NOT FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`
`FILED
`
`
`AUG 1 2022
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`
`
`
`
` Plaintiffs-Appellees,
`
`
`
`
`
`
`
` Defendants,
`
`
`FALLON PAIUTE-SHOSHONE TRIBE;
`No. 22-15092
`
`
`
`CENTER FOR BIOLOGICAL DIVERSITY,
`
`D.C. No.
`
`3:21-cv-00512-RCJ-WGC
`
`
` v.
`
`
`MEMORANDUM*
`
`
`U.S. DEPARTMENT OF THE INTERIOR;
`BUREAU OF LAND MANAGEMENT;
`JAKE VIALPANDO, in his official capacity
`as Field Manager of the Bureau of Land
`Management Stillwater Field Office,
`
`
`
` and
`
`
`ORMAT NEVADA, INC.,
`
`
`
`
`Intervenor-Defendant-
`
` Appellant.
`
`
`
`
`FALLON PAIUTE-SHOSHONE TRIBE;
`No. 22-15093
`
`
`
`CENTER FOR BIOLOGICAL DIVERSITY,
`
`D.C. No.
`
`3:21-cv-00512-RCJ-WGC
`
`
` v.
`
`
`
`
`
`
`
`
` Plaintiffs-Appellants,
`
`
`
`
`*
` This disposition is not appropriate for publication and is not precedent
`
`
`except as provided by Ninth Circuit Rule 36-3.
`
`
`
`
`
`
`
`
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`
`FILED
`
`
`AUG 1 2022
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`
`
`
`
` Plaintiffs-Appellees,
`
`
`
`
`
`
`
` Defendants,
`
`
`FALLON PAIUTE-SHOSHONE TRIBE;
`No. 22-15092
`
`
`
`CENTER FOR BIOLOGICAL DIVERSITY,
`
`D.C. No.
`
`3:21-cv-00512-RCJ-WGC
`
`
` v.
`
`
`MEMORANDUM*
`
`
`U.S. DEPARTMENT OF THE INTERIOR;
`BUREAU OF LAND MANAGEMENT;
`JAKE VIALPANDO, in his official capacity
`as Field Manager of the Bureau of Land
`Management Stillwater Field Office,
`
`
`
` and
`
`
`ORMAT NEVADA, INC.,
`
`
`
`
`Intervenor-Defendant-
`
` Appellant.
`
`
`
`
`FALLON PAIUTE-SHOSHONE TRIBE;
`No. 22-15093
`
`
`
`CENTER FOR BIOLOGICAL DIVERSITY,
`
`D.C. No.
`
`3:21-cv-00512-RCJ-WGC
`
`
` v.
`
`
`
`
`
`
`
`
` Plaintiffs-Appellants,
`
`
`
`
`*
` This disposition is not appropriate for publication and is not precedent
`
`
`except as provided by Ninth Circuit Rule 36-3.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` Defendants-Appellees,
`
`U.S. DEPARTMENT OF THE INTERIOR;
`BUREAU OF LAND MANAGEMENT;
`JAKE VIALPANDO, in his official capacity
`as Field Manager of the Bureau of Land
`Management Stillwater Field Office,
`
`
`
`
`ORMAT NEVADA, INC.,
`
`
`
`
`Intervenor-Defendant-
`
` Appellee.
`
`
`
`Appeal from the United States District Court
`for the District of Nevada
`Robert Clive Jones, District Judge, Presiding
`
`Argued and Submitted June 15, 2022
`San Francisco, California
`
`Before: BYBEE, CALLAHAN, and COLLINS, Circuit Judges.
`
`This case involves an ongoing challenge to the development of a geothermal
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`project on federal public land located over forty miles outside of Fallon, Nevada.
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`Although the parties are familiar with the factual and procedural history of this
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`case, we briefly summarize it as it frames the narrow issue presented for review.
`
`In 2015, ORNI32, LLC, a subsidiary of Ormat Nevada, Inc. (“Ormat”),
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`applied to the Bureau of Land Management (“BLM”) to construct and operate a
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`geothermal project on federal public land located adjacent to the Dixie Meadows
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`hot springs (the “Project”). Under the proposal, the facilities would generate
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`power using heat from geothermal fluid extracted from deep geothermal reservoirs
`
`
`
`2
`
`
`
`
`
`underlying the land. In November 2021, after several years of environmental and
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`cultural resource review and tribal consultation, BLM granted Ormat’s application
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`subject to several conditions, including that the Project be constructed and operated
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`in phases. The Fallon Paiute-Shoshone Tribe (the “Tribe”) and the Center for
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`Biological Diversity (“CBD”) (collectively, “Plaintiffs”) jointly filed suit against
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`BLM alleging violations of the National Environmental Policy Act (“NEPA”), the
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`Religious Freedom Restoration Act (“RFRA”), and the Administrative Procedure
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`Act (“APA”)1 and sought a preliminary injunction to stop the Project’s
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`construction during the pendency of the litigation, which the parties agreed could
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`be resolved within six months.
`
`This case involves two separate appeals, both challenging the district court’s
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`order imposing a preliminary injunction halting construction on the Project for a
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`limited period of ninety days from January 4, 2022 but denying preliminary
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`injunctive relief beyond that period of time. Although we dismiss Ormat’s appeal
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`as moot, we have jurisdiction over Plaintiffs’ cross-appeal under 28 U.S.C. §
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`1292(a)(1), and we affirm.
`
`We review the grant or denial of a preliminary injunction for abuse of
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`discretion. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.
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`2011). The district court’s conclusions of law are reviewed de novo, while factual
`
`
`1 Plaintiffs also assert other claims not relevant to this appeal because they weren’t
`raised in the motion for preliminary injunction.
`
`
`
`3
`
`
`
`
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`findings are reviewed for clear error. Id. A factual finding constitutes clear error if
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`it is “illogical, implausible, or without support in inferences that may be drawn
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`from the facts in the record.” Edmo v. Corizon, Inc., 935 F.3d 757, 785 (9th Cir.
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`2019) (quoting La Quinta Worldwide LLC v. Q.R.T.M., S.A. de C.V., 762 F.3d 867,
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`879 (9th Cir. 2014)).
`
`1.
`
`As a threshold matter, we determine whether we have jurisdiction to
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`review Ormat’s appeal. An appeal is moot and we lose jurisdiction to hear it “[i]f
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`an event occurs while a case is pending on appeal that makes it impossible for the
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`court to grant any effectual relief whatever to a prevailing party.” In re Pattullo,
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`271 F.3d 898, 901 (9th Cir. 2001) (quoting United States v. Arkison (In re Cascade
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`Roads, Inc.), 34 F.3d 756, 759 (9th Cir. 1994)).
`
`A Ninth Circuit motions panel granted Ormat’s motion to stay the ninety-
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`day preliminary injunction on February 4, 2022, effectively providing Ormat all
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`the relief it sought on appeal as construction was allowed to commence shortly
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`thereafter. Even without the stay, the limited ninety-day injunction would have
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`expired by its own terms on April 4, 2022—thus there is no longer an injunction in
`
`place from which Ormat may seek relief. See Ahlman v. Barnes, 20 F.4th 489, 494
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`(9th Cir. 2021) (holding that stay of preliminary injunction on appeal did not toll
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`its expiration date). Accordingly, Ormat’s appeal is moot and we dismiss it on that
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`ground.
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`
`
`4
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`
`
`
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`2. We turn now to Plaintiffs’ cross-appeal. The Supreme Court has
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`explained that plaintiffs seeking a preliminary injunction must establish that (1)
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`they are “likely to succeed on the merits,” (2) they are “likely to suffer irreparable
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`harm absent preliminary relief,” (3) “the balance of equities tips in their favor,”
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`and (4) “an injunction is in the public interest.” Winter v. Nat. Res. Def. Council,
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`Inc., 555 U.S. 7, 20 (2008). We employ a “sliding scale test,” which allows a
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`strong showing on the balance of hardships to compensate for a lesser showing of
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`likelihood of success. Cottrell, 632 F.3d at 1134–35. Thus, when plaintiffs
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`establish that the balance of hardships tips sharply in their favor, that there is a
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`likelihood of irreparable injury, and that the injunction is in the public interest, they
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`need only show “serious questions” on the merits. Id. at 1135. However, where
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`plaintiffs have not made such showings, the original four-factor Winter test applies.
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`See All. for the Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir. 2017).
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`The district court did not err in applying the legal standard as it did. While
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`the district court found that Plaintiffs showed they would suffer irreparable harm in
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`the absence of an injunction, it nonetheless concluded that (1) the balance of
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`hardships tipped sharply in favor of Ormat, not Plaintiffs, after ninety days and (2)
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`that the public interest disfavors the requested injunction. The district court
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`therefore properly considered whether Plaintiffs had demonstrated a likelihood of
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`success on the merits, and not whether they had merely raised “serious questions.”
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`
`
`5
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`
`
`
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`3.
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`The district court first concluded that it could not find, at this early
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`stage of the litigation and given the record before it, that Plaintiffs were likely to
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`succeed on the merits of their claims. The district court’s conclusion did not
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`constitute an abuse of discretion because it was not illogical, implausible, or
`
`unsupported by the record. Doe v. Kelly, 878 F.3d 710, 713 (9th Cir. 2017) (citing
`
`United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc)).
`
`
`
`NEPA Claims. We review agency decisions that allegedly violate NEPA
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`under the APA, and set aside those decisions only if they are “arbitrary, capricious,
`
`an abuse of discretion, or otherwise not in accordance with law.” Native
`
`Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1238 (9th Cir. 2005)
`
`(quoting 5 U.S.C. § 706(2)(A)). This standard is deferential, and the court cannot
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`substitute its own judgment for that of the agency. See Ocean Advocs. v. U.S.
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`Army Corps of Eng’rs, 402 F.3d 846, 858 (9th Cir. 2005).
`
`
`
`Plaintiffs’ NEPA claims challenge BLM’s decision not to prepare an
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`environmental impact statement (“EIS”).2 In reviewing an agency’s decision not to
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`prepare an EIS,
`
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`2 Plaintiffs argue that the April 2022 emergency listing of the Dixie Valley toad “is
`a powerful rebuke to BLM’s assertions that the Project will have no significant
`impacts.” Ormat and BLM counter that the emergency listing cannot be
`considered on appeal because it was not before BLM when it approved the Project
`or the district court when it considered Plaintiffs’ NEPA challenge to BLM’s
`decision. Given the narrow issue before us on this interlocutory appeal, we agree
`that the recent emergency listing is beyond the scope of our review. See Tri-Valley
`
`
`
`6
`
`
`
`
`
`[We] employ an arbitrary and capricious standard that
`requires us to determine whether the agency has taken a
`“hard look” at the consequences of its actions, based [its
`decision] on a consideration of the relevant factors, and
`provided a convincing statement of reasons to explain
`why a project’s impacts are insignificant.
`
`Am. Wild Horse Campaign v. Bernhardt, 963 F.3d 1001, 1007 (9th Cir. 2020)
`
`(alteration in original) (quoting Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d
`
`1005, 1009 (9th Cir. 2006)). Where, as here, an agency has prepared an
`
`environmental assessment (“EA”) and concluded a proposed action will not have
`
`significant environmental effects, the “inquiry is whether the responsible agency
`
`has reasonably concluded that the project will have no significant adverse
`
`environmental consequences.” Save the Yaak Comm. v. Block, 840 F.2d 714, 717
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`(9th Cir. 1988) (internal quotations omitted).
`
`
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`The district court reasonably determined that, under this deferential standard
`
`and at this stage of the proceedings, Plaintiffs did not demonstrate a likelihood of
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`success on their NEPA claims. First, the district court reasonably found that there
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`was more than sufficient baseline information (i.e., flow test, hydrogeological
`
`model, USGS data regarding Dixie Valley toad) available to BLM on the relevant
`
`environmental issues in connection with its development of both the EA and the
`
`CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113, 1130–31 (9th Cir. 2012)
`(recognizing post-decisional bar to extra-record materials in NEPA cases). Of
`course, if Plaintiffs amend their complaint to allege additional claims, the
`emergency listing may become relevant.
`
`
`
`7
`
`
`
`
`
`
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`Aquatic Resource Monitoring and Mitigation Plan (“ARMMP”), including water
`
`resources and species information. Therefore, the district court properly deferred
`
`to “BLM’s application of its technical expertise to draw reasonable inferences from
`
`the available scientific information.” Plaintiffs fail to show that this conclusion
`
`amounts to an abuse of discretion, given the level of deference afforded to the
`
`agency under the APA.
`
`
`
`Next, the district court reasonably concluded that BLM’s reliance on the
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`ARMMP as part of its finding of no significant impact (“FONSI”) was not
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`arbitrary and capricious. BLM was not required to mitigate impacts to zero to
`
`justify a FONSI. Wetlands Action Network v. U.S. Army Corps of Eng’rs, 222
`
`F.3d 1105, 1121 (9th Cir. 2000), overruled on other grounds by Wilderness Soc’y
`
`v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011) (en banc). Additionally, under
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`NEPA, proposed mitigation need only be “developed to a reasonable degree.” Id.
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`Although BLM independently concluded that geothermal development was
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`unlikely to affect the springs (based on the hydrogeological model and flow test), it
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`nevertheless developed the ARMMP to address unanticipated impacts and impose
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`meaningful mitigation measures as needed.
`
`
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`The district court also rejected Plaintiffs’ argument that BLM violated NEPA
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`by failing to meaningfully consider the visual impacts of constructing the Project
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`in an area visible from the Tribe’s sacred site. The district court permissibly
`
`
`
`8
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`
`
`
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`focused on facts in the record demonstrating that BLM took steps to minimize
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`visual impacts of the Project, including the requirement that buildings be painted
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`consistent with BLM’s visual color guidelines and comply with dark-sky lighting
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`practices, as reflected in the EA.
`
`
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`APA Claims. Plaintiffs’ APA claims allege that BLM deviated from agency
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`direction on the protection of sacred sites described in a November 2021 Joint
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`Secretarial Order and a November 2021 Memorandum of Understanding.
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`Plaintiffs argue that BLM’s failure to follow these policies demonstrates that it did
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`not consider relevant factors or articulate a rational connection between the facts
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`found and choices made, in violation of the APA. We find that the district court
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`reasonably concluded that Plaintiffs did not demonstrate how the extensive
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`consultation process BLM undertook since 2007 was insufficient under the topics
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`raised by the policy documents, particularly given the numerous consultation
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`meetings with the Tribe between 2010 and 2021 and the proposed Memorandum of
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`Agreement. The district court’s conclusion that Plaintiffs failed to demonstrate a
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`likelihood of success on the merits of their APA claims was not an abuse of
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`discretion.
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`RFRA Claim. Finally, the Tribe’s RFRA claim alleges that the Project
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`substantially burdens its exercise of religion because the geothermal facility will
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`desecrate the site, making its religious exercise “impossible.” This claim is
`
`
`
`9
`
`
`
`
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`foreclosed by Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1063, 1069–70
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`(9th Cir. 2008) (en banc), which held that “a ‘substantial burden’ is imposed only
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`when individuals are forced to choose between following the tenets of their
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`religion and receiving a government benefit or coerced to act contrary to their
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`religious beliefs by the threat of civil or criminal sanctions.” Even “spiritual[]
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`desecrat[ion]” of a sacred area does not constitute force or coercion needed to
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`show a substantial burden under this standard. See id. at 1070; see also Apache
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`Stronghold v. United States, 38 F.4th 742, 756 (9th Cir. 2022) (“Where there is no
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`substantial burden, there is no ground to apply the ‘compelling interest’ test, and
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`thus no RFRA violation—no matter how dire the practical consequences of a
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`government policy or decision.”). Therefore, the district court did not abuse its
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`discretion in concluding that the Tribe failed to demonstrate a likelihood of success
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`on its RFRA claim.
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`4.
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`Addressing the remaining Winter factors, the district court concluded
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`that after ninety days, the balance of harms from a preliminary injunction tips
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`sharply in favor of Ormat and the public interest disfavors an injunction.3 The
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`district court did not abuse its discretion in its weighing of the harms and equities
`
`or considering whether the injunction is in the public interest. See Winter, 555
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`U.S. at 24 (noting that the weighing of burdens is a discretionary exercise properly
`
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`3 Because the district court found Plaintiffs will suffer irreparable harm, Plaintiffs
`do not challenge that finding on appeal.
`
`
`
`10
`
`
`
`
`
`within the province of the district court). Against the harms to Plaintiffs’ aesthetic,
`
`recreational, and religious and spiritual interests, the district court properly
`
`considered the irreparable economic harm to Ormat from halting Project
`
`construction beyond ninety days. The record supported the finding that a delay of
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`construction beyond that time would make it “all but certain” that Ormat would not
`
`be able to complete construction by the end of 2022 and would therefore stand to
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`lose $30 million over twenty years. See Amoco Prod. Co. v. Vill. of Gambell, 480
`
`U.S. 531, 545 (1987) (holding that the analysis includes consideration of economic
`
`losses). Beyond the economic losses to Ormat, the district court properly
`
`considered the public interest in “a source of carbon-free baseload electricity,”
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`royalty returns to the federal government, and state and local taxes which would be
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`collected as a result of the Project, all of which it reasonably concluded would be
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`threatened by an injunction longer than ninety days.
`
`Case No. 22-15092 is DISMISSED as moot, and each party shall bear its
`
`own costs on that appeal. Case No. 22-15093 is AFFIRMED, and costs shall
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`be awarded to Ormat on that appeal.
`
`
`
`11
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`
`
`
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