## Facts

- In 1980, the U.S. Department of the Interior approved the California Desert Conservation Area Plan (CDCA Plan), a comprehensive land-use plan for millions of acres of public land in the California desert.
- In 2009, Ocotillo (a wind-energy developer) applied to the Bureau of Land Management (BLM), within the Department of the Interior, to construct the Ocotillo Wind Energy Facility on public lands in Imperial County, California.
- In February 2012, BLM proposed an amendment to the CDCA Plan and issued a Final Environmental Impact Statement/Final Environmental Impact Report (EIS/EIR) for the project.
- The EIS/EIR addressed infrasound and low-frequency noise and concluded those effects were not likely to create health risks.
- The EIS/EIR evaluated effects on Peninsular bighorn sheep and included mitigation measures triggered if sheep were observed at or near the project site.
- The EIS/EIR evaluated effects on minority and low-income populations living within one-half mile of the project area.
- The challengers contended BLM did not adequately analyze impacts on local Native Americans (including cultural concerns connected to the area).
- The challengers also contended the EIS/EIR did not address unintentional killing of migratory birds that could occur during construction or operation (including whether project approval raised issues under the Migratory Bird Treaty Act (MBTA)).
- In May 2012, BLM issued a Record of Decision approving the project and the CDCA Plan amendment.
- BLM’s decision included a purpose-and-need statement tying the project to federal renewable-energy directives in an executive order, the Energy Policy Act of 2005, and a secretarial order encouraging renewable-energy development.
- Protect Our Communities Foundation, Backcountry Against Dumps, and Donna Tisdale sued under the Administrative Procedure Act (APA), alleging violations of NEPA, FLPMA, and the MBTA and seeking to set aside the approvals.
- The district court resolved cross-motions for summary judgment in favor of the federal defendants and Ocotillo Express, LLC (intervenor-defendant), and the Ninth Circuit later affirmed in an unpublished memorandum disposition.

## Issues

1. Whether BLM’s purpose-and-need statement improperly adopted the developer’s objectives and unlawfully narrowed the range of alternatives considered under NEPA.
2. Whether the EIS/EIR took the required “hard look” at environmental effects, including (a) infrasound and low-frequency noise, (b) impacts on Peninsular bighorn sheep and related mitigation, (c) impacts on local Native Americans and cultural resources, and (d) effects on minority and low-income communities.
3. Whether BLM’s approval of the project and amendment of the CDCA Plan complied with FLPMA’s land-use planning requirements and was reasonable under APA review.
4. Whether anticipated migratory-bird deaths from project construction or operation rendered BLM’s approval unlawful under the MBTA or required additional analysis or authorization.

## Decision

- The district court denied plaintiffs’ motion for summary judgment and granted summary judgment to the federal defendants and the developer.
- The court held BLM’s purpose-and-need statement was reasonably tied to federal renewable-energy directives and did not unlawfully constrain the alternatives analysis.
- The court held the EIS/EIR satisfied NEPA’s procedural requirements, including the analysis of noise-related health concerns, wildlife impacts (including bighorn sheep) with mitigation and monitoring, and environmental-justice considerations.
- The court rejected the FLPMA challenge, concluding BLM could amend the CDCA Plan through the agency process used and could approve the project as consistent with the plan as amended.
- The court rejected the MBTA-based challenge to approval of the project, concluding the challengers had not shown a basis to set aside the Record of Decision under the MBTA in this context.
- The Ninth Circuit affirmed the judgment.

## Legal Principles

- Under the APA, a court sets aside agency action only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; the court asks whether the agency considered relevant factors and explained its decision.
- NEPA is procedural and requires a “hard look” at environmental consequences and a reasonable evaluation of alternatives; it does not require the agency to select the least harmful option.
- An agency may define a project’s purpose and need by reference to governing statutes and executive-branch directives; that purpose then shapes the scope of reasonable alternatives.
- Courts generally defer to reasonable agency technical judgments reflected in an EIS/EIR so long as the record shows reasoned consideration and disclosure.
- FLPMA requires BLM actions to conform to applicable land-use plans, but BLM may amend a plan through established procedures and then act consistently with the plan as amended.
- MBTA-based challenges to agency approvals face significant limits because the statute is framed as a criminal prohibition and does not clearly supply a civil cause of action against federal agencies for approvals that may lead indirectly to incidental bird deaths.

## Conclusion

Protect Our Communities Foundation v. Salazar upheld BLM’s approval of the Ocotillo Wind Energy Facility and the related CDCA Plan amendment, concluding that BLM reasonably defined the project’s purpose, satisfied NEPA’s procedural duties in its EIS/EIR, acted consistently with FLPMA through plan amendment and approval, and that the MBTA did not provide a basis to set aside the agency’s decision.


Protect Our Communities Foundation v. Salazar, 2013 WL 5947137 (2013), aff'd, 674 Fed. Appx. 657 (2017)