Circuit courts rule on P.I., attorney fees, Grand Canyon

Three circuit courts of appeals decisions have been issued in the past few days. On Friday, Aug. 10, the Ninth Circuit upheld a previous denial of a preliminary injunction request in a case involving a solar project in desert tortoise habitat. On Monday, Aug. 13, the Ninth   mostly affirmed a district court ruling that said the Bureau of Reclamation does not have to consult under the ESA every time it approves an annual operating plan for dam operations. Then yesterday (Tuesday, Aug. 14), the D.C. Circuit gave environmental attorneys a lot less in fees and costs than they had requested. Coverage below.

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D.C. Circuit whittles down attorney fees for challenge to Alaskan energy exploration

The D.C. Circuit awarded about $201,000 in attorney fees, far less than requested by attorneys involved in a long-running challenge to a five-year plan governing oil and gas exploration in the Bering, Chukchi and Beaufort seas (Center for Biol. Diversity v. U.S. Dep’t of the Interior, 07-1247; merits decision, 563 F.3d 466 (D.C. Cir. 2009).

The Native Village of Point Hope, Alaska, petitioned the court for an award of $541,520 and change, but the D.C. Circuit, led by Chief Judge David Sentelle (joined by Circuit Judge Judith Rogers and Sr. Circuit Judge Douglas Ginsburg), disallowed about 63 percent of that, for a grand total of $192,293.07 in fees and $8,492.98 in costs, “for a total reimbursement of $200,786.05.”

Text of the decision is here

BuRec can’t be forced to consult on dams’ annual operating plans: 9th Circuit

Bottom line is that while most of the decision was to be expected  — the court said that producing an AOP is neither a major federal action under NEPA nor an action requiring consultation under the ESA’s Section 7 — the fact that the appeals court also vacated the lower court’s judgment with respect to the 2009 Biological Opinion and the 2010 Incidental Take Statement is positive news for the plaintiffs-appellants, as it allows them to fight those battles another day.

Grand Canyon Trust v. U.S. Bureau of Reclamation (11-16326 8/13/2012). Excerpts follow:

Our decision on this is also pragmatically required. It is called for and legally required to permit environmental challenge under the ESA for want of consultation about an endangered or threatened species whenever the agency establishes material operating criteria for a dam, and when it embarks on a significant new direction in its operations. But to allow ESA challenge on an annual basis for each [Annual Operating Plan] would be unduly cumbersome and unproductive in addressing the substance of environmental issues. Annual challenges could not likely be resolved fully before the next AOP came along, and there is no benefit to endangered species in having an unending judicial process concerning annual reporting requirements that Congress mandated.

Our conclusion above that producing an AOP is not a major federal action requiring compliance with NEPA procedures is also reinforced by the same pragmatic and realistic concerns that supported our decision that AOPs do not routinely require ESA consultation. Similarly, we hold that Reclamation is not required to comply with NEPA procedural requirements before preparing each AOP for the Dam. The time for an agency to give a hard look at environmental consequences, and the opportunity for serious NEPA litigation on whether alternatives were adequately considered, should come in this context at the points where an agency establishes operating criteria for a dam, or embarks on some significant shift of direction in operating policy, not merely when there is routine and required annual reporting.

We conclude that the ESA citizen suit provision does not support jurisdiction here because FWS did not fail to perform a non-discretionary act before using the science incorporated in the draft 2009 Recovery Goals to support its 2009 BiOp.

Here, Reclamation used the draft 2009 Recovery Goals to satisfy its obligation to address the recovery of the humpback chub in the 2009 BiOp. Any inquiry into whether that use violated the APA would require us to delve into the merits of the 2009 BiOp, a document that is no longer operative. Given our conclusion above that issues on appeal related to the 2009 BiOp are moot because the 2009 BiOp has been replaced by the 2011 BiOp, we hold that the issue of whether the APA supports review of the draft 2009 Recovery Goals as used in the 2009 BiOp is also moot.

Finally, we vacate the judgment of the district court with respect to the 2009 BiOp and the 2010 ITS. See Log Cabin Republicans v. United States, 658 F.3d 1162, 1167-68 (9th Cir. 2011) (per curiam) (“Vacatur ensures that those who have been prevented from obtaining the review to which they are entitled are not . . . treated as if there had been a review. It prevents an unreviewable decision from spawning any legal consequences, so that no party is harmed by what the Supreme Court has called a preliminary adjudication.” (internal quotation marks, alterations, and citations omitted)).

Ninth Circuit rules for solar project in WWP appeal (text below)

Undeterred by arguments that desert tortoises were at risk, the Ninth Circuit affirmed a lower court judgment in favor of a solar project in California’s Mojave Desert (Western Watersheds Project v. Salazar 11-56363, 8/10/2012; originated in Los Angeles District Court).

At oral argument, the judges pressed plaintiffs’ attorney Stephan Volker on the question of whether a ruling on summary judgment would moot the underlying preliminary injunction decision. He conceded it would but said it wasn’t clear when U.S. District Judge Dolly M. Gee would ultimately rule.

• Decision from ESWR’s site
• Audio from 9th Circuit and from ESWR

 Text follows:

Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding (Order at issue)
Argued and Submitted August 8, 2012
Pasadena, California

Before: REINHARDT, SILVERMAN, and WARDLAW, Circuit Judges.

“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, 20 (2008). We subject a district court decision denying a preliminary injunction to “limited and deferential” review; we will reverse only where the district court abused its discretion. Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam). We have reviewed the briefs and the excerpts of record, heard oral argument, and considered the matter thoroughly. We conclude that the district court did not abuse its discretion in denying Appellants’ motion for a preliminary injunction.

The district court did not abuse its discretion in its application of the Winter factors. In particular, the court properly analyzed the balance of equities and the public interest, and did not abuse its discretion in finding that these factors weighed against issuing a preliminary injunction. In balancing the equities, the district court properly weighed the environmental harm posed by the Ivanpah Solar Electric Generating System (“ISEGS”) project against the possible damage to project funding, jobs, and the state and national renewable energy goals that would result from an injunction halting project construction, and concluded that the balance favored Appellees. This result was within the district court’s discretion. See Earth Island Inst. v. Carlton, 626 F.3d 462, 475 (9th Cir. 2010) (“An injunction is a matter of equitable discretion. The assignment of weight to particular harms is a matter for district courts to decide. The record here shows that the district court balanced all of the competing interests at stake.”) (alteration marks, quotation marks, and citation omitted). The District Court also properly exercised its discretion in weighing Appellant’s delay in seeking a preliminary injunction until after construction began, was temporarily halted, and begun anew, and some $712 million had been expended among the equitable factors. While Appellant maintains that it lacked facts supporting a preliminary injunction motion until the Bureau of Land Management (“BLM”) revealed the greater tortoise impacts on April 19, 2011, many of Appellant’s objections to the Final Environmental Impact Statement have nothing to do with BLM’s disclosure of a greater-than-expected desert tortoise population.

The district court also did not abuse its discretion in analyzing the public interests at stake. It properly concluded that Appellant’s contention that rooftop solar panels were a preferable source of renewable energy amounted to a policy dispute and could not support a finding that an injunction was in the public interest.  The district court properly took into account the federal government’s stated goal of increasing the supply of renewable energy and addressing the threat posed by climate change, as well as California’s argument that the ISEGS project is critical to the state’s goal of reducing fossil fuel use, thereby reducing pollution and improving health and energy security in the state. Appellant has pointed to no clear factual error or mistake of law in the district court’s analysis of the public interest factors. Accordingly, we affirm the denial of Appellant’s preliminary injunction motion.

IT IS SO ORDERED.

COUNSEL

Stephan C. Volker, Joshua A.H. Harris, Daniel P. Garrett-Steinman, and Jamey
M.B. Volker, Law Offices of Stephan C. Volker, Oakland, California for plaintiff-appellant.

Aaron P. Avila, and Thkla Hansen-Young, United States Department of Justice,
Washington, D.C. for defendants-appellees.

Albert M. Ferlo, Perkins Coie, LLP, Washington D.C. for intervenor-defendant-appellee.