District Court Upholds Biological Opinion For Wind Energy Project In Imperial County, California

by Nossaman LLP
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On November 20, 2013, the United States District Court for the Southern District of California rejected a challenge by various plaintiffs and upheld the biological opinion and incidental take statement issued by the U.S. Fish and Wildlife Service (Service) for the Ocotillo Wind Energy Facility Project (Project) located in the Sonoran Desert in Imperial County, California.  See The Protect Our Communities Foundation v. Ashe, No. 12-cv-2212 (S.D. Cal. Nov. 20, 2013) (pdf).  The proposed Project, a utility-scale wind power project, would be comprised of 112 wind turbines located on more than 10,000 acres of public land operated by the Bureau of Land Management (BLM).  Because the Project required authorization from the BLM, a federal agency, and overlapped with known usable forage habitat for the endangered Peninsular Bighorn Sheep, a distinct population segment of the desert bighorn sheep (Ovis Canadensis nelson), consultation with the Service was required under Section 7 of the Endangered Species Act.

In 2011, the BLM initiated consultation with the Service and submitted a biological assessment.  Although the Project would potentially reduce suitable forage habitat by approximately 3,962 acres, in 2012 the Service issued a biological opinion concluding that “the proposed action is not likely to jeopardize the continued existence” of the Peninsular Bighorn Sheep.  The Service also issued an incidental take statement authorizing the incidental take of up to five adult ewes and five lambs. 

Plaintiffs challenged the biological opinion in federal court.  As summarized by the district court, the plaintiffs’ challenge was based on the following four arguments:  (1) “the biological opinion is arbitrary and capricious because it improperly downplays the significance of lower elevation, valley-floor habitat,” (2) the biological opinion “is arbitrary and capricious because it ignores evidence that bighorn sheep are poor dispersers,” (3) the biological opinion “is arbitrary and capricious because it improperly downplays the potential for the project to cause stress and associated adverse effects,” and (4) the biological opinion “fails to use the best available scientific evidence.”

Foreshadowing its ultimate holding, the district court began its analysis by explaining that the biological opinion and the conclusions therein are subject to a “highly deferential” standard of review.  The district court then addressed and dismissed each of the plaintiffs’ arguments, finding that the biological opinion “is rationally based on the facts and data from the administrative record,” and the Service “used the best scientific data available.”  For example, the district court found that the biological opinion “presents a rational connection between the facts found and the conclusion that the Project would not affect connectivity among Bighorn sheep habitats.”  Accordingly, the district court upheld the biological opinion and entered judgment in favor of the Service.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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