First Claim for Relief: Violation of NEPA
This First Claim for Relief challenges Defendants' violations of the National Environmental Policy Act and NEPA's implementing regulations in approving the Record of Decision (ROD) based on the faulty, incomplete, and inadequate FEIS.
Defendants violated NEPA and implementing regulations in multiple respects through issuance of the challenged ROD based on the FEIS including but not limited to:
a. Failing to take the requisite "hard look" at all of the significant and potential direct, indirect, and cumulative impacts of the Project, including impacts to desert tortoise, bald and golden eagles, raptors, bats, bighorm sheep, cultural, visual,economic, human health, water, and other resources; and without adequate baseline data;
b. Adopting the challenged FEIS and ROD without discussing responsible opposing views in the FEIS itself, and failing to disclose high-quality information and accurate scientific analysis regarding the proposed Project;
c. Adopting too narrow and arbitrary a statement of purpose and need, and failing to consider an adequate range of alternative courses of action, including a distributed solar generation alternative, a provate lands/brownfields alternative, a low desert-tortoise-density site, or imposing adequate terms and conditions or effective mitigation to ensure against adverse impacts on visual, recreational, economic and ecological resources of the Searchlight area;
d. Failing to disclose and evaluate the effectiveness of proposed mitigation measures;
e. Failing to disclose and evaluate impacts to desert tortoises and their critical habitat;
f. Failing to disclose and evaluate the Project's impacts on human health, private property values, and the economy of the Searchlight area.
Second Claim for Relief: Violation of the Endangered Species Act and Administrative Procedure Act
The Second Claim for Relief challenges the USFWS's violations of the Endangered Species Action and the ESA's implementing regulations in approving the faulty, imcomplete, and inadequate BiOp.
ESA 7(a)2) requires USFWS to insure that projects are not likely to jeopardize continued existence of any endangered or threatened species or to result in the destruction or adverse modification of the designated critical habitat of the listed species.
The ESA requires USFWS to issue an ITS whenever a proposed federal agency action will not jeopardize a protected species but will result in incidental take of members of the species.
The BiOp fails to evaluate several significant factors regarding whether the Project is likely to jeopardize the continued existence of desert tortise or result in the adverse modification of designated critical habitat for tortoises, including but not limited to the following:
a. Failure to consider the impact from noise during construction and operation on tortoises within and surrounding the Project area and whether noise will result in the adverse modification of designated critical habitat;
b. Failure to consider whether mitigation measures designed to avoid death and injury to desert tortoises will be effective;
c. Failing to adequately evaluate the effects and cumulative effects of the action and other energy developments and add those effects to the existing environmental baseline to determine whether the action will jeopardize the existence of desert tortoises or adversely modify critical habitat.
The BiOp inappropriately relies on a mitigation strategy that is entirely dependent on the actions of the developer, contractors, and subcontractors which directly harm and are not likely to prevent injury to tortoises, and has vague statements about what, if any, administrative corrective action will be taken upon discovery that the mitigation and monitoring are in fact not working. For these reasons and others, the tortoise mitigation strategies are not "certain to occur" or reasonably likely to be successful and are inadequate to support the BiOp's conclusions.