FILED
NOT FOR PUBLICATION
DEC 21 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
QUECHAN TRIBE OF THE FORT No. 13-55704
YUMA INDIAN RESERVATION,
D.C. No.
Plaintiff-Appellant, 3:12-cv-01167-GPC-PCL
v.
MEMORANDUM*
U.S. DEPARTMENT OF THE
INTERIOR; et al.,
Defendants-Appellees,
OCOTILLO EXPRESS LLC,
Intervenor-Defendant-
Appellee.
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Argued and Submitted November 3, 2015
Pasadena, California
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Quechan Tribe of the Fort Yuma Indian Reservation (“Quechan Tribe”)
appeals the district court’s order granting summary judgment in favor of the
Appellees, including the Bureau of Land Management (“BLM”). Quechan Tribe
maintains that the BLM violated (1) the California Desert Conservation Area
(“CDCA”) Plan, (2) the Federal Land Policy and Management Act (“FLPMA”),
and (3) the National Environmental Policy Act (“NEPA”) when it granted Ocotillo
Express LLC (“Ocotillo”) a right-of-way to construct and operate the Ocotillo
Wind Energy Facility (“OWEF Project” or “the Project”) near Ocotillo, California.
We may affirm a district court’s grant of summary judgment “on any basis
supported by the record.” Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th
Cir. 2009). Because the parties are familiar with the facts and procedural history of
this case, we will not recount them here.
1. Quechan Tribe first contends the BLM violated the CDCA Plan by failing
to determine whether the OWEF Project met the substantive requirements the Plan
imposes on proposed uses of Class L land—the class of land upon which the
OWEF Project is located. The CDCA Plan governs all land use activities within
the CDCA. Because the OWEF Project is located on CDCA land, the BLM was
required to ensure the Project complied with the Plan before granting the right-of-
way. Significantly, the CDCA Plan includes a Plan amendment process that allows
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the BLM to make changes to the Plan for a multitude of reasons, including
accommodating a specific project that might not otherwise comply with the CDCA
Plan. See BLM, California Desert Conservation Area Plan 1980, as amended, at
119 (Mar. 1999) [hereinafter CDCAP].
In the Record of Decision granting a right-of-way for the OWEF Project, the
BLM adopted a Category 3 Plan amendment to accommodate the Project. See
BLM, Record of Decision Ocotillo Wind Energy Facility and Amendment to the
California Desert Conservation Area Plan, at 39 (May 2012). The BLM amended
the CDCA Plan to designate the approximately 10,151 acres of public land where
the Project was to be located as suitable for wind energy development. Id. at 1.
A Category 3 amendment “accommodate[s] a request for a specific use or
activity [that] will require additional analysis” of its own. CDCAP, at 119. A
Category 3 amendment, like a zoning variance, allows the BLM to carve out an
exception to the CDCA Plan for a specific use or activity. Id. Once the BLM
determines that a specific project warrants a Category 3 amendment, that project is
no longer required to comply with the substantive requirements of the class of land
on which the project is sited. Rather, the project is governed by the Plan
amendment.
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When considering a Category 3 amendment, the District Manager begins by
evaluating the “additional analysis” specific to the use or activity for which the
amendment is requested. Id. at 121. This additional analysis is generally an
Environmental Impact Statement (“EIS”); therefore, a Category 3 amendment does
not require its own EIS. Id. at 119, 121. If the District Manager approves, he or
she recommends the amendment to the State Director. Id. at 121. If the State
Director agrees, the District Manager renders a decision and issues a public notice
of the amendment decision that clearly explains how the CDCA Plan would be
changed by the amendment. Id. The BLM must then allow thirty days for the
public to object to the amendment. Id. After resolving the objections, the BLM
may approve the amendment. Id. The District Manager also has a series of six
determinations and obligations that must be completed before the amendment can
be approved. Id. The BLM substantially complied with this process.
Once the BLM adopted this Category 3 amendment to accommodate the
OWEF Project, the Project was no longer required to comply with the multiple-use
class designations, guidelines, or elements for Class L land. Therefore, even if we
agree with Quechan Tribe that the BLM failed to determine whether the OWEF
Project met the substantive requirements the Plan imposes on proposed uses of
Class L land, we must nevertheless conclude that the Project did not violate the
4
CDCA Plan. The Project was governed by the Plan amendment rather than the
Plan itself. Accordingly, we affirm the district court’s grant of summary judgment
finding that the BLM did not violate the CDCA Plan.
2. Quechan Tribe next contends that the BLM violated FLPMA by
arbitrarily assigning the interim Visual Resource Management classification of the
Project site. FLPMA directs the BLM to inventory public lands and their
resources, including the “scenic values” of public lands. 43 U.S.C. § 1711(a). To
inventory the scenic values of public lands, the BLM prepares a Visual Resource
Inventory (“VRI”) that assigns a VRI Class (I through IV) to each area of land
analyzed. See BLM, Manual Handbook: Visual Resource Inventory (H-8410-1)
(Jan. 17, 1986) [hereinafter VRI Handbook]. The VRI Class designations are
merely informational; they do not constrain or limit land use activities. Id. at 6.
Using the assigned VRI Classes as a basis, the BLM assigns Visual Resource
Management (“VRM”) Classes (I through IV) to an area, typically during the
development of a land use plan. See BLM, Manual Handbook: Visual Resource
Management (H-8400) (Apr. 5, 1984). VRM Classes “prescribe[] the amount of
change allowed in the characteristic landscape.” Id., Glossary, at 6. VRM Class I
allows the least amount of change to the existing character of the landscape and
VRM Class IV permits the greatest amount of change. VRI Handbook, at 6–7.
5
When a new land use is proposed on public lands where the governing land use
plan lacks VRM Class designations, the BLM must establish interim VRM
Classes. VRI Handbook, at 7.
The CDCA Plan does not provide VRI or VRM Class designations for the
land where Ocotillo proposed building the OWEF Project; therefore, the BLM was
required to establish interim VRM Classes for the Project site. In its final EIS for
the OWEF Project, the BLM assigned the Project site an interim VRM Class of
IV—the least restrictive class. Quechan Tribe argues that this assignment was
arbitrary and incompatible with the requirements of Class L land status. Again,
even if we agreed with Quechan Tribe, we conclude that the BLM’s approval of
the OWEF Project (and its interim VRM Class IV designation) was permissible
because the BLM adopted a Category 3 amendment to the CDCA Plan. We need
not decide whether the VRM Class IV designation conflicts with Class L land
status, because the Project was governed by the Plan amendment and was not
subject to the substantive requirements of Class L land. Accordingly, we affirm
the district court’s conclusion that the BLM did not violate FLPMA.
3. Finally, Quechan Tribe claims that the BLM violated NEPA by failing to
consider the cumulative impacts of alternative energy projects on all Class L lands
in the CDCA. Each EIS must contain a cumulative effects analysis, which
6
“analyze[s] the impact of [the] proposed project in light of that project’s interaction
with the effects of past, current, and reasonably foreseeable future projects.”
Lands Council v. Powell, 395 F.3d 1019, 1028 (9th Cir. 2004); 40 C.F.R. § 1508.7.
Agencies have discretion in determining the geographic scope of the cumulative
effects analysis, but must provide reasoned support for the geographic scope of its
analysis. Friends of the Wild Swan v. Weber, 767 F.3d 936, 943 (9th Cir. 2014).
The BLM analyzed the entire 12,436 acres of the proposed Project site, plus
a ten-mile radius in assessing the cumulative effects on visual and cultural
resources. The BLM reasoned that the visibility of the OWEF Project would
substantially diminish beyond ten miles and this area would encompass any
combined effects of the OWEF Project and other projects on cultural resources.
This justification sufficiently supported the BLM’s chosen geographic scope of the
cumulative impacts analysis. The BLM need not have analyzed the cumulative
impact of alternative energy projects throughout all Class L lands in the CDCA as
this would have been unduly burdensome and it would have diluted the anticipated
impact of the OWEF Project on resources in the project area. See Selkirk
Conservation All. v. Forsgren, 336 F.3d 944, 960 (9th Cir. 2003).
The BLM identified 116 past, present, and reasonably foreseeable projects
that could have an impact on cultural resources in this area. The BLM then
7
described the existing damage to cultural resources in that area and discussed
generally how reasonably foreseeable projects would further impact those
resources. Such analysis was sufficient to identify and describe the cumulative
impacts on cultural resources. The BLM similarly analyzed each potentially
impacted resource. Because the BLM’s cumulative impacts analysis was not
arbitrary or unreasonable, we conclude the BLM’s analysis did not violate NEPA.
AFFIRMED.
8
FILED
Quechan Tribe of Fort Yuma v. DOI, No. 13-55704 (Pasadena - November 2,
DEC 21 2016
2015)
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BYBEE, Circuit Judge, concurring in the judgment:
I respectfully disagree with the majority’s decision to approve the Ocotillo
Wind Energy Facility (“OWEF”) because the BLM amended its California Desert
Conservation Area Plan (“CDCA Plan”). In my view the BLM approved the
OWEF project because it conformed to the CDCA Plan, not as a way of short
circuiting our review.
Since 1980, the CDCA Plan has provided that wind energy generation
facilities for this land classification “[m]ay be allowed after NEPA requirements
are met.” Here, the BLM did exactly what it was supposed to do. It prepared an
exhaustive environmental impact statement. It carefully considered the impact
that the proposed project would have on cultural and natural resources in the area
and, in response, it reduced the footprint of the project. The BLM also
acknowledged that it could not satisfy all of the competing claims to the land and,
in an exercise of its judgment, it decided to approve the OWEF. Only after it had
satisfied itself that it had heard from all interested parties, considered their views,
followed the processes set forth in the CDCA Plan, and determined that the project
conformed with the Plan’s requirements, did the BLM amend the CDCA Plan. In
my view, the BLM did not amend the CDCA Plan to avoid the Plan’s requirements
and this court’s scrutiny under the APA; it amended the CDCA Plan to reflect that
the OWEF project was consistent with the Plan and to add OWEF to a list of
approved energy development sites in the CDCA. The BLM’s careful and
considered decision was model and is not “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
I concur in the judgment.