UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Transcription

1 Case :-cv-0-jls-jma Document Filed 0/0/ PageID. Page of 0 0 JEFFREY H. WOOD Acting Assistant Attorney General Environment & Natural Resources Division TY BAIR (Idaho Bar No. ) JOHN H. MARTIN (Colo. Bar No. ) Trial Attorneys United States Department of Justice Environment & Natural Resources Division Natural Resources Section P.O. Box Washington, D.C. 00- (0) - (0) 0-00 (fax) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 0 THE PROTECT OUR COMMUNITIES FOUNDATION, et al., Plaintiffs, vs. MICHAEL BLACK, et al., Federal Defendants. :-cv-0-jls-jma FEDERAL DEFENDANTS REPLY IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT

2 Case :-cv-0-jls-jma Document Filed 0/0/ PageID. Page of 0 TABLE OF CONTENTS INTRODUCTION... ARGUMENT... I. BIA properly relied on the 0 Tule Wind EIS II. A. The 0 EIS fully assessed the impacts of Phase II.... B. The 0 EIS was not a programmatic analysis.... C. Plaintiffs claims challenging the alternatives analysis are meritless... NEPA did not require BIA to prepare supplemental NEPA analysis before approving Phase II A. No significant new information required BIA to prepare supplemental NEPA analysis III. B. No substantial change in the proposed action required supplementation.... NEPA s public participation requirements do not apply to post- EIS documents or decisions.... CONCLUSION... 0 i

3 Case :-cv-0-jls-jma Document Filed 0/0/ PageID. Page of Cases TABLE OF AUTHORITIES Ctr. for Biol. Div. v. U.S. Forest Serv., F.d (th Cir. 00)... ForestKeeper v. Elliott, 0 F. Supp. d (E.D.Cal. 0)... Friends of the Clearwater v. Dombeck, F.d (th Cir. 000)... Great Old Broads v. Wilderness v. Kimbell, 0 F.d (th Cir. 0)..., Marsh v. Or. Natural Res. Council, 0 U.S. 0 ()... Nat l Comm. for the New River v. FERC, F.d (D.C. Cir. 00)... Office of Comm n of the Church of Christ v. FCC, F.d (D.C. Cir. )... Protect Our Communities Found. v. Jewell (Tule I), F.d (th Cir. 0)... Protect Our Communities Found. v. Jewell (Tule I), No. CVJLS, 0 WL (S.D. Cal. Mar., 0)..., Russell Country Sportsmen v. U.S. Forest Serv., F.d 0 (th Cir. 0)... Tri-Valley CAREs v. U.S. Dep t of Energy, F.d (th Cir. 0)... 0 W. Watersheds Project v. Abbey, F.d 0 (th Cir. 0)... Wisconsin v. Weinberger, F.d (th Cir. )... 0 Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., U.S. ()... ii

4 Case :-cv-0-jls-jma Document Filed 0/0/ PageID. Page of 0 Regulations 0 C.F.R C.F.R C.F.R. 0.(b)... 0 C.F.R iii

5 Case :-cv-0-jls-jma Document Filed 0/0/ PageID. Page of INTRODUCTION The agency action challenged in this case the Bureau of Indian Affairs (BIA s) approval of a lease application for development of up to 0 wind turbines on tribal land constitutes one component of the larger, multi-agency Tule Wind Project. The entire overarching Project was examined in detail under the National Environmental Policy Act ( NEPA ) in a joint Environmental Impact Statement ( EIS ) prepared by the Bureau of Land Management ( BLM ) with the cooperation of BIA and the Ewiiaapaayp Band of Kumeyaay Indians (the Tribe ). In this case, Plaintiffs claims were originally based largely on the theory that information received after BIA decided to approve the lease compelled BIA to prepare a new, supplemental EIS. This Court rejected that theory when it granted Defendants Motions for Judgment on the Pleadings. Despite this ruling, Plaintiffs continue to insist that BIA was required to prepare separate, duplicative NEPA review in support of its approval decision. Plaintiffs have disclaimed any challenge to the Project s joint EIS. ECF No. ( Pl. s Reply ) at (stating that Plaintiffs do not allege any claims with respect to the adequacy of BLM s EIS... ). Thus, Plaintiffs can succeed in this case only if they establish that BIA was arbitrary and capricious in not preparing a separate NEPA analysis for the portion of the joint Project it approved. Throughout their Reply, Plaintiffs maintain that the EIS has little, if any, bearing on this case and repeatedly ignore BIA s role in preparing the EIS, insisting that BIA did not participate in the NEPA review process for this Project, which is demonstrably untrue. Pl. s Reply at ; see also, e.g.,, n. (asserting that BIA engaged in no NEPA review whatsoever. ). For the most part, Plaintiffs Reply simply restates the arguments raised in Plaintiffs opening brief, in some cases ignoring Federal Defendants arguments entirely. However, several misstatements and unsupported conclusions in Plaintiffs Reply are addressed

6 Case :-cv-0-jls-jma Document Filed 0/0/ PageID. Page of below. ARGUMENT I. BIA properly relied on the 0 Tule Wind EIS. As discussed in detail in Federal Defendants opening brief, BIA participated fully as a cooperating agency in the preparation of the 0 Tule Wind EIS. ECF No. ( Fed. Defs. Br. ) at. The 0 EIS satisfied BIA s NEPA obligations by examining the entire Tule Wind Project, including both Phase I (approved by BLM) and Phase II (approved by BIA). Id. at. Reliance on a single combined NEPA review, as was done here, is authorized and encouraged by NEPA s implementing regulations. 0 C.F.R. 0.. Nothing about the EIS was preliminary and there is no support for Plaintiffs argument that the agencies anticipated that BIA would prepare additional NEPA review in support of Phase II. Id. at. Plaintiffs challenged the adequacy of the agencies combined EIS in the first Tule Wind litigation and should fare no better here. Protect Our Communities Found. v. Jewell ( Tule I ), No. CVJLS, 0 WL at * (S.D. Cal. Mar., 0), aff d. F.d (th Cir. 0). Plaintiffs primary response to the 0 EIS is to simply ignore it, or to imply that BIA was not involved in preparing it. Plaintiffs state repeatedly, and incorrectly, that BIA did not conduct any NEPA review to support its lease approval decision. Pl. s Br. at ( BIA not only failed to prepare any NEPA review whatsoever.... ), 0 ( BIA s refusal to conduct any NEPA review whatsoever in connection with its action could not be excused by the existence of BLM s October 0 EIS ), n. ( But instead BIA engaged in no NEPA review whatsoever. ), (referring to BIA s refusal to conduct any public NEPA review process whatsoever in connection with its Tule Wind Phase II decision ). But this is wrong: BIA cooperated in preparation of the Tule Wind EIS, consistent with NEPA s implementing regulations. See Fed. Defs. Br. at (citing

7 Case :-cv-0-jls-jma Document Filed 0/0/ PageID.0 Page of TULE00000). And because Plaintiffs now concede that they are not challenging the adequacy of the EIS itself Pls. Reply at Plaintiffs cannot prevail unless they establish that BIA was required by law to conduct an additional NEPA analysis specific to Phase II of the project. As discussed below, they have failed to do so. A. The 0 EIS fully assessed the impacts of Phase II. In their Reply, Plaintiffs argue that BIA was required to undertake additional NEPA analysis Because BLM Deferred Authorizing Tule Wind Phase II Due to Potential Risks to Eagles and Other Birds, specifically arguing that BLM made no decision in its EIS and ROD concerning Tule Wind Phase II and thus did not, and could not, develop any mitigation measures specific to Tule Wind Phase II. Pl. s Br. at. These assertions contain multiple misconceptions about the Tule Wind Project and the way NEPA analysis works. First, it is fallacious to assert that BLM Deferred Authorizing Tule Wind Phase II. Phase II of the Tule Wind Project i.e., the portions of the Project within BIA s jurisdiction falls outside BLM s authority. BLM could not defer authorization of Phase II because it had no authority to authorize Phase II. Second, even if Phase II had somehow been deferred, it is a non sequitur to assume that a supplemental NEPA analysis would be required. Supplementation is necessary only under specific circumstances described in NEPA s implementing regulations, as discussed below. Similarly, it is misleading in several ways to state that BLM made no decision in its EIS... concerning Tule Wind Phase II. As an initial matter, this is inaccurate because an EIS never contains a decision. Instead, an EIS evaluates the impacts of a proposed action. In this case, the 0 EIS indisputably analyzed the impacts of the entirety of the Tule Wind Project. See Fed. Defs. Br. at. While BLM s Record of Decision ( ROD ), which authorized Phase I on BLM-managed

8 Case :-cv-0-jls-jma Document Filed 0/0/ PageID. Page of lands, did not require mitigation for Phase II, that is because BLM confined its decision to the portion of the Project under its jurisdiction. The EIS, however, thoroughly considered mitigation measures for the overarching Project, and BIA s ROD approving the lease for Phase II adopted appropriate measures from among those considered. See, e.g., TULE00000; TULE00. Plaintiffs have similarly misstated the facts by asserting that all parties agree that BLM deliberately decided in its EIS... not to authorize any ridgeline turbines on BLM or BIA lands. Pls. Reply at (emphasis in original). The EIS analyzes the impacts of up to ridgeline turbines in detail and discusses the path forward for Phase II s authorization. See, e.g., TULE000. It is certainly true that BLM, when approving Phase I in its ROD, chose not to authorize turbines on the portion of the Project within its jurisdiction. But BLM s decision does not bind BIA in exercising its separate approval authority. Nor could it: BIA and BLM manage the lands under their authority subject to different statutes and regulations. For NEPA purposes, the only pertinent question is whether the 0 EIS adequately examined the impacts of the action approved by BIA in a manner consistent with NEPA s implementing regulations. It certainly did; in apparent recognition of that fact, Plaintiffs have repeatedly disclaimed any challenge to the 0 EIS in this suit. See Pls. Reply at ( Plaintiffs challenges relate solely to actions that Plaintiffs assert NEPA required BIA to take in December ) (emphasis in original). In attempting to distinguish this case from the first Tule Wind litigation, Plaintiffs go so far as to assert that the EIS and BLM s ROD provide a blueprint for what BIA should have done. Pls. Reply at. This is an odd position for Plaintiffs to take, considering that they engaged in years of unsuccessful litigation before this Court and the Ninth Circuit challenging the EIS and BLM s ROD for Tule Wind Phase I.

9 Case :-cv-0-jls-jma Document Filed 0/0/ PageID. Page of Plaintiffs dwell on the fact that BLM did not authorize ridgeline turbines, while BIA did. Plaintiffs attempt to paint that distinction as critical to this Court s, and the Ninth Circuit s, opinions upholding the EIS in that case. See, e.g., Pls. Reply at, n. ( [T]his Court and the Court of Appeals sustained that decision because BLM analyzed, in an EIS, the relevant impacts and reasonable alternatives to that phase of the project and then adopted the removal of all ridgeline turbines in response to that analysis because of the risks to avian resources on lands administered by both BLM and BIA on the ridgeline. ). This is, again, a misstatement of fact: BLM did not adopt removal of ridgeline turbines on lands administered by BIA, and had no authority to do so. But it is also an overstatement, at best, to suggest that this Court and the Ninth Circuit upheld the 0 EIS because BLM chose not to authorize ridgeline turbines. The Tule I opinions make only passing reference to that decision in discussing avian impacts. See Tule I, No. CVJLS, 0 WL at * (noting, without significant discussion, that BLM adopted the Reduction in Turbines alternative), id. at n. (distinguishing a study of avian impacts based on another wind project situated on a ridgeline); Tule I, F.d at ( Moreover, the BLM chose to reposition turbines in valleys rather than on top of ridgelines, which would lessen any risk to low-flying nocturnal migrants. ). In fact, this Court s decision upholding the sufficiency of the EIS s mitigation analysis was expressly based on the Project s comprehensive avian protection plan not, as Plaintiffs claim, because BLM chose not to site turbines on its portion of the ridgeline. Tule I, 0 WL at *. In sum, there is no indication in the opinions of this Court and the Ninth Circuit that BLM s decision to not authorize ridgeline turbines was dispositive of the legal sufficiency of the Project s NEPA analysis, either for Phase I or Phase II. Plaintiffs have already unsuccessfully challenged the 0 EIS once, and their efforts to distinguish that case are

10 Case :-cv-0-jls-jma Document Filed 0/0/ PageID. Page 0 of unavailing. B. The 0 EIS was not a programmatic analysis. Plaintiffs Reply refers repeatedly to BIA s alleged duty to prepare a NEPA analysis examining site-specific impacts. Pl. s Reply at ; id. at (alleging that it was incumbent on BIA, in authorizing this project, to conduct some NEPA review subject to public scrutiny on its site-specific decision ). Plaintiffs cite regulations and case law governing the concept of tiered NEPA analyses, implying that the 0 EIS was a general programmatic analysis that was meant to be followed by a subsequent tier of site-specific analysis. Id. at (citing 0 C.F.R. 0.). This appears to be a variation on Plaintiffs argument in their opening brief that the 0 EIS was somehow a preliminary analysis of the impacts of Phase II. ECF No. - at. This argument too misunderstands the nature of the 0 EIS, which did a site-specific analysis of the entire Tule Wind project, including the Phase II turbines. As discussed in Federal Defendants opening brief, the EIS was not meant to be, and was not, preliminary in any way. Fed. Defs. Br. at. Nor was it a programmatic analysis designed to be supplemented later by site-specific analysis. Indeed, if it were actually a programmatic analysis, it then may have been arbitrary and capricious for BLM to have relied on this purportedly preliminary and programmatic document in authorizing Phase I of the Project. Plaintiffs did not make that argument in the Tule I litigation, and have no basis to raise it for the first time in their Reply brief in this case. Accordingly, Plaintiffs citations to the NEPA regulations governing programmatic analysis and tiering are inapposite. C. Plaintiffs claims challenging the alternatives analysis are meritless. As discussed in Federal Defendants opening brief, the 0 EIS satisfied NEPA s alternatives analysis requirements by considering the impacts of five action alternatives and two no-action alternatives for the whole Tule Wind Project,

11 Case :-cv-0-jls-jma Document Filed 0/0/ PageID. Page of which cumulatively considered a broad spectrum of alternatives. See Fed. Defs. Br. at. Although the Tule Wind Project comprises two separate phases due to the differing jurisdictions of BLM and BIA, the EIS did not segment consideration of the two phases. For NEPA purposes, they were considered as one overarching project. Thus, although the specific action alternatives were substantively similar for the purposes of Phase II see Fed. Defs. Br. at the range of alternatives considered by the cooperating agencies for the overarching Project were broad. Plaintiffs continue to argue in their Reply that NEPA did not just require analysis of an adequate range of alternatives for the Project as a whole, but also required BIA to separately analyze a range of alternatives for the subsection of the Project within its jurisdiction. Pl. s Reply at. Plaintiffs again refer the Court to the same cases cited in their opening brief, but as discussed in Federal Defendants opening brief, none of those cases dealt with a claim that an individual cooperating agency EIS is required to analyze its own range of alternative actions for two parts of the same project. The only case cited in Plaintiffs Reply concerns the range of alternatives in a site-specific tiered NEPA analysis prepared after a preliminary, general, programmatic analysis. Pl. s Reply at (citing W. Watersheds Project v. Abbey, F.d 0, 00 (th Cir. 0)). But, as discussed above, the 0 Tule Wind EIS was not a programmatic analysis, and BIA had no duty to prepare a site-specific analysis in conjunction with its approval decision for a portion of the project. NEPA s implementing regulations lay out a clear duty for agencies: to present the environmental impacts of the proposal and the alternatives in comparative form. 0 C.F.R. 0. (emphasis added). In this case, the proposal was for construction and operation of the Tule Wind Project, including up to wind turbines and associated facilities, along with the associated power transmission facilities. TULE There is no support in law for Plaintiffs

12 Case :-cv-0-jls-jma Document Filed 0/0/ PageID. Page of claim that each agency cooperating in the EIS must individually examine a separate range of alternatives for its individual role in the proposal. If Plaintiffs were correct in this position, it would lead to absurd outcomes. NEPA analyses of complex actions often have many cooperating agencies, some of which may have extremely minor roles. See, e.g., Final EIS for the Keystone XL Project, Title Page, available at (listing cooperating agencies and assisting agencies). This allows a robust discussion of the issues under consideration in one place and makes for more comprehensive and efficient decision making. Adopting Plaintiffs position would frustrate the purpose of NEPA s cooperating agency regulations, which allow agencies to pool their efforts and expertise in examining a shared project. NEPA does not require each of those agencies to formulate a range of alternatives pertinent to their minor roles in the larger major federal action. Plaintiffs claim that BIA was required to do so here is without merit. However, the Court does not even need to reach this issue because Plaintiffs claims about alternatives are precluded by their failure to ever raise their concerns about alternatives through public comments. The Supreme Court and multiple appellate courts have consistently held that an agency cannot be held liable for failing to consider issues in its NEPA analysis to which the agency was never alerted. See Fed. Defs. Br. at. Plaintiffs do not deny that their limited public comments on the EIS never discussed the sufficiency of the EIS s alternatives analysis. Plaintiffs attempt to avoid the long-standing NEPA exhaustion requirement by noting that they were never even afforded the opportunity to comment on BIA s decision to approve the Phase II configuration. Pl. s Reply at (emphasis in original). But this is a non-sequitur. NEPA does not require agencies to solicit

13 Case :-cv-0-jls-jma Document Filed 0/0/ PageID. Page of public comments on their decisions to undertake major federal actions. Thus, BIA did not seek public comment on its approval decision here; neither did BLM seek public comment on its approval decision for Phase I. Instead, the agencies that cooperated in preparing the EIS jointly sought public comment on the draft EIS, which clearly identified all of the alternatives being considered, and the Protect Our Communities Foundation chose to comment on it, as Plaintiffs concede. Pls. Reply at (admitting that POCF did in fact raise grave concerns about the impacts of both phases of the project on golden eagles and other birds during the EIS comment period) (emphasis in original). But its comments did not challenge the sufficiency of the alternatives analysis as to Phase II. In sum, Plaintiffs primary defense against the NEPA exhaustion doctrine is predicated entirely on their continued, incorrect insistence that BIA was required to conduct a new and duplicative NEPA analysis for the approval of Phase II. As discussed throughout this brief, that is incorrect. Plaintiffs argue in the alternative that they should be excused from their failure to raise this issue in public comments because the agency had the opportunity to consider the very argument pressed in this lawsuit. Pls. Reply at (quoting Office of Comm n of the Church of Christ v. FCC, F.d, (D.C. Cir. ). But they cite nothing in the record to demonstrate that BIA or its cooperating agencies were alerted to the Plaintiffs concerns about the range of alternatives considered in the EIS. Even if they were, it would be irrelevant unless the agencies were alerted to those concerns prior to the finalization of the EIS. The purpose of the NEPA exhaustion doctrine is to ensure that agencies are able to give meaningful consideration to the public s concerns during the NEPA analysis. Vt. Yankee Nuclear Power corp. v. Nat. Res. Def. Council, Inc., U.S., (). Plaintiffs did not provide the BIA or its cooperating agencies with the opportunity to consider this concern during the EIS process in this case and,

14 Case :-cv-0-jls-jma Document Filed 0/0/ PageID. Page of consistent with Supreme Court case law, the Court should not allow Plaintiffs to raise this issue now. II. NEPA did not require BIA to prepare supplemental NEPA analysis before approving Phase II. Plaintiffs make two arguments that BIA was required to prepare a separate NEPA analysis before issuing its ROD. First, they claim that significant new information compelled BIA to produce a supplemental EIS. Second, they claim that the Project s configuration changed substantially, requiring a new NEPA analysis. Plaintiffs Reply does not meaningfully rebut the arguments against these claims raised in Federal Defendants opening brief, and does not establish that BIA was arbitrary and capricious in not undertaking supplemental NEPA review. a. No significant new information required BIA to prepare supplemental NEPA analysis. As discussed in Federal Defendants opening brief, Plaintiffs have not carried the high burden necessary to establish that significant new information required BIA to prepare a supplemental NEPA analysis, a matter that is generally left to the agency s discretion. Fed. Defs. Br. at 0. In their reply, Plaintiffs mischaracterize Federal Defendants argument as challenging both the significance and the newness of the purportedly significant new information. Pls. Reply at. As to the latter point, this is a straw man: the documents cited by the Plaintiffs obviously post-date the EIS, and Federal Defendants never claimed otherwise. Instead, the pertinent question is whether the post-eis information rises to a level of significance that presents a seriously different picture of the environmental landscape such that another hard look is necessary. Wisconsin v. Weinberger, F.d, (th Cir. ) (emphasis in original); Tri-Valley CAREs v. U.S. Dep t of Energy, F.d, 0 (th Cir. 0) (citing Weinberger with approval as to the seriously different 0

15 Case :-cv-0-jls-jma Document Filed 0/0/ PageID. Page of picture standard for supplementation); Nat l Comm. for the New River v. FERC, F.d, 0 (D.C. Cir. 00) (adopting the same standard); ForestKeeper v. Elliott, 0 F. Supp. d, (same). The significant new information cited by Plaintiff does not change the picture of the environmental landscape in any meaningful way. For instance, Plaintiffs Reply cites documents discussing the risk of loss of golden eagle territory. Pl. s Reply at (citing TULE00 ). But the EIS evaluated potential golden eagle territory loss, and Plaintiffs do not explain how the post-eis documents present a seriously different picture of that potential impact. See TULE0000. As the Supreme Court has recognized, if agencies were required to revisit their NEPA analyses every time they receive information like this, the NEPA process would be intractable. Marsh v. Or. Natural Res. Council, 0 U.S. 0, (). Plaintiffs cite Friends of the Clearwater v. Dombeck, F.d, (th Cir. 000) for the proposition that an agency may need to prepare supplemental NEPA analysis for significant new information, even if that information merely reconfirmed the findings of the existing EIS. But the holding in Dombeck is more nuanced than Plaintiffs suggest. There, the Ninth Circuit found that the question of reconfirmation was secondary to the question of whether the agency considered the new information, evaluated it, and made a reasoned determination whether it is of such significance as to require supplemental NEPA analysis. Dombeck, F.d at. As the Ninth Circuit has more recently held, the Dombeck holding was predicated on the fact that there was no evidence in the record that... the Forest Service ever considered whether the [new information was] sufficiently significant to require preparation of an SEIS. Great Old Broads v. Wilderness v. Kimbell, 0 F.d, (th Cir. 0). In contrast, in Great Old Broads, the challenged

16 Case :-cv-0-jls-jma Document Filed 0/0/ PageID. Page of ROD determined that the Selected Alternative was fully analyzed in Chapter of the [final EIS], which constituted adequate documentation of the Forest Service s reasoned decision that no SEIS was required. Id. So too here: BIA s ROD approving Phase II explains that The FEIR/EIS included an analysis of all environmental issues associated with the construction and operation of all turbines on the ridgeline site including those sited on trust land. TULE00. This case is thus distinct from Dombeck and completely consistent with the Ninth Circuit s recent decision finding that supplementation was unnecessary in Great Old Broads. There is no basis to overturn BIA s finding, as represented by the ROD, that no supplemental analysis was necessary. b. No substantial change in the proposed action required supplementation. Plaintiffs claim BIA was required to undertake NEPA supplementation because it ultimately authorized construction of 0 turbines on tribal land, where the EIS described how up to would be located on tribal land. As discussed in Federal Defendants opening brief, this is not a substantial change in the overarching Project examined in the Tule Wind EIS. The EIS examined the impacts of up to turbines on the ridgeline, and the record establishes that at least 0 of those are on, or immediately adjacent to, tribal land under BIA s approval jurisdiction. Fed. Defs. Br. at. As the ROD states: While the Final EIR/EIS (FEIR/EIS) identified only turbines as being located on the trust land, the FEIR/EIS analyzed the impact of siting additional turbines in areas straddling BLM and trust lands, and therefore, this ROD anticipates that the final placement of those two turbines, which the EIS/EIR depicted as being located on BLM land directly adjacent to the trust land, may actually be on trust land within the area analyzed in the EIR/EIS after final engineering of the project is completed. TULE00, TULE00. The approval of 0 turbines on the

17 Case :-cv-0-jls-jma Document Filed 0/0/ PageID.0 Page of ridgeline is thus within the spectrum of alternatives analyzed in the EIS for the overarching Tule Wind Project and does not require supplemental NEPA review. Id. (quoting Russell Country Sportsmen v. U.S. Forest Serv., F.d 0, 0 (th Cir. 0)). In response, Plaintiffs again inaccurately assert that BLM deliberately decided in its EIS and ROD to not authorize ridgeline turbines. Pls. Br. at 0 (emphasis added). As discussed in detail above, BLM did no such thing. Although BLM chose in its ROD to exercise its discretion to not authorize ridgeline turbines on BLM-administered land, the EIS absolutely considered the impacts of up to ridgeline turbines within the total Tule Wind Project. The EIS thus took a hard look at the impacts of up to turbines on the ridgeline, and specifically took a hard look at the impacts of up to 0 turbines on, or immediately adjacent to, tribal land under BIA s jurisdiction. Even if the Court were to determine that the 0-turbine configuration technically fell outside the spectrum of alternatives examined in the EIS, this would not be a sufficiently substantial change to require supplementation. Plaintiffs make a conclusory statement that this putative % increase in the quantity of turbines constitutes a substantially expanded project with different and greater impacts than the one considered in BLM S EIS and ROD. Pls. Br. at. But, as cited in Federal Defendants opening brief, courts have generally looked for far more substantial project changes before requiring supplementation. See Fed. Defs. Br. at 0. That outcome is particularly apt here, where the record establishes that all 0 turbines approved by BIA were either on, or adjacent to, tribal land in the project configuration examined in the EIS. TULE00. The relevant inquiry for NEPA analysis is whether the EIS took a hard look at impacts. Plaintiff cannot establish that moving two turbines a nominal distance over a jurisdictional boundary would change those turbines impacts to the environment.

18 Case :-cv-0-jls-jma Document Filed 0/0/ PageID. Page of In sum, there are no grounds to find that BIA violated NEPA by not undertaking supplemental NEPA analysis. III. NEPA s public participation requirements do not apply to post-eis documents or decisions. Plaintiffs claim BIA violated NEPA s public participation regulations by not circulating its ROD for public comment. In support of that argument, Plaintiffs cite the many NEPA regulations requiring that agencies meaningfully involve the public, sister agencies, and other stakeholders in the decisionmaking process, neglecting to note that absolutely no regulation requires agencies to circulate their RODs for public review. Pls. Reply at. Federal Defendants opening brief notes that this argument is based on references to a vague statutory and regulatory scheme assembled ad hoc by Plaintiffs. Fed. Defs. Br. at. Having apparently misunderstood this argument, Plaintiffs mischaracterize Federal Defendants position as being that NEPA s public participation regulations are themselves vague. Pls. Br. at. To be clear, this is directly contrary to Federal Defendants position. NEPA s public participation requirements are crystal clear, and they only require agencies to solicit public participation in specific circumstances: i.e., when preparing NEPA review documents, such as an EIS. See Fed. Defs. Br. at (summarizing NEPA s public participation regulations); Ctr. for Biol. Div. v. U.S. Forest Serv., F.d, (th Cir. 00) (citing 0 C.F.R. 0.(b) for the proposition that an agency must disclose opposing viewpoints in an EIS). The vagueness in Plaintiffs argument comes from their attempt to read non-existent requirements into those regulations, including a requirement to disclose to the public allegedly highly important evidence and information the agency received after its EIS was final. See Pls. Br. at. There is no support in the regulations for this penumbras and emanations theory of NEPA public participation. The regulations are clear, their requirements

19 Case :-cv-0-jls-jma Document Filed 0/0/ PageID. Page of 0 are well-established, and Plaintiffs are asking this Court to hold BIA legally liable for not complying with invented requirements that appear nowhere in those regulations. CONCLUSION For the foregoing reasons, the Court should grant summary judgment to Federal Defendants. 0 0 Respectfully submitted, JEFFREY H. WOOD Assistant Attorney General Environment & Natural Resources Division /s/ John H. Martin JOHN H. MARTIN Trial Attorney United States Department of Justice Environment & Natural Resources Division Wildlife and Marine Resources Section th Street, South Terrace, Suite 0 Denver, CO 00 (0) - (0) -0 (fax) john.h.martin@usdoj.gov Attorneys for Federal Defendants

20 Case :-cv-0-jls-jma Document Filed 0/0/ PageID. Page 0 of 0 CERTIFICATE OF SERVICE I hereby state and certify that today I filed the foregoing document using the ECF system, and that such document will be served electronically on all parties of record. /s/ John H. Martin JOHN H. MARTIN 0 0