Sierra Club; Center for Biological Diversity; Defenders of Wildlife v. Bureau of Land Management

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SIERRA CLUB; CENTER FOR
BIOLOGICAL DIVERSITY; DEFENDERS
OF WILDLIFE,
Plaintiffs-Appellants,
v.
BUREAU OF LAND MANAGEMENT;
JAMES KENNA, in his official
capacity as California State Director,
Bureau of Land Management;
SALLY JEWELL*, in her official
capacity as Secretary of the Interior,
Defendants-Appellees,
NORTH SKY RIVER ENERGY, LLC,
Intervenor-Defendant–Appellee.
No. 13-15383
D.C. No.
1:12-cv-01193-
AWI-JLT
OPINION
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Senior District Judge, Presiding
Argued and Submitted
February 5, 2015—San Francisco, California
* Sally Jewell is substituted for her predecessor pursuant to Fed. R.
App. P. 43(c)(2).

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SIERRA CLUB V. BUREAU OF LAND MGMT. 2
Filed May 27, 2015
Before: Richard C. Tallman and Johnnie B. Rawlinson,
Circuit Judges, and Raymond J. Dearie, Senior District
Judge.**
Opinion by Judge Rawlinson
SUMMARY***
Environmental Law
The panel affirmed the district court’s judgment
upholding the decision of the United States Bureau of Land
Management to grant a right-of-way over federal land for a
wind energy project developed on private land by intervenor
North Sky River Energy, LLC.
The Wind Project was developed near Tehachapi,
California; and the Road Project was initiated when North
Sky applied to the BLM for a right-of-way to connect the
Wind Project to an existing state highway. Because the Wind
Project could be built without the federal Road Project, and
because the federal Road Project had independent utility, the
BLM concluded that the Wind Project was not subject to
formal consultation under the Endangered Species Act, and
** The Honorable Raymond J. Dearie, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
*** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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SIERRA CLUB V. BUREAU OF LAND MGMT. 3
need not be analyzed as a connected action under the National
Environmental Policy Act.
The panel held that the Wind Project did not trigger
BLM’s duty to initiate consultation with the United States
Fish and Wildlife Service under the Endangered Species Act.
The panel also held that the Wind Project did not trigger
BLM’s duty to prepare an Environmental Impact Statement
under the National Environmental Policy Act because the
Wind Project was not a federal action or connected to the
Road Project.
COUNSEL
Matthew Vespa, Sierra Club, San Francisco, California; Jason
C. Rylander (argued), Defenders of Wildlife, Washington,
D.C.; Lisa T. Belenky, Center for Biological Diversity, San
Francisco, California; and Babak Naficy, Law Offices of
Babak Naficy, San Luis Obispo, California, for Plaintiff-
Appellants.
Robert G. Dreher, Acting Assistant Attorney General, Jared
Pettinato, Stephen Finn, Bradley H. Oliphant, and Lane N.
McFadden (argued), Attorneys, United States Department of
Justice, Environment and Natural Resources Division,
Washington, D.C.; and Gregory Russell, United States
Department of the Interior, Office of the Solicitor,
Washington, D.C., for Defendants-Appellees.
Daniel J. Dunn (argued), Andrew L. Spielman, Jennifer L.
Biever, and Margaret A. Parish, Hogan Lovells U.S. LLP,
Denver, Colorado; and Zachary R. Walton, Christine W.

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SIERRA CLUB V. BUREAU OF LAND MGMT. 4
Griffith, and Elizabeth L. Bridges, SSL Law Firm, LLP, San
Francisco, California for Intervenor-Defendant–Appellee.
OPINION
RAWLINSON, Circuit Judge:
Plaintiffs-Appellants Sierra Club, Center for Biological
Diversity, and Defenders of Wildlife (collectively Sierra
Club) appeal the district court ruling upholding the decision
by the United States Bureau of Land Management (BLM) to
grant a right-of-way over federal land (Road Project) for a
wind energy project (Wind Project) developed on private land
by Intervenor-Appellee North Sky River Energy, LLC (North
Sky). Because the Wind Project does not trigger the (1) duty
to consult under the Endangered Species Act (ESA) or
(2) duty to prepare an Environmental Impact Statement (EIS)
under the National Environmental Policy Act (NEPA), we
affirm the decision of the district court.
I. BACKGROUND
The Wind Project is a wind energy project developed by
North Sky on more than 12,000 acres of private land located
in the Sierra Nevada mountain range, northeast of Tehachapi,
California. The Road Project was initiated when North Sky
applied to the BLM for a right-of-way over federal land to
connect the Wind Project to an existing state highway. The
right-of-way (Road Project) would contain underground
power and fiber optic communication lines from the Wind
Project to California’s energy grid.

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SIERRA CLUB V. BUREAU OF LAND MGMT. 5
North Sky’s original request to the BLM included wind
turbines on BLM land. Several months later, North Sky
withdrew the original request and changed the proposal
(Revised Proposal) to eliminate the turbines on federal land.
Instead, North Sky sought permission to use and improve
some existing BLM roads, to “construct a transmission
generation tie (gen-tie) line, and construct new roads to
access private property owned by” North Sky.1
The Revised Proposal also identified an “alternative
route” of access to the Wind Project that traversed private
land only (Private Road Option). The Revised Proposal noted
that the Private Road Option would have “topographical
constraints,” which would require “earthmoving measures
such as cut-and-fill, grading,” “possible stream alteration,”
“[b]ulldozing, blasting, and tree-clearing.” That level of
disturbance would “greatly impact vegetation and wildlife
habitat,” and possibly cause erosion. After considering
“accessibility, distance, road condition, and potential
environmental impacts[,]” North Sky rejected the Private
Road Option in favor of the access Road Project “to utilize as
much existing road as possible, and thereby minimize
environmental impacts.”
Internal communications among BLM employees track
the BLM’s review of the evolving project. Initially, BLM
employees anticipated seeking consultation on the Wind
Project as an interdependent or interrelated activity under
section 7 of the ESA. But in these discussions, BLM staff did
not consider the Private Road Option. The BLM later
received and considered a draft environmental impact report
1 The gen-tie line would enable harvested wind energy to be transmitted
to the main power grid.

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SIERRA CLUB V. BUREAU OF LAND MGMT. 6
prepared by Kern County during its state-level review of the
Wind Project. The report from Kern County addressed the
feasibility of the Private Road Option, which it described as
requiring improvements “on up to 28 miles” of existing roads
and construction of 2.5 miles of new roads through privately-
owned land. Nonetheless, North Sky submitted documents to
the BLM advising that the company could pursue the Private
Road Option if their right-of-way application were denied.
After review of the Revised Proposal and related
documents, the BLM issued an environmental assessment, in
which the BLM found that the Road Project would have no
significant environmental impact. Therefore, the BLM was
not required to (1) consult with the United States Fish and
Wildlife Service (FWS) under the ESA, or (2) prepare an
Environmental Impact Statement under NEPA. This
determination depended in large part upon the BLM’s
conclusion that the Private Road Option was a viable
alternative to the Road Project.
The only public comment received was from Sierra Club
challenging, inter alia, the viability of the Private Road
Option. However, the BLM responded that it had analyzed
the Private Road Option as a “technically and economically
feasible” alternative to the Road Project. The BLM
determined that North Sky’s pursuit of the Private Road
Option, if the BLM denied easements over federal land for
the Road Project, was “neither remote nor speculative.” The
BLM noted that the Road Project would “provide dust
control, reduce erosion, and reduce unauthorized motor
vehicle access to the Pacific Crest Trail.” Because the Wind
Project could be built without the federal Road Project, and
because the federal Road Project had independent utility, the
BLM concluded that the Wind Project was not subject to

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SIERRA CLUB V. BUREAU OF LAND MGMT. 7
formal consultation under the ESA, and need not be analyzed
as a connected action under NEPA.
The BLM initially sought informal consultation under the
ESA with the FWS about the impact of the Road Project on
the desert tortoise and California Condor. The BLM
withdrew consultation after the agencies determined that the
desert tortoise and California Condor were not present in the
Road Project area. The BLM also issued a Finding of No
Significant Impact under NEPA after concluding that the
Road Project would not have a significant environmental
impact. The BLM noted that, because of the existence of the
Private Road Option, North Sky was expected to go forward
with the Wind Project regardless of whether it received the
right-of-way grant from the BLM.
After the BLM issued a permit for the Road Project,
Sierra Club sued the BLM, alleging that the decision to grant
the easement through federal land violated both the ESA and
NEPA. Applying the arbitrary and capricious standard of
review, the district court denied Sierra Club’s motion for
summary judgment and granted the BLM’s and North Sky’s
motions for summary judgment. Sierra Club filed a timely
appeal.
II. STANDARD OF REVIEW
We review the district court’s grant of summary judgment
in favor of the BLM de novo and the agency decision under
an arbitrary and capricious standard. See Chemehuevi Indian
Tribe v. Jewell, 767 F.3d 900, 903 (9th Cir. 2014) (summary
judgment); Friends of the Wild Swan v. Weber, 767 F.3d 936,
942 (9th Cir. 2014) (Administrative Procedure Act).

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SIERRA CLUB V. BUREAU OF LAND MGMT. 8
III. DISCUSSION
The sole issue on appeal is whether the BLM was
required to initiate consultation with the FWS under the ESA,
or to prepare an EIS under NEPA analyzing the Wind Project.
We conclude that no consultation or EIS was required.
A. The Endangered Species Act
The ESA “requires federal agencies to ensure, in
consultation with the appropriate wildlife agency, that any
action authorized or carried out by the agency is not likely to
jeopardize the continued existence of any endangered species
or threatened species” or habitat. Alliance for the Wild
Rockies v. U.S. Dept. of Agric., 772 F.3d 592, 601 (9th Cir.
2014) (emphasis added) (citation and internal quotation
marks omitted). The ESA consultation requirement is
triggered only by federal agency actions. See 16 U.S.C.
§ 1536(a). The federal agency must consider “the direct and
indirect effects of [its] action on the species or critical habitat,
together with the effects of other activities that are
interrelated or interdependent with that action . . .” 50 C.F.R.
§ 402.02.
1. Direct Effects
The duty to consult on the direct effects of an agency
action is triggered only if the agency action is “affirmatively
authorized, funded, or carried out [by a federal agency]” and
“in which there is discretionary Federal involvement or
control.” Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d
1006, 1020–21 (9th Cir. 2012) (citation and internal quotation
marks omitted).

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SIERRA CLUB V. BUREAU OF LAND MGMT. 9
Although the BLM was required to and did consult on the
direct effects of the Road Project, the BLM was not required
to consult on the direct effects of the Wind Project because
the Wind Project did not constitute agency action. The Wind
Project was developed by a private company on private land.
Although North Sky ultimately sought a right-of-way over
BLM land to more directly access the Wind Project, North
Sky had the option of an alternative route traversing private
property. Consequently, construction of the Wind Project
was not dependent on existence of the federal right-of-way
(Road Project). In other words, the Wind Project and the
Road Project were separate and independent ventures, one
public (Road Project) and one private (Wind Project).
The Wind Project was not funded, authorized, or
constructed by any federal agency. Nor was there any
discretionary involvement or control over any part of the
Wind Project by any federal agency that had “the capacity to
inure to the benefit of a protected species . . . .” Karuk Tribe,
681 F.3d at 1024 (citation omitted). Consequently, no duty
to consult arose under the ESA. See Alliance for the Wild
Rockies, 772 F.3d at 600–01; see also Karuk Tribe, 681 F.3d
at 1020–21, 1024.
2. Indirect Effects
In addition to consulting on the direct effects, federal
agencies must consult on the indirect effects of their proposed
actions. See San Luis & Delta-Mendota Water Auth. v.
Locke, 776 F.3d 971, 1009 (9th Cir. 2014); see also 50 C.F.R.
§ 402.02. “To show that something is an indirect effect of the
proposed action, [the plaintiff] must demonstrate (1) that it is
caused by the action, (2) that it is later in time than the action,
and (3) that it is reasonably likely to occur. . . .” Locke,

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SIERRA CLUB V. BUREAU OF LAND MGMT. 10
776 F.3d at 1009 (citation omitted). Only the first factor is in
dispute.
Citing to the ESA Section 7 Consultation Handbook
prepared by the FWS and the National Marine Fisheries
Service, we have explained that indirect effects are
“attenuated” consequences of the agency action. Id. In doing
so, we repeated the Handbook’s example of the renewal of
“water services contracts in the San Joaquin Basin.” Id.
(alterations omitted). Residents could use the water from the
contracts to engage in agriculture. However, agricultural
development destroyed the habitat of listed species. This
destruction of habitat was not directly caused by renewing the
water services contract, but resulted indirectly from use of the
water that was provided through the contracts. See id.
In contrast, the record does not support the conclusion
that the Wind Project is an indirect effect of the Road Project.
It cannot be fairly said that the Road Project caused the Wind
Project or brought it into existence. See 50 C.F.R. § 402.02.
Rather, the record reflects that the Wind Project would have
been completed without the BLM’s approval of the Road
Project, if North Sky had proceeded with the Private Road
Option.
3. Interrelated or Interdependent Actions
Sierra Club contends in the alternative that the BLM was
required to consider the effects of the Wind Project as an
activity interrelated to and/or interdependent with the Road
Project, thereby requiring consultation under the ESA.
“Interrelated actions are those that are part of a larger
action and depend on the larger action for their justification.

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SIERRA CLUB V. BUREAU OF LAND MGMT. 11
Interdependent actions are those that have no independent
utility apart from the action under consideration.” Id. “The
test for interrelatedness or interdependentness is ‘but for’
causation: but for the federal project, these activities would
not occur. . . .” Sierra Club v. Marsh, 816 F.2d 1376, 1387
(9th Cir. 1987) (emphasis added) (citation omitted).
As in Sierra Club, the private Wind Project was not part
of the federal Road Project, and was not dependent on it. See
id. Because North Sky was prepared to use a private access
road to complete the Wind Project if the federal Road Project
did not materialize, the federal Road Project was not the “but
for” cause of the private Wind Project.
Even if we accept Sierra Club’s argument that the Road
Project was required to have utility apart from the Wind
Project, Sierra Club still would not prevail. As the BLM
noted, both projects are independent and have utility separate
and apart from each other; the Wind Project was viable with
or without the right-of-way over federal land, and the Road
Project served the independent purposes of dust control,
reducing erosion, and controlling unauthorized vehicle access
to a national trail. In sum, these projects fail the “but for”
causation test, and neither is an integral part of the other,
neither depends on the other for its justification, and each has
utility independent from the other. Id.; see also 50 C.F.R.
§ 402.02.
B. The National Environmental Policy Act
NEPA mandates that federal agencies taking any “major
Federal action significantly affecting the quality of the human
environment” prepare an Environmental Impact Statement.
San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d

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SIERRA CLUB V. BUREAU OF LAND MGMT. 12
581, 642 (9th Cir. 2014) (alteration omitted). Major federal
actions include all actions “which are potentially subject to
Federal control and responsibility.” 40 C.F.R. § 1508.18.
The scope of the Environmental Impact Statement extends to
“connected, cumulative, and similar actions.” W. Watersheds
Project v. Abbey, 719 F.3d 1035, 1046 (9th Cir. 2013).
The Wind Project did not trigger consultation
requirements under the NEPA. See San Luis &
Delta-Mendota Water Auth. v. Jewell, 747 F.3d at 642; see
also 40 C.F.R. § 1508.18. As explained, the Wind Project is
not a major federal action because the BLM has no control or
responsibility over any aspect of the Wind Project. See id.
In any event, the BLM would not have been required to
consider the effects of the Wind Project under NEPA because
the Road and Wind Projects are not connected, cumulative,
or similar actions.2 See Cal. ex rel. Imperial Cnty. Air
Pollution Control Dist. v. U.S. Dept. of the Interior, 767 F.3d
781, 795 (9th Cir. 2014), as amended. “We apply an
‘independent utility’ test to determine whether multiple
actions are so connected as to mandate consideration in a
single EIS. The crux of the test is whether ‘each of two
projects would have taken place with or without the other and
thus had independent utility.’” Id. (emphases added) (citation
omitted); see also Pac. Coast Fed. of Fishermen’s Ass’ns v.
Blank, 693 F.3d 1084, 1098 (9th Cir. 2012) (same). We have
occasionally stated this same test alternatively as “when one
of the projects might reasonably have been completed without
the existence of the other, the two projects have independent
utility and are not ‘connected’ for NEPA’s purposes.” Pac.
2 Because Sierra Club contends only that the projects are connected, we
confine our discussion to that factor.

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SIERRA CLUB V. BUREAU OF LAND MGMT. 13
Coast Fed. of Fishermen’s Ass’ns, 693 F.3d at 1098
(emphasis added) (citation and alteration omitted). Rather
than adopting a single independent utility test, we have
focused on whether “each of two projects would have taken
place with or without the other,” and have extended our
analysis to each project. Id. at 1098–99 (emphasis added).
The Road and Wind Projects have independent utility and
are not connected. See id. The Road Project was
independently useful for providing dust and stormwater
control and limiting access to the Pacific Crest Trail. See id.
And, North Sky would likely have developed the Wind
Project even without the access provided by the Road Project
because it could have accessed its land using the Private Road
Option. Thus, these projects had independent utility.
Finally, the BLM sufficiently evaluated the Wind Project
as a cumulative effect of the Road Project. The
environmental assessment contained a detailed analysis of
wind farms within 25 miles of the right-of-way, including the
North Sky wind farm. In sum, the BLM was not required to
prepare an Environmental Impact Statement under NEPA,
because the Wind Project was not a federal action or
connected to the Road Project.
The district court’s passing remark suggesting that the
California Environmental Quality Act Environmental Impact
Report could serve as a mechanism to satisfy NEPA was
harmless, as the NEPA requirements were not triggered for
the Wind Project and the BLM conducted an environmental
assessment for the Road Project.
Admittedly, the BLM initially indicated that consultation
might be required for the Wind Project. However, the BLM’s

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SIERRA CLUB V. BUREAU OF LAND MGMT. 14
evolving analysis was not a change in a published regulation
or official policy. Cf. F.C.C. v. Fox Television Stations, Inc.,
556 U.S. 502, 514–16 (2012) (clarifying that an agency must
explain a change in official policy); id. at 536 (Kennedy, J.,
concurring) (same). And, the BLM’s change of view
regarding the need for consultation was adequately justified
after further investigation demonstrated the feasibility of
private access. See id. at 516. Thus, the BLM did not act
arbitrarily or capriciously when it changed its unofficial
position regarding consultation.
IV. CONCLUSION
The BLM did not violate the ESA when it determined that
consultation was not required under the ESA for the Wind
Project because the federal Road Project and the private Wind
Project are two separate projects, the Wind Project is not an
indirect effect of the Road Project, and the two projects are
not interrelated or interdependent. The BLM did not violate
NEPA when it determined that no EIS analyzing the Wind
Project was required because the Road and Wind Projects
have independent utility and are not connected actions.
AFFIRMED.

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