Case 5:14-cv-02504-JAK-SP Document 59 Filed 04/20/15 Page 1 of 38 Page ID #:1994
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GEORGE T. CAPLAN (State Bar No. 43821)
rISge.caPpHaEnR@S. r. com
TO
DAVIS (State Bar No. 193452)
kPrAisUtoLphMer.davis@dbr.com
GELB (State Bar No. 214439)
com
paul.
E RIN E. MCC RACKEN (State Bar No. 244523)
erin.
com
DRINKER BIDDLE & REATH LLP
1800 Century Park East, Suite 1500
Los Angeles, Califonria 90067-1517
Telephone:
203-4000
Facsimile: (310) 229-1285
for Intervenor-Defendant
NEXTERA BLYTHE SOLAR ENERGY
CENTER, LLC
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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COLORADO RIVER INDIAN
TRIBES, a federally recognized Indian
Tribe,
Plaintiff,
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v.
UNITED STATES DEPARTMENT OF
THE INTERIOR; SALLY JEWELL, in
her official
as
Interior; UNI TED STA TES BUREAU
OF LAND MANAGEMENT; NEIL
KORNZE, in his official capacity as
Director of Bureau of Land
JAMES G. KENNA in
his official ca pacity as California State
Director of Bureau of Land
TERI RAML, in her
ofifciagl capac;ity as District Manager
California Desert District, Bureau of
Land Management; and JOHN
KALISH, in his official capacity as
Field Manager, Palm Springs South
Coast Field Office, Bureau of Land
Management,
Case No. 5:14-cv-02504-JAK-SP
INTERVENOR-DEFENDANT
NEXTERA BLYTHE SOLAR
ENERGY CENTER, LLC'S
OPPOSITION TO PLAINTIFF'S
MOTION FOR PRELIMINARY
INJUNCTION
Date:
11, 2015
Time:
8:30 a.m.
Judge:
Hon. John A. Kronstadt
Ctroom: 750
Complaint Filed: December 4, 2014
Wed of Kenneth Stein; DecL
A. Busa; DecL of Kristopher S. D avis;
Request for Juthcial Notice;
ASeppllicaPtion to File Documents Under
a;[roposed] Order; and Joinder,
filed concurrentl herewith]
Defendants.
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DRINKER BIDDLE or
REATH LLP
Los A[acsi.ss
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NEXTERA BLYTHE SOLAR ENERGY CENTER, LLC'S OPPOSITION TO
PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
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TABLE OF CONTENTS
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Page
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I.
INTRODUCTION
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II.
FACTUAL AND PROCEDURAL BACKGROUND
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A.
Project Background
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7
B.
History Of The Project
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8
C.
9
D.
CRIT Was Adequately Consulted Prior To The MBSP's
Approval
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11
E.
The BLM Issued NextEra A Limited Notice To Proceed After A
Discovery Work Plan Was In Place
8
12
F.
A HPTP and Monitoring Plan Were Finalized Prior To The
Issuance Of A Full Notice To Proceed
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10
13
4
11
15
A.
National Environmental Policy Act
11
16
B.
National Historic Preservation Act
11
17
C.
FLPMA and the CDCA Plan
11
18
D.
Review of Agency Action Under The Administrative Procedure
Act
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19
E.
Standard For Demonstrating Entitlement To Extraordinary And
Preliminary Relief
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20
ARGUMENT
12
22
A.
CRIT Has Not Established Any Likelihood Of Irreparable Injury
12
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B.
CRIT Fails To Show A Likelihood Of Success On The Merits
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1.
CRIT's NHPA Claim Fails
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2.
The BLM Complied With The Terms Of The PA
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3.
CRIT Fails To Show A Likelihood Of Success On Its
NEPA Claim
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DRINKER BIDDLE &
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Los A[acsi.ss
Agencies' Extensive Environmental Review Of The
STANDARDS OF REVIEW
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III.
MB Sp
P ...
IV.
a.
The BLM Took A "Hard Look" At The MBSP's
Potential Impacts To Cultural Resources
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PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
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TABLE OF CONTENTS
(continued)
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Page
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4.
b.
The FEIS Properly Discussed A "No Action"
Alternative
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c.
The Stated "Purpose and Need" For The MBSP
Complied With NEPA
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CRIT's FLPMA Claim Fails
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8
a.
The MBSP Complies With The CDCA Plan
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9
b.
The CDCA Plan Does Not Contain Binding VRM
Designations
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7
10
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13
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V.
C.
The Balance Of The Equities Strongly Favors NextEra
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D.
An Injunction Would Not Be In The Public's Interest
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E.
CRIT Should Be Required To Post A Bond
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CONCLUSION
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PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
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TABLE OF AUTHORITIES
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Page
CASES
Alaska Survival v. Surface Transp. Bd.
705 F.3d 1073 (9th Cir. 2013)
25, 26
Alliance for the Wild Rockies v. Cottrell,
632 F.3d 1127 (9th Cir. 2011)
28
Ass 'n of Pub. Agency Customers, Inc. v. Bonneville Power Admin.
126 F.3d 1158 (9th Cir. 1997)
23
Associated General Contractors of California v. Coalition for Economic
Equity,
950 F.3d 1401 (9th Cir. 1991)
12
13
Backcountry Against Dumps v. Abbott,
2011 WL 3567963 (S.D. Cal. Aug. 12, 2011)
29
14
15
Ctr. for Biological Diversity v. U.S. Dep't of Interior,
623 F.3d 633 (9th Cir. 2010)
23
16
Custer Cnty. Action Ass 'n v. Garvey,
256 F.3d 1024 (10th Cir. 2001)
23
6
7
8
9
10
11
12
17
18
19
20
Earth Island Inst. v. Carlton,
626 F.3d 462 (9th Cir. 2010)
12, 29
Friends of the Earth, Inc. v. Brinegar,
518 F.2d 322 (9th Cir. 1975)
30
Gros Ventre Tribe v. United States,
469 F.3d 801 (9th Cir. 2006)
11
Kern County Farm Bureau v. Allen,
450 F.3d 1072 (9th Cir. 2006)
12
Lands Council v. McNair,
537 F.3d 981 (9th Cir. 2008) (en banc)
11
Muckleshoot Indian Tribe v. U.S. Forest Serv.,
177 F.3d 800 (9th Cir. 1999)
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Quechan Tribe of Fort Yuma Indian Reservation v. United States Dep't of
Interior,
755 F. Supp. 2d 1104 (S.D. Cal. 2010)
15, 18, 19
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4
5
6
7
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9
10
11
12
13
14
Quechan Tribe of Ft. Yuma Indian Reservation v. U.S. Dep't of the Interior,
927 F. Supp. 2d 921 (S.D. Cal. 2013)
19, 20
Quechan Tribe v. U.S. Department of the Interior,
2012 U.S. Dist. LEXIS 71248 (S.D. Cal. May 22, 2012)
13, 19
Robertson v. Methow Valley Citizens Council,
490 U.S. 332 (1989)
11, 22
San Carlos Apache Tribe v. United States,
417 F.3d 1091 (9th Cir. 2005)
Te-Moak Tribe of W. Shoshone of Nevada v. U.S. Dep't of Interior,
608 F.3d 592 (9th Cir. 2010)
Winter v. Natural Resources Defense Council,
129 S. Ct. 365 (2008)
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14, 17, 20
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STATUTES, RULES & REGULATIONS
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36 C.F.R. 800.13(a)(1)
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36 C.F.R. 800.13(b)(3)
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36 C.F.R. § 800.14(b)
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4, 11
36 C.F.R. § 800.14(b)(1)(ii)
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36 C.F.R. § 800.14(b)(2)(iii)
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22
40 C.F.R. § 1502.13
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43 C.F.R. § 1601.0-5(b)
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66 Fed. Reg. 99 (May 18, 2001)
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16 U.S.C. § 470f
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42 U.S.C. §§ 4321-4370
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42 U.S.C. § 15851 et seq.
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43 U.S.C. §1701 et seq.
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43 U.S.C. § 1781(c)
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78 Fed. Reg. 53778
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79 Fed. Reg. 7450
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79 Fed. Reg. 31133
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Federal Rule of Civil Procedure 65(c)
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I.
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INTRODUCTION
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injunction to stop construction of the Modified Blythe Solar Energy Project
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("MBSP" or "Project") should be denied. There is no possibility of irreparable harm
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to CRIT, and CRIT fails to point to any evidence of such harm. Instead, CRIT
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asserts meritless quibbles with the Bureau of Land Management's ("BLM")
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consultation process and speculation about purported "cultural harms" CRIT would
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allegedly suffer if construction were to proceed. CRIT cites to irrelevant instances of
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artifacts uncovered at other unrelated projects, but fails to show that even a single
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artifact or historic property of cultural significance has been harmed by the limited
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construction activities at the Project or will be harmed by future activities. And for
13
good reason: only one prehistoric archaeological site (a thermal cobble feature)
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eligible for inclusion in the National Register of Historic Places ("NRHP") was
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identified as being potentially directly impacted by the Project, and in response to
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concenrs raised by CRIT, NextEra Blythe Solar Energy Center, LLC ("NextEra")
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redesigned the MBSP such that this site will be avoided. In addition, robust design
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features and specific plans, developed with CRIT's input, are in place to mitigate any
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impacts on cultural resources and protect any historic properties or cultural artifacts
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discovered during the course of construction.
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CRIT's claims also fail on the merits. The BLM satisfied its consultation
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obligations under the National Historic Preservation Act ("NHPA") where it engaged
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in government-to-government consultation with CRIT and fulfilled its obligations
24
under the Programmatic Agreement (to which CRIT is a concurring party). CRIT's
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NEPA claims are similarly deficient. The BLM took the requisite "hard look" at the
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Project's potential impacts to cultural resources. CRIT raised the same concerns it
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raises here during the environmental review process and the BLM adequately
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The Colorado River Indian Tribes' ("CRIT") request for a preliminary
or
addressed the concerns. For example, CRIT asserts that the BLM failed to take into
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account a handful of prehistoric trails and sites when analyzing the Project's potential
2
impacts. But what CRIT fails to acknowledge is that these sites were either
3
addressed by the BLM or are not even located within the Project's footprint. The
4
BLM also properly analyzed a "no action" alternative consisting of the proper
5
baseline under NEPA and reasonably defined the "purpose and need" to which it was
6
responding in proposing the alternatives for the proposed undertaking. Finally,
7
CRIT's claim under the Federal Land Policy and Management Act ("FLPMA") fails
8
because the California Desert Conservation Area ("CDCA") Plan was already
9
amended in 2010 to allow for the siting of a solar energy plant within the Right-of-
10
Way ("ROW") grant where the Project is located; the CDCA Plan specifically allows
11
for the siting of solar energy plants on Class L lands where, as here, NEPA
12
requirements are met; and because the CDCA Plan does not contain a visual
13
resources element, there are no VRM Classes that the Project must be in
14
conformance with.
15
The balance of the equities and public interest also weigh against the relief
16
CRIT seeks. Delaying construction of the Project will significantly harm NextEra
17
and jeopardize its ability to construct the full 485 Megawatt ("MW") project.
18
Finally, the public interest in this solar project — which will create needed jobs,
19
generate enough energy to meet the electricity requirements of 171,00 homes, and
20
reduce greenhouse gas emissions — weighs in favor of NextEra as well.
21
22
II.
24
FACTUAL AND PROCEDURAL BACKGROUND
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injunction should be denied.
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R EATH
As a matter of law, fact, and equity, CRIT's motion for a preliminary
or
A.
Project Background
The MBSP is a 485 MW solar electric generating facility that will generate
enough clean, renewable solar energy to meet the electricity requirements of
approximately 171,000 average Califonria homes. (Declaration of Kenneth Stein
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("Stein Decl."), 4.) The MBSP will also provide a direct benefit to climate change
2
as it will avoid approximately 774,000 tons of carbon dioxide emissions annually
3
that would have been produced if the electricity had been generated using fossil
4
fuels. (Id.) The MBSP will use proven photovoltaic ("PV") technology. PV
5
technology uses photovoltaic panels that are mounted on pedestals across the solar
6
field and convert sunlight directly into electricity. (King Decl. Ex. A04-2391.)
7
B.
8
The MBSP is located on approximately 4,138 acres of land administered by
9
the BLM in Riverside County. (King Decl. Ex. A04-2366.) The MBSP is located
10
within the boundaries of a previously issued ROW grant and CDCA Plan
11
Amendment that the BLM issued in November 2010 to an entity called Palo Verde
12
Solar I, LLC ("PVSI") for a 1000 MW solar thermal generating facility to be located
13
on approximately 6,831 acres of BLM administered land (the "Original Project").
14
(Id.) The Original Project would have utilized solar parabolic trough technology to
15
generate electricity. (King Decl. Ex. A04-2363.)
16
PVSI began constructing Phase 1A of the Original Project in November 2010
17
but ceased construction activities on August 25, 2011. (Id. at 2379.) PVSI's parent
18
companies filed for bankruptcy. (King Decl. Ex. A04-2363.) NextEra purchased the
19
un-built assets of the Original Project in the bankruptcy proceedings in July 2012.
20
(Id.) The BLM approved the transfer of the ROW grant in connection with that
21
transaction and NextEra became the Grant Holder. (Id.) NextEra proceeded with
22
plans to convert the Original Project to a PV project on the approved site. Because a
23
PV project requires a smaller footprint than required for the Original Project,
24
NextEra relinquished to the BLM 35 percent of the original ROW grant area. (Id.)
25
NextEra then submitted a Level 3 variance request to the BLM for the MBSP, which
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requested that the BLM modify the existing ROW grant to allow for PV technology
27
and reduce the size of the solar plant site. (Id. at 2379-2380.)
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History Of The Project
or
On August 1, 2014, the BLM and United States Department of the Interior
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("DOI") issued a Record of Decision ("ROD") approving the vairance request.
2
(King Decl. Ex. A05.) On August 12, 2014, the BLM and DOI issued a ROW grant
3
allowing for the construction, operation, maintenance and decommissioning of the
4
MBSP. (King Decl. Ex. A06.)
5
C.
6
Given that the MBSP would be located entirely within the boundaries of the
7
ROW grant issued for the Original Project, the environmental review of the MBSP
8
was tiered to the prior environmental review of the Original Project. (King Decl. Ex.
9
A04-2365.) An overview of the environmental review process for the Original
10
Project is thus relevant here. The BLM and the California Energy Commission
11
("CEC") prepared a joint Staff Assessment/Dratf Environmental Impact Statement
12
(SA/DEIS) for the Original Project that was circulated for agency and public review
13
and comment between March 19, 2010, and June 17, 2010. (Stein Decl. 23.) CRIT
14
did not comment on the SA/DEIS. (Id.)
15
determined that a programmatic agreement would govenr the implementation of the
17
Original Project. (Id.
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adverse effects for complex project situations and when effects on historic properties
19
cannot be fully determined prior to the approval of an undertaking. 36 C.F.R. §
20
800.14(b).
A Notice of Availability was published in the Federal Register on August 20,
22
2010 for the Plan Amendment/Final Environmental Impact Statement ("PA/FEIS")
23
for the Original Project. (Stein Decl. 24.) The BLM provided an additional
24
opportunity for review and comment on the PA/FEIS. (Id.) CRIT did not provide
25
any comments on the PA/FEIS for the Original Project. (Id.)
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52.) Programmatic agreements are used for the resolution of
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Atfer the release of the SA/DEIS for public review, the BLM and the CEC
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R EATH
Multiple Agencies' Extensive Environmental Review Of The MBSP
or
A programmatic agreement for the Original Project was executed between the
BLM and the Califonria State Historical Preservation Officer ("SHPO") on October
7, 2010 (the "PA"). (King Decl. Ex. A01.) The BLM consulted with Native
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American Tribes and interested tribal members on the development and execution of
2
the PA. CRIT signed the PA as a concurring party, and did not object to the PA.
3
(King Decl. A01-0052.) The PA governed the continued identification and
4
evaluation of historic properties and historical resources, as well as the resolution of
5
any effects that could have resulted from the Original Project. In October 2010, the
6
ROD was issued for the Original Project. (Stein Decl. 25.)
7
8
state agencies even though a ROW grant and CDCA Plan amendment had already
9
been issued for the Original Project. On August 30, 2013, the BLM initiated a NEPA
10
analysis of the MBSP with the publication of a Notice of Intent (78 Fed. Reg.
11
53778). The BLM published a Dratf EIS ("DEIS") on February 7, 2014 (79 Fed.
12
Reg. 7450), and a Final EIS ("FEIS") on May 30, 2014 (79 Fed. Reg. 31133). (King
13
Decl. Exs. A03, A04.)
14
impact of the MBSP. CRIT was an intervening party in the CEC proceedings,
16
submitted extensive briefing regarding its positions on the MBSP, and participated in
17
an evidentiary hearing on November 19, 2013. (Stein Decl. TT 45-47.) On
18
December 13, 2013, the CEC issued a Presiding Member's Proposed Decision
19
approving the MBSP. (Stein Decl. Ex. 3.)
20
In January 2014, the CEC issued a Commission Decision approving the
21
Project. (Stein Decl. 42.) Many of the Conditions of Certification relating to
22
cultural resources contained in the Commission Decision were the direct result of
23
CRIT's input. (Stein Decl. TT 47-49.) For example, based on CRIT's input, the
24
Conditions of Certification require notification of tribes atfer a discovery of a cultural
25
artifact, and steps and timing for addressing an unanticipated discovery, and also
26
require tribal monitors to be present at the Project site during all ground-disturbing
27
activities. (Id.
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The CEC held parallel proceedings analyzing the potential environmental
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The MBSP was also subject to extensive environmental review by federal and
or
47.)
In the BLM proceedings, NextEra agreed to incorporate design features
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("DFs") into the MBSP for cultural resources consistent with the Conditions of
2
Certification approved in the CEC proceedings. (King Decl. Ex. A03-0720.) These
3
DFs were set forth in the DEIS for the MBSP and were ultimately approved as part
4
of the FEIS for the Project. (King Decl. Ex. A04-2482-2502.)
5
On March 24, 2014, CRIT provided written comments to the BLM on the
6
DEIS for the Project. (King Decl. Ex. A04c-3790-3803.) The BLM adequately
7
responded to all of CRIT's comments. (King Decl. Ex. A04c-4113-4122.) For
8
example, the BLM responded to CRIT's comment that supposedly "new
9
information" should be taken into account regarding the unrelated Genesis Solar
10
Project, which is located more than 14 miles from the MBSP. The BLM explained
11
that comments regarding the discovery of cultural resources at unrelated sites are not
12
even substantive comments requiring a response. (See King Decl. Ex.A04-4108
13
(citing Section 6.9.2.1 of the BLM NEPA Handbook).) Nevertheless, the DEIS
14
"recognizes that there may be currently unknown subsurface resources within the
15
APE that could be directly impacted by construction of the Modified Project," but the
16
MBSP includes robust DFs, developed in conjunction with CRIT during the CEC
17
proceedings, that are in place to respond if/when currently unknown resources are
18
discovered. (King Decl. Ex. A04c-4117.)1
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In the FEIS for the MBSP, the BLM thoroughly analyzed the cultural
20
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1Moreover, CRIT's reliance on purpotred harm to cultural resources
site is unhelpful to it here even if those
discoveriesatwere
discovered
the Genesis
somehow
Prroejleevctant to the environmental review of the Project
(which they are not). CRIT filed an action in the Central District
temporary restraining order and a preliminary
round-dis turb ing
to
activities at the Genesis Project site to prevent al leged irrepa rable harm to c ultural
y relief, finndig that
artifacts. Judge Wu denied CRITthsroruegqlui ests for extraoorfdt
even if artifacts were uncovered
construction inhae rG enesis
robust
Decl. Exs. Cll a,
measures were i n place to deal with them
miti
Cllb.) In addition, Judge W found that although CRIT submitted declarations
stating that tribal members would suffer emotional and spiritual harm if any of the
"artifacts were destroyed or disturbed, this did not establish in-eparable harm where
[wads likely to be limited and
not shown that
moving these artifacts would constitute a recognizable harm. " (King Decl. Ex.
Cllb at 6072.)
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resources that could be impacted by the Project. In the Area of Potential Effects
2
("APE") for direct impacts of the Project, the MBSP has the potential to impact less
3
than half of the 189 archaeological sites that the Original Project would have
4
impacted and none of the remaining sites that have the potential to be impacted are
5
Native American-related. (King Decl. Ex. A04-2601; Stein Dec. 22.) Only one of
6
those sites (a thermal cobble feature) has been determined to be eligible for NRHP
7
listing, King Decl. Ex. A16-5628, and that site will be avoided because NextEra has
8
redesigned the MBSP in response to concerns raised by CRIT. (Stein Dec. 87.)
9
The FEIS also explained that although potential cultural landscapes are located
10
within the vicinity of the MBSP, they are not located within the Project's footprint
11
and are not included within the APE for direct impacts. (King Decl. Ex. A04-2601.)
12
One of the potential cultural landscapes that has been identified is the Prehistoric
13
Trails Network Cultural Landscape. (Id.) Although not even located within the
14
Project's footprint, as one of the Project's DFs, NextEra has agreed to contribute
15
funds to finance the completion of the documentation of the Prehistoric Trails
16
Network Cultural Landscape and determination of whether it should be nominated
17
for inclusion in the NRHP. (Id. at 2482.)
Ultimately, in approving the MBSP, the BLM determined:
18
19
with Tribal governments and
s and the Proram
gmatic Agreement, as amended, many
rceulptruersaelnrteastiovuerces in the area are avoidedby the Modified Project,
and unavoidable impacts are substantially mitigated. As a result, the
Selected Alternative would result in impacts less than or similar to
Alternative 2 or the Approved Project related to cultural resources.
The Programmatic Agreement, as amended, demonstrates BLM's
satisfaction of its obliEgxation under Section 106 for the Modified
Project. (King Decl.
A05-4180.)
Based on the
20
21
22
23
24
25
ATT ORNE YS
As part of the consultation process for the Original Project, the BLM initiated
consultation with a number of Tribal governments beginning in July 2009. (Stein
27
Decl. 51.) Despite numerous requests from the BLM inviting CRIT to partake in
28
government-to-government consultation, CRIT did not request any meetings with the
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CRIT Was Adequately Consulted Prior To The MBSP's Approval
26
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BLM and did not provide any comments on the Original Project or the PA. (Stein
2
Decl. TT 23, 24.)
3
During the approval process for the MBSP, the BLM invited the Native
4
American Tribes that had participated in or were requested to participate in
5
government-to-government consultation for the Original Project to consult regarding
6
the MBSP by letter dated June 26, 2013. (King Decl. Ex. A04-4119-4120.) The
7
BLM held a specific government-to-government consultation meeting with CRIT
8
regarding the MBSP on April 12, 2013. (Id.) CRIT was also invited to participate,
9
and participated in, in an informational meeting and site visit on July 23, 2013 with
10
the BLM and NextEra. (Id.; King Decl. Ex.A04-2763.)
11
12
of the PA, "changes in the corporate name of the Applicant or reassignment of the
13
ROW to a subsidiary company or other entity may be authorized by the BLM and
14
does not require the Agreement to be amended," was sent to all signatories, invited
15
signatories, and concurring parties to the agreement, including CRIT, for review on
16
July 19, 2013. (King Decl. Ex.A04-2603; King Decl. Ex.A05-4409-4410.)
17
Although CRIT asserts it was not given notice of the amendment, the CEC addressed
18
that issue and found to the contrary. (Stein Decl. 53.) Based on this process, the
19
PA was amended and executed by the signatories (the BLM and SHPO) on
20
November 18, 2013. Accordingly, the PA applies to the MBSP, and its
21
implementation satisfied the BLM's obligations, including its consultation
22
obligations, under Section 106 of the NHPA.
23
E.
Discovery Work Plan Was In Place
25
On August 13, 2014, the BLM issued NextEra a limited notice to proceed with
26
the following construction activities within solar field Units 1 and 2 for the MBSP:
27
(1) installation of a temporary desert tortoise fencing; (2) geotechnical investigation
28
ATT ORNE YS
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The BLM Issued NextEra A Limited Notice To Proceed After A
24
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In addition, a draft PA Amendment, which simply provided that for purposes
or
activities; (3) reactivation of an existing groundwater well; and (4) limited staking
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and surveying relevant to the activities listed in items (1) through (3). (Stein Decl.
2
62, Ex. 15.) Contrary to CRIT's assertion that the temporary desert tortoise fencing
3
authorized under the limited notice to proceed involved disturbance of approximately
4
2,000 acres, this activity actually disturbed less than 25 acres. (Id.)
5
Prior to the issuance of the limited notice to proceed, NextEra submitted a
6
Limited Notice to Proceed Activities Work Plan ("Work Plan") to the BLM and the
7
CEC. (Id.
8
minimizing the potential for any impacts to unknown cultural resources associated
9
with limited notice to proceed activities. (Id.) Construction activity pursuant to the
10
Work Plan was specifically authorized under Stipulation X(b) of the PA. (Id.
11
13
archaeological and historic sites were marked off as environmentally sensitive areas
14
and avoided. (Id.
15
ground-disturbing activities. (Id. TT 63, 70, 73, 74.) No impacts to archaeological or
16
historic sites occurred as a consequence of the limited construction activities. (Id.
17
TT 72-76.) Moreover, only two isolated artifacts were found during the limited
18
construction activities. (Stein Decl. TT 72, 74.)
19
F.
71.) In addition, CRIT tribal monitors were present for all
A HPTP and Monitoring Plan Were Finalized Prior To The Issuance Of
20
A Full Notice To Proceed
21
On March 19, 2015, the BLM issued a full notice to proceed to NextEra for all
22
construction activities at the MBSP site. Prior to this, a final Historic Properties
23
Treatment Plan ("HPTP") and a final Archaeological Monitoring, Post-Review
24
Discovery, And Unanticipated Effects Plan ("Monitoring Plan") were finalized as
25
required under the PA. These documents were the subject of extensive review by
26
and among the BLM, CRIT, and NextEra. (Stein Decl. TT 85, 90.)
28
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The activities authorized under the limited notice to proceed did not have any
impact on known historic properties. (Id. TT 72, 73, 74, 75, 76.) All known
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69.)
12
27
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63, Ex. 16.) This Work Plan put a process in place for avoiding and
or
The HPTP for the MBSP was developed to identify and describe specific
treatment measures and actions to be taken to minimize and mitigate adverse and
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potential adverse effects on one prehistoric archaeological site within the Project
2
footprint (a thermal cobble feature) and one prehistoric archaeological site outside
3
the APE for the Project (a rock art site located more than a mile from the closest
4
boundary of the MBSP site). (King Decl. Ex. A16-5628; Stein Decl. 88.) Due to
5
concerns raised by CRIT regarding potential impacts to the prehistoric cobble
6
feature, NextEra redesigned the MBSP such that the thermal cobble feature site will
7
be avoided. (Stein Decl. 87.) Because the rock art site will not be directly
8
impacted by the construction of the MBSP, the HPTP provides for quarterly
9
monitoring of the site to assess whether any new impacts, alterations, or changes
10
11
The Monitoring Plan covers every ground-disturbing activity connected with
12
the Project and requires professional archaeological and Native American monitors.
13
The archaeological monitors are empowered to temporarily halt construction
14
activities in the immediate area of a discovery of cultural resources. (King Decl. Ex.
15
A15-5541.) The temporary cessation of construction in the immediate area of a
16
discovery allows for the professional determination of the type and significance of
17
the discovery. The BLM will then have the opportunity to consult with any
18
culturally affiliated tribes in accordance with the Monitoring Plan and PA. (King
19
Decl. Ex. A15-5554-5555.)
20
Based on CRIT's input, the Monitoring Plan also includes provisions that
21
allow for the reburial of isolates under certain circumstances. (Stein Decl. 95.)
22
Isolated finds consist of single, or occasionally multiple, prehistoric or historical
23
artifacts. Three or fewer artifacts found within five meters of each other will be
24
considered an "isolate. "(King Decl. Ex. A15-5551; 5622.)
25
Decl. Ex. A15-5598-5618.) The TPP was developed by NextEra atfer input from
27
interested Tribes, including CRIT. (Stein Decl. 100.) The TPP affords
28
representatives designated by Tribes, known as TCCs, the opportunity to monitor and
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The Monitoring Plan also includes a Tribal Participation Plan ("TPP"). (King
26
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have occurred. (King Decl. Ex. A16-5648.)
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be on-site during construction to observe grading, trenching and other ground
2
disturbing activities. (King Decl. Ex. A15-5604.) TCCs also have the authority to
3
temporarily stop work in order to make visual inspections of potential cultural
4
deposits when discovered. (Id. at 5609.)
5
III.
6
STANDARDS OF REVIEW
7
A.
8
Congress enacted NEPA to establish a consistent process for federal agencies
9
to consider the consequences of their actions upon the environment. See 42 U.S.C.
10
§§ 4321-4370. To ensure informed decision-making, NEPA requires agencies to
11
analyze and disclose significant environmental effects, but it does not require any
12
particular decision. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350
13
(1989). NEPA "does not impose any substantive requirements on federal agencies
14
Cir. 2008) (en banc).
16
B.
The NHPA does not prohibit harm to historic properties, but creates
18
obligations "that are chielfy procedural in nature. " San Carlos Apache Tribe v.
19
United States, 417 F.3d 1091, 1097 (9th Cir. 2005). Section 106 of the NHPA
20
requires federal agencies to "take into account" the effect of their actions on sites and
21
structures eligible for inclusion in the NRHP. 16 U.S.C. § 470f. An agency may
22
generally satisfy its Section 106 obligations by entering into a programmatic
23
agreement to govern the implementation of an undertaking. See 36 C.F.R.
24
§ 800.14(b).
25
C.
FLPMA and the CDCA Plan
The FLPMA "is primarily procedural in nature. " Gros Ventre Tribe v. United
27
States, 469 F.3d 801, 814 (9th Cir. 2006). As part of the FLPMA, Congress
28
designated approximately 25 million acres of Southern Califonria as the CDCA. See
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National Historic Preservation Act
17
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it exists to ensure a process. " Lands Council v. McNair, 537 F.3d 981, 1000 (9th
15
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National Environmental Policy Act
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43 U.S.C. § 1781(c). In managing this area, the BLM developed the CDCA Plan in
2
1980. Although the CDCA Plan prohibits electrical generation facilities on Class C
3
lands, these same restrictions do not apply on Class L lands as long as "NEPA
4
requirements are met."(King Decl. Ex. CO1-5808.)
5
D.
"The APA states, in relevant part, that a reviewing court may set aside only
6
7
agency actions that are 'arbitrary, capricious, an abuse of discretion, or otherwise not
8
in accordance with law. "' Earth Island Inst. v. Carlton, 626 F.3d 462, 468 (9th Cir.
9
2010). The arbitrary and capricious standard is "highly deferential. " Kern County
10
Farm Bureau v. Allen, 450 F.3d 1072, 1076 (9th Cir. 2006).
11
E.
Preliminary Relief
13
"A plaintiff seeking a preliminary injunction must establish that he is likely to
14
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
15
preliminary relief, that the balance of equities tips in his favor, and that an injunction
16
is in the public interest. " Winter v. Natural Resources Defense Council, 129 S. Ct.
17
365, 374 (2008). Preliminary injunctive relief "is an extraordinary remedy never
18
awarded as aright." Id. at 376.
19
IV.
20
ARGUMENT
22
A.
CRIT Has Not Established Any Likelihood Of Irreparable Injury
To obtain preliminary injunctive relief, CRIT must establish that irreparable
23
injury is likely and imminent. Winter, 129 S. Ct. at 374; Associated General
24
Contractors of California v. Coalition for Economic Equity, 950 F.3d 1401, 1410
25
(9th Cir. 1991). Absent a showing of imminent irreparable harm, even a strong
26
showing of likelihood of success on the merits cannot support the grant of
27
preliminary injunctive relief. Winter, 129 S. Ct. at 381. Here, CRIT fails to establish
28
the likelihood of imminent irreparable injury attributable to the MBSP.
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Standard For Demonstrating Entitlement To Extraordinary And
12
21
ATT ORNE YS
Review of Agency Action Under The Administrative Procedure Act
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2
71248, at **17-20 (S.D. Cal. May 22, 2012), is apposite here. In that case, the
3
district court denied the Quechan Tribe's request for a temporary restraining order on
4
the ground that the Tribe failed to show irreparable harm (which is the same showing
5
that must be made in the context of a preliminary injunction) to cultural resources.
6
The Tribe argued that all ground-disturbing activities associated with the
7
construction of a wind energy project should be enjoined where the project site
8
contained 287 identified archaeological sites containing tens of thousands of cultural
9
artifacts. Id. at * 16. The Tribe also asserted that the site contained prehistoric trail
10
segments and burial sites and submitted a declaration from one of its members
11
stating that he had seen archaeological and cultural materials and discovered
12
archaeological sites within the project's direct impact area. Id. Although the federal
13
defendants acknowledged that the project would have some unmitigated adverse
14
impacts on cultural resources, specific mitigation measures, including monitoring by
15
Native American monitors, were in place, and any artifacts found during construction
16
would be properly identified and curated.
17
court explained that although the Tribe submitted evidence that the project site
19
contained identified archaeological sites, it failed to show that the construction of the
20
project had or would disturb them. Id. at *19. The court also found that the project
21
contained numerous mitigation measures and treatment plans "for the discovery of
22
new traditional cultural property or burial remains, and providing for monitoring of
23
the construction of the [site]. " Id.
As in Quechan Tribe, CRIT has not shown (and cannot show) that it will
25
likely suffer irreparable harm in the absence of an injunction. There are less than 95
26
archaeological sites located within the Project's footprint; none of the sites that have
27
the potential to be impacted are Native American-related; and the only site that has
28
been recommended as eligible to the NRHP listing will be avoided due to NextEra's
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In finding no irreparable injury and denying the requested relief, the district
18
24
ATT ORNE YS
Quechan Tribe v. U.S. Department of the Interior, 2012 U.S. Dist. LEXIS
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In addition, CRIT members served as monitors for all ground-disturbing
3
construction activities that have occurred to date. (Id. TT 70, 73, 74, 80, 82, 83.) The
4
only artifacts that have been found are a handful of isolates. (Id. TT 72, 74, 80, 81,
5
82.) And pursuant to the Monitoring Plan, CRIT is permitted to rebury these
6
isolates, which was one of CRIT's primary concerns. (Id.
7
9
American monitors. If any cultural artifacts are discovered during construction of the
10
Project, there are robust procedures for evaluating the significance of the artifacts and
11
determining the appropriate treatment plan.
12
Given that it is undisputed that robust procedures are in place (which were
13
developed with CRIT's input), only one site within the Project footprint has been
14
identified to date that is eligible for NRHP listing and it will be completely avoided,
15
and the only artifacts found to date are isolates that CRIT is allowed to rebury, CRIT
16
has not submitted a single declaration establishing that any of its members would
17
suffer irreparable hanm if a preliminary injunction is not issued. Indeed, the majority
18
of the harm allegedly suffered by CRIT's members is not tied to any particular sites
19
or resources that would be affected by the MBSP, but rather is tied to generalized
20
objections regarding effects to the "cultural landscape." Te-Moak Tribe of W.
21
Shoshone ofNevada v. U.S. Dep't of Interior, 608 F.3d 592, 611 (9th Cir. 2010)
22
("Although it is understandable that the Tribe values the landscape of the project area
23
as a whole, the NHPA requires that the BLM protect only against adverse effects on
24
the features of these areas that make them eligible for the National Register.").
For example, CRIT's declarants vaguely discuss prehistoric trails that "sit[]
26
close to the Blythe Project and should never be disrupted or destroyed." (Harper
27
Decl. 5). The fact that prehistoric trails might be located near the MBSP site does
28
not establish irreparable harm where there is no showing that construction of the
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The Monitoring Plan is also in place to deal with any unanticipated finds. (Id.
TT 89-104.) The Monitoring Plan requires professional archaeological and Native
DRINKER BIDDLE
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79.)
8
25
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redesign of the Project to address CRIT's concerns. (Stein Decl. TT 41, 86, 87.)
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Project will destroy or even impact the trails. In rejecting a similar claim brought
2
against the Original Project, this Court found that there was no potential harm to
3
sacred geoglyph sites that were not located within the project area. (Request for
4
Judicial Notice ("RJN"), Ex. 1.) Moreover, the Project includes a design feature
5
pursuant to which NextEra will fund further research and documentation of
6
prehistoric trails in the area. (Stein Decl. 34.)
7
CRIT's declarants also state generally that cultural landscapes play an
8
important role in Native American culture and that on these landscapes, sacred and
9
religious rituals are practiced near the MBSP site. (Harper Decl. 10; Patch Decl.
10
5.) But nothing in the declarations shows that the construction of the MBSP will
11
prevent the declarants from practicing these rituals since the Project is not being
12
constructed on any identified sacred area.
13
The only "evidence" submitted by CRIT involving the alleged harm to an
14
archaeological site or artifact is completely unrelated to the MBSP. 2 Nancy Jasculca,
15
a lawyer for CRIT, and another CRIT member submitted declarations stating that a
16
cremation site was found in the area of a transmission line operated by Southern
17
California Edison Company, which is located to the west of the MBSP site, and has
18
purportedly been damaged. (Jasculca Decl. 3;Harper Decl. 6.) This transmission
19
line project is not related to and is not located within the MBSP. Accordingly,
20
evidence relating to its supposed effects on cultural resources has no relevance here
21
and cannot be used to establish that the construction of the MBSP (as opposed to
22
some other site) will cause irreparable harm to CRIT.
23
24
Finally, a general concern that the MBSP is "likely to contain many of' the
same artifacts (manos, metates, flakes, cores and hammerstones) found at the Genesis
25
26
27
28
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o&r
2 CRIT's reliance on Vuechan Tribe of Fort Yuma Indian Reservation v.
United States Dep't of Interzor, 755 F. Supp. 2d 1104 (S.D. Cal. 2010), is misplaced
since in that case, human remains were actually discovered at many of the sites
where the Quechan Tribe was challenging ground-disturbing activities.
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Solar Project site, another unrelated site located more than 14 miles from the MBSP,
2
falls far short of establishing that the MBSP is likely to cause irreparable harm to
3
cultural resources. (Patch Decl. 11.) The only artifacts that have been discovered
4
at the MBSP to date are isolated artifacts that CRIT is allowed to rebury. (Stein
5
Decl. TT 72, 74, 79, 80, 81, 82.) None of the types of artifacts found at Genesis have
6
been found and are not expected to be found at the MBSP site. 3 And even if such
7
artifacts were found, the HPTP and Monitoring Plan ensure that they will be treated
8
in accordance with the procedures developed by the BLM and NextEra with CRIT's
9
input.
10
Moreover, contrary to CRIT's claim, it will not suffer irreparable (or any)
11
procedural harm in the absence of a preliminary injunction. Br. at 14. As this Court
12
has recognized, "[p]rocedural injury has been deemed sufficient to demonstrate an
13
irreparable harm in environmental cases. However, this doctrine is applied to ensure
14
that proper steps are taken so that decisions are made with an eye to environmental
15
and cultural impacts. Thus, the principle is not simply to enforce compliance with
16
procedures." (RJN, Ex. 1.) Rather, courts instead should focus on "the underlying
17
substantive policy the process was designed to effect." (Id.) In this case, as
18
discussed in Section IV.B.1 below, there is no merit to CRIT's failure to consult
19
claim since the BLM engaged in government-to-government consultation and
20
complied with the terms of the governing PA. In any event, the processes that the
21
NHPA and NEPA are designed to effect require that the BLM take a "hard look" at
22
the MBSP's environmental effects and take into account the effect of the Project on
23
historic properties. Both of those goals were achieved here, and CRIT has not and
24
cannot show that any additional consultation would have (or will) result in any
25
modifications to the FEIS for the Project or the HPTP (which CRIT consulted on for
26
27
28
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3 Also, aspreviously discussed (see FN 1, supra), the findings at Genesis did
iminary injunction.
not warrant a
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months prior to its ifnalization).
2
In short, CRIT has not and cannot show that it is likely to suffer imminent
3
irreparable injury from the construction of the MBSP. CRIT's motion for a
4
preliminary injunction should therefore be denied for this reason alone.
5
B.
CRIT Fails To Show A Likelihood Of Success On The Merits
6
1.
7
The BLM complied with the NHPA by executing and complying with the terms
CRIT's NHPA Claim Fails
8
of the PA. CRIT's arguments to the contrary are unavailing. Although CRIT seeks to
9
distance itself from the PA in order to manufacture a failure to consult claim under the
10
11
NHPA, it cannot do so where it is a signatory to the PA as a concurring party.
Section 106 of the NHPA requires the BLM to provide a Native American
12
Tribe with "areasonable opportunity to identify its concenrs about historic properties,
13
advise on the identification and evaluation of historic properties, including those of
14
traditional religious and cultural importance, articulate its views on the undertaking's
15
effects on such properties, and participate in the resolution of adverse effects. " T
16
Moak Tribe, 608 F.3d at 608. An agency can fulfill these obligations by negotiating a
17
programmatic agreement. See 36 C.F.R. § 800.14(b)(1)(ii). Indeed, "[c]ompliance
18
with the procedures established by an approved programmatic agreement satisfies the
19
agency's section 106 responsibilities for all individual undertakings of the program
20
covered by the agreement until it expires or is terminated
21
§ 800.14(b)(2)(iii) (emphasis added).
22
" 36 C.F.R.
CRIT is a concurring party under the PA. "Concurring parties" are "consulting
23
parties with a demonstrated interest in the Project, who agree, through their signature,
24
with the terms of this Agreement." (King Decl. Ex. A01-0020.) In 2013, the PA was
25
amended to allow for changes in project ownership and applies to the MBSP.4
26
27
28
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&
4
CRIT asserts that it did not receive notice of the amendment to
the PA, the CEC determined otherwise. (Stein Decl. 53.) In any event, as
lained above, the amendment did not change any substantive provisions of the
PAMoreover, CRIT's consent to the amendment was not required under the PA,
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The PA's "whereas" clause (i.e., the preface to the agreement) indicates the
2
BLM's general intention to consult; the enforceable sections of the agreement specify
3
the BLM's consultation responsibilities. Guidelines incorporated into the PA specify
4
that the "BLM shall consult with the Tribes and seek the views and comments of
5
Tribal organizations and individual tribal members regarding any unevaluated cultural
6
resource "
7
relative to [National Register of Historic Places] NRHP and [Califonria Register of
8
Historic Resources] CRHR eligibility criteria." (King Decl. Ex.A05-4290.) The
9
record reflects that the BLM consulted with CRIT on several occasions pursuant to the
but only for a particular end: "to ascertain the status of these places
10
PA regarding the MBSP. This consultation satisfied the BLM's consultation
11
obligations under the PA. Indeed, while the PA "mandate[s] some form of
12
consultation, [it] doe[es] not mandate what form the consultation must take. " (King
13
Decl. Ex.C11-6075) (decision by Judge Wu denying CRIT's request for a preliminary
14
injunction with respect to the Genesis Project). Accordingly, the relevant inquiry is
15
not, as CRIT argues, "the nature or quality of the consultation that occurred, as the ...
16
PA merely mandated that the BLM engage in some sort of consultation
17
BLM more than satisfied this standard.
18
" (Id.) The
The cases CRIT relies on to argue that the BLM failed to consult with CRIT
19
under Section 106 of the NHPA are inapposite because none of them involve a tribe
20
that was a concurring party under a programmatic agreement. For example, in
21
Quechan Tribe ofFort Yuma Indian Reservation v. U.S. Dept. ofI nterior, 755 F.
22
Supp. 2d 1104, 1118-19 (S.D. Cal. 2010), the court found that the BLM could not
23
rely on the existence of a programmatic agreement to satisfy its consultation
24
obligations under Section 106 where the Quechan Tribe was not a concurring party
25
to the programmatic agreement and in fact objected to its use for the management of
26
27
28
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which provides that "Signatories are parties thiat have the sole authority to execute,
amend or terminate this AEgrxeeAm0e1n0t. 02S1i g)natores to this Agreement are the BLM
and SHPO." (King Decl.
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2
obligations through compliance with the PA (which it did), the record in this case
4
shows that the BLM engaged in the requisite government-to-government
5
consultation. And CRIT's reliance on Quechan Tribe would still be misplaced. In
6
Quechan, the court emphasized that the BLM did not meet with the tribe to discuss
7
sensitive sites in the relevant project area until atfer project approval. Id. at 1118.
8
Here, as discussed above, the BLM invited CRIT to engage in Section 106
9
consultation and CRIT had government-to-government consultation with a BLM
10
field manager prior to the approval of the MBSP. (King Decl. Ex. A04-4119-4120.)
11
Moreover, in a more recent Quechan Tribe case alleging that the BLM
12
violated the NHPA's consultation requirements, the district court rejected the Tribe's
13
arguments. In Quechan Tribe of Ft. Yuma Indian Reservation v. U.S. Dep't of the
14
Interior ("Quechan IT), 927 F. Supp. 2d 921, 933 (S.D. Cal. 2013), the district court
15
found that the BLM complied with Section 106 by attempting to engage the Tribe in
16
government-to-government consultation by sending letters and documents to the
17
Tribe. Although the Tribe did not respond to the BLM's notifications or request
18
government-to-government consultations until late in the review process, the district
19
court found that this did not impact the BLM's satisfaction of its consultation
20
obligations. Id.
Here, the BLM and CRIT had a government-to-government meeting in April
22
2013. (King Decl. Ex.A04-2763.) The BLM then again formally invited CRIT to
23
participate in government-to-government consultation in June 2013
24
before it even published a Notice of Intent to prepare an EIS for the MBSP in the
25
Federal Register. (King Decl. Ex. A04-4119-4120; King Decl. Ex.A03-0668.) And
26
CRIT participated in an informational meeting and site visit with the BLM on July
27
23, 2013 with the BLM and NextEra. (Id.; King Decl. Ex.A04-2763.) Although
28
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Even assuming, arguendo, that the BLM had not satisfied its Section 106
3
21
ATT ORNE YS
the project at issue.
o&r
two months
CRIT much later mentioned in its March 2014 comments on the DEIS (which the
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BLM fully responded to), that there should be a meeting with the BLM to "discuss
2
possible mechanisms for allowing in-situ or onsite reburial for the Blythe Project and
3
others in this area"this issue was addressed, with the BLM allowing for CRIT's
4
requested in-situ and onsite reburial of isolated artifacts at MBSP and the McCoy
5
Solar Project. (King Decl. Ex.B02-5667; Stein Decl. TT 79, 95.) Accordingly, even
6
more so than in Quechan II, the BLM satisfied its consultation obligations here.
7
Moreover, even assuming, for the sake of argument, that the BLM did not
8
engage in the requisite degree of government-to-government consultation, CRIT's
9
NHPA claim still fails. The Ninth Circuit has instructed that a failure to consult
10
claim under the NHPA requires a demonstration that more robust or earlier
11
consultation would have allowed a plaintiff to provide new information which might
12
have affected the agency' s determination. Te-Moak Tribe, 608 F.3d at 609. To the
13
extent that CRIT argues that the "new information" that it was not permitted to bring
14
to the BLM's attention consists of supposed information learned about utility-scale
15
solar projects through the implementation of the Genesis Solar Project, it is mistaken.
16
As explained above, the BLM did consider CRIT's comments regarding the Genesis
17
Solar Project prior to approval of the MB SP and properly rejected them as irrelevant.
18
2.
19
CRIT also argues that the BLM violated the NHPA by allegedly breaching the
The BLM Complied With The Terms Of The PA
20
terms of the PA by issuing a limited notice to proceed with construction activities at
21
the Project site prior to finalizing the HPTP. CRIT is wrong.
22
Stipulation X(b) of the PA provides, in relevant part, that:
23
The BLM may authorize construction activities, including but not
limited to those listed below, to proceed in specific geographic areas
of the Project's APE where ... a monitoring and discovery process or
Such construction activities
plan is in place per Stipulation VI(b)
areas for the
24
25
26
iii)
tiggactioonnsstrourcotitnhger geophysical aird engineeringboalcitciVsiotileasr and
trough
ignrvaedsin
builhtngs, and installing para
assemblies. (King Decl. Ex.A05-4268.)
27
28
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In turn, Stipulation VI(b) of the PA provides:
2
If the BLM determines that implementation of the
... will
affect a previously unidentified property that may
bgble for the
e elii
NRIIP, or affect a known histonc property in an unanticipated
manner, and a monitoring and discovery plan has not been fmalized,
the BLM, in coordination with the Energy Commission, will address
or unanticipated effect by Tollowing the procedures at
the
rocess has not been yet been a6g6re) ed
36 C.F.R. 800.
to pursuant to 36 C.F.R. 800.13(a)(1). (King Decl. Ex.A0542
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
The procedures set forth at 36 C.F.R. 800.13(b)(3) require the agency official to
notify the SHPO and any interested Tribe within 48 hours of a discovery of an
archaeological site or the unanticipated effect of an action on a known site. The PA
thus expressly allows the BLM to authorize certain construction activities where a
monitoring and discovery plan has not been finalized as long as some sort of
monitoring and discovery process is in place and the notification provisions of 36
C.F.R. 800.13(b)(3) are complied with.
As explained above, prior to the issuance of the limited notice to proceed, a
Work Plan was adopted that put a process in place for avoiding and minimizing the
potential for any impacts to unknown cultural resources associated with limited
notice to proceed activities. (Stein Decl. TT 63-69.) Accordingly, the BLM complied
with the PA when issuing the limited notice to proceed. In addition, no eligible
historic sites or properties were discovered during the activities undertaken pursuant
to the limited notice to proceed and no known historic sites or properties were
affected by the activities. (Stein Decl. TT 72-76.) Thus, the notification procedures
set forth in 36 C.F.R. 800.13(b)(3) were not triggered, and even if they had been, the
BLM would have complied with them since CRIT monitors were present at the
Project site during all ground-disturbing activities and thus would have had
immediate notice of any sites that were discovered or impacted.
3.
a.
27
28
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or
&
CRIT Fails To Show A Likelihood Of Success On Its NEPA Claim
The BLM Took A "Hard Look" At The MBSP's Potential
Impacts To Cultural Resources
NEPA is a procedural statute that requires a federal agency to take a "hard
79566628.7
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look" at the environmental consequences of a proposed federal action. Robertson v.
2
Methow Valley Citizens Council, 490 U.S. 332, 350-52 (1989).
3
4
cultural resources because it did not address new information CRIT provided to the
5
BLM regarding the Project's potential impacts on historic trails. Contrary to CRIT's
6
assertion, the DEIS identified a number of trails located within the APE for indirect
7
effects for the Project. (King Decl. Ex. A04-4116.) Any signiifcant effects to these
8
resources would be resolved through compliance with the terms of the PA and
9
through NextEra's implementation of the DFs, as revised to reflect input from CRIT
10
in the CEC process. Id. CRIT's assertion that the requisite hard look was not taken
11
with respect to prehistoric trails cultural resources in connection with the Project is
12
therefore incorrect.
13
prehistoric-component sites that were identified in the CEC proceedings. One of the
15
historic-period sites CRIT identified was considered in the cultural resources analysis
16
and listed in Appendix E of the DEIS. (King Decl. Ex. A04-4115.) Another one of
17
the sites identified by CRIT, SMB-CT-011, does not even exist. Yet, to the extent
18
that CRIT is referring to site SMB-CT-001, the cultural resources analysis for the
19
MBSP did not need to consider it since impacts to cultural resources located within
20
the approved linear corridors (such as this particular site) were evaluated in the 2010
21
PA/FEIS and authorized by the 2010 ROD. Id. The other three sites identified by
22
CRIT are not located within the boundary of the MBSP and therefore did not have to
23
be evaluated. Id.
Finally, CRIT argues that the FEIS did not fully evaluate the potential of the
25
MBSP to disturb buried cultural resources and it did not evaluate all NRHP-eligible
26
resources. CRIT is wrong. In the FEIS, the BLM identiifed 95 archaeological sites
27
for potential eligibility on the NRHP. During Phase 1A of the Project, the BLM
28
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Next, CRIT argues that the FEIS fails to identify ifve prehistoric or
14
24
ATT ORNE YS
CRIT first argues that the BLM failed to take the requisite "hard look" at
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evaluated 15 of those sites in accordance with its phased approach to evaluations
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2
under the PA and determined them to be ineligible for NRHP listing. (Stein Decl.
32.) Since that time, the remaining sites have been evaluated. (Id.) Of those, only
3
one prehistoric site within the Project footprint was determined to be eligible for
4
NRHP listing and it is being avoided due to NextEra's redesign of the Project. (Id.
5
6
87.)
In addition, with respect to the Project's potential to disturb buried cultural
7
resources, NextEra has implemented DFs into the Project design to reduce the
8
potential for direct impacts to currently unknown resources. (Id. TT 37-40.) These
9
DFs are the same as the Conditions of Certification approved during the CEC
10
proceeding that CRIT specifically helped formulate. (Id.) In addition, the
11
Monitoring Plan comprehensively deals with any buried cultural resources unearthed
12
during the construction of the Project. (Id. TT 91-104.)
13
14
In sum, the BLM took a hard look at cultural impacts of the MBSP, and CRIT
is not likely to succeed on the merits of its NEPA claim.
15
16
Pursuant to NEPA, the status quo, or environmental baseline, is represented by
the "no action" alternative. Ctr. for Biological Diversity v. U.S. Dep't of Interior,
18
623 F.3d 633 (9th Cir. 2010). "In requiring consideration of a no-action alternative,
19
the Council on Environmental Quality intended that agencies compare the potential
20
impacts of the proposed major federal action to the known impacts of maintaining
21
the status quo. In other words, the current level of activity is used as a benchmark. "
22
Custer Cnty. Action Ass 'n v. Garvey, 256 F.3d 1024, 1040 (10th Cir. 2001). "The
23
'no action' alternative may be thought of in terms of continuing with the present
24
course of action until that action is changed." Ass'n ofPub. Agency Customers, Inc.
25
v. Bonneville Power Admin., 126 F.3d 1158, 1188 (9th Cir. 1997).
Here, the "no action" alternative analyzed in the FEIS for the MBSP was
27
Alternative 2, not the approved Original Project as CRIT wrongly suggests. Under
28
Alternative 2, the Level 3 vairance request would be denied by the BLM and
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The FEIS Properly Discussed A "No Action" Alternative
17
26
ATT ORNE YS
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NextEra would remain able to develop the Original Project as modified by the March
2
7, 2013 voluntary relinquishment that left approximately 4,433 acres of the 2010
3
ROW grant available for development, which would be sufficient to develop
4
approximately 650 MW of generation capacity using the solar thermal parabolic
5
trough technology authorized by the 2010 ROD. No further BLM approvals would
6
be required for such development because denial of the proposed vairance would not
7
affect the underlying ROW grant or CDCA Plan amendments. (King Decl. Ex.A05-
8
4266.) Thus, the "no action" alternative analyzed by the BLM properly relfected the
9
"present course of action" that would be taken if the request for the level 3 vairance
10
11
(the project being reviewed under NEPA) were denied.
CRIT argues that the BLM made an untenable assumption in discussing the
12
"no action" alternative where it "represent[ed] to the public and decisionmakers that
13
Blythe I would be built if the agency denied Blythe II." Br. at 22. But nowhere in
14
the FEIS does the BLM represent that the Original Project would be built (which is
15
different from Alternative 2) if the level 3 vairance for the Project were denied. In
16
fact, the opposite is true. The BLM agreed that it is almost certain that NextEra
17
would not be able to build the Original Project, as approved, if the level 3 vairance
18
were denied because on March 7, 2013, it relinquished 35 percent of the approved
19
ROW grant area to the BLM. (King Decl. Ex. A04-4113-14.) Although the BLM
20
recognized that it is possible that NextEra could reapply for a ROW grant for the
21
relinquished area, 100 percent of the originally approved Original Project could not
22
be built in two-thirds the area. However, the BLM explained that if it selected the
23
"no action" alternative (Alternative 2), then the existing entitlements to construct,
24
operate, maintain and decommission a solar thermal trough project within the
25
existing ROW area after relinquishment would remain in place. Id. And in that case,
26
NextEra could elect to pursue various options for that purpose.
27
28
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2
3
4
5
6
7
8
9
10
11
12
CRIT also argues that the BLM violated NEPA because the stated purpose and
need evaluated in the FEIS was too narrow where it was defined as responding to the
Grant Holder's request for a level 3 variance. CRIT is wrong.
A statement of purpose and need must "briefly specify the underlying purpose
and need to which the agency is responding in proposing the altenratives including
the proposed action. " 40 C.F.R. § 1502.13. "Courts review purpose and need
statements for reasonableness giving the agency considerable discretion to defme a
project's purpose and need. " Alaska Survival v. Surface Transp. Bd., 705 F.3d 1073,
1084 (9th Cir. 2013).
In the FEIS, the BLM articulated the purpose and need being analyzed as
follows:
13
Taking into account the BLM's
use mandate, the BLM's
purpose and need in connection with the Modified Project is to
to the Grant Holder's request for a Level 3 vairance under
T
(FitLlePMV Aof the Federal Land Policy and Mmaondaig
Act of 1976
43 U.S.C. § 1701 et seq.) and
fiecm
ateionnt of the
ROW gra;nt to include the construction, operation maintenaexs
nce and
of a 485 MW solar PV project in co
with
FLPMA, BLM ROW regulations, and other applicab lemfpedearnaclelaws.
(King Decl. Ex.A04-23 )
14
15
16
17
18
consistent with the stated goals and objectives of several federal mandates applicable
20
to the BLM, including, for example the FLPMA; and Executive Order 13212, which
21
"mandates that agencies act expediently and in a manner consistent with applicable
22
laws to increase the 'production and transmission of energy in a safe and
23
environmentally sound manner." (Id.) See Muckleshoot Indian Tribe v. U.S. Forest
24
Serv., 177 F.3d 800, 812-13 (9th Cir. 1999) (finding that the purpose and need for a
25
land exchange to consolidate ownership of specific private and public lands was not
26
unreasonably narrow because it furthered the objectives of the regional forestry plan
27
to consolidate land ownership patterns).
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The BLM's purpose and need statement was reasonable where it was
19
28
ATT ORNE YS
The Stated "Purpose and Need" For The MBSP Complied
With NEPA
o&r
CRIT, nonetheless, argues that the purpose and need statement violates NEPA
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because the BLM simply adopted the Grant Holder's objectives rather than develop
2
its own. Such is not the case. When an agency is to act upon a project applicant's
3
request, such as an application for a ROW grant, it is not improper for the agency to
4
consider the applicant's goals as the BLM did here. Ala. Survival, 705 F.3d at 1085
5
(purpose and need statement "can include private goals, especially when the agency
6
is determining whether to issue a permit or license").
7
Moreover, the BLM did not reject supposedly "environmentally superior
8
alternatives" simply because they were not the exact project NextEra wanted to build.
9
Br. at 22. Rather, the BLM already deemed the site suitable for solar energy
10
development when it approved the Original Project and CDCA Plan Amendment in
11
the 2010 ROD, and a valid ROW grant already existed for the site. (King Decl.
12
Ex.A04-2417.) Consequently, the FEIS did not analyze (and did not need to analyze)
13
in detail potential alternatives on other sites and instead focused on the areas within
14
the originally approved footprint for the Original Project.
15
4.
16
17
18
The MBSP Complies With The CDCA Plan
CRIT argues that the BLM's approval of the MBSP within a Class L area is
inconsistent with the CDCA Plan. CRIT's argument fails for two principal reasons.
First, CRIT's assertion that the MBSP will not conform to the CDCA Plan's
20
requirements for "Class L" lands omits the undisputed fact that the BLM amended
21
the CDCA Plan to specifically authorize the development of a solar electrical
22
generating facility and associated transmission line in its ROD for the Original
23
Project issued in 2010 for the same lands encompassing the Project. (King Decl.
24
Ex.A03-0684.) The existing CDCA Plan Amendment is and will remain in effect
25
and was not part of the BLM's separate review of NextEra's request for a level 3
26
vairance to the ROW grant for the MBSP. (King Decl. Ex.A04-2636.) Accordingly,
27
the issuance of the 2010 ROD and associated ROW grant by the BLM to allow for
28
the development of a solar generating facility on its land demonstrates that the
R EATH L LP
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19
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MBSP, which will be constructed on lands encompassed within the footprint for the
2
Original Project, complies with the CDCA Plan.
3
Second, even assuming, arguendo, that CRIT could challenge the CDCA Plan
4
Amendment that was approved in 2010, the claim would still fail because the CDCA
5
Plan specifically allows for solar power facilities within Class L areas as long as
6
NEPA requirements are met. The CDCA Plan provides in its guidelines that solar
7
development in Class L areas may
" be allowed atfer NEPA requirements are met. "
8
(King Decl. Ex.001-5808.) As this Court has already found, in approving the
9
Original Project, the BLM determined that the PA/FEIS and ROD for the Project met
10
NEPA requirements for consideration of the Project and for consideration of the
11
Project site as suitable for development. (RJN, Ex. 1.) CRIT has not and cannot put
12
forth any evidence to the contrary. Accordingly, CRIT is unlikely to succeed on the
13
merits of its FLPMA claim.
14
b.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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The CDCA Plan Does Not Contain Binding VRM
Designations
CRIT also argues that the MBSP is inconsistent with the CDCA Plan's
binding Visual Resource Management ("VRM") objectives. Br. at 23. CRIT's
argument is fundamentally lfawed because the CDCA Plan establishes no such
objectives.
CRIT's argument presumes that there are VRM classes established by the
CDCA plan that govern the MBSP site. CRIT is correct that the classifications, such
as VRM, adopted in a land use plan must be complied with when activities are
authorized on lands governed by that plan. However, as repeatedly stated in the
FEIS, the CDCA Plan does not contain a visual resources element. (King Decl.
Ex.A04-2725.) Therefore, there are no VRM Classes that the Project must be in
conformance with. See 43 C.F.R. § 1601.0-5(b).
Where, as here, VRM classifications have not been established, the BLM uses
"interim VRM Classes," which are limited in geographic scope to areas affected by
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the proposed action, to provide an analytical tool to inform a decision. (King Decl.
2
Ex.A04-2725.) "Because the CDCA Plan does not have Resource Management
3
Plan-adopted VRM objectives, a land use plan amendment is not required to address
4
the identified instances of non-conformance." (Id.) While the interim VRM Classes
5
provide a useful tool to consider the "visual resources values of the public lands,"
6
they should not be "used as a method to preclude all other resource developments ...
7
[it] simply means that the visual values must be considered and those considerations
8
documented in the decision-making process, and that if the resource development/
9
extraction is approved, a reasonable attempt must be made to meet the VRM
10
objectives
11
impacts of the MBSP on visual resource values, and analyzed whether measures
12
could minimize those impacts. (King Decl. Ex.A04-2724-2736.) Accordingly, the
13
BLM made a reasonable attempt to meet the interim VRM objectives. Nothing more
14
was required.
15
C.
16
ATT ORNE YS
In contrast to the absence of a credible hann. to CRIT, substantial injury will be
suffered by NextEra if a preliminary injunction is granted. In balancing the relative
18
hardships, there is no presumption that environmental harms should outweigh other
19
harms. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1138 (9th Cir.
20
2011). Here, issuance of an injunction would result in significant economic harm to
21
NextEra. A two-month delay in the already compressed Project construction
22
schedule will: (1) jeopardize NextEra's ability to receive certain federal cash grants;
23
(2) jeopardize NextEra's ability to construct Unit 2 of the Project (which equals
24
approximately 25% of the approved 485 MW Project); (3) cause NextEra to suffer at
25
least a two-month delay in its ability to realize revenue from the Project; (4) cause
26
NextEra to incur significant costs related to demobilization under the engineering,
27
procurement and construction ("EPC") contract in place for the Project; and (5)
28
jeopardize NextEra's ability to meet important interconnection milestones with
L LP
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The Balance Of The Equities Strongly Favors NextEra
17
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" (Id.) That is exactly what happened here; the FEIS disclosed the
or
&
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NEXTERA BLYTHE SOLAR ENERGY CENTER, LLC'S OPPOSITION TO
PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
Case 5:14-cv-02504-JAK-SP Document 59 Filed 04/20/15 Page 35 of 38 Page ID #:2028
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Southern California Edison Company. (Declaration of Scott A. Busa, TT 2-6.) This
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harm clearly outweighs any alleged harm to cultural resources here, especially in
3
light of CRIT's nonexistent showing of irreparable harm. See Earth Island Inst. v.
4
Carlton, 626 F. 3d 462, 475 (9th Cir. 2010) (courts should consider economic
5
interests in the balance of equities prong).
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D.
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will produce 485 MW of clean, renewable solar energy
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estimated 171,000 homes
enough to power an
the public interest prong also favors the denial of this
injunction. Increased production of renewable energy is indisputably in the public
11
interest. Federal Executive Order 13212 mandates generally that agencies must act
12
expediently and in a manner consistent with applicable laws to increase the
13
"production and transmission of energy in a safe and environmentally sound
14
manner. " See 66 Fed. Reg. 99 (May 18, 2001). The Energy Policy Act of 2005 ("EP
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Act") requires the BLM's parent agency, the Department of the Interior, to approve
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at least 10,000 MW of renewable energy on public lands by 2015. 42 U.S.C.
17
§ 15851 et seq. And Secretary of the Interior Order 3285 "establishes the
18
development of renewable energy as a priority for the Department of the Interior. "
19
See Secretary of the Interior Order 3285, Renewable Energy Development by
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Department of the Interior (March 11, 2009). In addition to all of those imperatives,
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the MBSP is bringing many needed jobs to an area with high unemployment. A
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preliminary injunction could impact the estimated 500 jobs that will be created by the
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Project during peak construction. The public interest prong thus plainly favors
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NextEra and the BLM. See Backcountry Against Dumps v. Abbott, 2011 WL
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3567963, *8 (S.D. Cal. Aug. 12, 2011) (in an NHPA case, weighing the economic
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harm posed by injunction to transmission line developer and denying injunction;
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enjoining the construction of transmission lines that will carry renewable energy is
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not in the public interest in part because "[t]he development of renewable energy is a
R EATH L LP
AT LAW
LOS ANGELES
The public interest also favors denial of CRIT's motion. Because the MBSP
10
DRINKER BIDDLE
ATT ORNE YS
An Injunction Would Not Be In The Public's Interest
o&r
79566628.7
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NEXTERA BLYTHE SOLAR ENERGY CENTER, LLC'S OPPOSITION TO
PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
Case 5:14-cv-02504-JAK-SP Document 59 Filed 04/20/15 Page 36 of 38 Page ID #:2029
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national energy priority").
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E.
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CRIT Should Be Required To Post A Bond
Federal Rule of Civil Procedure 65(c) expressly requires that: "[n]o restraining
4
order or preliminary injunction shall issue except upon the giving of security by the
5
applicant, in such sum as the court deems proper, for the payment of such costs and
6
damages as may be incurred or suffered by any party who is found to have been
7
wrongfully enjoined or restrained. " Even though some courts have disposed of the
8
bond requirement in NEPA cases involving public interest groups or private
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individuals with limited resources, see, e.g., Friends of the Earth, Inc. v. Brinegar,
10
518 F.2d 322, 323 (9th Cir. 1975), here, however, CRIT certainly is not indigent.5
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Nor is it an environmental public interest group operating solely for the benefit of the
12
general public. In the event the Court grants a preliminary injunction, CRIT should
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be required to post a significant bond to cover the losses of NextEra resulting from
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the delayed construction of the MBSP.
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V.
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CONCLUSION
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For the foregoing reasons, CRIT's request for a preliminary injunction should
be denied in its entirety.
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Dated: April 20, 2015
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Respectfully submitted,
DRINKER BIDDLE & REATH LLP
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By:
/s/ Kristopher S. Davis
Kristopher S. Davis
for Intervenor-Defendant
NEXTERA BLYTHE SOLAR
ENERGY CENTER, LLC
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DRINKER BIDDLE
R EATH L LP
ATT ORNE YS
AT LAW
LOS ANGELES
o&r
5 In fact, CRIT owns and operates a large tribal gaming establishment in
Parker, Arizona. http://www.crit-nsn.gov/critcontents/bluewater/
_
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NEXTERA BLYTHE SOLAR ENERGY CENTER, LLC'S OPPOSITION TO
PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
Case 5:14-cv-02504-JAK-SP Document 59 Filed 04/20/15 Page 37 of 38 Page ID #:2030
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CERTIFICATE OF SERVICE
2
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
3
I am employed in the County of Los Angeles, State of California. I am over the age of
18 and not a party to the within action. My business address is Drinker Biddle & Reath LLP,
1800 Century Park East, Suite 1500, Los Angeles, Califonria 90067.
4
5
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On April 20, 2015, I served the foregoing document described as: INTERVENORDEFENDANT NEXTERA BLYTHE SOLAR ENERGY CENTER, LLC'S
OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION on the
interested patries in this action by transmitting a copy as follows:
SEE ATTACHED SERVICE LIST
8
9
X
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By ELECTRONIC FILING (I electronically filed the foregoing with the Clerk of the
Court using the CM/ECF system which will send notification of such filing to counsel
denoted on the attached Service List.)
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By PERSONAL SERVICE
12
by personally delivering such envelope to the addressee.
13
by causing such envelope to be delivered by messenger to the ofifce of the
addressee.
By UNITED STATES MAIL (I am readily familiar with the firm's practice of
collection and processing correspondence for mailing. Under that practice it would be
deposited with U.S. Postal Service on that same day with postage thereon fully prepaid
at Los Angeles, Califonria in the ordinary course of business. I am aware that on
motion of the party served, service is presumed invalid if postal cancellation date or
postage meter date is more than one day after date of deposit for mailing in afifdavit.)
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By OVERNIGHT DELIVERY (by causing such envelope to be delivered to the ofifce
of the addressee by ovenright delivery via Federal Express or by other similar ovenright
delivery service.)
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By FAX TRANSMISSION
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By E-MAIL OR ELECTRONIC TRANSMISSION
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(State) I declare under penalty of perjury under the laws of the State of Califonria that
the above is true and correct.
23
X
24
(Federal) I declare that I am employed in the ofifce of a member of the bar of this coutr
at whose direction the service was made.
Executed on April 20, 2015, at Los Angeles, Califonria.
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KRISTOPHER S. DAVIS
Name
/s/ Kristopher S. Davis
Signature
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DRINKER BIDDLE
R EATH L LP
ATT ORNE YS
AT LAW
LOS ANGELES
or
79566628.7
NEXTERA BLYTHE SOLAR ENERGY CENTER, LLC'S OPPOSITION TO
PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
Case 5:14-cv-02504-JAK-SP Document 59 Filed 04/20/15 Page 38 of 38 Page ID #:2031
1
SERVICE LIST
Colorado River Indian Tribes v. United States Department
of the Interior, et al.
USDC Case No. 5:14-cv-02504-JAK-SP
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Sara Ann Clark
clark@smwlaw.com, breckenridge@smwlaw.com
Stephen Finn
stephen.finn@usdoj.gov
Tori Ballif Gibbons
gibbons@smwlaw.com
David B. Glazer
david.glazer@usdoj.gov , eiflenrs.enrd@usdoj.gov
_
Winter King
king@smwlaw.com , clark@smwlaw.com, mulligan@smwlaw.com
Heather Marie Minner
minner@smwlaw.com
Diana L. Pauli
USACAC.Criminal@usdoj.gov, diana.pauli@usdoj.gov
Assistant US Attorney LA-CV
USACAC.Civil@usdoj.gov, darryl.musick@usdoj.gov
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DRINKER BIDDLE &
R EATH L LP
ATT ORNE YS AT LAW
LOS ANGELES
79566628.7
NEXTERA BLYTHE SOLAR ENERGY CENTER, LLC'S OPPOSITION TO
PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION