an Environmental Impact Statement for an experimental forest thinning project in Oregon. The court rejected the claim …
