A wintertime sighting of sage grouse could prove significant in the legal controversy over proposed wind turbines on ranchland in southeast Oregon.
Nearly five years ago, the U.S. Bureau of Land Management approved a 12-mile transmission line across its property that’s necessary for the construction of a 100-megawatt wind power project in Harney County.
Ranchers and community leaders hoped the installation of wind turbines on private land would provide a new source of income and jobs in the rural county, which has long stagnated economically.
The Oregon Natural Desert Association and the Audubon Society of Portland filed an unsuccessful lawsuit to block the transmission line, but the BLM says continued legal uncertainty has preventing the project from moving forward.
The dispute has now landed before the 9th U.S. Circuit Court of Appeals, which held oral arguments in the case in Portland, Ore., on March 10.
During the hearing, appellate judges Raymond Fisher and Marsha Berzon sharply questioned why the BLM omitted mention of sage grouse being sighted in vicinity of the project in late winter.
Plaintiffs argue the sighting lends credence to their claim that the bird – formerly a candidate for Endangered Species Act protection – uses the area for over-wintering habitat.
“Wind-swept ridges are precisely the types of places you’d expect to find these birds in the winter,” said Peter Lacy, attorney for ONDA.
The environmentalists claim that BLM’s approval of the transmission line violated the National Environmental Policy Act because the agency didn’t specifically analyze whether the project area contained winter habitat for the species.
Instead, the agency extrapolated that sage grouse didn’t inhabit the area over winter from data collected at nearby sites, noting in its “environmental impact statement,” or EIS, that no birds were sighted after December.
Judge Fisher said this extrapolation was based on error, since the record of evidence shows that a consultant observed four sage grouse in the area during a visit in February.
“There is a factual misstatement that appears in the EIS,” he said. “I don’t know how you get around that.”
Judge Berzon also seemed troubled by the BLM’s mistake, saying that if the agency is going to extrapolate, then the extrapolation should be based on particularly solid data.
Peter Krzywicki, an attorney for BLM, acknowledged the report contained a “misstatement” but said the “stray sighting” of sage grouse does not change the conclusion that the species generally doesn’t occupy the area in winter.
The “exceptional case” of sage grouse appearing in the vicinity of the project in February doesn’t mean it’s a regular occurrence, Krzywicki said.
Dominic Carollo, an attorney for Harney County, said the 9th Circuit should defer to the BLM’s expertise about land conditions in the area.
The agency is familiar enough with the region to know the site is too snowy to support winter habitat for sage grouse, Carollo said.
Federal courts are required to defer to agency technical expertise, so it stands to reason they must also defer to its knowledge about something as basic as snow conditions, he said.
Peter Lacy, the attorney for ONDA, countered that wind can blow away snow from such an “escarpment,” uncovering sage brush habitat, so the the agency must conduct site-specific monitoring rather than simply “eyeball it.”
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