Jump to Navigation
Jump to Content

Oregon Natural Desert Ass’n v. Jewell

ELR Citation: 46 ELR 20104
Nos. 13-36078, (9th Cir., 05/27/2016)

The Ninth Circuit held that BLM’s approval of a wind-energy development project in southeastern Oregon failed to adequately address impacts to the greater sage grouse in violation of NEPA. The challenged project entails the construction of wind turbines and a right-of-way across a sagebrush landscape, and greater sage grouse depend on sagebrush habitat for their survival. BLM’s EIS acknowledged the "potential conflict" between the project and the species, given that the windswept ridges that keep sagebrush exposed during winter months make the area ideal for both sage grouse and wind energy. Despite this concern, no surveys were conducted to determine if sage grouse are present at the site during the winter months. Instead, BLM relied on an extrapolation from nearby sites to conclude that there is no greater sage grouse winter habitat at the project site. But while habitat extrapolations from one site to another are not impermissible, any such extrapolation must be based on accurate information and defensible reasoning. Here, the record demonstrates that four sage grouse were found at the nearby sites. As such, BLM’s extrapolation method should have resulted in assuming the birds’ presence, not their absence. In addition, the EIS’ inaccurate data rendered its assumption concerning the winter presence of sage grouse at the site arbitrary and capricious.The court also rejected BLM’s argument that the EIS' mitigation measures cured any potential prejudice resulting from a faulty baseline analysis. Because the impacts on sage grouse were not properly established, BLM did not know what impacts to mitigate, or whether the mitigation proposed would be adequate to offset damage to wintering sage grouse. But the court did not address plaintiffs’ claim that the EIS erroneously failed to address genetic connectivity between sage grouse populations. Because they failed to raise this issue below, it was not subject to judicial review.