Complaint Filed: December 4, TERI RAML, in her ofifciagl capac;ity as District Manager Land Management; and JOHN

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1 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page 1 of Page ID #: 1 GEORGE T. CAPLAN (State Bar No. 1) risge.capphaenr@s. r. com TO DAVIS (State Bar No. ) kpraisutolphmer.davis@dbr.com GELB (State Bar No. ) paul. com ERIN E. MCC RACKEN (State Bar No. ) erin. com DRINKER BIDDLE & REATH LLP 0 Century Park East, Suite 0 6 Los Angeles, Califonria Telephone: Facsimile: () - for Intervenor-Defendant NEXTERA BLYTHE SOLAR ENERGY CENTER, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 1 COLORADO RIVER INDIAN TRIBES, a federally recognized Indian 1 Tribe, Case No. :1-cv-00-JAK-SP INTERVENOR-DEFENDANT 1 Plaintiff, NEXTERA BLYTHE SOLAR v. ENERGY CENTER, LLC'S OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION UNITED STATES DEPARTMENT OF THE INTERIOR; SALLY JEWELL, in 1 her official as Interior; UNI TED STA TES BUREAU Date:, 01 OF LAND MANAGEMENT; NEIL Time: :0 a.m. KORNZE, in his official capacity as Judge: Hon. John A. Kronstadt 0 Director of Bureau of Land Ctroom: 70 JAMES G. KENNA in 1 his official ca pacity as California State Director of Bureau of Land Complaint Filed: December, 01 TERI RAML, in her ofifciagl capac;ity as District Manager California Desert District, Bureau of Wed of Kenneth Stein; DecL Land Management; and JOHN A. Busa; DecL of Kristopher S. D avis; KALISH, in his official capacity as Request for Juthcial Notice; Field Manager, Palm Springs South ASeppllicaPtion to File Documents Under Coast Field Office, Bureau of Land a;[roposed]order; and Joinder, Management, filed concurrent l herewith] DRINKER BIDDLE or REATH LLP Los A[acsi.ss Defendants.

2 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page of Page ID #: 1 TABLE OF CONTENTS Page I. INTRODUCTION 1 II. FACTUAL AND PROCEDURAL BACKGROUND 6 A. Project Background 7 B. History Of The Project C. MB SpP... Agencies' Extensive Environmental Review Of The D. CRIT Was Adequately Consulted Prior To The MBSP's Approval 7 E. The BLM Issued NextEra A Limited Notice To Proceed After A Discovery Work Plan Was In Place 1 F. A HPTP and Monitoring Plan Were Finalized Prior To The Issuance Of A Full Notice To Proceed 1 III. STANDARDS OF REVIEW 1 A. National Environmental Policy Act B. National Historic Preservation Act C. FLPMA and the CDCA Plan 1 D. Review of Agency Action Under The Administrative Procedure Act 0 E. Standard For Demonstrating Entitlement To Extraordinary And Preliminary Relief 1 IV. ARGUMENT A. CRIT Has Not Established Any Likelihood Of Irreparable Injury B. CRIT Fails To Show A Likelihood Of Success On The Merits 1. CRIT's NHPA Claim Fails. The BLM Complied With The Terms Of The PA 0. CRIT Fails To Show A Likelihood Of Success On Its NEPA Claim 1 a. The BLM Took A "Hard Look" At The MBSP's Potential Impacts To Cultural Resources 1 DRINKER BIDDLE & 1 REATH LLP Los A[acsi.ss

3 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page of Page ID #:6 1 TABLE OF CONTENTS (continued) Page b. The FEIS Properly Discussed A "No Action" Alternative c. The Stated "Purpose and Need" For The MBSP 6 Complied With NEPA 7. CRIT's FLPMA Claim Fails a. The MBSP Complies With The CDCA Plan b. The CDCA Plan Does Not Contain Binding VRM Designations C. The Balance Of The Equities Strongly Favors NextEra D. An Injunction Would Not Be In The Public's Interest E. CRIT Should Be Required To Post A Bond 0 1 V. CONCLUSION DRINKER BIDDLE & REATH LLP Los A[acsi.ss

4 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page of Page ID #:7 DRINKER BIDDLE or 1 TABLE OF AUTHORITIES Page CASES Alaska Survival v. Surface Transp. Bd. 70 F.d 7 (th Cir. 01), 6 Alliance for the Wild Rockies v. Cottrell, 7 6 F.d (th Cir. 0) Ass 'n of Pub. Agency Customers, Inc. v. Bonneville Power Admin. 6 F.d (th Cir. 7) Associated General Contractors of California v. Coalition for Economic Equity, 0 F.d 1 (th Cir. 1) Backcountry Against Dumps v. Abbott, 1 0 WL 676 (S.D. Cal. Aug., 0) 1 Ctr. for Biological Diversity v. U.S. Dep't of Interior, 1 6 F.d 6 (th Cir. 0) Custer Cnty. Action Ass 'n v. Garvey, 6 F.d (th Cir. 001) 1 Earth Island Inst. v. Carlton, 6 F.d 6 (th Cir. 0), 0 Friends of the Earth, Inc. v. Brinegar, 1 F.d (th Cir. 7) 0 1 Gros Ventre Tribe v. United States, 6 F.d 01 (th Cir. 006) Kern County Farm Bureau v. Allen, 0 F.d 7 (th Cir. 006) Lands Council v. McNair, 7 F.d 1 (th Cir. 00) (en banc) Muckleshoot Indian Tribe v. U.S. Forest Serv., 7 F.d 00 (th Cir. )

5 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page of Page ID #: 1 Quechan Tribe of Fort Yuma Indian Reservation v. United States Dep't of Interior, 7 F. Supp. d 1 (S.D. Cal. 0) 1, 1, Quechan Tribe of Ft. Yuma Indian Reservation v. U.S. Dep't of the Interior, F. Supp. d 1 (S.D. Cal. 01), 0 Quechan Tribe v. U.S. Department of the Interior, 6 0 U.S. Dist. LEXIS 7 (S.D. Cal. May, 0) 1, 7 Robertson v. Methow Valley Citizens Council, 0 U.S. (), San Carlos Apache Tribe v. United States, F.d 1 (th Cir. 00) Te-Moak Tribe of W. Shoshone of Nevada v. U.S. Dep't of Interior, 60 F.d (th Cir. 0) 1,, 0 1 Winter v. Natural Resources Defense Council, 1 S. Ct. 6 (00) 1 STATUTES, RULES & REGULATIONS 6 C.F.R. 00.1(a)(1) 1 6 C.F.R. 00.1(b)() C.F.R. 00.1(b), C.F.R. 00.1(b)(1)(ii) 6 C.F.R. 00.1(b)()(iii) 0 C.F.R..1 C.F.R (b) 66 Fed. Reg. (May 1, 001) U.S.C. 70f DRINKER BIDDLE &or U.S.C U.S.C. et seq. int

6 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page 6 of Page ID #: 1 U.S.C. 01 et seq. U.S.C. 1(c) 7 Fed. Reg Fed. Reg Fed. Reg. 7 Federal Rule of Civil Procedure 6(c) DRINKER BIDDLE o&r V

7 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page 7 of Page ID #:000 1 I. INTRODUCTION The Colorado River Indian Tribes' ("CRIT") request for a preliminary injunction to stop construction of the Modified Blythe Solar Energy Project ("MBSP" or "Project") should be denied. There is no possibility of irreparable harm 6 to CRIT, and CRIT fails to point to any evidence of such harm. Instead, CRIT 7 asserts meritless quibbles with the Bureau of Land Management's ("BLM") consultation process and speculation about purported "cultural harms" CRIT would allegedly suffer if construction were to proceed. CRIT cites to irrelevant instances of artifacts uncovered at other unrelated projects, but fails to show that even a single artifact or historic property of cultural significance has been harmed by the limited construction activities at the Project or will be harmed by future activities. And for good reason: only one prehistoric archaeological site (a thermal cobble feature) eligible for inclusion in the National Register of Historic Places ("NRHP") was identified as being potentially directly impacted by the Project, and in response to concenrs raised by CRIT, NextEra Blythe Solar Energy Center, LLC ("NextEra") redesigned the MBSP such that this site will be avoided. In addition, robust design features and specific plans, developed with CRIT's input, are in place to mitigate any impacts on cultural resources and protect any historic properties or cultural artifacts 0 discovered during the course of construction. 1 CRIT's claims also fail on the merits. The BLM satisfied its consultation obligations under the National Historic Preservation Act ("NHPA") where it engaged in government-to-government consultation with CRIT and fulfilled its obligations under the Programmatic Agreement (to which CRIT is a concurring party). CRIT's NEPA claims are similarly deficient. The BLM took the requisite "hard look" at the Project's potential impacts to cultural resources. CRIT raised the same concerns it raises here during the environmental review process and the BLM adequately addressed the concerns. For example, CRIT asserts that the BLM failed to take into DRINKER BIDDLE or 1

8 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page of Page ID #:001 1 account a handful of prehistoric trails and sites when analyzing the Project's potential impacts. But what CRIT fails to acknowledge is that these sites were either addressed by the BLM or are not even located within the Project's footprint. The BLM also properly analyzed a " no action" alternative consisting of the proper baseline under NEPA and reasonably defined the "purpose and need" to which it was responding in proposing the alternatives for the proposed undertaking. Finally, CRIT's claim under the Federal Land Policy and Management Act ("FLPMA") fails because the California Desert Conservation Area ("CDCA") Plan was already amended in 0 to allow for the siting of a solar energy plant within the Right-of- Way ("ROW") grant where the Project is located; the CDCA Plan specifically allows for the siting of solar energy plants on Class L lands where, as here, NEPA requirements are met; and because the CDCA Plan does not contain a visual resources element, there are no VRM Classes that the Project must be in 1 conformance with. 1 The balance of the equities and public interest also weigh against the relief 1 CRIT seeks. Delaying construction of the Project will significantly harm NextEra and jeopardize its ability to construct the full Megawatt ("MW") project. Finally, the public interest in this solar project which will create needed jobs, generate enough energy to meet the electricity requirements of 1,00 homes, and 0 reduce greenhouse gas emissions weighs in favor of NextEra as well. 1 As a matter of law, fact, and equity, CRIT's motion for a preliminary injunction should be denied. II. FACTUAL AND PROCEDURAL BACKGROUND A. Project Background The MBSP is a MW solar electric generating facility that will generate enough clean, renewable solar energy to meet the electricity requirements of approximately 1,000 average Califonria homes. (Declaration of Kenneth Stein DRINKER BIDDLE or

9 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page of Page ID #:00 1 ("Stein Decl."),.) The MBSP will also provide a direct benefit to climate change as it will avoid approximately 77,000 tons of carbon dioxide emissions annually that would have been produced if the electricity had been generated using fossil fuels. (Id.) The MBSP will use proven photovoltaic ("PV") technology. PV technology uses photovoltaic panels that are mounted on pedestals across the solar 6 field and convert sunlight directly into electricity. (King Decl. Ex. A0-1.) 7 B. History Of The Project The MBSP is located on approximately,1 acres of land administered by the BLM in Riverside County. (King Decl. Ex. A0-6.) The MBSP is located within the boundaries of a previously issued ROW grant and CDCA Plan Amendment that the BLM issued in November 0 to an entity called Palo Verde 1 1 Solar I, LLC ("PVSI") for a 00 MW solar thermal generating facility to be located on approximately 6,1 acres of BLM administered land (the "Original Project"). (Id.) The Original Project would have utilized solar parabolic trough technology to 1 generate electricity. (King Decl. Ex. A0-.) PVSI began constructing Phase 1A of the Original Project in November DRINKER BIDDLE or but ceased construction activities on August, 0. (Id. at.) PVSI's parent companies filed for bankruptcy. (King Decl. Ex. A0-.) NextEra purchased the un-built assets of the Original Project in the bankruptcy proceedings in July 0. (Id.) The BLM approved the transfer of the ROW grant in connection with that transaction and NextEra became the Grant Holder. (Id.) NextEra proceeded with plans to convert the Original Project to a PV project on the approved site. Because a PV project requires a smaller footprint than required for the Original Project, NextEra relinquished to the BLM percent of the original ROW grant area. (Id.) NextEra then submitted a Level variance request to the BLM for the MBSP, which requested that the BLM modify the existing ROW grant to allow for PV technology and reduce the size of the solar plant site. (Id. at -0.) On August 1, 01, the BLM and United States Department of the Interior

10 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page of Page ID #:00 1 ("DOI") issued a Record of Decision ("ROD") approving the vairance request. (King Decl. Ex. A0.) On August, 01, the BLM and DOI issued a ROW grant allowing for the construction, operation, maintenance and decommissioning of the MBSP. (King Decl. Ex. A06.) C. Multiple Agencies' Extensive Environmental Review Of The MBSP 6 Given that the MBSP would be located entirely within the boundaries of the 7 ROW grant issued for the Original Project, the environmental review of the MBSP 1 was tiered to the prior environmental review of the Original Project. (King Decl. Ex. A0-.) An overview of the environmental review process for the Original Project is thus relevant here. The BLM and the California Energy Commission ("CEC") prepared a joint Staff Assessment/Dratf Environmental Impact Statement (SA/DEIS) for the Original Project that was circulated for agency and public review and comment between March, 0, and June, 0. (Stein Decl..) CRIT 1 did not comment on the SA/DEIS. (Id.) 1 Atfer the release of the SA/DEIS for public review, the BLM and the CEC 1 determined that a programmatic agreement would govenr the implementation of the Original Project. (Id..) Programmatic agreements are used for the resolution of adverse effects for complex project situations and when effects on historic properties cannot be fully determined prior to the approval of an undertaking. 6 C.F.R (b). 1 A Notice of Availability was published in the Federal Register on August 0, 0 for the Plan Amendment/Final Environmental Impact Statement ("PA/FEIS") for the Original Project. (Stein Decl..) The BLM provided an additional opportunity for review and comment on the PA/FEIS. (Id.) CRIT did not provide any comments on the PA/FEIS for the Original Project. (Id.) A programmatic agreement for the Original Project was executed between the BLM and the Califonria State Historical Preservation Officer ("SHPO") on October 7, 0 (the "PA"). (King Decl. Ex. A01.) The BLM consulted with Native DRINKER BIDDLE or

11 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page of Page ID #:00 1 American Tribes and interested tribal members on the development and execution of the PA. CRIT signed the PA as a concurring party, and did not object to the PA. (King Decl. A01-00.) The PA governed the continued identification and evaluation of historic properties and historical resources, as well as the resolution of any effects that could have resulted from the Original Project. In October 0, the 6 ROD was issued for the Original Project. (Stein Decl..) 7 The MBSP was also subject to extensive environmental review by federal and state agencies even though a ROW grant and CDCA Plan amendment had already been issued for the Original Project. On August 0, 01, the BLM initiated a NEPA analysis of the MBSP with the publication of a Notice of Intent (7 Fed. Reg. 77). The BLM published a Dratf EIS ("DEIS") on February 7, 01 (7 Fed. Reg. 70), and a Final EIS ("FEIS") on May 0, 01 (7 Fed. Reg. ). (King 1 Decl. Exs. A0, A0.) 1 The CEC held parallel proceedings analyzing the potential environmental 1 impact of the MBSP. CRIT was an intervening party in the CEC proceedings, submitted extensive briefing regarding its positions on the MBSP, and participated in 1 an evidentiary hearing on November, 01. (Stein Decl. TT -7.) On December 1, 01, the CEC issued a Presiding Member's Proposed Decision approving the MBSP. (Stein Decl. Ex..) 0 In January 01, the CEC issued a Commission Decision approving the 1 DRINKER BIDDLE or Project. (Stein Decl..) Many of the Conditions of Certification relating to cultural resources contained in the Commission Decision were the direct result of CRIT's input. (Stein Decl. TT 7-.) For example, based on CRIT's input, the Conditions of Certification require notification of tribes atfer a discovery of a cultural artifact, and steps and timing for addressing an unanticipated discovery, and also require tribal monitors to be present at the Project site during all ground-disturbing activities. (Id. 7.) In the BLM proceedings, NextEra agreed to incorporate design features

12 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page of Page ID #:00 1 ("DFs") into the MBSP for cultural resources consistent with the Conditions of Certification approved in the CEC proceedings. (King Decl. Ex. A0-070.) These DFs were set forth in the DEIS for the MBSP and were ultimately approved as part of the FEIS for the Project. (King Decl. Ex. A0--0.) On March, 01, CRIT provided written comments to the BLM on the DEIS for the Project. (King Decl. Ex. A0c-70-0.) The BLM adequately responded to all of CRIT's comments. (King Decl. Ex. A0c--.) For example, the BLM responded to CRIT's comment that supposedly "new information" should be taken into account regarding the unrelated Genesis Solar Project, which is located more than 1 miles from the MBSP. The BLM explained that comments regarding the discovery of cultural resources at unrelated sites are not even substantive comments requiring a response. (See King Decl. Ex.A0- (citing Section of the BLM NEPA Handbook).) Nevertheless, the DEIS "recognizes that there may be currently unknown subsurface resources within the 1 APE that could be directly impacted by construction of the Modified Project," but the DRINKER BIDDLE or MBSP includes robust DFs, developed in conjunction with CRIT during the CEC proceedings, that are in place to respond if/when currently unknown resources are 1 discovered. (King Decl. Ex. A0c-7.)1 In the FEIS for the MBSP, the BLM thoroughly analyzed the cultural 0 1Moreover, CRIT's reliance on purpotred harm to cultural resources 1 site is unhelpful to it here even if those discoveries discovered at were the Genesis somehow Prroejleevctant to the environmental review of the Project (which they are not). CRIT filed an action in the Central District temporary restraining order and a preliminary to round-disturbing activities at the Genesis Project site to prevent al leged irrepa rable harm to cultural artifacts. Judge Wu denied CRITthsroruegqlui ests for extraoorfdt y relief, finndig that even if artifacts were uncovered construction inhae rg enesis robust miti measures were i n place to deal with them Decl. Exs. Cll a, Cllb.) In addition, Judge W found that although CRIT su bmitted declarations stating that tribal members would suffer emotional and spiritual harm if any of the "artifacts were destroyed or disturbed, this did not establish in-eparable harm where [wads likely to be limited and not shown that moving these artifacts would constitute a recognizable harm. " (King Decl. Ex. Cllb at 607.) 6

13 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page 1 of Page ID #:006 1 resources that could be impacted by the Project. In the Area of Potential Effects ("APE") for direct impacts of the Project, the MBSP has the potential to impact less than half of the archaeological sites that the Original Project would have impacted and none of the remaining sites that have the potential to be impacted are Native American-related. (King Decl. Ex. A0-01; Stein Dec..) Only one of those sites (a thermal cobble feature) has been determined to be eligible for NRHP listing, King Decl. Ex. A-6, and that site will be avoided because NextEra has redesigned the MBSP in response to concerns raised by CRIT. (Stein Dec. 7.) The FEIS also explained that although potential cultural landscapes are located within the vicinity of the MBSP, they are not located within the Project's footprint and are not included within the APE for direct impacts. (King Decl. Ex. A0-01.) One of the potential cultural landscapes that has been identified is the Prehistoric Trails Network Cultural Landscape. (Id.) Although not even located within the Project's footprint, as one of the Project's DFs, NextEra has agreed to contribute funds to finance the completion of the documentation of the Prehistoric Trails Network Cultural Landscape and determination of whether it should be nominated for inclusion in the NRHP. (Id. at.) 1 Ultimately, in approving the MBSP, the BLM determined: Based on the with Tribal governments and s and the Proram gmatic Agreement, as amended, many 0 rceulptruersaelnrteastiovuerces in the area are avoidedby the Modified Project, and unavoidable impacts are substantially mitigated. As a result, the 1 Selected Alternative would result in impacts less than or similar to Alternative or the Approved Project related to cultural resources. The Programmatic Agreement, as amended, demonstrates BLM's satisfaction of its obliegxation under Section 6 for the Modified Project. (King Decl. A0-.) D. CRIT Was Adequately Consulted Prior To The MBSP's Approval As part of the consultation process for the Original Project, the BLM initiated consultation with a number of Tribal governments beginning in July 00. (Stein Decl. 1.) Despite numerous requests from the BLM inviting CRIT to partake in government-to-government consultation, CRIT did not request any meetings with the DRINKER BIDDLE or 7

14 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page 1 of Page ID #:007 1 BLM and did not provide any comments on the Original Project or the PA. (Stein Decl. TT,.) During the approval process for the MBSP, the BLM invited the Native American Tribes that had participated in or were requested to participate in government-to-government consultation for the Original Project to consult regarding 6 7 the MBSP by letter dated June, 01. (King Decl. Ex. A0--0.) The BLM held a specific government-to-government consultation meeting with CRIT regarding the MBSP on April, 01. (Id.) CRIT was also invited to participate, and participated in, in an informational meeting and site visit on July, 01 with the BLM and NextEra. (Id.; King Decl. Ex.A0-6.) In addition, a draft PA Amendment, which simply provided that for purposes of the PA, "changes in the corporate name of the Applicant or reassignment of the ROW to a subsidiary company or other entity may be authorized by the BLM and does not require the Agreement to be amended," was sent to all signatories, invited signatories, and concurring parties to the agreement, including CRIT, for review on July, 01. (King Decl. Ex.A0-0; King Decl. Ex.A0-0-.) Although CRIT asserts it was not given notice of the amendment, the CEC addressed that issue and found to the contrary. (Stein Decl..) Based on this process, the PA was amended and executed by the signatories (the BLM and SHPO) on November 1, 01. Accordingly, the PA applies to the MBSP, and its implementation satisfied the BLM's obligations, including its consultation obligations, under Section 6 of the NHPA. E. The BLM Issued NextEra A Limited Notice To Proceed After A Discovery Work Plan Was In Place On August 1, 01, the BLM issued NextEra a limited notice to proceed with the following construction activities within solar field Units 1 and for the MBSP: (1) installation of a temporary desert tortoise fencing; () geotechnical investigation activities; () reactivation of an existing groundwater well; and () limited staking DRINKER BIDDLE or

15 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page 1 of Page ID #:00 1 and surveying relevant to the activities listed in items (1) through (). (Stein Decl. 6, Ex. 1.) Contrary to CRIT's assertion that the temporary desert tortoise fencing authorized under the limited notice to proceed involved disturbance of approximately,000 acres, this activity actually disturbed less than acres. (Id.) Prior to the issuance of the limited notice to proceed, NextEra submitted a 6 7 Limited Notice to Proceed Activities Work Plan ("Work Plan") to the BLM and the CEC. (Id. 6, Ex..) This Work Plan put a process in place for avoiding and minimizing the potential for any impacts to unknown cultural resources associated with limited notice to proceed activities. (Id.) Construction activity pursuant to the Work Plan was specifically authorized under Stipulation X(b) of the PA. (Id. 6.) The activities authorized under the limited notice to proceed did not have any impact on known historic properties. (Id. TT 7, 7, 7, 7, 76.) All known 1 archaeological and historic sites were marked off as environmentally sensitive areas 1 and avoided. (Id. 71.) In addition, CRIT tribal monitors were present for all 1 ground-disturbing activities. (Id. TT 6, 70, 7, 7.) No impacts to archaeological or 1 historic sites occurred as a consequence of the limited construction activities. (Id. TT 7-76.) Moreover, only two isolated artifacts were found during the limited construction activities. (Stein Decl. TT 7, 7.) F. A HPTP and Monitoring Plan Were Finalized Prior To The Issuance Of 0 A Full Notice To Proceed 1 On March, 01, the BLM issued a full notice to proceed to NextEra for all construction activities at the MBSP site. Prior to this, a final Historic Properties Treatment Plan ("HPTP") and a final Archaeological Monitoring, Post-Review Discovery, And Unanticipated Effects Plan ("Monitoring Plan") were finalized as required under the PA. These documents were the subject of extensive review by and among the BLM, CRIT, and NextEra. (Stein Decl. TT, 0.) The HPTP for the MBSP was developed to identify and describe specific treatment measures and actions to be taken to minimize and mitigate adverse and DRINKER BIDDLE or

16 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page of Page ID #:00 1 potential adverse effects on one prehistoric archaeological site within the Project 6 7 footprint (a thermal cobble feature) and one prehistoric archaeological site outside the APE for the Project (a rock art site located more than a mile from the closest boundary of the MBSP site). (King Decl. Ex. A-6; Stein Decl..) Due to concerns raised by CRIT regarding potential impacts to the prehistoric cobble feature, NextEra redesigned the MBSP such that the thermal cobble feature site will be avoided. (Stein Decl. 7.) Because the rock art site will not be directly impacted by the construction of the MBSP, the HPTP provides for quarterly monitoring of the site to assess whether any new impacts, alterations, or changes have occurred. (King Decl. Ex. A-6.) The Monitoring Plan covers every ground-disturbing activity connected with the Project and requires professional archaeological and Native American monitors. 1 The archaeological monitors are empowered to temporarily halt construction 1 activities in the immediate area of a discovery of cultural resources. (King Decl. Ex. 1 1 A1-1.) The temporary cessation of construction in the immediate area of a discovery allows for the professional determination of the type and significance of the discovery. The BLM will then have the opportunity to consult with any culturally affiliated tribes in accordance with the Monitoring Plan and PA. (King Decl. Ex. A1--.) 0 Based on CRIT's input, the Monitoring Plan also includes provisions that 1 allow for the reburial of isolates under certain circumstances. (Stein Decl..) Isolated finds consist of single, or occasionally multiple, prehistoric or historical artifacts. Three or fewer artifacts found within five meters of each other will be considered an " isolate. "(King Decl. Ex. A1-1; 6.) The Monitoring Plan also includes a Tribal Participation Plan ("TPP"). (King DRINKER BIDDLE o&r Decl. Ex. A1--61.) The TPP was developed by NextEra atfer input from interested Tribes, including CRIT. (Stein Decl. 0.) The TPP affords representatives designated by Tribes, known as TCCs, the opportunity to monitor and

17 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page of Page ID #:0 1 be on-site during construction to observe grading, trenching and other ground 1 disturbing activities. (King Decl. Ex. A1-60.) TCCs also have the authority to temporarily stop work in order to make visual inspections of potential cultural deposits when discovered. (Id. at 60.) III. 6 STANDARDS OF REVIEW 7 A. National Environmental Policy Act Congress enacted NEPA to establish a consistent process for federal agencies to consider the consequences of their actions upon the environment. See U.S.C To ensure informed decision-making, NEPA requires agencies to analyze and disclose significant environmental effects, but it does not require any particular decision. Robertson v. Methow Valley Citizens Council, 0 U.S., 0 (). NEPA "does not impose any substantive requirements on federal agencies 1 it exists to ensure a process. " Lands Council v. McNair, 7 F.d 1, 00 (th 1 Cir. 00) (en banc). B. National Historic Preservation Act The NHPA does not prohibit harm to historic properties, but creates 1 obligations "that are chielfy procedural in nature. " San Carlos Apache Tribe v. United States, F.d 1, 7 (th Cir. 00). Section 6 of the NHPA 0 requires federal agencies to "take into account" the effect of their actions on sites and 1 structures eligible for inclusion in the NRHP. U.S.C. 70f. An agency may generally satisfy its Section 6 obligations by entering into a programmatic agreement to govern the implementation of an undertaking. See 6 C.F.R. 00.1(b). C. FLPMA and the CDCA Plan The FLPMA "is primarily procedural in nature. " Gros Ventre Tribe v. United States, 6 F.d 01, 1 (th Cir. 006). As part of the FLPMA, Congress designated approximately million acres of Southern Califonria as the CDCA. See DRINKER BIDDLE &or 1 1

18 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page 1 of Page ID #:0 1 U.S.C. 1(c). In managing this area, the BLM developed the CDCA Plan in 0. Although the CDCA Plan prohibits electrical generation facilities on Class C lands, these same restrictions do not apply on Class L lands as long as "NEPA requirements are met. "(King Decl. Ex. CO1-0.) D. Review of Agency Action Under The Administrative Procedure Act 6 "The APA states, in relevant part, that a reviewing court may set aside only 7 agency actions that are 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. "' Earth Island Inst. v. Carlton, 6 F.d 6, 6 (th Cir. 0). The arbitrary and capricious standard is "highly deferential. " Kern County Farm Bureau v. Allen, 0 F.d 7, 76 (th Cir. 006). E. Standard For Demonstrating Entitlement To Extraordinary And Preliminary Relief 1 "A plaintiff seeking a preliminary injunction must establish that he is likely to 1 succeed on the merits, that he is likely to suffer irreparable harm in the absence of 1 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. " Winter v. Natural Resources Defense Council, S. Ct. 1 6, 7 (00). Preliminary injunctive relief "is an extraordinary remedy never awarded as aright." Id. at 76. IV. 0 ARGUMENT 1 A. CRIT Has Not Established Any Likelihood Of Irreparable Injury To obtain preliminary injunctive relief, CRIT must establish that irreparable injury is likely and imminent. Winter, S. Ct. at 7; Associated General Contractors of California v. Coalition for Economic Equity, 0 F.d 1, 1 (th Cir. 1). Absent a showing of imminent irreparable harm, even a strong showing of likelihood of success on the merits cannot support the grant of preliminary injunctive relief. Winter, S. Ct. at 1. Here, CRIT fails to establish the likelihood of imminent irreparable injury attributable to the MBSP. DRINKER BIDDLE o&r

19 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page of Page ID #:0 1 Quechan Tribe v. U.S. Department of the Interior, 0 U.S. Dist. LEXIS 7, at **-0 (S.D. Cal. May, 0), is apposite here. In that case, the district court denied the Quechan Tribe's request for a temporary restraining order on 6 7 the ground that the Tribe failed to show irreparable harm (which is the same showing that must be made in the context of a preliminary injunction) to cultural resources. The Tribe argued that all ground-disturbing activities associated with the construction of a wind energy project should be enjoined where the project site contained 7 identified archaeological sites containing tens of thousands of cultural artifacts. Id. at *. The Tribe also asserted that the site contained prehistoric trail segments and burial sites and submitted a declaration from one of its members stating that he had seen archaeological and cultural materials and discovered archaeological sites within the project's direct impact area. Id. Although the federal defendants acknowledged that the project would have some unmitigated adverse impacts on cultural resources, specific mitigation measures, including monitoring by Native American monitors, were in place, and any artifacts found during construction would be properly identified and curated. In finding no irreparable injury and denying the requested relief, the district court explained that although the Tribe submitted evidence that the project site contained identified archaeological sites, it failed to show that the construction of the project had or would disturb them. Id. at *. The court also found that the project contained numerous mitigation measures and treatment plans "for the discovery of new traditional cultural property or burial remains, and providing for monitoring of the construction of the [site]. " Id. As in Quechan Tribe, CRIT has not shown (and cannot show) that it will likely suffer irreparable harm in the absence of an injunction. There are less than archaeological sites located within the Project's footprint; none of the sites that have the potential to be impacted are Native American-related; and the only site that has been recommended as eligible to the NRHP listing will be avoided due to NextEra's DRINKER BIDDLE o&r 1

20 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page 0 of Page ID #:01 1 redesign of the Project to address CRIT's concerns. (Stein Decl. TT 1, 6, 7.) In addition, CRIT members served as monitors for all ground-disturbing construction activities that have occurred to date. (Id. TT 70, 7, 7, 0,,.) The only artifacts that have been found are a handful of isolates. (Id. TT 7, 7, 0, 1,.) And pursuant to the Monitoring Plan, CRIT is permitted to rebury these 6 isolates, which was one of CRIT's primary concerns. (Id. 7.) 7 The Monitoring Plan is also in place to deal with any unanticipated finds. (Id. TT -.) The Monitoring Plan requires professional archaeological and Native American monitors. If any cultural artifacts are discovered during construction of the Project, there are robust procedures for evaluating the significance of the artifacts and determining the appropriate treatment plan. Given that it is undisputed that robust procedures are in place (which were developed with CRIT's input), only one site within the Project footprint has been identified to date that is eligible for NRHP listing and it will be completely avoided, and the only artifacts found to date are isolates that CRIT is allowed to rebury, CRIT has not submitted a single declaration establishing that any of its members would suffer irreparable hanm if a preliminary injunction is not issued. Indeed, the majority of the harm allegedly suffered by CRIT's members is not tied to any particular sites or resources that would be affected by the MBSP, but rather is tied to generalized objections regarding effects to the "cultural landscape." Te-Moak Tribe of W. Shoshone ofn evada v. U.S. Dep't of Interior, 60 F.d, 6 (th Cir. 0) ("Although it is understandable that the Tribe values the landscape of the project area as a whole, the NHPA requires that the BLM protect only against adverse effects on the features of these areas that make them eligible for the National Register."). For example, CRIT's declarants vaguely discuss prehistoric trails that "sit[] close to the Blythe Project and should never be disrupted or destroyed." (Harper Decl. ). The fact that prehistoric trails might be located near the MBSP site does not establish irreparable harm where there is no showing that construction of the DRINKER BIDDLE or 1

21 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page 1 of Page ID #:01 1 Project will destroy or even impact the trails. In rejecting a similar claim brought against the Original Project, this Court found that there was no potential harm to sacred geoglyph sites that were not located within the project area. (Request for Judicial Notice ("RJN"), Ex. 1.) Moreover, the Project includes a design feature pursuant to which NextEra will fund further research and documentation of 6 prehistoric trails in the area. (Stein Decl..) 7 CRIT's declarants also state generally that cultural landscapes play an important role in Native American culture and that on these landscapes, sacred and religious rituals are practiced near the MBSP site. (Harper Decl. ; Patch Decl..) But nothing in the declarations shows that the construction of the MBSP will prevent the declarants from practicing these rituals since the Project is not being constructed on any identified sacred area. 1 The only "evidence" submitted by CRIT involving the alleged harm to an archaeological site or artifact is completely unrelated to the MBSP. Nancy Jasculca, a lawyer for CRIT, and another CRIT member submitted declarations stating that a cremation site was found in the area of a transmission line operated by Southern California Edison Company, which is located to the west of the MBSP site, and has purportedly been damaged. (Jasculca Decl. ;Harper Decl. 6.) This transmission line project is not related to and is not located within the MBSP. Accordingly, evidence relating to its supposed effects on cultural resources has no relevance here and cannot be used to establish that the construction of the MBSP (as opposed to some other site) will cause irreparable harm to CRIT. Finally, a general concern that the MBSP is "likely to contain many of' the same artifacts (manos, metates, flakes, cores and hammerstones) found at the Genesis DRINKER BIDDLE o&r CRIT's reliance on Vuechan Tribe of Fort Yuma Indian Reservation v. United States Dep't of Interzor, 7 F. Supp. d 1 (S.D. Cal. 0), is misplaced since in that case, human remains were actually discovered at many of the sites where the Quechan Tribe was challenging ground-disturbing activities. 1

22 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page of Page ID #:01 1 Solar Project site, another unrelated site located more than 1 miles from the MBSP, 6 7 falls far short of establishing that the MBSP is likely to cause irreparable harm to cultural resources. (Patch Decl..) The only artifacts that have been discovered at the MBSP to date are isolated artifacts that CRIT is allowed to rebury. (Stein Decl. TT 7, 7, 7, 0, 1,.) None of the types of artifacts found at Genesis have been found and are not expected to be found at the MBSP site. And even if such artifacts were found, the HPTP and Monitoring Plan ensure that they will be treated in accordance with the procedures developed by the BLM and NextEra with CRIT's input. Moreover, contrary to CRIT's claim, it will not suffer irreparable (or any) procedural harm in the absence of a preliminary injunction. Br. at 1. As this Court has recognized, "[p]rocedural injury has been deemed sufficient to demonstrate an irreparable harm in environmental cases. However, this doctrine is applied to ensure that proper steps are taken so that decisions are made with an eye to environmental and cultural impacts. Thus, the principle is not simply to enforce compliance with procedures." (RJN, Ex. 1.) Rather, courts instead should focus on "the underlying substantive policy the process was designed to effect. " (Id.) In this case, as 1 discussed in Section IV.B.1 below, there is no merit to CRIT's failure to consult 0 1 DRINKER BIDDLE o&r claim since the BLM engaged in government-to-government consultation and complied with the terms of the governing PA. In any event, the processes that the NHPA and NEPA are designed to effect require that the BLM take a "hard look" at the MBSP's environmental effects and take into account the effect of the Project on historic properties. Both of those goals were achieved here, and CRIT has not and cannot show that any additional consultation would have (or will) result in any modifications to the FEIS for the Project or the HPTP (which CRIT consulted on for Also, aspreviously discussed (see FN 1, supra), the findings at Genesis did not warrant a iminary injunction.

23 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page of Page ID #:0 1 months prior to its ifnalization). In short, CRIT has not and cannot show that it is likely to suffer imminent irreparable injury from the construction of the MBSP. CRIT's motion for a preliminary injunction should therefore be denied for this reason alone. B. CRIT Fails To Show A Likelihood Of Success On The Merits 6 1. CRIT's NHPA Claim Fails 7 The BLM complied with the NHPA by executing and complying with the terms of the PA. CRIT's arguments to the contrary are unavailing. Although CRIT seeks to distance itself from the PA in order to manufacture a failure to consult claim under the NHPA, it cannot do so where it is a signatory to the PA as a concurring party. Section 6 of the NHPA requires the BLM to provide a Native American Tribe with " a reasonable opportunity to identify its concenrs about historic properties, 1 advise on the identification and evaluation of historic properties, including those of 1 traditional religious and cultural importance, articulate its views on the undertaking's 1 effects on such properties, and participate in the resolution of adverse effects. 1 Moak Tribe, 60 F.d at 60. An agency can fulfill these obligations by negotiating a programmatic agreement. See 6 C.F.R. 00.1(b)(1)(ii). Indeed, "[c]ompliance with the procedures established by an approved programmatic agreement satisfies the agency's section 6 responsibilities for all individual undertakings of the program 0 covered by the agreement until it expires or is terminated " 6 C.F.R (b)()(iii) (emphasis added). CRIT is a concurring party under the PA. "Concurring parties" are " consulting parties with a demonstrated interest in the Project, who agree, through their signature, with the terms of this Agreement." (King Decl. Ex. A ) In 01, the PA was amended to allow for changes in project ownership and applies to the MBSP. CRIT asserts that it did not receive notice of the amendment to the PA, the CEC determined otherwise. (Stein Decl..) In any event, as lained above, the amendment did not change any substantive provisions of the PAMoreover, CRIT's consent to the amendment was not required under the PA, DRINKER BIDDLE & " T

24 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page of Page ID #:0 1 The PA's "whereas" clause (i.e., the preface to the agreement) indicates the BLM's general intention to consult; the enforceable sections of the agreement specify the BLM's consultation responsibilities. Guidelines incorporated into the PA specify that the "BLM shall consult with the Tribes and seek the views and comments of Tribal organizations and individual tribal members regarding any unevaluated cultural 6 resource " but only for a particular end: "to ascertain the status of these places 7 relative to [National Register of Historic Places] NRHP and [Califonria Register of Historic Resources] CRHR eligibility criteria. " (King Decl. Ex.A0-0.) The record reflects that the BLM consulted with CRIT on several occasions pursuant to the PA regarding the MBSP. This consultation satisfied the BLM's consultation obligations under the PA. Indeed, while the PA "mandate[s] some form of consultation, [it] doe[es] not mandate what form the consultation must take. " (King 1 Decl. Ex.C-607) (decision by Judge Wu denying CRIT's request for a preliminary 1 injunction with respect to the Genesis Project). Accordingly, the relevant inquiry is 1 not, as CRIT argues, "the nature or quality of the consultation that occurred, as the... PA merely mandated that the BLM engage in some sort of consultation " (Id.) The BLM more than satisfied this standard. 1 The cases CRIT relies on to argue that the BLM failed to consult with CRIT under Section 6 of the NHPA are inapposite because none of them involve a tribe 0 1 that was a concurring party under a programmatic agreement. For example, in Quechan Tribe off ort Yuma Indian Reservation v. U.S. Dept. ofi nterior, 7 F. Supp. d 1, 1- (S.D. Cal. 0), the court found that the BLM could not rely on the existence of a programmatic agreement to satisfy its consultation obligations under Section 6 where the Quechan Tribe was not a concurring party to the programmatic agreement and in fact objected to its use for the management of DRINKER BIDDLE o&r which provides that "Signatories are parties thiat have the sole authority to execute, amend or terminate this AEgrxeeAm0e1n0 t. 0S1i g)natores to this Agreement are the BLM and SHPO. " (King Decl. 1

25 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page of Page ID #:01 1 the project at issue. Even assuming, arguendo, that the BLM had not satisfied its Section 6 obligations through compliance with the PA (which it did), the record in this case shows that the BLM engaged in the requisite government-to-government consultation. And CRIT's reliance on Quechan Tribe would still be misplaced. In 6 7 Quechan, the court emphasized that the BLM did not meet with the tribe to discuss sensitive sites in the relevant project area until atfer project approval. Id. at 1. Here, as discussed above, the BLM invited CRIT to engage in Section 6 consultation and CRIT had government-to-government consultation with a BLM field manager prior to the approval of the MBSP. (King Decl. Ex. A0--0.) Moreover, in a more recent Quechan Tribe case alleging that the BLM violated the NHPA's consultation requirements, the district court rejected the Tribe's arguments. In Quechan Tribe of Ft. Yuma Indian Reservation v. U.S. Dep't of the Interior ("Quechan IT), F. Supp. d 1, (S.D. Cal. 01), the district court found that the BLM complied with Section 6 by attempting to engage the Tribe in government-to-government consultation by sending letters and documents to the Tribe. Although the Tribe did not respond to the BLM's notifications or request government-to-government consultations until late in the review process, the district court found that this did not impact the BLM's satisfaction of its consultation 0 obligations. Id. 1 Here, the BLM and CRIT had a government-to-government meeting in April 01. (King Decl. Ex.A0-6.) The BLM then again formally invited CRIT to participate in government-to-government consultation in June 01 two months before it even published a Notice of Intent to prepare an EIS for the MBSP in the Federal Register. (King Decl. Ex. A0--0; King Decl. Ex.A0-066.) And CRIT participated in an informational meeting and site visit with the BLM on July, 01 with the BLM and NextEra. (Id.; King Decl. Ex.A0-6.) Although CRIT much later mentioned in its March 01 comments on the DEIS (which the DRINKER BIDDLE o&r

26 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page of Page ID #:0 1 BLM fully responded to), that there should be a meeting with the BLM to "discuss possible mechanisms for allowing in-situ or onsite reburial for the Blythe Project and others in this area " this issue was addressed, with the BLM allowing for CRIT's requested in-situ and onsite reburial of isolated artifacts at MBSP and the McCoy Solar Project. (King Decl. Ex.B0-667; Stein Decl. TT 7,.) Accordingly, even 6 more so than in Quechan II, the BLM satisfied its consultation obligations here. 7 Moreover, even assuming, for the sake of argument, that the BLM did not engage in the requisite degree of government-to-government consultation, CRIT's NHPA claim still fails. The Ninth Circuit has instructed that a failure to consult claim under the NHPA requires a demonstration that more robust or earlier consultation would have allowed a plaintiff to provide new information which might have affected the agency' s determination. Te-Moak Tribe, 60 F.d at 60. To the extent that CRIT argues that the "new information" that it was not permitted to bring to the BLM's attention consists of supposed information learned about utility-scale solar projects through the implementation of the Genesis Solar Project, it is mistaken. As explained above, the BLM did consider CRIT's comments regarding the Genesis Solar Project prior to approval of the MB SP and properly rejected them as irrelevant. 1. The BLM Complied With The Terms Of The PA CRIT also argues that the BLM violated the NHPA by allegedly breaching the 0 terms of the PA by issuing a limited notice to proceed with construction activities at 1 the Project site prior to finalizing the HPTP. CRIT is wrong. Stipulation X(b) of the PA provides, in relevant part, that: The BLM may authorize construction activities, including but not limited to those listed below, to proceed in specific geographic areas of the Project's APE where... a monitoring and discovery process or plan is in place per Stipulation VI(b) Such construction activities areas for the tiggactioonnsstrourcotitnhger geophysical aird engineeringboalcitcivsiotileasr and trough iii) ignrvaedsin builhtngs, and installing para assemblies. (King Decl. Ex.A0-.) DRINKER BIDDLE o&r 0

27 Case :1-cv-00-JAK-SP Document Filed 0/0/1 Page of Page ID #:00 DRINKER BIDDLE &or 1 In turn, Stipulation VI(b) of the PA provides: If the BLM determines that implementation of the... will affect a previously unidentified property that may e elii bgble for the NRIIP, or affect a known histonc property in an unanticipated manner, and a monitoring and discovery plan has not been fmalized, the BLM, in coordination with the Energy Commission, will address the or unanticipated effect by Tollowing the procedures at 6 C.F.R. 00. rocess has not been yet been a6g6re) ed to pursuant to 6 C.F.R. 00.1(a)(1). (King Decl. Ex.A0 6 The procedures set forth at 6 C.F.R. 00.1(b)() require the agency official to 7 notify the SHPO and any interested Tribe within hours of a discovery of an archaeological site or the unanticipated effect of an action on a known site. The PA thus expressly allows the BLM to authorize certain construction activities where a monitoring and discovery plan has not been finalized as long as some sort of monitoring and discovery process is in place and the notification provisions of 6 C.F.R. 00.1(b)() are complied with. 1 As explained above, prior to the issuance of the limited notice to proceed, a 1 Work Plan was adopted that put a process in place for avoiding and minimizing the 1 potential for any impacts to unknown cultural resources associated with limited notice to proceed activities. (Stein Decl. TT 6-6.) Accordingly, the BLM complied with the PA when issuing the limited notice to proceed. In addition, no eligible 1 historic sites or properties were discovered during the activities undertaken pursuant to the limited notice to proceed and no known historic sites or properties were 0 affected by the activities. (Stein Decl. TT 7-76.) Thus, the notification procedures 1 set forth in 6 C.F.R. 00.1(b)() were not triggered, and even if they had been, the BLM would have complied with them since CRIT monitors were present at the Project site during all ground-disturbing activities and thus would have had immediate notice of any sites that were discovered or impacted.. CRIT Fails To Show A Likelihood Of Success On Its NEPA Claim a. The BLM Took A "Hard Look" At The MBSP's Potential Impacts To Cultural Resources NEPA is a procedural statute that requires a federal agency to take a "hard 1