-VPC Western Watersheds Project et al v. Bureau of Land Management, No. 3:2011cv00053 - Document 61 (D. Nev. 2011)
Court Description: ORDER GRANTING 50 Motion to Strike 30 Declaration. Signed by Judge Howard D. McKibben on 3/28/2011. (Copies have been distributed pursuant to the NEF - DRM)
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-VPC Western Watersheds Project et al v. Bureau of Land Management Doc. 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 UNITED STATES DISTRICT COURT 16 DISTRICT OF NEVADA 17 18 19 20 21 22 23 24 25 26 WESTERN WATERSHEDS PROJECT and ) CENTER FOR BIOLOGICAL DIVERSITY, ) ) Plaintiffs, ) ) vs. ) ) BUREAU OF LAND MANAGEMENT, ) ) Defendant, and ) ) SPRING VALLEY WIND LLC, ) ) Defendant-Intervenor. ) _________________________________ ) 3:11-cv-00053-HDM-VPC ORDER Defendant-Intervener Spring Valley Wind has filed a motion to 27 strike extra-record declaration, or in the alternative, to 28 supplement the record (#50). The motion relates to the declaration 1 Dockets.Justia.com 1 of Merlin D. Tuttle (#30) submitted with plaintiffs’ motion for 2 temporary restraining order and/or preliminary injunction (#24). 3 The declaration addresses the adequacy of the BLM's review of bat 4 mortality risks related to wind energy developments and discusses 5 the results of a 2010 bat mortality study conducted at the Texas 6 Gulf Wind Facility. 7 study suggests a bat mortality rate higher than that proposed by 8 the BLM for the Spring Valley Wind project.1 9 this evidence for some of their arguments. The data from the Texas Gulf Wind Facility Plaintiffs rely on The Texas Gulf Wind 10 Facility data was finalized in January 2011 and was not before the 11 BLM when it issued its decision in this case in October 2010. 12 Defendant Spring Valley Wind moves to strike the Tuttle 13 Declaration on the basis that it is not part of the administrative 14 record and advances new rationalizations for attacking the BLM's 15 decision. 16 the Tuttle Declaration falls under one of the four exceptions 17 permitting judicial consideration of extra-record evidence when 18 reviewing an agency decision (#57). 19 Plaintffs have opposed the motion to strike arguing that The general rule is that courts reviewing an agency decision 20 are limited to the administrative record. Fla. Power & Light Co. v. 21 Lorion, 470 U.S. 729, 743-44 (1985). 22 review of an agency decision typically focuses on the 23 administrative record in existence at the time of the decision and 24 does not encompass any part of the record that is made initially in This means that “[j]udicial 25 26 27 28 1 The Texas Gulf Wind data indicates a rate of 17 bats per turbine per year. While the BLM has set the mortality threshold for the Spring Valley Wind project at 2.56 bats per turbine per year. 2 1 the reviewing court.” 2 (9th Cir. 2005) (quoting Southwest Ctr. for Biological Diversity v. 3 United States Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996).). 4 There are four exceptions to this general rule. District Lands Council v. Powell, 395 F.3d 1019, 1030 5 courts are permitted to admit extra-record evidence: (1) if 6 admission is necessary to determine “whether the agency has 7 considered all relevant factors and has explained its decision,” 8 (2) if “the agency has relied on documents not in the record,” (3) 9 “when supplementing the record is necessary to explain technical 10 terms or complex subject matter,” or (4) “when plaintiffs make a 11 showing of agency bad faith.” Lands Council, 395 F.3d at 1030 12 (quoting Southwest Ctr., 100 F.3d at 1450 (internal citation and 13 quotation marks omitted).). 14 These exceptions should be narrowly construed and applied. 15 See, e.g., Camp v. Pitts, 411 U.S. 138, 142-43 (1973) (holding that 16 a reviewing court may require supplementation of the administrative 17 record if it is incomplete). Federal courts should proceed “with 18 the proper deference to agency processes, expertise, and 19 decision-making.” Lands Council, 395 F.3d at 1030. 20 Having reviewed the pleadings, documents and administrative 21 record on file, and having considered argument from the parties at 22 the hearing on March 24, 2011, the court hereby concludes and finds 23 that the Tuttle Declaration does not fall within any of the four 24 exceptions under which the court may consider extra-record 25 evidence. 26 necessary to determine “whether the agency has considered all 27 relevant factors and has explained its decision” in this case. Id. 28 The administrative record indicates that the BLM reviewed 11 wind First, the admission of extra-record evidence is not 3 1 projects in the western U.S. with habitats similar to Spring 2 Valley. See Decision Record, Environmental Assessment, App. F, 3 Avian and Bat Protection Plan 24. 4 determined in these 11 studies, the BLM concluded that the bat 5 mortality threshold for the Spring Valley Wind project would be 6 2.56 bats per turbine per year after taking into consideration the 7 extensive mitigation measures to be implemented to ensure this 8 threshold is not exceeded. Id. 9 the Montana Judith Gap study, which presents a bat mortality rate Based on the bat mortality rates One of the 11 studies considered is 10 approximately five times higher than that proposed in this case and 11 similar to that indicated in the Texas Gulf Wind data.2 Id. 12 record also includes three published bat studies that acknowledge 13 bat vulnerability to wind turbine mortality, either through 14 barotrauma or collision. See e.g. Baerwald, et al, "Barotrauma is a 15 Significant Cause of Bat Fatalities at Wind Turbines," (published 16 1/1/2008); Arnett, et al, "Effectiveness of Changing Wind Turbine 17 Cut-in Speed to Reduce Bat Fatalities at Wind Facilities," 2008 18 Annual Report (published 4/1/2009); 19 Large-Scale Mitigation Experiment to Reduce Bat Fatalities at Wind 20 Energy Facilities," (published 2009). 21 court shows that the BLM reviewed numerous wind energy and bat 22 related studies similar to the Texas Gulf Wind study and considered 23 many factors relating to the risk of bat mortality at the Spring 24 Valley Wind Facility. 25 expertise in evaluating this data. The Baerwald, et al, "A Thus, the record before the The court should defer to the agency’s In the context of this case, a 26 27 28 2 The Judith Gap data indicates a mortality rate of 13.4 bats per turbine per year. 4 1 consideration of the Tuttle declaration would be an improper de 2 novo review of the BLM’s decision based solely on what may be a 3 statistical anomaly or mere differences in expert opinions. See 4 Airport Cmtys Coal v. Graves, 280 F. Supp. 2d 1207, 1213 (W.D. 5 Wash. 2003). 6 Second, it is clear from the record before the court that the 7 BLM has not relied on documents not in the record in reaching its 8 decision in this case. 9 Plaintiffs do not argue that the BLM has done so. 10 Lands Council, 395 F.3d at 1030. Third, the evidence in the Tuttle Declaration is not necessary 11 to explain technical terms or complex subject matter. Id. 12 the subject matter of this case may be somewhat complex, the Tuttle 13 Declaration does not consider any new issues or scientific evidence 14 not already raised or addressed by the BLM and included in the 15 administrative record and admissible exhibits already presented by 16 the parties in this case. While 17 Fourth, there is no showing of agency bad faith. 18 Accordingly, the court finds no extraordinary basis for 19 considering the eleventh hour submission of the Tuttle Declaration 20 by the plaintiffs. 21 Spring Valley Wind’s motion to strike (#50). 22 Declaration (#30) is hereby STRICKEN. In addition, the court will 23 not consider the Erickson Declaration submitted by defendant Spring 24 Valley Wind in support of its motion to strike (#50-1) or the 25 Second Tuttle Declaration submitted by plaintiffs in support of Therefore, the court hereby GRANTS defendant 26 27 28 5 The Tuttle 1 their response in opposition to the motion to strike (#58).3 2 IT IS SO ORDERED. 3 DATED: This 28th day of March, 2011. 4 5 ____________________________ UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 While the court has determined that the Tuttle Declaration is not admissible in these proceedings, the court did, during the hearing on the plaintiffs’ application for the injunction, urge the BLM, upon appropriate application by the plaintiffs, to consider the impact of the Texas Gulf Wind study might have, if any, on the mitigation measures set forth in the EA. 6
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