                             NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                          FILED
                             FOR THE NINTH CIRCUIT                           OCT 22 2012

                                                                         MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS

SUMMIT LAKE PAIUTE TRIBE OF                      No. 11-70336
NEVADA; WARNER BARLESE,
Chairman of the Summit Lake Paiute
Tribe,

              Petitioners,                       MEMORANDUM *

  v.

UNITED STATES BUREAU OF LAND
MANAGEMENT,

              Respondent,

RUBY PIPELINE, L.L.C.,

              Respondent-Intervenor.



                     On Petition for Review of an Order of the
                          Bureau of Land Management

                      Argued and Submitted October 11, 2011
                                Portland, Oregon




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: BERZON and N.R. SMITH, Circuit Judges, and SMITH, District Judge.**

      The Summit Lake Paiute Tribe (the Tribe) filed a Petition for Review

challenging the Bureau of Land Management’s (BLM) decision to amend the

rights of way and temporary use permits granted to Ruby Pipeline, L.L.C.

(“Ruby”). That decision re-routed a four-mile segment of the pipeline, shifting it

roughly one half mile north of its original route.

      1. Mootness:

      Ruby and BLM argue that, because the construction of the pipeline is now

complete, the Tribe’s National Historic Preservation Act and National

Environmental Policy Act challenges are moot. In determining mootness, “the

question is not whether the precise relief sought . . . is still available. The question

is whether there can be any effective relief.” Nw. Envtl. Def. Ctr. v. Gordon, 849

F.2d 1241, 1244–45 (9th Cir. 1988) (quoting Garcia v. Lawn, 805 F.2d 1400, 1403

(9th Cir. 1986)); see also Neighbors of Cuddy Mountain v. Alexander, 303 F.3d

1059, 1065 (9th Cir. 2002).

      The majority of the harm the Tribe sought to avoid in this case stemmed

from the construction of the pipeline. At oral argument, Petitioners stated that they



       **
             The Honorable William E. Smith, District Judge for the U.S. District
Court for the District of Rhode Island, sitting by designation.

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are not seeking to have the pipeline moved, as digging it up and burying it again

would only cause more damage. Nevertheless, effective relief is still available as

long as the ongoing effects the pipeline continues to have on the Tribe’s cultural

property, such as the effects of maintaining the pipeline’s right of way or lingering

effects from construction, can be mitigated. We conclude that the Tribe’s claims

are not moot to the extent that further mitigation could provide relief, while those

claims that depend on re-routing the pipeline are moot. Below, we review

mootness under this standard for each claim raised.

      2. National Historic Preservation Act (NHPA):

      a. The Tribe argues that BLM violated the NHPA and its accompanying

regulations by (1) not consulting with the Tribe; (2) not considering its proposed

re-routing in good faith; and (3) not analyzing the impacts the re-route would have

on the Tribe’s cultural properties. Because remedying these alleged defects could

potentially lead to the development of new mitigation measures, these claims are

not moot.

      b. The Tribe argues that BLM did not adequately consult with it regarding

the proposed re-route, depriving it of its right to “participate in the resolution of

adverse effects” as required by the regulations. 36 C.F.R. § 900.2(c)(2)(ii)(A). In

addressing the adequacy of consultation, we consider both the consultation on the


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re-routing and the consultation that was conducted in connection with the initial

approval of the project. See Te-Moak Tribe of Western Shoshone of Nevada v. U.S.

Dep’t of the Interior, 608 F.3d 592, 608–09 (9th Cir. 2010). Indeed, it was BLM’s

consultation with the Tribe, which started at least as early as January 2009, that led

it to propose the re-route in the first place, and BLM conducted four site visits with

the Tribe to try to ascertain the boundaries of the traditional cultural property. We

hold that this process, taken as a whole, fulfilled BLM’s consultation obligation.

      c. The Tribe next argues that BLM did not conduct good faith research to

determine the boundaries of the Tribe’s traditional cultural property (“TCP”),

observing, in particular, that BLM did not conduct any background research. As

the Tribe acknowledges, however, a survey of the re-route was conducted, and that

survey determined that the re-route “avoids direct impacts to the Summit Lake

TCP.” The regulations specify that a “reasonable and good faith effort . . . may

include background research, consultation, oral history interviews, sample field

investigation, and field survey.” 36 C.F.R. § 800.4(b)(1). There is no requirement

that a good faith effort include all of these things, and a thorough field survey, as

was conducted here, is at least as reliable as background research. The regulations

also permit the agency to “take into account past planning, research, and studies,”

id.; the research conducted during consideration of the project as a whole did


                                           4
include background research. We therefore conclude that BLM made the required

“reasonable and good faith effort” to identify historic properties.

      d. Lastly, the Tribe argues that BLM failed to analyze the effects the re-

route would have on its traditional cultural property (TCP). BLM’s determination

of NEPA adequacy for the re-route, however, did analyze the re-route’s impact on

the TCP, including its impact as compared with the original route. Furthermore,

BLM’s analysis resulted in a determination of a boundary for the Tribe’s TCP, and

the re-route was outside that boundary. We hold that BLM did analyze the

pipeline’s impacts on the Tribe’s TCP.

3. National Environmental Policy Act (NEPA):

      a. The Tribe maintains that BLM violated NEPA by failing to supplement

its environmental impact statement before approving the re-route. As with the

NHPA claims, supplementation could lead to further study of the pipeline’s

impacts and the development of new mitigation measures. This claim is therefore

not moot.

      b. An agency must supplement an environmental impact statement if “the

agency makes substantial changes in the proposed action that are relevant to

environmental concerns; or there are significant new circumstances or information

relevant to environmental concerns and bearing on the proposed action or its


                                           5
impacts.” 40 C.F.R. § 1502.9(c)(1); see also Marsh v. Oregon Natural Resources

Council, 490 U.S. 360, 373 (1989). In considering the re-route, BLM prepared a

“determination of NEPA adequacy,” which concluded that no supplementation to

the environmental impact statement was necessary.

        We have approved of the use of such “determination” documents as the

BLM prepared here, see Price Rd. Neighborhood Ass'n v. United States Dep't of

Transp., 113 F.3d 1505, 1510 (9th Cir. 1997), while noting that they are not to

replace supplemental environmental assessments or impact statements and may

only be used “for the purpose of determining whether new information or changed

circumstances require the preparation of a supplemental EA or EIS.” Idaho

Sporting Congress Inc. v. Alexander, 222 F.3d 562, 566 (9th Cir. 2000). When an

agency takes the requisite “hard look” and “determines that the new impacts will

not be significant (or not significantly different from those already considered),

then the agency is in full compliance with NEPA.” North Idaho Community Action

Network v. U.S. Dept. of Transp., 545 F.3d 1147, 1154–55 (9th Cir. 2008). Such

determinations will only be set aside if they are arbitrary and capricious. Id. at

1155.

        The Tribe contends that BLM’s TCP boundaries, established after the final

environmental impact statement was completed, are wrong, and that the pipeline,


                                           6
even as re-routed, still passes through the TCP. The legal adequacy of BLM’s

determination that it need not supplement the environmental impact statement turns

on its contrary factual conclusion regarding the size of the TCP, resulting in its

repeated assertion that the re-routed pipeline “avoids direct impacts to the Summit

Lake TCP.” If this latter statement is accurate, it was reasonable to conclude that

the circumstances after the proposed re-routing would not be significantly different

from those when the environmental impact statement was drafted, as no TCP

would be impacted after the re-route. In other words, the existence of the TCP was

certainly significant new information, but if the pipeline avoided it entirely, then its

effects would not be significantly different from those discussed in the

environmental impact statement, and no supplementation would be required. In this

case, determining the size of the TCP, and the determination that the re-routed

pipeline passed outside it, was the type of threshold factual inquiry that may be

made in a “determination” document.

      The BLM’s factual conclusion regarding the boundaries of the TCP was not

arbitrary and capricious. BLM and the Tribe worked together to sketch out the

boundaries of the TCP. When the Tribe suggested that the TCP was larger than

that acknowledged by BLM, BLM conducted a series of site visits in which the

Tribe had an opportunity to bring to BLM’s attention sites that would suggest a


                                           7
larger TCP. None were found. While the Tribe blames BLM for its failure to

locate any sites indicating a larger TCP during these site visits, BLM’s reliance on

the visits and on the pedestrian survey of the re-route conducted by Ruby’s cultural

resources subcontractor was not arbitrary and capricious. The record also shows

that BLM considered the Tribe’s main evidence for a larger TCP, the Bengston

report, and determined that its own site visits and surveys were more reliable.

      In short, BLM’s conclusion regarding the size of the TCP was reasoned and

thorough; while it may have been arguable, it was not arbitrary and capricious.

Taking this conclusion as accurate, it was reasonable to conclude that the impacts

of the re-route would not be “significantly different from those already considered”

in the environmental impact statement. North Idaho, 545 F.3d at 1155. We

therefore conclude that BLM did not act arbitrarily and capriciously in determining

that no supplement to the environmental impact statement was necessary.

      The petition for review is DENIED.




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