Protect Our Communities Foundation v. Salazar

2013 WL 5947137 (2013), aff'd, 674 Fed. Appx. 657 (2017)

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Protect Our Communities Foundation v. Salazar

United States District Court for the Southern District of California
2013 WL 5947137 (2013), aff'd, 674 Fed. Appx. 657 (2017)

Facts

In 1980, the United States Department of the Interior (defendant) approved the California Desert Conservation Area Plan (conservation plan), a comprehensive plan for development of 12 million acres of public land in the California desert. In 2009, Ocotillo, a wind-energy developer, applied to the Department of the Interior, Bureau of Land Management (the bureau) (defendant) to construct a wind-energy facility (the facility) in the California desert. In February 2012, the bureau proposed an amendment to the conservation plan and issued a final environmental-impact statement and a final environmental-impact report (collectively, the final statement). The final statement addressed concerns over infrasound and low-frequency noise and concluded that they were not likely to pose health risks. The final statement also considered the facility’s impact on bighorn sheep and resulted in the adoption of mitigation measures if the sheep were observed at the site of the facility. Additionally, the final statement looked at the effect of the facility on minority and low-income populations within one-half mile of the project. The final statement did not consider the unintentional killing of migratory birds that might occur as a result of the facility’s construction or operation. In May 2012, the bureau issued a decision approving Ocotillo’s facility and the amendment to the conservation plan. The bureau’s decision included a purpose-and-need provision. The provision explained how the approval of the facility addressed management objectives mandated by an executive order, the Energy Policy Act of 2005, and an order of the secretary the Department of the Interior, which all promoted renewable-energy development. The Protect Our Communities Foundation, Backcountry Against Dumps, and Donna Tisdale (collectively, the challengers) (plaintiffs) filed suit against the Department of the Interior and the bureau, challenging the decision to approve the facility. The challengers claimed that the decision violated several statutes including the National Environmental Policy Act (NEPA) and the Migratory Bird Treaty Act (migratory-bird act). The challengers argued that the bureau merely adopted Ocotillo’s goals as its own, which unlawfully restricted the bureau’s consideration of alternatives, in violation of NEPA. The challengers also argued that the bureau failed to take a hard look at the health impacts of the infrasound and low-frequency noise from the facility, the impacts on bighorn sheep, the effects on local Native Americans, and the killing of migratory birds.

Rule of Law

Issue

Holding and Reasoning (Curiel, J.)

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