FILED

NOT FOR PUBLICATION

DEC 21 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

QUECHAN TRIBE OF THE FORT No. 13-55704

YUMA INDIAN RESERVATION,

D.C. No. Plaintiff-Appellant, 3:12-cv-01167-GPC-PCL

v.

MEMORANDUM*

U.S. DEPARTMENT OF THE

INTERIOR; et al.,

Defendants-Appellees,

OCOTILLO EXPRESS LLC,

Intervenor-Defendant- Appellee.

Appeal from the United States District Court for the Southern District of California Gonzalo P. Curiel, District Judge, Presiding

Argued and Submitted November 3, 2015 Pasadena, California

Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Quechan Tribe of the Fort Yuma Indian Reservation (“Quechan Tribe”)

appeals the district court’s order granting summary judgment in favor of the

Appellees, including the Bureau of Land Management (“BLM”). Quechan Tribe

maintains that the BLM violated (1) the California Desert Conservation Area

(“CDCA”) Plan, (2) the Federal Land Policy and Management Act (“FLPMA”),

and (3) the National Environmental Policy Act (“NEPA”) when it granted Ocotillo

Express LLC (“Ocotillo”) a right-of-way to construct and operate the Ocotillo

Wind Energy Facility (“OWEF Project” or “the Project”) near Ocotillo, California.

We may affirm a district court’s grant of summary judgment “on any basis

supported by the record.” Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th

Cir. 2009). Because the parties are familiar with the facts and procedural history of

this case, we will not recount them here.

1. Quechan Tribe first contends the BLM violated the CDCA Plan by failing

to determine whether the OWEF Project met the substantive requirements the Plan

imposes on proposed uses of Class L land—the class of land upon which the

OWEF Project is located. The CDCA Plan governs all land use activities within

the CDCA. Because the OWEF Project is located on CDCA land, the BLM was

required to ensure the Project complied with the Plan before granting the right-of-

way. Significantly, the CDCA Plan includes a Plan amendment process that allows

2 the BLM to make changes to the Plan for a multitude of reasons, including

accommodating a specific project that might not otherwise comply with the CDCA

Plan. See BLM, California Desert Conservation Area Plan 1980, as amended, at

119 (Mar. 1999) [hereinafter CDCAP].

In the Record of Decision granting a right-of-way for the OWEF Project, the

BLM adopted a Category 3 Plan amendment to accommodate the Project. See

BLM, Record of Decision Ocotillo Wind Energy Facility and Amendment to the

California Desert Conservation Area Plan, at 39 (May 2012). The BLM amended

the CDCA Plan to designate the approximately 10,151 acres of public land where

the Project was to be located as suitable for wind energy development. Id. at 1.

A Category 3 amendment “accommodate[s] a request for a specific use or

activity [that] will require additional analysis” of its own. CDCAP, at 119. A

Category 3 amendment, like a zoning variance, allows the BLM to carve out an

exception to the CDCA Plan for a specific use or activity. Id. Once the BLM

determines that a specific project warrants a Category 3 amendment, that project is

no longer required to comply with the substantive requirements of the class of land

on which the project is sited. Rather, the project is governed by the Plan

amendment.

3 When considering a Category 3 amendment, the District Manager begins by

evaluating the “additional analysis” specific to the use or activity for which the

amendment is requested. Id. at 121. This additional analysis is generally an

Environmental Impact Statement (“EIS”); therefore, a Category 3 amendment does

not require its own EIS. Id. at 119, 121. If the District Manager approves, he or

she recommends the amendment to the State Director. Id. at 121. If the State

Director agrees, the District Manager renders a decision and issues a public notice

of the amendment decision that clearly explains how the CDCA Plan would be

changed by the amendment. Id. The BLM must then allow thirty days for the

public to object to the amendment. Id. After resolving the objections, the BLM

may approve the amendment. Id. The District Manager also has a series of six

determinations and obligations that must be completed before the amendment can

be approved. Id. The BLM substantially complied with this process.

Once the BLM adopted this Category 3 amendment to accommodate the

OWEF Project, the Project was no longer required to comply with the multiple-use

class designations, guidelines, or elements for Class L land. Therefore, even if we

agree with Quechan Tribe that the BLM failed to determine whether the OWEF

Project met the substantive requirements the Plan imposes on proposed uses of

Class L land, we must nevertheless conclude that the Project did not violate the

4 CDCA Plan. The Project was governed by the Plan amendment rather than the

Plan itself. Accordingly, we affirm the district court’s grant of summary judgment

finding that the BLM did not violate the CDCA Plan.

2. Quechan Tribe next contends that the BLM violated FLPMA by

arbitrarily assigning the interim Visual Resource Management classification of the

Project site. FLPMA directs the BLM to inventory public lands and their

resources, including the “scenic values” of public lands. 43 U.S.C. § 1711(a). To

inventory the scenic values of public lands, the BLM prepares a Visual Resource

Inventory (“VRI”) that assigns a VRI Class (I through IV) to each area of land

analyzed. See BLM, Manual Handbook: Visual Resource Inventory (H-8410-1)

(Jan. 17, 1986) [hereinafter VRI Handbook]. The VRI Class designations are

merely informational; they do not constrain or limit land use activities. Id. at 6.

Using the assigned VRI Classes as a basis, the BLM assigns Visual Resource

Management (“VRM”) Classes (I through IV) to an area, typically during the

development of a land use plan. See BLM, Manual Handbook: Visual Resource

Management (H-8400) (Apr. 5, 1984). VRM Classes “prescribe[] the amount of

change allowed in the characteristic landscape.” Id., Glossary, at 6. VRM Class I

allows the least amount of change to the existing character of the landscape and

VRM Class IV permits the greatest amount of change. VRI Handbook, at 6–7.

5 When a new land use is proposed on public lands where the governing land use

plan lacks VRM Class designations, the BLM must establish interim VRM

Classes. VRI Handbook, at 7.

The CDCA Plan does not provide VRI or VRM Class designations for the

land where Ocotillo proposed building the OWEF Project; therefore, the BLM was

required to establish interim VRM Classes for the Project site. In its final EIS for

the OWEF Project, the BLM assigned the Project site an interim VRM Class of

IV—the least restrictive class. Quechan Tribe argues that this assignment was

arbitrary and incompatible with the requirements of Class L land status. Again,

even if we agreed with Quechan Tribe, we conclude that the BLM’s approval of

the OWEF Project (and its interim VRM Class IV designation) was permissible

because the BLM adopted a Category 3 amendment to the CDCA Plan. We need

not decide whether the VRM Class IV designation conflicts with Class L land

status, because the Project was governed by the Plan amendment and was not

subject to the substantive requirements of Class L land. Accordingly, we affirm

the district court’s conclusion that the BLM did not violate FLPMA.

3. Finally, Quechan Tribe claims that the BLM violated NEPA by failing to

consider the cumulative impacts of alternative energy projects on all Class L lands

in the CDCA. Each EIS must contain a cumulative effects analysis, which

6 “analyze[s] the impact of [the] proposed project in light of that project’s interaction

with the effects of past, current, and reasonably foreseeable future projects.”

Lands Council v. Powell, 395 F.3d 1019, 1028 (9th Cir. 2004); 40 C.F.R. § 1508.7.

Agencies have discretion in determining the geographic scope of the cumulative

effects analysis, but must provide reasoned support for the geographic scope of its

analysis. Friends of the Wild Swan v. Weber, 767 F.3d 936, 943 (9th Cir. 2014).

The BLM analyzed the entire 12,436 acres of the proposed Project site, plus

a ten-mile radius in assessing the cumulative effects on visual and cultural

resources. The BLM reasoned that the visibility of the OWEF Project would

substantially diminish beyond ten miles and this area would encompass any

combined effects of the OWEF Project and other projects on cultural resources.

This justification sufficiently supported the BLM’s chosen geographic scope of the

cumulative impacts analysis. The BLM need not have analyzed the cumulative

impact of alternative energy projects throughout all Class L lands in the CDCA as

this would have been unduly burdensome and it would have diluted the anticipated

impact of the OWEF Project on resources in the project area. See Selkirk

Conservation All. v. Forsgren, 336 F.3d 944, 960 (9th Cir. 2003).

The BLM identified 116 past, present, and reasonably foreseeable projects

that could have an impact on cultural resources in this area. The BLM then

7 described the existing damage to cultural resources in that area and discussed

generally how reasonably foreseeable projects would further impact those

resources. Such analysis was sufficient to identify and describe the cumulative

impacts on cultural resources. The BLM similarly analyzed each potentially

impacted resource. Because the BLM’s cumulative impacts analysis was not

arbitrary or unreasonable, we conclude the BLM’s analysis did not violate NEPA.

AFFIRMED.

8

FILED

Quechan Tribe of Fort Yuma v. DOI, No. 13-55704 (Pasadena - November 2,

DEC 21 2016

2015)

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

BYBEE, Circuit Judge, concurring in the judgment:

I respectfully disagree with the majority’s decision to approve the Ocotillo

Wind Energy Facility (“OWEF”) because the BLM amended its California Desert

Conservation Area Plan (“CDCA Plan”). In my view the BLM approved the

OWEF project because it conformed to the CDCA Plan, not as a way of short

circuiting our review.

Since 1980, the CDCA Plan has provided that wind energy generation

facilities for this land classification “[m]ay be allowed after NEPA requirements

are met.” Here, the BLM did exactly what it was supposed to do. It prepared an

exhaustive environmental impact statement. It carefully considered the impact

that the proposed project would have on cultural and natural resources in the area

and, in response, it reduced the footprint of the project. The BLM also

acknowledged that it could not satisfy all of the competing claims to the land and,

in an exercise of its judgment, it decided to approve the OWEF. Only after it had

satisfied itself that it had heard from all interested parties, considered their views,

followed the processes set forth in the CDCA Plan, and determined that the project

conformed with the Plan’s requirements, did the BLM amend the CDCA Plan. In my view, the BLM did not amend the CDCA Plan to avoid the Plan’s requirements

and this court’s scrutiny under the APA; it amended the CDCA Plan to reflect that

the OWEF project was consistent with the Plan and to add OWEF to a list of

approved energy development sites in the CDCA. The BLM’s careful and

considered decision was model and is not “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

I concur in the judgment.