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Protect Our Communities Foundation v. Salazar

ELR Citation: 43 ELR 20247
Nos. 12-2211, (S.D. Cal., 11/06/2013) (Curiel, J.)

A district court dismissed a complaint challenging DOI's approval of the Ocotillo Wind Energy Facility Project, a utility-scale wind power project in the Sonoran Desert in Imperial County, California, under NEPA and the Migratory Bird Treaty Act (MBTA). The purpose and need statement set forth in BLM's EIS for the project considered a reasonable range of alternatives, and the agency took a "hard look" at the noise impacts and drafted mitigation measures to reduce such impacts. In addition, BLM adequately analyzed visual impacts of the project as a whole. The fact that the analysis focused on the wind turbines is consistent with NEPA as that is the most prominent feature of the project. Similarly, the agency's analysis of impacts on the Peninsular Bighorn Sheep was also proper, and BLM properly concluded that the minority population and low income populations would not be disproportionately affected by the project. And BLM did not violate NEPA by improperly deferring analysis of all mitigation measures. There is no requirement that mitigation plans be finalized prior to execution of the record of decision. Last, BLM's decision to issue a right-of-way for the project without obtaining a permit under the MBTA was not unlawful. A permit is not required under the MBTA for an unintentional killing of migratory birds, and BLM thoroughly analyzed the project's potential impacts on migratory birds, developed numerous measures to avoid and minimize those risks, and imposed enforceable monitoring requirements on the applicant. (Intervenor counsel included Nicholas C. Yost of Dentons in San Francisco, CA).