                                                                              FILED
                            NOT FOR PUBLICATION                                JUL 15 2011

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT

WESTERN WATERSHEDS PROJECT                       No. 11-15799
and CENTER FOR BIOLOGICAL
DIVERSITY,                                       D.C. No. 3:11-cv-00053-HDM-
                                                 VPC
               Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

BUREAU OF LAND MANAGEMENT,

               Defendant - Appellee,
and

SPRING VALLEY WIND LLC,

            Intervenor-Defendant - Appellee.


                  Appeal from the United States District Court
                           for the District of Nevada
               Howard D. McKibben, Senior District Judge, Presiding

                        Argued and Submitted July 11, 2011
                            San Francisco, California

Before: HUG, SILVERMAN, and GRABER, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Plaintiffs appeal the district court’s order denying their motion for a

preliminary injunction. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).

We agree with the reasons thoughtfully expressed by the district court and find no

abuse of discretion.

      We have pendent appellate jurisdiction over the district court’s order striking

the declaration of Plaintiffs’ expert. Hendricks v. Bank of Am., N.A., 408 F.3d

1127, 1134 (9th Cir. 2005). Reviewing for abuse of discretion, we affirm.

      AFFIRMED.




                                          2
                                                                               FILED
                                                                                JUL 15 2011
Western Watersheds Project v. Bureau of Land Management, No. 11-15799 C. DWYER, CLERK
                                                                  MOLLY
                                                                             U.S. COURT OF APPEALS

GRABER, Circuit Judge, concurring in part:

      I concur in the result. I write separately, however, to express my concern

about the district court’s conclusion that Plaintiffs are unlikely to succeed on the

merits. "A plaintiff seeking a preliminary injunction must establish that he is likely

to succeed on the merits, that he is likely to suffer irreparable harm in the absence

of preliminary relief, that the balance of equities tips in his favor, and that an

injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc., 555

U.S. 7, 129 S. Ct. 365, 374 (2008).

      I agree with the majority that the district court did not abuse its discretion by

determining that the project’s construction is unlikely to cause irreparable harm to

bats or sage grouse. Nor did the district court err when balancing the equities in

Defendants’ favor or when considering the public’s interest in the project.

      In my view, however, Plaintiffs are likely to succeed on the merits because

the BLM failed adequately to consider the potentially significant cumulative

impacts of the project and other reasonably foreseeable future actions. The

National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4332(2)(C),

requires federal agencies to prepare a full Environmental Impact Statement ("EIS")

"if substantial questions are raised as to whether a project may cause significant

degradation of some human environmental factor." Blue Mountains Biodiversity
Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998) (internal quotation

marks and ellipses omitted). An agency must consider 10 "intensity" factors,

including potentially significant cumulative impacts, to determine whether an EIS

is necessary. 40 C.F.R. § 1508.27(b).

      Although a good start, the BLM’s cumulative impacts analysis was legally

insufficient. The BLM’s Environmental Assessment ("EA") included a table, which

the district court characterized as "detailed." That table, however, states little more

than the names of all reasonably foreseeable future projects, their locations, the

number of wind turbines expected at each project, whether transmission lines would

be necessary, and the number of acres that would be disturbed for each project.

Based on the BLM’s estimates, future projects will add another 995 wind turbines

to the region, of which 225 would be in Spring Valley. In addition to including the

table, the EA’s section on cumulative impacts notes that the foreseeable actions

"would result in further mortality" to bats from collisions and barotraumas and that

"[c]umulative impacts to bats are anticipated to be similar to those described for

birds; however, because of the proximity to Rose Guano Cave, there is the potential

for a somewhat larger percent increase in mortality for Brazilian free-tailed bats."

Further, the EA remarks that, "because of the great distances Brazilian free-tailed

bats are known to migrate and the addition of multiple wind energy facilities to the

                                           2
north and south of the [Spring Valley Wind Energy Facility], there is the potential

for a somewhat larger percent increase in mortality for Brazilian free-tailed bats

throughout eastern Nevada."

       With regard to sage grouse, the EA states only that "past and present actions

have contributed to the direct loss of habitat" and "habitat fragmentation" and that

foreseeable future actions "would contribute up to 5,810 acres of short- and

long-term habitat loss and even greater habitat fragmentation" which, when

combined with this project, "represents approximately 3.3% of available greater

sage-grouse habitat . . . in Spring Valley." That is all.

       The BLM’s statements regarding "further mortality," "a somewhat larger

percent increase in mortality," and "greater habitat fragmentation" are precisely the

type of "[g]eneral statements about possible effects and some risk" that we have

rejected as legally insufficient in the absence of an explanation as to why more

definitive information was unavailable. Klamath-Siskiyou Wildlands Ctr. v. BLM,

387 F.3d 989, 993 (9th Cir. 2004) (internal quotation marks omitted); see id. at 994

(rejecting as insufficient statements that a particular environmental factor was

"unchanged," "improved," or "degraded" and whether the change was "major" or

"minor"). The BLM did not explain why it could not estimate the number of bat

fatalities that would occur at the additional facilities, just as it had for the current

                                             3
project. Further, the BLM made no attempt to analyze habitat fragmentation,

stating only that it would be "greater."

      In addition to suffering from a lack of quantitative analysis, the EA’s

cumulative impact statement provides no useful discussion of the actual effect that

this project and future projects would have on bat or sage grouse populations. See

id. at 994–95 (a quantitative analysis of direct impacts is not a "sufficient

description of the actual environmental effects that [may] be expected"). The

BLM’s recitation of the number of wind turbines to be erected and the acres of

habitat to be destroyed is legally insufficient, just as the tally of acres logged or

roads built was legally insufficient in Klamath-Siskiyou. Id.

      Moreover, tiering to the 2005 Final Programmatic EIS on Wind Energy

Development on BLM Administered Lands in the Western United States ("Wind

PEIS") does not cure the EA’s lack of analysis. With regard to the cumulative

impacts on bats and birds caused by wind energy development in 11 western states,

the Wind PEIS states only:

      On the basis of bird and bat monitoring studies at existing wind energy
      projects, the contribution of wind projects to the cumulative impacts on
      birds and bats would likely be minimal in comparison with population
      declines from other causes (e.g., habitat loss or fragmentation).
      However, some species could incur population-level effects.

That statement is as general and conclusory as the analysis appearing within the EA.

                                            4
See id. at 997 (tiering to an EIS was insufficient to cure an EA’s shortcomings

where the EIS contained only general statements about the cumulative effects of

logging in the area but mentioned no information specific to the timber sales at

issue).

          Finally, the EA’s "discussion of the [project’s] direct effects in lieu of a

discussion of cumulative impacts is inadequate." Te-Moak Tribe of W. Shoshone

of Nev. v. U.S. Dep’t of Interior, 608 F.3d 592, 604 (9th Cir. 2010). Even assuming

that the BLM’s mitigation measures will reduce the mortality rate to 192 bats per

year, which is not at all certain, such a seemingly minor number may have

significant effects. See 40 C.F.R. § 1508.7 ("Cumulative impacts can result from

individually minor but collectively significant actions taking place over a period of

time."). Even if the habitat loss and fragmentation caused by the current project are

minimal and involve only low-quality habitat, that minimal harm must be

considered in light of the estimated loss of 5,810 additional acres. The BLM failed

to perform such an analysis and, in my view, Plaintiffs are therefore likely to

succeed on the merits of their NEPA claims.




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