NOT FOR PUBLICATION FILED
AUG 1 2022
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FALLON PAIUTE-SHOSHONE TRIBE; No. 22-15092
CENTER FOR BIOLOGICAL DIVERSITY,
D.C. No.
Plaintiffs-Appellees, 3:21-cv-00512-RCJ-WGC
v.
MEMORANDUM*
U.S. DEPARTMENT OF THE INTERIOR;
BUREAU OF LAND MANAGEMENT;
JAKE VIALPANDO, in his official capacity
as Field Manager of the Bureau of Land
Management Stillwater Field Office,
Defendants,
and
ORMAT NEVADA, INC.,
Intervenor-Defendant-
Appellant.
FALLON PAIUTE-SHOSHONE TRIBE; No. 22-15093
CENTER FOR BIOLOGICAL DIVERSITY,
D.C. No.
Plaintiffs-Appellants, 3:21-cv-00512-RCJ-WGC
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
U.S. DEPARTMENT OF THE INTERIOR;
BUREAU OF LAND MANAGEMENT;
JAKE VIALPANDO, in his official capacity
as Field Manager of the Bureau of Land
Management Stillwater Field Office,
Defendants-Appellees,
ORMAT NEVADA, INC.,
Intervenor-Defendant-
Appellee.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted June 15, 2022
San Francisco, California
Before: BYBEE, CALLAHAN, and COLLINS, Circuit Judges.
This case involves an ongoing challenge to the development of a geothermal
project on federal public land located over forty miles outside of Fallon, Nevada.
Although the parties are familiar with the factual and procedural history of this
case, we briefly summarize it as it frames the narrow issue presented for review.
In 2015, ORNI32, LLC, a subsidiary of Ormat Nevada, Inc. (“Ormat”),
applied to the Bureau of Land Management (“BLM”) to construct and operate a
geothermal project on federal public land located adjacent to the Dixie Meadows
hot springs (the “Project”). Under the proposal, the facilities would generate
power using heat from geothermal fluid extracted from deep geothermal reservoirs
2
underlying the land. In November 2021, after several years of environmental and
cultural resource review and tribal consultation, BLM granted Ormat’s application
subject to several conditions, including that the Project be constructed and operated
in phases. The Fallon Paiute-Shoshone Tribe (the “Tribe”) and the Center for
Biological Diversity (“CBD”) (collectively, “Plaintiffs”) jointly filed suit against
BLM alleging violations of the National Environmental Policy Act (“NEPA”), the
Religious Freedom Restoration Act (“RFRA”), and the Administrative Procedure
Act (“APA”)1 and sought a preliminary injunction to stop the Project’s
construction during the pendency of the litigation, which the parties agreed could
be resolved within six months.
This case involves two separate appeals, both challenging the district court’s
order imposing a preliminary injunction halting construction on the Project for a
limited period of ninety days from January 4, 2022 but denying preliminary
injunctive relief beyond that period of time. Although we dismiss Ormat’s appeal
as moot, we have jurisdiction over Plaintiffs’ cross-appeal under 28 U.S.C. §
1292(a)(1), and we affirm.
We review the grant or denial of a preliminary injunction for abuse of
discretion. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.
2011). The district court’s conclusions of law are reviewed de novo, while factual
1
Plaintiffs also assert other claims not relevant to this appeal because they weren’t
raised in the motion for preliminary injunction.
3
findings are reviewed for clear error. Id. A factual finding constitutes clear error if
it is “illogical, implausible, or without support in inferences that may be drawn
from the facts in the record.” Edmo v. Corizon, Inc., 935 F.3d 757, 785 (9th Cir.
2019) (quoting La Quinta Worldwide LLC v. Q.R.T.M., S.A. de C.V., 762 F.3d 867,
879 (9th Cir. 2014)).
1. As a threshold matter, we determine whether we have jurisdiction to
review Ormat’s appeal. An appeal is moot and we lose jurisdiction to hear it “[i]f
an event occurs while a case is pending on appeal that makes it impossible for the
court to grant any effectual relief whatever to a prevailing party.” In re Pattullo,
271 F.3d 898, 901 (9th Cir. 2001) (quoting United States v. Arkison (In re Cascade
Roads, Inc.), 34 F.3d 756, 759 (9th Cir. 1994)).
A Ninth Circuit motions panel granted Ormat’s motion to stay the ninety-
day preliminary injunction on February 4, 2022, effectively providing Ormat all
the relief it sought on appeal as construction was allowed to commence shortly
thereafter. Even without the stay, the limited ninety-day injunction would have
expired by its own terms on April 4, 2022—thus there is no longer an injunction in
place from which Ormat may seek relief. See Ahlman v. Barnes, 20 F.4th 489, 494
(9th Cir. 2021) (holding that stay of preliminary injunction on appeal did not toll
its expiration date). Accordingly, Ormat’s appeal is moot and we dismiss it on that
ground.
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2. We turn now to Plaintiffs’ cross-appeal. The Supreme Court has
explained that plaintiffs seeking a preliminary injunction must establish that (1)
they are “likely to succeed on the merits,” (2) they are “likely to suffer irreparable
harm absent preliminary relief,” (3) “the balance of equities tips in their favor,”
and (4) “an injunction is in the public interest.” Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008). We employ a “sliding scale test,” which allows a
strong showing on the balance of hardships to compensate for a lesser showing of
likelihood of success. Cottrell, 632 F.3d at 1134–35. Thus, when plaintiffs
establish that the balance of hardships tips sharply in their favor, that there is a
likelihood of irreparable injury, and that the injunction is in the public interest, they
need only show “serious questions” on the merits. Id. at 1135. However, where
plaintiffs have not made such showings, the original four-factor Winter test applies.
See All. for the Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir. 2017).
The district court did not err in applying the legal standard as it did. While
the district court found that Plaintiffs showed they would suffer irreparable harm in
the absence of an injunction, it nonetheless concluded that (1) the balance of
hardships tipped sharply in favor of Ormat, not Plaintiffs, after ninety days and (2)
that the public interest disfavors the requested injunction. The district court
therefore properly considered whether Plaintiffs had demonstrated a likelihood of
success on the merits, and not whether they had merely raised “serious questions.”
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3. The district court first concluded that it could not find, at this early
stage of the litigation and given the record before it, that Plaintiffs were likely to
succeed on the merits of their claims. The district court’s conclusion did not
constitute an abuse of discretion because it was not illogical, implausible, or
unsupported by the record. Doe v. Kelly, 878 F.3d 710, 713 (9th Cir. 2017) (citing
United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc)).
NEPA Claims. We review agency decisions that allegedly violate NEPA
under the APA, and set aside those decisions only if they are “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.” Native
Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1238 (9th Cir. 2005)
(quoting 5 U.S.C. § 706(2)(A)). This standard is deferential, and the court cannot
substitute its own judgment for that of the agency. See Ocean Advocs. v. U.S.
Army Corps of Eng’rs, 402 F.3d 846, 858 (9th Cir. 2005).
Plaintiffs’ NEPA claims challenge BLM’s decision not to prepare an
environmental impact statement (“EIS”).2 In reviewing an agency’s decision not to
prepare an EIS,
2
Plaintiffs argue that the April 2022 emergency listing of the Dixie Valley toad “is
a powerful rebuke to BLM’s assertions that the Project will have no significant
impacts.” Ormat and BLM counter that the emergency listing cannot be
considered on appeal because it was not before BLM when it approved the Project
or the district court when it considered Plaintiffs’ NEPA challenge to BLM’s
decision. Given the narrow issue before us on this interlocutory appeal, we agree
that the recent emergency listing is beyond the scope of our review. See Tri-Valley
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[We] employ an arbitrary and capricious standard that
requires us to determine whether the agency has taken a
“hard look” at the consequences of its actions, based [its
decision] on a consideration of the relevant factors, and
provided a convincing statement of reasons to explain
why a project’s impacts are insignificant.
Am. Wild Horse Campaign v. Bernhardt, 963 F.3d 1001, 1007 (9th Cir. 2020)
(alteration in original) (quoting Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d
1005, 1009 (9th Cir. 2006)). Where, as here, an agency has prepared an
environmental assessment (“EA”) and concluded a proposed action will not have
significant environmental effects, the “inquiry is whether the responsible agency
has reasonably concluded that the project will have no significant adverse
environmental consequences.” Save the Yaak Comm. v. Block, 840 F.2d 714, 717
(9th Cir. 1988) (internal quotations omitted).
The district court reasonably determined that, under this deferential standard
and at this stage of the proceedings, Plaintiffs did not demonstrate a likelihood of
success on their NEPA claims. First, the district court reasonably found that there
was more than sufficient baseline information (i.e., flow test, hydrogeological
model, USGS data regarding Dixie Valley toad) available to BLM on the relevant
environmental issues in connection with its development of both the EA and the
CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113, 1130–31 (9th Cir. 2012)
(recognizing post-decisional bar to extra-record materials in NEPA cases). Of
course, if Plaintiffs amend their complaint to allege additional claims, the
emergency listing may become relevant.
7
Aquatic Resource Monitoring and Mitigation Plan (“ARMMP”), including water
resources and species information. Therefore, the district court properly deferred
to “BLM’s application of its technical expertise to draw reasonable inferences from
the available scientific information.” Plaintiffs fail to show that this conclusion
amounts to an abuse of discretion, given the level of deference afforded to the
agency under the APA.
Next, the district court reasonably concluded that BLM’s reliance on the
ARMMP as part of its finding of no significant impact (“FONSI”) was not
arbitrary and capricious. BLM was not required to mitigate impacts to zero to
justify a FONSI. Wetlands Action Network v. U.S. Army Corps of Eng’rs, 222
F.3d 1105, 1121 (9th Cir. 2000), overruled on other grounds by Wilderness Soc’y
v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011) (en banc). Additionally, under
NEPA, proposed mitigation need only be “developed to a reasonable degree.” Id.
Although BLM independently concluded that geothermal development was
unlikely to affect the springs (based on the hydrogeological model and flow test), it
nevertheless developed the ARMMP to address unanticipated impacts and impose
meaningful mitigation measures as needed.
The district court also rejected Plaintiffs’ argument that BLM violated NEPA
by failing to meaningfully consider the visual impacts of constructing the Project
in an area visible from the Tribe’s sacred site. The district court permissibly
8
focused on facts in the record demonstrating that BLM took steps to minimize
visual impacts of the Project, including the requirement that buildings be painted
consistent with BLM’s visual color guidelines and comply with dark-sky lighting
practices, as reflected in the EA.
APA Claims. Plaintiffs’ APA claims allege that BLM deviated from agency
direction on the protection of sacred sites described in a November 2021 Joint
Secretarial Order and a November 2021 Memorandum of Understanding.
Plaintiffs argue that BLM’s failure to follow these policies demonstrates that it did
not consider relevant factors or articulate a rational connection between the facts
found and choices made, in violation of the APA. We find that the district court
reasonably concluded that Plaintiffs did not demonstrate how the extensive
consultation process BLM undertook since 2007 was insufficient under the topics
raised by the policy documents, particularly given the numerous consultation
meetings with the Tribe between 2010 and 2021 and the proposed Memorandum of
Agreement. The district court’s conclusion that Plaintiffs failed to demonstrate a
likelihood of success on the merits of their APA claims was not an abuse of
discretion.
RFRA Claim. Finally, the Tribe’s RFRA claim alleges that the Project
substantially burdens its exercise of religion because the geothermal facility will
desecrate the site, making its religious exercise “impossible.” This claim is
9
foreclosed by Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1063, 1069–70
(9th Cir. 2008) (en banc), which held that “a ‘substantial burden’ is imposed only
when individuals are forced to choose between following the tenets of their
religion and receiving a government benefit or coerced to act contrary to their
religious beliefs by the threat of civil or criminal sanctions.” Even “spiritual[]
desecrat[ion]” of a sacred area does not constitute force or coercion needed to
show a substantial burden under this standard. See id. at 1070; see also Apache
Stronghold v. United States, 38 F.4th 742, 756 (9th Cir. 2022) (“Where there is no
substantial burden, there is no ground to apply the ‘compelling interest’ test, and
thus no RFRA violation—no matter how dire the practical consequences of a
government policy or decision.”). Therefore, the district court did not abuse its
discretion in concluding that the Tribe failed to demonstrate a likelihood of success
on its RFRA claim.
4. Addressing the remaining Winter factors, the district court concluded
that after ninety days, the balance of harms from a preliminary injunction tips
sharply in favor of Ormat and the public interest disfavors an injunction.3 The
district court did not abuse its discretion in its weighing of the harms and equities
or considering whether the injunction is in the public interest. See Winter, 555
U.S. at 24 (noting that the weighing of burdens is a discretionary exercise properly
3
Because the district court found Plaintiffs will suffer irreparable harm, Plaintiffs
do not challenge that finding on appeal.
10
within the province of the district court). Against the harms to Plaintiffs’ aesthetic,
recreational, and religious and spiritual interests, the district court properly
considered the irreparable economic harm to Ormat from halting Project
construction beyond ninety days. The record supported the finding that a delay of
construction beyond that time would make it “all but certain” that Ormat would not
be able to complete construction by the end of 2022 and would therefore stand to
lose $30 million over twenty years. See Amoco Prod. Co. v. Vill. of Gambell, 480
U.S. 531, 545 (1987) (holding that the analysis includes consideration of economic
losses). Beyond the economic losses to Ormat, the district court properly
considered the public interest in “a source of carbon-free baseload electricity,”
royalty returns to the federal government, and state and local taxes which would be
collected as a result of the Project, all of which it reasonably concluded would be
threatened by an injunction longer than ninety days.
Case No. 22-15092 is DISMISSED as moot, and each party shall bear its
own costs on that appeal. Case No. 22-15093 is AFFIRMED, and costs shall
be awarded to Ormat on that appeal.
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