PORTLAND, Ore. - Regulators approved a wind-turbine project in southeastern Oregon with no thought to the greater sage grouse, environmentalists told the Ninth Circuit.
The federal appeals court met Thursday to consider a challenge to the proposed construction of up to 69 wind turbines on the Steens Mountain, the biggest fault-rock mountain in North America, located in the high desert of Harney County.
Since a transmission line connecting the turbines would run through 12.1 miles of public land, project developers Columbia Energy Partners obtained approval to build from the Bureau of Land Management.
Claiming that such approval failed to account for the project's effects on the greater sage grouse, however, the Oregon Natural Desert Association filed suit under the National Environmental Policy Act.
Though the chicken-like sage grouse is listed as threatened or endangered under the Endangered Species Act, the government notes that other priorities preclude this listing.
After defeating ONDA's challenge in district court, regulators told the Ninth Circuit that sage grouse may be declining nationally but that the Oregon population is "secure" and "doing relatively well."
While ONDA's brief accuses the government of not studying the effect of turbines on the sage grouse's winter habitat, the government said sage grouse do not use the area along the transmission line for nesting because its habitat is not suitable.
ONDA attorney Mac Lacy countered at Thursday's hearing that the wildlife consultant who performed the studies had found sage grouse at a lower-elevation site in both December and January.
"The birds are up there," Lacy said, calling the agency's data was incomplete.
"All of the leading sources say wind-swept ridges like the one we're dealing with here at the project site are precisely the type of place where you'd expect to find these birds," Lacy added.
Noting that this case has "mothballed" over the past few years, Judge Marsha Berzon asked Lacy why the bureau didn't just go ahead and do the studies.
Lacy said "we can only speculate" that the developer didn't want to pay the money for more surveys.
Justice Department attorney Peter Krzywicki meanwhile pointed the three-judge panel to the 194,000 metric tons of carbon dioxide and other pollutants that the proposed wind project would avoid each year.
Judge Raymond Fisher questioned Krzywicki about the "factual misstatement" in the environmental impact statement about sage-grouse sightings in February.
"If that's true, doesn't that doom your whole predicate?" Fisher asked. "Because this is an extrapolation, and if you're presenting and understanding that there are no sage grouse in February, and in fact there were, doesn't that shift the presumption in favor of the agency?"
Krzywicki responded that sage grouse "do move around to some extent but ultimately find a specific winter habitat where they're going to stay for an extended period of time."
"The one stray sighting," Krzywicki began, before Judge Berzon cut him off. "That's not Judge Fisher's point," Berzon said. "I mean, you can explain it now, but the agency didn't explain it because they made a mistake."
Krzywicki acknowledged that it was a "misstatement," but he didn't believe the "one stray sighting" of four birds changed the conclusion.
Fisher added that the basis for the extrapolation was based on a factual error. "I don't know how you get around that," the judge said. "It's a straight-up statement that there aren't any sage-grouse in this area."
Krzywicki said the single sighting should have been acknowledged, but the data in the environmental impact statement was sufficient to show that the sage grouse move to lower elevations.
"It's a mystery why the agency didn't just count these birds where it mattered, but they didn't," Judge Berzon said.
"If you're trying to extrapolate and not do the direct work, then it seems that the data from which you're extrapolating needs to be particularly solid, and it isn't," the judge continued.
Realizing he was running out of time, Krzywicki called it "absolutely incorrect" for the ONDA to accuse the bureau of disregarding Oregon's strategy for studying genetic connectivity.
Judge Berzon thanked Krzywicki for his arguments. "Sorry if you're frustrated," she added.
Harney County intervened in the case on behalf of the U.S. government. The county's attorney Dominic Carollo made an analogy to Coho salmon.
"You wouldn't go survey for Coho salmon and their nests in a stream when it's flooding, because you wouldn't be able to see the fish," Carollo said. "Practical common sense would dictate that you're not going to find birds when they're dependent on having this sagebrush that's exposed."
Though scheduled to appear on the panel, Judge Paul Watford was not in the courtroom Thursday.
News outlets have reported that Watford is on President Barack Obama's short list as a potential candidate to replace the late Justice Antonin Scalia on the U.S. Supreme Court.
The ONDA's Lacy called the wind turbine project an "industrial-scale energy facility" that "would forever change the character of this largely undeveloped mountain."
"Steens Mountain is one of the most striking and beloved places in Oregon's high desert," Lacy said in an interview. "It's rich with history and also home to a regionally significant population of the imperiled greater sage grouse."
Lacy said the lack of essential data from the BLM "impeded meaningful public participation" in the proposed project.