UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. Nos , , , ,

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1 Case: /26/2011 Page: 1 of 39 ID: DktEntry: 97 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Nos , , , , SUMMIT LAKE PAIUTE TRIBE, Nevada, Petitioner, v. U.S. BUREAU OF LAND MANAGEMENT; U.S. FISH AND WILDLIFE SERVICE; U.S. ARMY CORPS OF ENGINEERS, Respondents, and RUBY PIPELINE, L.L.C., Respondent-Intervenor. CENTER FOR BIOLOGICAL DIVERSITY et al., Petitioners, v. U.S. BUREAU OF LAND MANAGEMENT et al., Respondents, and RUBY PIPELINE, L.L.C., Respondent-Intervenor. COALITION OF LOCAL GOVERNMENTS, Petitioner, v. U.S. BUREAU OF LAND MANAGEMENT, Respondents, and 1

2 Case: /26/2011 Page: 2 of 39 ID: DktEntry: 97 RUBY PIPELINE, L.L.C., Respondent-Intervenor. FORT BIDWELL INDIAN COMMUNITY, Petitioner, v. U.S. BUREAU OF LAND MANAGEMENT et al., Respondents, and RUBY PIPELINE, L.L.C., Respondent-Intervenor. DEFENDERS OF WILDLIFE et al., Petitioners, v. U.S. BUREAU OF LAND MANAGEMENT et al., Respondents, and RUBY PIPELINE, L.L.C., Respondent-Intervenor. REPLY BRIEF OF SUMMIT LAKE PAIUTE TRIBE Colette Routel Assistant Professor, William Mitchell College of Law 875 Summit Avenue Saint Paul, MN (651) colette.routel@wmitchell.edu Attorney for Summit Lake Paiute Tribe (No ) 2

3 Case: /26/2011 Page: 3 of 39 ID: DktEntry: 97 TABLE OF CONTENTS STANDARD OF REVIEW 8 ARGUMENT. 9 I. THE TRIBE IS THE PROPER PETITIONER IN THESE PROCEEDINGS.. 9 II. BLM VIOLATED THE NHPA BY FAILING TO CONSULT WITH THE SUMMIT LAKE PAIUTE TRIBE IN A TIMELY MANNER 12 A. The BLM Manual Handbook Section H is Binding 12 B. Neither FERC nor BLM Consulted with the Tribe in a Timely Manner 17 C. The Tribe was Prejudiced by BLM s Failure to Consult in a Timely Manner 23 D. BLM Had Consultation Responsibilities 26 III. IV. THE BLM VIOLATED THE NHPA BY RELYING ON FAULTY AND INCOMPLETE DATA ON PREHISTORIC AND HISTORIC PROPERTIES 27 THE USFWS S INCIDENTAL TAKE CONCLUSIONS IN THE BIOLOGICAL OPINION ARE ARBITRARY AND CAPRICIOUS 29 A. Respondents Provide Only Post Hoc Rationalizations for the Lack of any Analysis in the Biological Opinion of the Effects to Listed Species From Project Groundwater Depletions. 29 3

4 Case: /26/2011 Page: 4 of 39 ID: DktEntry: 97 B. The BiOp s ITS Contains No Conditions for Active Screens, and Fish Collection Activities Fail to Account for a Greater Risk of Fish Presence for the Project Than With the 2004 BiOp.. 33 C. The BiOp s ITS Does Not Explain Why It Was Impracticable For USFWS to Express Take of Lahontan Cutthroat Trout in Numerical Form. 36 CONCLUSION. 36 SUPPLEMENTAL STATEMENT OF RELATED CASES 37 CERTIFICATE OF COMPLIANCE 38 CERTIFICATE OF SERVICE..39 4

5 Case: /26/2011 Page: 5 of 39 ID: DktEntry: 97 TABLE OF AUTHORITIES Federal Statutes, Agency Regulations and Related Materials Administrative Procedures Act, 5 U.S.C. 554, 556, National Historic Preservation Act, 16 U.S.C. 470(i), 470(s) Fed. Reg. 4, ACHP s Regulations Implementing the NHPA, 36 C.F.R. Part C.F.R , 18, 20, 21, C.F.R C.F.R C.F.R , Fed. Reg. 19, National Programmatic Agreement, 61 Fed. Reg. 66,057 (Dec. 16, 1996) 14 National Programmatic Agreement between the BLM and ACHP (March 1997) 14, 15 U.S. DEPARTMENT OF THE INTERIOR BUREAU OF LAND MANAGEMENT, BLM MANUAL HANDBOOK, H (Dec. 3, 2004). passim Federal & State Cases Aluli v. Brown, 437 F. Supp. 602 (D. Hawaii 1997) 28 Amerind Risk Management Corp. v. Malaterre, 633 F.3d 680 (8th Cir. 2011) 11 Benton Franklin Riverfront Trailway & Bridge v. Lewis, 701 F.2d 784 (9th Cir. 1983) 28 Cherokee Nation v. Georgia, 30 U.S. 1 (1831) 11 C & L Enter.s, Inc. v. Citizen Band Potawatomi., 72 P.3d 1 (Okla. 2002) 10 Dickinson v. Zurko, 527 U.S. 150 (1999). 8-9 Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147 (9th Cir. 2006) 33 Fla. Key Deer v. Stickney, 864 F. Supp (S.D. Fla. 1994)

6 Case: /26/2011 Page: 6 of 39 ID: DktEntry: 97 Fraass Survival Sys., Inc. v. Absentee Shawnee Econ. Dev. Auth., 817 F.Supp. 7 (S.D.N.Y. 1993)...10 Humane Soc y of the U.S. v. Locke, 626 F.3d 1040 (9th Cir. 2010) 32 Kowaleski v. Director, Officer of Workers Comp. Progr.s, U.S. Dept. Labor, 879 U.S. F.2d 1173 (3d Cir. 1989) 12 Motor Vehicles Mfrs. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) 9 Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800 (9th Cir. 1999) 9 In re N.N.E., 752 N.W.2d 1 (Iowa 2008) 10, 11 North County Comm.Alliance, Inc. v. Salazar, 573 F.3d 738 (9th Cir. 2009) 11 Or. Natural Res. Council v. Allen, 476 F.3d 1031 (9th Cir. 2007) 9, 35, 36 Or. Natural Desert Ass n v. BLM, 531 F.3d 1114 (9th Cir. 2008) 33 Pueblo of Sandia v. United States, 50 F.3d 856 (10th Cir. 1995)..28 Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944 (9th Cir. 2003) 33 Talton v. Mays, 163 U.S. 376 (1896) 11 Tucson Herpetological Soc y v. Salazar, 566 F.3d 870 (9th Cir. 2009) 32 United States v. Fifty-Three Eclectus Parrots, 685 F.2d 1131 (9th Cir. 1982) 12, 13, 15, 16, 17 U.S. Dep t of Interior v. FERC, 952 F.2d 538 (D.C. Cir. 1992) 32 United States v. Oneida Nation of New York, et al., 576 F.2d 870 (Ct. Cl. 1978).10 Other Materials Aman & Mayton, Administrative Law (West 1998) 8 K. Davis & R. Pierce, 2 Administrative Law Treatise 11.2 (3d ed. 1994) 8-9 THE OXFORD ENGLISH DICTIONARY, Vol. XV (2d ed. 1991) 17 6

7 Case: /26/2011 Page: 7 of 39 ID: DktEntry: 97 GLOSSERY OF TERMS ACHP: APA: BLM: BA: BiOp: ESA: FEIS: FERC: ITS: NEPA: NHPA: Petition: ROD: ROW: Ruby: SHPO: TCP: THPO: Tribe or SLPT: TUP: USFWS: Advisory Council on Historic Preservation Administrative Procedures Act U.S. Department of the Interior, Bureau of Land Management Biological Assessment Biological Opinion Endangered Species Act Final Environmental Impact Statement Federal Energy Regulatory Commission Incidental Take Statement National Environmental Policy Act National Historic Preservation Act Summit Lake Paiute Tribe s Petition for Review BLM s July 12, 2010 Record of Decision Right-of-way Ruby Pipeline, L.L.C. State Historic Preservation Officer Traditional religious and cultural property Tribal Historical Preservation Officer Summit Lake Paiute Tribe Temporary use permits United States Fish and Wildlife Service 7

8 Case: /26/2011 Page: 8 of 39 ID: DktEntry: 97 STANDARD OF REVIEW The United States claims that this Court should review the BLM s factual findings under the substantial evidence standard, which is more deferential than the clearly erroneous standard applied to the review of district court findings of fact. U.S. Br. at 18. The APA establishes, however, that the substantial evidence standard applies only when the statute the agency is administering requires that the proceedings be held on the record. 5 U.S.C. 706(2)(E); Aman & Mayton, Administrative Law (West 1998). In those cases, the agency follows formal adjudication procedures, which require a hearing before an administrative law judge, the presentation of sworn testimony, and the cross-examination of witnesses. 5 U.S.C. 554, 556. NEPA, the NHPA, and the ESA do not require that agency proceedings be on the record, and neither the BLM nor the USFWS provided these additional procedural protections when deciding whether to issue the BiOp and grant ROW and TUPs to Ruby. Thus, the substantial evidence standard is inapplicable. The agencies involved in this litigation used standard notice-and-comment procedures in considering Ruby s application. As a result, the BLM s factual findings are reviewed under the arbitrary and capricious standard, 5 U.S.C. 706(2)(A), which grants the agency less deference than the clearly erroneous standard. Dickinson v. Zurko, 527 U.S. 150, 153 (1999) (citing 2 K. Davis & R. 8

9 Case: /26/2011 Page: 9 of 39 ID: DktEntry: 97 Pierce, Administrative Law Treatise 11.2 (3d ed. 1994)). See also Muckleshoot Indian Tribe v. U.S. Forest Service, 177 F.3d 800, 804 (9th Cir. 1999) (holding that agency factual findings were subject to an arbitrary and capricious standard of review in a lawsuit alleging violations of NEPA and NHPA). The arbitrary and capricious standard requires that this Court conduct a searching and careful review of the record, Or. Natural Res. Council v. Allen, 476 F.3d 1031, 1036 (9th Cir. 2007), and overturn the decision if the agency offered an explanation... that runs counter to the evidence before [it]. Motor Vehicles Mfr.s v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). ARGUMENT To avoid duplication, the Summit Lake Paiute Tribe adopts and incorporates herein the arguments made by petitioners Center for Biological Diversity, Defenders of Wildlife, and the Fort Bidwell Indian Community. I. THE TRIBE IS THE PROPER PETITIONER IN THESE PROCEEDINGS Before obtaining pro bono counsel, Chairman Barlese filed a pro se Petition on behalf of the Tribe. US-ER-19. Even though the Petition lists the Tribe as a party to these proceedings, the United States claims that only Chairman Barlese is the petitioner. U.S. Br. at 1, n.1. Supposedly, non-natural persons (such as a tribe) cannot be represented pro se, and therefore, this Court must consider the Petition to have been filed individually by the Chairman. Id. The cases relied 9

10 Case: /26/2011 Page: 10 of 39 ID: DktEntry: 97 upon by the United States, however, address only the general restriction on pro se representation of corporations, partnerships, and other unincorporated associations. The United States does not cite a decision from any federal or state court that has prohibited an Indian tribe from appearing pro se. In fact, courts that have directly addressed this issue have held that a federally recognized Indian tribe can be represented pro se by its elected officials. See e.g., Fraass Survival Sys., Inc. v. Absentee Shawnee Econ. Dev. Auth., 817 F.Supp. 7, 10 (S.D.N.Y. 1993); In re N.N.E., 752 N.W.2d 1, 12 (Iowa 2008). 1 In doing so, they have concluded that there are many key differences between tribes and corporations. First, while lay representation of corporations is suspect because of the possibility of conflicting interests, there is no such conflict for Indian tribes. A representative of a tribal government or agency... has political authority to represent the interests of the group and federal courts should not second-guess the status and operation of that government. Frass, 817 F.Supp. at Here, the Chairman is the Chief Executive of the Tribe, and the Council, its legislative body, authorized this suit through numerous resolutions. See, e.g., (Aug. 4, 2010 Council 1 See also C & L Enter.s, Inc. v. Citizen Band Potawatomi Tribe of Okla., 72 P.3d 1 (Okla. 2002) (court did not question a tribe s pro se representation in a commercial arbitration case); United States v. Oneida Nation of New York, et al., 576 F.2d 870 (Ct. Cl. 1978) (tribe filed a pro se motion to postpone argument after suspending its attorney of record, which was responded to by the U.S. and given substantive consideration by the court.). 10

11 Case: /26/2011 Page: 11 of 39 ID: DktEntry: 97 Resolution authorizing Chairman to make preliminary litigation strategy decisions until legal counsel could be obtained). 2 Second, there is a trust responsibility between Indian tribes and the United States. While this does not impose an affirmative obligation to provide counsel, it does suggest that some degree of accommodation is in order. Id. at 11. This is especially true since many Indian tribes, including the 120-member Summit Lake Paiute Tribe, do not have an attorney general and lack the resources to obtain outside counsel. In re N.N.E., 752 N.W.2d at 1. Lastly, unlike corporations, tribes possess inherent sovereignty that predates the U.S. Constitution and that sovereignty deserves our respect. Id. See also Cherokee Nation v. Georgia, 30 U.S. 1, (1831) (Indian tribes are domestic dependent nations, and while not foreign nations, they are sovereign states); Talton v. Mays, 163 U.S. 376, (1896) (holding that the sovereign powers of Indian tribes are inherent, and do not arise or spring from the U.S. Constitution). 2 This Court can take judicial notice of Council Resolutions, which are official acts of the Tribal government and available to the general public. North County Community Alliance, Inc. v. Salazar, 573 F.3d 738, 746 n.1 (9th Cir. 2009) (taking judicial notice of tribal ordinance available to the public); Amerind Risk Management Corp. v. Malaterre, 633 F.3d 680, 685 n.6 (8th Cir. 2011) (taking judicial notice of tribe s corporate charter). 11

12 Case: /26/2011 Page: 12 of 39 ID: DktEntry: 97 Furthermore, barring pro se representation of the Summit Lake Paiute Tribe by its Chairman would serve no practical purpose in this case. 3 The Tribe has been represented by counsel since October 4, 2010 (when the notice of appearance was filed), which is before the administrative record was served on the parties. Every motion and brief in this case has been filed by the undersigned explicitly on behalf of the Tribe. This Court has already implied that the Tribe is the proper party to these proceedings by denying the United States motion to strike the standing declarations of Tribal members Lorieta and William Cowan. See Feb. 1, 2011 Order. There is no reason to alter that decision now. II. BLM VIOLATED THE NHPA BY FAILING TO CONSULT WITH THE SUMMIT LAKE PAIUTE TRIBE IN A TIMELY MANNER A. The BLM Manual Handbook Section H is Binding The United States claims that Section H of the BLM Manual Handbook, which contains detailed requirements for government-to-government consultation with Indian tribes, is not binding on the agency. U.S. Br. at 67. In support of this argument, the United States cites this Court s decision in United States v. Fifty-Three Eclectus Parrots for the proposition that Handbooks are only 3 While the United States claims that counsel should have amended the Petition to add the Tribe as a party, a petition for review can only be amended during the time allotted for filing, Kowaleski v. Director, Officer of Workers Comp. Progr.s, U.S. Dept. Labor, 879 U.S. F.2d 1173, 1176 (3d Cir. 1989), and the Tribe was not represented by counsel as of that date. 12

13 Case: /26/2011 Page: 13 of 39 ID: DktEntry: 97 enforceable if they (1) have been promulgated pursuant to a specific statutory grant of authority and in conformance with the procedural requirements imposed by Congress, and (2) prescribe substantive rules not interpretive rules, general statements of policy or rules of agency organization, procedure or practice. 685 F.2d 1131, 1136 (9th Cir. 1982); U.S. Br. at While this is the legal standard to be applied, the Handbook satisfies it. First, this section of the Handbook was promulgated pursuant to a specific statutory grant of authority and in conformance with the procedural requirements imposed by Congress. Fifty-Three Eclectus Parrots, 685 F.2d at In the NHPA, Congress created the ACHP and granted it the authority to promulgate rules and regulations necessary to implement Section 106 of the Act. 16 U.S.C. 470(i), 470(s). The ACHP complied with this responsibility by enacting the regulations found at 36 C.F.R. Part 800. Subpart C of the Part 800 regulations authorizes other federal agencies to develop procedures to implement section 106 and substitute them for all or part of subpart B of this part. 36 C.F.R (a) (emphasis added). Subpart C also provides that the ACHP and other federal agencies may negotiate a programmatic agreement to govern the implementation of a particular program... or multiple undertakings. 36 C.F.R (b). See also 36 C.F.R (a)(2) (ACHP regulation within Subpart B providing: If the review of the undertaking is governed by a Federal agency program alternative 13

14 Case: /26/2011 Page: 14 of 39 ID: DktEntry: 97 established under or a programmatic agreement in existence before January 11, 2001, the agency official shall follow the program alternative ). In 1996, in accordance with these regulations, the BLM and ACHP began negotiating a national programmatic agreement. A notice published in the Federal Register on December 16, 1996 announced the resulting draft agreement: The purpose of this notice is to invite comments on a proposal to execute a programmatic agreement among the Bureau of Land Management, the Advisory Council on Historic Preservation, and the National Conference of State Historic Preservation Officers. The agreement would establish an alternate structure, to substitute for the standard regulatory process in 36 CFR Part 800, for complying with Section 106 of the National Historic Preservation Act. SLPT AD-54 ( National Programmatic Agreement, 61 Fed. Reg. 66,057 (December 16, 1996) (emphasis added). The Federal Register notice indicated that the programmatic agreement would establish a Preservation Board. One of the duties of the Board would be to revise the procedures contained in the BLM Manual (8100 Series), including enhancement of policies and procedures on Native American consultation. SLPT AD-55. The programmatic agreement referred to in this notice was ultimately executed in March SLPT AD-57 to -68 (1997 National Programmatic Agreement). As anticipated, it authorized the creation of the Preservation Board, and established procedures for revising the BLM Manual Handbook, including the section on Native American Coordination and Consultation. SLPT AD-61. It 14

15 Case: /26/2011 Page: 15 of 39 ID: DktEntry: 97 also explicitly stated that the BLM would meet its obligations under the NHPA through the implementation of the mechanisms agreed to in this agreement rather than by following the procedure set forth in the Council s regulations. SLPT AD-60. Section H of the BLM Manual Handbook was then revised in accordance with the procedures contained in the programmatic agreement. SLPT AD-62 (requiring the BLM to ensure adequate public participation and consultation with parties outside the BLM when revising the Handbook, including government-to-government consultation with Indian tribes). The Handbook itself indicates that it is binding on the BLM when performing its duties under the NHPA: The PA authorizes BLM to comply with Section 106 by following its own cultural resource program policies and procedures as found in the BLM 8100-Series Manual Sections and Manual Handbooks... the procedural details in the BLM Manuals and Handbooks, replace the Council s regulations (36 CFR Part 800) and associated Council guidance for routine compliance activities... SLPT-AD-76 (BLM Manual Handbook H , II-2). Consequently, the provisions in the BLM Manual Handbook were enacted in accordance with the NHPA, the ACHP s regulations, and the national programmatic agreement in a manner that permitted extensive public comment by Indian tribes and the general public. This satisfies one prong of the two-part test enunciated by this Court in Fifty-Three Eclectus Parrots. 15

16 Case: /26/2011 Page: 16 of 39 ID: DktEntry: 97 Second, the relevant Handbook sections prescribe substantive rules not interpretive rules, general statements of policy or rules of agency organization, procedure or practice. Fifty-Three Eclectus Parrots, 685 F.2d at The Handbook explicitly states that its goal is to help assure (1) that federally recognized tribal governments and Native American individuals, whose traditional uses of public land might be affected by a proposed BLM action, will have sufficient opportunity to contribute to the decision, and (2) that the decision maker will give tribal concerns proper consideration. SLPT-AD-73. Moreover, the Handbook sections at issue here impose very specific requirements on BLM officials; they are not broad policy statements. BLM officials are told who to consult with from the tribe and what consultation includes. See, e.g., SLPT-AD- 97, -98, The United States asserts, without citation or explanation, that the Guidelines are not even written in mandatory language. U.S. Br. at 76. That is simply not the case. The Handbook repeatedly uses mandatory language such as must, see, e.g., SLPT-AD-103 ( managers must make good faith efforts to elicit information and views directly from affected Native Americans ); SLPT-AD-106 ( If a decision does not conform with the tribe s requests, the consultation record must explain the manager s basis for reaching a different outcome ), cannot, see, e.g., SLPT-AD-101 ( The BLM s responsibility to notify and consult with Native 16

17 Case: /26/2011 Page: 17 of 39 ID: DktEntry: 97 Americans cannot be assigned or delegated to any other party ), and should, see, e.g., SLPT-AD102 ( [T]ribes should be notified and invited to participate at least as soon as (if not earlier than) the Governor, State agencies, local governments, and other Federal agencies. ). 4 As the above-discussion establishes, Section H of the BLM Manual Handbook satisfies the test established by this Court in Fifty-Three Eclectus Parrots, and is therefore binding and enforceable against the agency. B. Neither FERC nor BLM Consulted with the Tribe in a Timely Manner If Section H of the BLM Manual Handbook is binding on the agency, BLM has clearly violated its consultation duties under the NHPA. As discussed in the Tribe s Opening Brief at 22-30, the Handbook requires Indian tribes to be notified and invited to participate in project meetings at the same time, or earlier then, other state and federal agencies. SLPT-AD-102. This did not happen. Federal agencies held at least twelve meetings relating to the Ruby Pipeline Project in 2008, and the Summit Lake Paiute Tribe was not notified or 4 Perhaps the United States is arguing that should is not a mandatory term. See U.S. Br. at 69. While the proper definition of should is shall, which is certainly mandatory language, see SLPT-AD-151 (XV THE OXFORD ENGLISH DICTIONARY, 344 (2d ed. 1991)), some mistakenly use this term to mean that an activity is usually required, but not always. Regardless, even if this term provides the agency with some discretion, this does not counsel against the binding nature of these sections of the Handbook. After all, ACHP s binding regulations also use the word should on more than one occasion. See, e.g., 36 C.F.R (c)(2)(ii)(A). 17

18 Case: /26/2011 Page: 18 of 39 ID: DktEntry: 97 invited to participate in any of these meetings. See, e.g., SLPT-ER-355, -335, - 352, -409, -431, -453, -482, -503, -1182, -1185, -1188, -1231, During this critical time period, impacts along the proposed pipeline route were discussed, and virtually every route modification or variance that was ultimately adopted was proposed. SLPT Opening Br Alternatively, even if only the ACHP s regulations apply, the BLM has still failed to perform its consultation duties. Those regulations state that [c]onsultation should commence early in the planning process, in order to identify and discuss relevant preservation issues and resolve concerns about the confidentiality of information on historic properties. 36 C.F.R (c)(2)(ii)(A). The United States claims that the Tribe s argument in its opening brief is flawed because it ignored FERC s extensive consultation efforts, and that when those efforts are combined with the BLM s efforts, they demonstrate that the Tribe was properly and timely consulted about its sacred sites. U.S. Br. at 70. See generally U.S. Br. at These allegations are untrue. In November 2007, Ruby submitted a formal application to the BLM seeking rights-of-way across federal lands to build their proposed natural gas pipeline. SLPT-ER-311. The only consultations that occurred between that date and the summer of 2009 are summarized in the draft environmental impact statement, SLPT-ER-666, and in a consultation matrix included in the 18

19 Case: /26/2011 Page: 19 of 39 ID: DktEntry: 97 administrative record. SLPT-ER-486. As explained below, none of these contacts satisfies the consultation required by the NHPA. NEPA Scoping Notice and Meeting: The Tribe was not notified of the proposed pipeline until more than four months after the BLM received Ruby s application. Then, FERC and Ruby mailed notices to thousands of members of the public, along with federal, state, and tribal officials. See SLPT-ER-332 (March 28, 2008 scoping notice); SLPT-ER-370 (April 3, 2008 scoping notice). Contrary to the assertions of the United States, see U.S. Br. at 71-72, these notices do not constitute consultation. The plain meaning of consultation is [a] meeting in which parties consult or confer with one another. Black s Law Dictionary at 358 (9th ed. 2009). 5 Furthermore, these notices do not mention the NHPA or the federal government s consultation duty, and they do not request information on TCPs. They simply cannot be considered consultation under any definition of that term. The United States also claims that the April 24, 2008 Winnemucca, Nevada public scoping meeting referenced in these notices constitutes a consultation session with the Tribe because it was attended by Ron Eageleye Johnny, the Tribe s Acting Administrator. In making this allegation, the United States 5 The BLM Manual Handbook adopts this definition, by explaining that when notification is required by a statute, it can be satisfied through simple written means, but consultation is generally construed to mean direct, two-way communication. SLPT-AD

20 Case: /26/2011 Page: 20 of 39 ID: DktEntry: 97 completely ignores the Tribe s discussion in its Opening Brief at 26-27, fn. 5. As that discussion establishes, prior to the meeting, Mr. Johnny was explicitly told in correspondence with Merjent (the contractor hired by FERC to prepare the final environmental impact statement) that [t]hese [public scoping] meetings are not part of the NHPA Section 106 process. That process is being conducted separately. SLPT-ER-381. It is bad faith to now claim that this meeting does constitute consultation. Mr. Johnny does not have the authority to represent the Tribe in government-to-government consultations, and FERC and BLM are required to consult with officials who have been designated by the tribe for that specific purpose. See 36 C.F.R (c)(2)(ii)(C); SLPT-AD-97, Telephone calls and correspondence with FERC. The next time FERC contacted the Tribe was on July 2, 2008, when Laurie Boros, a FERC archaeologist, left a message with an unidentified person at the Tribe. SLPT- ER-486 to-87. Mr. Johnny returned this telephone call and left a message for Ms. Boros, but he did not receive a response until August 7, 2008, when they spoke briefly via telephone. FERC s notes about this telephone conversation indicate only that Ms. Boros provided contact information for herself and discussed government to government consultation. SLPT-ER-487. Mr. Johnny expressed the Tribe s dismay at the lack of consultation and let Ms. Boros know that Nevada Indian tribes would be assembling at their own meeting on August 14, 2008 to 20

21 Case: /26/2011 Page: 21 of 39 ID: DktEntry: 97 discuss how to respond to FERC s failures. After this tribal meeting, the Summit Lake Paiute Tribe, SLPT-ER-406, Reno-Sparks Indian Colony, SLPT-ER-1183, and Fort Bidwell Indian Community, SLPT-ER-416, each sent protest letters to FERC and demanded that proper government-to-government consultation begin. These contacts demonstrate the lack of consultation, and cannot help the United States here. October 27, 2008 Meeting. At the end of October, FERC did finally hold one face-to-face meeting with the Tribe. The abbreviated notes provided in the administrative record indicate that the Tribe highlighted its concern about the impact the pipeline would have on sacred sites, and FERC told them that cultural resource issues... would be addressed in environmental review of the project. SLPT-ER It was FERC s choice not to seek information about the Tribe s TCP during this meeting. This is the only meeting that FERC ever held with the Tribe before completing the FEIS in January ACHP regulations state that federal agencies shall ensure that consultation provides Indian tribes with a reasonable opportunity to identify TCPs, articulate their views on the project s effects on those TCPs, and participate in the resolution of adverse effects. 36 C.F.R (c)(2)(ii)(A). Both ACHP regulations and the BLM s Manual Handbook recognize the sensitivity of the information that must be gathered to comply with Section 106, and the reluctance of tribes to provide this 21

22 Case: /26/2011 Page: 22 of 39 ID: DktEntry: 97 information C.F.R (stating that agency officials must recognize[e] that an Indian tribe or Native Hawaiian organization may be reluctant to divulge specific information regarding the location, nature, and activities associated with [TCPs] ); SLPT-AD98 ( Particularly where places of religious importance are involved, tribes may be reluctant to provide specific information, perhaps because it is culturally impermissible to share such information outside the tribe, or because the appropriateness of BLM s use and protection of the information are not certain. Some of the hesitancy to provide specific information early in the planning and project review process may be overcome once an effective working relationship has been built ). It is for this reason that consultation requires the establishment of a trust through regular face-to-face meetings that begin as soon as the project is being contemplated. See, e.g., SLPT-AD-98 (stating that consultation generally 6 This reluctance may be due to mistrust of the federal government, concerns about looting or non-indians misappropriating Indian religious beliefs, or tied to cultural taboos. For example, a common theme among many tribal religions is that speaking about death, deceased relatives, or the location of burial sites, will hasten one s own death or bring disease and destruction to the community. See Affidavit of Chairman Barlese (SLPT Sealed Documents); Affidavit of Lorieta Cowan (SLPT Sealed Documents). See also, Ben Daitz, M.D., With Poem, Broaching the Topic of Death, New York Times (Jan. 24, 2011) (discussing the difficulties inherent in teaching Navajo people about living wills and do-not-resuscitate orders because [i]n Navajo culture, talking about death is thought to bring it about, so it is not discussed ). 22

23 Case: /26/2011 Page: 23 of 39 ID: DktEntry: 97 demands more effort than routine public participation, and will normally involve face-to-face meetings with tribal leaders on a recurring basis). As the above discussion and the discussion contained in the Opening Brief at establish, neither FERC nor BLM ensured that the Tribe was provided with a reasonable opportunity to identify its TCPs, articulate its views on the project s effects on those TCPs, and participate in the resolution of adverse effects. This constitutes a violation of the NHPA, and necessitates reversal of the ROD. C. The Tribe was Prejudiced by BLM s Failure to Consult in a Timely Manner The United States also alleges the Tribe repeatedly chose not to provide any specific information about the nature or location of its important resources, and therefore, even if FERC or BLM had extended more or earlier invitations to the Tribe to participate, it would have made no difference in the outcome. U.S. Br. at This claim is contradicted by the administrative record, and by documents that the United States should have included in that record but deliberately and inappropriately withheld from the Petitioner. 7 Both Ruby and the U.S claim that the Tribe promised to do its own ethnographic study in 2009, was paid by Ruby to do so, but ultimately refused to turn over any information. First, the Tribe thought it was obtaining cost recovery (modeled after what Ruby pays BLM) to hold regional meetings with Tribal members to explain the proposed project, not to do an ethnographic study. This misunderstanding would not have occurred if BLM had actually been involved in these discussions at the outset, rather than delegating them to Ruby. Second, BLM did not schedule a consultation session to discuss the Tribe s reluctance to provide this information. Failure to do so was a violation of the NHPA. 23

24 Case: /26/2011 Page: 24 of 39 ID: DktEntry: 97 In November 2009, Chairman Barlese sent a letter to FERC demanding that the agency delay the issuance of the FEIS because the Tribe has repeatedly declared the area along the proposed route in the narrow strip of land between the Summit Lake Reservation and the Sheldon NWR as a TCP, but this declaration has yet to be acknowledged by FERC or the BLM. SLPT-ER-958. FERC recited this portion of the Chairman s letter in the FEIS, and claimed that delay was not appropriate because a TCP was not identified in any of Mr. Barlese s numerous pervious correspondences, during out October 28, 2008 meeting... nor in the tribe s own study. Id. But see, SLPT-ER-407, -410, -439, -547, FERC promised, however, that if the tribe has new information it now is willing to share, we would consider this during the Section 106 [NHPA] process. Id. During a face-to-face consultation session held in February 2010, the Tribe repeated its long-standing request for a site visit so that Council members could point out the sacred features found along the pipeline route. SLPT-ER-983. The Tribe finally received that site visit on March 27, BLM and Tribal officials traveled north and northeast of the Summit Lake Reservation on foot. SLPT- ER-987. Council members pointed out the locations of prayer stacks, the Altar Rock and a sweat lodge complex used by Tribal members throughout the spring and summer months. Near the Altar Rock, BLM officials found an olivella bead, which they admitted was suggestive of a burial or burials. May 25,

25 Case: /26/2011 Page: 25 of 39 ID: DktEntry: 97 Memorandum (SLPT Sealed Documents). Along a narrow canyon, BLM officials were shown locations where tribal offerings of eagle feathers are made, and they observed bundles of heavily weathered cloth and/or ribbon in the canyon s fissures (i.e., tobacco ties), which are left by individuals who come to the site to pray. Id. Babies are taken to this area by their mothers soon after birth, and dance regalia is decommissioned here. Id.; SLPT-ER In short, these site visits confirmed what the Tribe had been telling FERC and BLM officials for the prior year: a TCP existed between the northern boundary of the Reservation and the southern boundary of the Sheldon National Wildlife Refuge. BLM officials created a map of this TCP following the May site visit, and that map confirmed that the approved pipeline route would run straight through the TCP. May 20, 2010 Map (SLPT Sealed Documents). Therefore, contrary to what the United States alleges, had federal officials consulted with the Tribe early in the project-approval process, it would have made a difference in the outcome. While the NHPA is a procedural statute and could not have required the BLM to alter the pipeline route, BLM would have been forced to (1) thoroughly analyze the impacts to this TCP before issuing the ROD, and (2) analyze all reasonable alternatives to this pipeline route. 25

26 Case: /26/2011 Page: 26 of 39 ID: DktEntry: 97 D. BLM had Consultation Responsibilities Lastly, the United States tries to duck and weave by claiming that even if consultation never occurred only FERC is liable for that violation of the NHPA, not the BLM. But the ACHP s regulations provide that BLM is only absolved of its responsibility if (1) FERC was designated as the lead Federal agency for purposes of fulfilling the NHPA s Section 106 responsibilities, and (2) FERC designated an agency official to act on its behalf and conduct government-togovernment consultation sessions with the Tribe. 36 C.F.R (a)(2); 800.2(c)(2)(ii)(C). Neither of these things occurred. Even though BLM received Ruby s application for ROW and TUPs in November 2007, neither FERC nor BLM issued any notice or sent the Tribe any letter that identified FERC as the lead agency and indicated the FERC official responsible for consultations. The scoping notices that were published and distributed in March and April 2008 simply stated that FERC was the lead agency for purposes of NEPA compliance. SLPT-ER-332, There is no mention of the NHPA in these notices, and no agency official was designated as the person responsible for government-to-government consultations. Instead, in a January 2010 letter, BLM affirmatively represented that it was required to engage in formal consultations with the Summit Lake Paiute Tribe. SLPT-ER-560 ( Both FERC and the BLM are responsible for conducting 26

27 Case: /26/2011 Page: 27 of 39 ID: DktEntry: 97 government-to-government consultations on this project ). 8 The Summit Lake Paiute Tribe relied on this representation by the BLM and the agency cannot absolve itself of liability now. III. THE BLM VIOLATED THE NHPA BY RELYING ON FAULTY AND INCOMPLETE DATA ON PREHISTORIC AND HISTORIC PROPERTIES In its Opening Brief, the Tribe noted that the Class III (pedestrian) cultural resource surveys conducted by Pacific Legacy along the Nevada pipeline route were faculty and incomplete. SLPT Opening Br. at The administrative record shows that BLM employees repeatedly complained about the quality of Pacific Legacy s work. See, e.g., SLPT-ER-425 to -430, -503, -567, -584, Yet the United States claims that the Tribe was incorrect to assert that the reports and survey information relied upon by the BLM were fundamentally flawed. U.S. Br. at If anything, claims the United States, the comments Barlese cites demonstrate BLM s efforts to improve the information that would be used for the draft and final EISes. U.S. Br. at This letter does contain a contradictory statement, which claims that FERC is the lead agency for consultation under the NHPA. SLPT-ER-559. But this isolated statement cannot be considered conclusive given BLM s later admission in the same letter that both agencies were responsible for consulting with the Tribe. Conflicting statements abound in the administrative record, and the Tribe was forced to interact with dozens of different agencies and individuals without having a clear sense of who the actual decision-makers were. 27

28 Case: /26/2011 Page: 28 of 39 ID: DktEntry: 97 A document released by the United States just one week ago contradicts these protestations. In a memo drafted after the FEIS was issued, BLM admits the flaws contained in Pacific Legacy s cultural resource studies were not resolved in the FEIS: The Class I and Class III surveys were done in sub-standard fashion in Nevada, while the ethnographic reports are still coming in. The EIS issued by FERC was based on incomplete cultural reports and without an approved treatment plan.... Given the speed and programmatic approach taken by FERC and its proponent, Ruby Pipeline, LLC, the BLM needs to make sure it is aware of the legal consequences in granting a right-of-way for the pipeline. Given that the route is being decided using an EIS with deficient cultural reports and surveys, there are serious questions concerning compliance with Section 106 and other cultural property/heritage laws. April 23, 2010 Memorandum (SLPT Sealed Documents). See also SLPT-ER-985, -1204, -1219, -1223; Final Cultural Resources Treatment Plan at 34 & 52 (SLPT Sealed Document). This memorandum goes on to admit that the BLM s actions likely violate both the decisions of this Court, and the decisions of the U.S. Court of Appeals for the Tenth Circuit, the two jurisdictions where this lawsuit could have been filed. See id. (citing Pueblo of Sandia v. United States, 50 F.3d 856 (10th Cir. 1995); Benton Franklin Riverfront Trailway & Bridge v. Lewis, 701 F.2d 784 (9th Cir. 1983); Aluli v. Brown, 437 F. Supp. 602 (D. Hawaii 1997)). 28

29 Case: /26/2011 Page: 29 of 39 ID: DktEntry: 97 IV. THE USFWS S INCIDENTAL TAKE CONCLUSIONS IN THE BIOLOGICAL OPINION ARE ARBITRARY AND CAPRICIOUS A. Respondents Provide Only Post Hoc Rationalizations for the Lack of any Analysis in the Biological Opinion of the Effects to Listed Species From Project Groundwater Depletions The U.S. is wrong to suggest that the Tribe must prove that the Project s extensive depletions of groundwater may affect endangered and threatened species. The ESA s may affect threshold is very low, Fla. Key Deer v. Stickney, 864 F. Supp. 1222, (S.D. Fla. 1994),and the burden is on the Federal agency to show the absence of likely, adverse effects to listed species... as a result of its proposed action. 51 Fed. Reg. 19,926, 19, (June 3, 1986). Thus, [a]ny possible effect, whether beneficial, benign, adverse, or of an undermined character, triggers the formal consultation requirement, 51 Fed. Reg. at 19,949-50, and the only exception to this stringent requirement comes when the action agency and [USFWS], either after the agency prepares a biological assessment or as a result of informal consultation, agree that the agency action is not likely to affect any listed species, which requires written concurrence by USFWS as to the lack of impact of the agency s action. Fla. Key Deer, 864 F. Supp. at The United States concedes that the BiOp does not address the potential effects of groundwater depletions from the project to listed species, and does not 29

30 Case: /26/2011 Page: 30 of 39 ID: DktEntry: 97 dispute that surface and ground waters are interrelated. 9 Yet, it rationalizes the absence of any discussion in the BiOp of the effects of groundwater depletions to listed fish or even an accounting of the extent of groundwater depletions from the Project at all by claiming, without any factual support, that there will be no effects to listed species from these depletions. The administrative record shows that there will be adverse impacts to listed species from groundwater depletions resulting from the Project. The FEIS notes that Ruby s use of 338 million gallons of both ground and surface waters could directly or indirectly affect surface water volumes, and will have a significant impact in a region where water resources are limited already. CBD-ER-621, 660. USFWS advised that this could have significant adverse effects to native aquatic species downstream, depending only on such factors as the time of the year water is withdrawn, whether the water has been treated, other water uses at the time of withdrawal (cumulative impacts), and how close to the withdrawal source the water is returned. CBD-ER-1057, In its BA, FERC acknowledged these effects as well as the need to assess these factors. CBD-ER- 9 Ruby claims that the BiOp considers the Project s groundwater depletions. Yet, the BiOp merely observes, in passing, that Ruby will use both ground water and surface water sources for hydrostatic testing. SLPT-ER-25. It does not consider or account for how much ground water would be used or how that use will affect listed fish. 30

31 Case: /26/2011 Page: 31 of 39 ID: DktEntry: Yet the BiOp does not address these factors or the effects of groundwater depletions at all, let alone conclude that there will be no effect. 10 FERC and USFWS also recognized the need to account for groundwater depletions in the upper Colorado River basin, which is habitat for the pikeminnow, humpback chub, razorback sucker, and bonytail ( Colorado River fishes ). The Colorado River fishes are extremely endangered, and two of these species, the pikeminnow and the humpback chub, have been listed as endangered since Fed. Reg (Mar. 11, 1967). Due to their highly-precarious status, FERC noted that [a]ny water depletion i.e., any consumptive loss plus evaporative loss of surface or groundwater within the affected basin would represent an adverse impact on habitat for these fishes that must be considered in formal Section 7 consultation. CBD-ER-508. Similar effects may occur for the other listed fish, including the Lahontan cutthroat trout, which USFWS staff thought might be adversely affected due to ground (and surface) water depletions in the Marys River. CBD-ER-482, But the BiOp inexplicably considers no adverse effects from groundwater depletions, at any points along the Project, even though such depletions are clearly relevant and may affect listed fish. 10 Respondents do not dispute that there is an interrelationship between surface and ground water, although Ruby claims that this interrelationship is attenuated within the Pipeline s action area. This is wrong, as the USFWS s own definition of depletion implicitly recognizes this interrelationship. See CBD-ER-508 (FWS defining a depletion as any consumptive loss plus evaporative loss of surface or groundwater within the affected basin ). 31

32 Case: /26/2011 Page: 32 of 39 ID: DktEntry: 97 The United States offers post-hoc rationalizations on this point such as that the depletions are a one-season event spread out over a large area during the winter months, U.S. Br. at 101 but these arguments are entitled to no deference because the agency did not, in the administrative record, justify the failure to consider groundwater based on any of these rationales. HSUS v. Locke, 626 F.3d 1040, 1050 (9th Cir. 2010) ( [W]e may not accept appellate counsel s post hoc rationalizations for agency action. ); U.S. Dep t of Interior v. FERC, 952 F.2d 538, 546 (D.C. Cir. 1992) ( an agency must establish a record to support its decisions ); Tucson Herpetological Soc y v. Salazar, 566 F.3d 870, 878 (9th Cir. 2009) ( While our deference to the agency is significant, we may not defer to an agency decision that is without substantial basis in fact ). Indeed, Respondents provide no legal or factual support for several blanket assertions seeking to minimize the impact of depleting 210 million gallons of groundwater from the Project s action area that are unaccounted for and unacknowledged in the BiOp. These include wholly unsupported, conclusory statements, e.g., groundwater depletions will have no discernible effect and that the fish do not live in groundwater. 11 Moreover, the United States naked assertions are entitled no deference because USFWS never actually applied expertise to the question. Thus, because 11 This statement is patently ridiculous, as even they acknowledge the interrelationship between groundwater and surface water. U.S. Br. at

33 Case: /26/2011 Page: 33 of 39 ID: DktEntry: 97 USFWS exercised no technical expertise, and there is no factual basis for its position, the agency is entitled to no deference. Or. Natural Desert Ass n v. BLM, 531 F.3d 1114, 1142 (9th Cir. 2008) (this Court cannot defer to a void ); see also Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1160 (9th Cir. 2006) ( [i]f an agency has failed to make a reasoned decision based on an evaluation of the evidence, we may properly conclude that an agency has acted arbitrarily and capriciously ); accord Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 954 (9th Cir. 2003). B. The BiOp s ITS Contains No Conditions for Active Screens, and Fish Collection Activities Fail to Account for a Greater Risk of Fish Presence for the Project Than With the 2004 BiOp The U.S. concedes that USFWS limited its analysis of Ruby s salvage operations of listed fish by copying and pasting terms from a 2004 BiOp developed by USFWS for a separate action (a fish passage culvert restoration program). See SLPT-ER-1041 et seq. Yet, USFWS neglected to incorporate key protective measures from the 2004 BiOp key in the terms and conditions of the Project BiOp s ITS. For instance, while Term and Condition 1 of the BiOp requires a certain speed for passive pump screens, it does not mention any velocity requirement for the active pump screens. On page 22, the BiOp discusses the need for a velocity requirement of 0.4 cubic feet per second for active pump screens, but nothing in the BiOp s terms and conditions requires this. See SLPT-ER

34 Case: /26/2011 Page: 34 of 39 ID: DktEntry: 97 (requiring only that water velocities approaching passive pump screens be limited to 0.2 feet per second or less, with no requirement for water velocities approaching active pump screens). Protective measures such as this are critical for reducing the adverse effects from the dry-ditch waterbody crossing method, which will expose the fish to physical injury, death, and physiological stress during capture. SLPT- ER-83. If USFWS means to rely on the Project s BiOp s discussion of this aspect of the proposed action as opposed to its binding terms and conditions this does not help either. Also in contrast to the 2004 BiOp, which stated that certain protective conservation measures including conditions regarding the speed of dewatering and isolation of the project area will definitely be implemented, the Project BiOp speculates only that such measures would be required. Compare SLPT- ER-1056, (noting that separate consultation will be required if the project does not conform to the design criteria specified in the BA ), with SLPT- ER-24 (Project BiOp stating only that protective measures would be required). As with the active pump screens, these protective measures are also not required through the Project BiOp s ITS and terms and conditions. Thus, the BiOp s conclusions are predicated on protective measures that may not be implemented and are not required under the BiOp s terms and conditions. 34