FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OREGON NATURAL DESERT

ASSOCIATION; AUDUBON SOCIETY

OF PORTLAND,

Plaintiffs-Appellants,

v.

SALLY JEWELL, Secretary of the

Interior; BUREAU OF LAND

MANAGEMENT,

Defendants-Appellees,

COLUMBIA ENERGY PARTNERS,

LLC; HARNEY COUNTY,

Intervenor-Defendants-Appellees.

No. 13-36078

D.C. No.

3:12-cv-00596-MO

OPINION

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, Chief District Judge, Presiding

Argued and Submitted March 10, 2016

Portland, Oregon

Filed May 26, 2016

Before: Raymond C. Fisher, Marsha S. Berzon,

and Paul J. Watford, Circuit Judges.

Opinion by Judge Berzon
2 ONDA V. JEWELL

SUMMARY*

Environmental Law

The panel reversed in part the district court’s summary

judgment in favor of defendants in an action challenging

under the National Environmental Policy Act a wind-energy

development project on the ground that the U.S. Bureau of

Land Management’s environmental review of the project did

not adequately address impacts to the greater sage grouse.

The panel held that BLM’s review did not adequately

assess baseline sage grouse numbers during winter at the

proposed Echanis wind energy facility in Harney County,

Oregon. The panel also held that the BLM’s error was not

harmless. Accordingly, the panel reversed the district court’s

entry of summary judgment in favor of the BLM, Harney

County, and Columbia Energy Partners, the project

developer, as to that issue. 

The panel also held that because plaintiffs did not bring

the issue of inter-population or genetic connectivity between

sage grouse populations to the BLM’s attention during the

environmental review process, the issue was not exhausted

and is not now subject to review.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
ONDA V. JEWELL 3

COUNSEL

Peter M. Lacy (argued), Oregon Natural Desert Association,

Portland, Oregon; Laurence J. Lucas, Boise, Idaho; David H.

Becker, Portland, Oregon, for Plaintiffs-Appellants.

John C. Cruden, Assistant United States Attorney General,

Washington D.C.; Ty Bair, Allen M. Brabender, & Peter

Krzywicki (argued), United States Department of Justice,

Washington D.C.; Veronica Larvie, Office of the Solicitor,

Department of the Interior, Salt Lake City, Utah, for

Defendants-Appellees.

Jonathan M. Norling, Portland, Oregon, for IntervenorAppellee Columbia Energy Partners.

Dominic M. Carollo (argued), Ronald S. Yockim, Yockim

Carollo LLP, Roseburg, Oregon, for Intervenor-DefendantAppellee Harney County.

OPINION

BERZON, Circuit Judge:

Renewable energy projects, although critical to the effort

to combat climate change, can have significant adverse

environmentalimpacts, just as other large-scale developments

do. Here, the Oregon Natural Desert Association and the

Audubon Society of Portland (collectively, “ONDA”)

challenge a wind-energy development on the ground that the

U.S. Bureau of Land Management’s (“BLM”) environmental

review of the project did not adequately address impacts to

the greater sage grouse, a relatively large ground-dwelling
4 ONDA V. JEWELL

bird once abundant in the western United States. Greater

sage grouse depend on sagebrush habitat for their survival. 

The challenged project entails the construction of wind

turbines and a right-of-way across a sagebrush landscape in

southeastern Oregon’s Harney County.

We conclude that the BLM’s review did not adequately

assess baseline sage grouse numbers during winter at the

Echanis site, where the wind turbines are to be installed. As

to that point, we reverse the district court’s entry of summary

judgment in favor of the BLM, Harney County, and

Columbia Energy Partners, the project developer. We also

conclude, however, that ONDA did not exhaust its argument

regarding genetic connectivity, and so we affirm as to that

issue.

I.

A. The Project

The Echanis Wind Energy Project “is a 104-megawatt

(MW) wind energy facility that would be constructed on a

10,500-acre privately-owned tract” on Steens Mountain in

Harney County, Oregon. BLM, North Steens 230-kV

Transmission Line Project Final Environmental Impact

Statement (Oct. 2011) (“FEIS”) ES-1. Between 40 and 69

wind turbines would be built on the Echanis site. FEIS ES11, 2-21, 3.1-2; see FEIS 2-22–23. The North Steens 230-kV

Transmission Line, which involves “the construction,

operation, and maintenance of a new [230-kilovolt] overhead

electric transmission line and associated facilities on BLMadministered land,” would transport energy from the turbines

to the electrical grid. FEIS ES-1–2. The entire

undertaking—that is, both the transmission line and the
ONDA V. JEWELL 5

turbine complex—(“the Project”), was approved in the

BLM’s FEIS and Record of Decision (“ROD”) here

challenged.

Columbia Energy Partners received a conditional use

permit from Harney County to develop the Project,

commissioned several studies of the Project, and secured a

20-year agreement to sell energy generated by the wind

facility.

1 FEIS ES-1. Because the right-of-way for the

transmission line crosses public lands administered by the

BLM, and the construction of the turbines is a “connected

action,” 40 C.F.R. § 1508.25(a)(1), the entire Project is

subject to environmental review under the National

Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321, et

seq. See FEIS 1-1.

The Echanis site was chosen because “[i]nitial site

reconnaissance revealed wind-swept areas well exposed to

prevailing west winds and – where present – significant

‘flagging’ of vegetation, indicating a robust westerly wind

resource.” FEIS app. F at 6. This preliminary assessment

was confirmed after a meteorological tower was erected at the

site. Id. After considering three alternatives, the BLM chose

a route for the transmission line and associated infrastructure

that would cut across, in part, the Steens Mountain

Cooperative Management and Protection Area (“Steens

Protection Area”). See, e.g., FEIS ES-3, ES-11, 1-4–5.

1 This agreement, along with certain other ancillary facets of the Project,

has since been cancelled. The parties assure us, however, that if the

Project survives environmental review, it will go forward.
6 ONDA V. JEWELL

B. Steens Mountain

Steens Mountain is many miles long and nearly 10,000

feet in elevation at its highest point. In 2000, Congress

enacted the Steens Mountain Cooperative Management and

Protection Act (“Steens Act”), which, among other things,

established the Steens Protection Area and the Steens

Mountain Wilderness Area. FEIS 1-19; see 16 U.S.C.

§ 460nnn, et seq. “The purpose of the [Steens Protection

Area] is to conserve, protect, and manage the long-term

ecological integrity of Steens Mountain for future and present

generations.” 16 U.S.C. § 460nnn-12(a). Under the Steens

Act, the “ecological integrity” that must be conserved,

protected, and managed includes “the maintenance of . . .

genetic interchange.” 16 U.S.C. § 460nnn(5)(B). Steens

Mountain, home to many sagebrush communities, lies near

the center of one of the last remaining “strongholds of

contiguous sagebrush habitat essential for the long-term

persistence of greater sage-grouse.”

C. Greater Sage Grouse

The greater sage grouse is a sagebrush-obligate bird,

meaning that it relies on sagebrush for its survival yearround. FEIS 3.5-22; Oregon Department of Fish & Wildlife,

Greater Sage-Grouse Conservation Assessment and Strategy

for Oregon: A Plan to Maintain and Enhance Populations

and Habitat, Draft, March 1, 2011 (“Sage Grouse Strategy”)

at 8. Sage grouse use different aspects of sagebrush habitats

for various purposes. FEIS 3.5-22. For instance, at leks,

“open areas surrounded by sagebrush,” male sage grouse strut

and compete for female mates, displaying their elaborate

plumage. FEIS 3.5-22; Sage Grouse Strategy at 8. In
ONDA V. JEWELL 7

addition, sage grouse use sagebrush habitats for nesting and

brood rearing. FEIS 3.5-22.

Sagebrush habitat is also essential for winter survival of

sage grouse. “During the winter months, [the] greater sagegrouse’s diet consists almost entirely of sagebrush leaves and

buds.” FEIS 3.5-23. To facilitate sagebrush consumption,

sage grouse in the winter months “tend toward areas with

high canopy and taller sagebrush plants . . . . Sagebrush must

be exposed at least 9.8 to 11.8 inches (25 to 30 cm) above the

snow level to provide adequate forage and cover.” FEIS 3.5-

23. “[I]f sagebrush is covered with snow, greater sage-grouse

will move to areas where the sagebrush is exposed . . . . The

availability of sagebrush above the snowpack is critical to the

survival of greater sage-grouse through the winter.” FEIS

3.5-23–24; see also Sage Grouse Strategy at 10.

Once abundant across much of the western United States

and Canada, the greater sage grouse now lives in “continually

declining” and “increasingly separate” populations. FEIS

3.5-22. Since the 1950s, the overall population of sage

grouse has declined by somewhere between 45% and 80%. 

Id. “Habitat loss and fragmentation are the primary cause[s]

for long-term changes in [sage grouse] population abundance

and distribution.” Sage Grouse Strategy at 1. As a

consequence, “[m]aintenance of connectivity and reduction

of fragmentation of sagebrush habitats is key to the long-term

welfare of all . . . sagebrush associated species.” Id. at 4. 

Oregon is unique in that, “[c]ompared to other states within

the range of sage-grouse, [it] has large expanses of

contiguous habitat with minimal threats of fossil fuel

exploration or development.” Id. at x. “Oregon sage-grouse

populations and sagebrush habitats likely comprise nearly
8 ONDA V. JEWELL

20% of the North American range wide distribution.” Id. at

2.

D. Environmental Review

The impacts of the Project on sage grouse were by far the

most significant concern during the environmental review

process at issue here. In the draft environmental impact

statement (“DEIS”), FEIS, and ROD, the BLM adopted

information, guidance, and mitigation measures concerning

the sage grouse from the Oregon Department of Fish &

Wildlife’s Mitigation Framework and Sage Grouse Strategy

documents. FEIS ES-19, 3.5-21, 3.5-25–26; see C.A. Hagen,

Mitigation Framework for Sage-Grouse Habitats, Aug. 23,

2011 (“Mitigation Framework”).

In response to the DEIS, ONDA submitted to the BLM

numerous comments on a variety of issues, supporting the

comments with scientific studies, wildlife management

materials, and other documents. After the comment period

ended, the BLM issued the FEIS and ROD, selecting the

North Route transmission line as the preferred alternative to

be implemented.2 FEIS ES-3. The North Route line would

be approximately 46 miles long, connecting an electric

substation at the Echanis site with an interconnection station

near Crane, Oregon. FEIS ES-3.

2 Although the entire Project includes both the transmission line and the

wind turbines, the proposed action alternatives varied only as to the route

the transmission line would take. Harney County issued the permit to

build the wind turbines at the Echanis site, which is private land, so the

proposed turbines would be built there and nowhere else. For that reason,

other than the no-action alternative, the FEIS and ROD did not consider

alternative sites for the turbines.
ONDA V. JEWELL 9

Of relevance here, the FEIS acknowledged the “potential

conflict between wind energy development and greater sagegrouse winter foraging habitats, because thewindsweptridges

that keep sagebrush exposed during winter months could also

be ideal locations for wind energy development.” FEIS 3.5-

25. Despite this concern, no surveys were conducted to

determine if sage grouse are present at the Echanis site during

the winter months of November through April. Instead, the

BLM assumed, based on surveys done at the nearby East

Ridge and West Ridge sites, that no grouse use the Echanis

site during winter.3 FEIS 3.5-25, 3.19-4. The FEIS stated

that “no greater sage-grouse were found” at the East and West

Ridge sites between late December and April, during the

period of snow accumulation. FEIS 3.5-25. It explained:

The East Ridge and West Ridge projects are

similar but potentially at even lower

elevations [than is the Echanis site]. . . .

Because the Echanis Project area is generally

covered with snow earlier and later in the

season because of it’s [sic] relatively higher

elevation, it is reasonable to extrapolate

winter use from the surveys at the East Ridge

and West Ridge sites. Therefore, based upon

these data, greater sage-grouse are assumed

not to utilize the Echanis Project Area for

winter habitat from the time that the

vegetation is covered with snow until

snowmelt, roughly December through April.

3 The East and West Ridge sites were originally also slated for windenergy development, but applications for those projects were withdrawn. 

FEIS 3.19-2–3.
10 ONDA V. JEWELL

FEIS 3.5-25.

As to connectivity concerns, the transmission lines and

associated access and maintenance roads would physically

divide sage grouse habitat, and the lines would provide

perches for predatory raptors (such as hawks and eagles) and

corvids (such as ravens, crows, and jays). See Sage Grouse

Strategy at 47–48. Accordingly, the FEIS assumed that

grouse would avoid and be displaced from areas near

transmission lines and poles. FEIS 3.5-43–44. This

displacement, combined with possible avoidance of some

areas due to noise or other project-related disturbances, would

result in habitat fragmentation, as the lines transect otherwise

contiguous grouse habitat. FEIS 3.5-43, 3.5-80.

E. This Litigation

After the FEIS and ROD issued, ONDA filed a complaint

in the U.S. District Court for the District of Oregon,

challenging environmental review of the Project under

NEPA. Harney County and Columbia Energy Partners

intervened. The parties then filed cross-motions for summary

judgment.4 Ultimately, the court granted the defendants’

motions for summary judgment and denied ONDA’s.

We reverse the district court’s ruling.

4

In support of its motion, the district court permitted ONDA to

supplement the record with expert declarations. The defendants object to

ONDA’s reliance on these declarations. The declarations do not affect our

decision, so we do not address the objection.
ONDA V. JEWELL 11

II.

ONDA asserts that the BLM’s review of the Project did

not comply with NEPA, “our basic national charter for

protection of the environment.” 40 C.F.R. § 1500.1(a). The

centerpiece of environmental review under NEPA is the

environmental impact statement (“EIS”), in which the

responsible federal agencydescribes the proposed project and

its impacts, alternatives to the project, and possible mitigation

for any impacts. See 40 C.F.R. §§ 1500.1, 1502.15. NEPA

imposes procedural requirements on federal agencies

undertaking review; it does not mandate outcomes. 

WildEarth Guardians v. Mont. Snowmobile Ass’n, 790 F.3d

920, 924 (9th Cir. 2015).

NEPA challenges are reviewed under the Administrative

Procedure Act (“APA”). Id. Under the APA, we ask whether

the agency’s action was “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 

5 U.S.C. § 706(2)(A). An agency’s action can be set aside

as arbitrary and capricious only if the agency

relied on factors Congress did not intend it to

consider, entirely failed to consider an

important aspect of the problem, or offered an

explanation that runs counter to the evidence

before the agency or is so implausible that it

could not be ascribed to a difference in view

or the product of agency expertise.

Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008)

(en banc) (citations omitted), overruled on other grounds by

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
12 ONDA V. JEWELL

A. Baseline Winter Conditions

ONDA first contends that the BLM erred in failing

directly to assess baseline conditions at the Echanis site,

instead relying on an extrapolation from nearby sites to

conclude that there is no greater sage grouse winter habitat at

Echanis.

The establishment of a “baseline is not an independent

legal requirement, but rather, a practical requirement in

environmental analysis often employed to identify the

environmental consequences of a proposed agency action.” 

Am. Rivers v. FERC, 201 F.3d 1186, 1195 n.15 (9th Cir.

1999). An EIS must “succinctly describe the environment of

the area(s) to be affected . . . by the alternatives under

consideration,” 40 C.F.R. § 1502.15, and “insure that

environmental information is available to public officials and

citizens before decisions are made and before actions are

taken,” id. § 1500.1(b) (emphases added). “Accurate

scientific analysis . . . [is] essential to implementing NEPA.” 

Id.

Applying these principles, several cases have found

environmental analyses insufficient for failing to establish an

environmental baseline. Indeed, as to another project planned

for sage grouse territory, the BLM submitted comments to the

U.S. Department of Transportation (“DOT”) urging DOT to

assess baseline winter sage-grouse populations along a rail

line. See N. Plains Res. Council v. Surface Transp. Bd.,

668 F.3d 1067, 1084 (9th Cir. 2011). Specifically, with

regard to DOT’s EIS, the BLM commented that “[w]ith the

increasing importance of sage grouse, more discussion on

sage grouse is needed, including discussion on wintering

areas . . . . Sage grouse inventories need to be conducted at
ONDA V. JEWELL 13

least two miles from any proposed disturbance.” Id.

Northern Plains Resource Council agreed with the BLM that

DOT did not adequately assess baseline conditions for the

challenged project. Id. at 1083–85. Similarly, Half Moon

Bay ruled that analysis in an EIS was inadequate because it

failed to assess baseline underwater conditions at a site where

it was proposed dredged materials would be dumped. Half

Moon Bay Fisherman’s Marketing Ass’n v. Carlucci,

857 F.2d 505, 510 (9th Cir. 1988).

Under Northern Plains Resource Council and Half Moon

Bay, the BLM had a duty to assess, in some reasonable way,

the actual baseline conditions at the Echanis site. Baseline

conditions were particularly important here because impacts

to sage grouse were by far the most significant concern

during environmental review, and the unique features of

winter habitat are essential to sage-grouse survival. See, e.g.,

Sage Grouse Strategy at 47, 83. Baseline conditions at the

Echanis site thus warranted comprehensive study in the FEIS.

The FEIS did not report on any observations of the

Echanis site surveying winter sage grouse use of the area. 

Instead, the FEIS assumed that sage grouse are absent from

the site during winter. FEIS 3.5-25. To justify this

assumption, the FEIS relied on data from the East and West

Ridge sites, located near the Echanis site but at generally

lower elevations. Id. In doing so, the FEIS asserted that,

although 36 sage grouse were found at the East Ridge site on

December 17, 2008 and nine birds were found on the West

Ridge site on December 11, “no greater sage-grouse were

found later in December, or in January, February, March, or

April, during the time that snow had accumulated.” Id. The

FEIS then explained that its extrapolation from surveys at

these sites was reasonable because the “potentially” lower
14 ONDA V. JEWELL

elevation of the sites, as compared to the Echanis site,

indicated that it is more likely that snow would accumulate at

Echanis earlier and dissipate later in winter. It is less likely,

the FEIS asserted, that sage grouse use the Echanis site than

the East and West Ridge sites in winter. Id. A fundamental

flaw infects this reasoning.

Contrary to what the FEIS stated, four sage grouse were

found at the East Ridge site—the surveyed site closer to

Echanis—during February, indicating that some sage grouse

do spend the winter there. The FEIS thus did not comply

with the requirement to provide “[a]ccurate scientific

analysis,” which is “essential to implementing NEPA,”

40 C.F.R. § 1500.1(b), or with the agency’s obligation to

“insure the professional integrity, including scientific

integrity, of the discussions and analyses in [EISs],” id.

§ 1502.24.

Further, that some grouse were found at the East Ridge

site in mid-winter greatly undermines the validity of the

BLM’s assumed absence of sage grouse at the Echanis site. 

Given that grouse do use the East Ridge site during the

winter, the BLM’s own extrapolation method should have

resulted in assuming the birds’ presence, not their absence.

The record as a whole confirms the validity of this

contrary assumption. Christian Hagen, the Oregon

Department of Fish & Wildlife scientist who prepared the

Mitigation Framework, suggested that, if grouse were still

present at the East and West Ridge sites in December, the

conditions were probably right to spend the entire winter

there; in fact, as noted, grouse were present in February. 

Further, several sources on which the FEIS relied, and the

FEIS itself, acknowledge that the wind-swept character of the
ONDA V. JEWELL 15

Echanis site—the aspect of the site that makes it ideal for

wind-energy generation—suggests it could be good winter

habitat for sage grouse, despite its “potentially” higher

elevation, as snow there may be blown off sagebrush and

exposed for grouse to eat. See, e.g., FEIS 3.5-25, app. F at 6;

Sage Grouse Strategy at 47. And scientists and cooperating

agencies recommended to the BLM either that actual winter

surveys of sage grouse be conducted or, if not, that the BLM

assume sage grouse were present at the Echanis site during

the entire winter. See, e.g., Sage Grouse Strategy at 86.

In short, the FEIS’s inaccurate data concerning the closer

East Ridge site that was surveyed rendered its assumption

concerning the winter presence of sage grouse at the Echanis

site arbitrary and capricious. See Lands Council, 537 F.3d at

987.

The defendants maintain that the BLM is owed special

deference when undertaking scientific or technical analysis

within its purview, which it is. See Lands Council, 537 F.3d

at 993. But deference does not excuse the BLM from

ensuring the accuracy and scientific integrity of its analysis,

a NEPA requirement. See 40 C.F.R. §§ 1500.1(b), 1502.24. 

The defendants also posit that invalidating the BLM’s

assessment of winter conditions at Echanis, and therefore

requiring the BLM to gather better information, would

essentially impose a procedural requirement not derived from

NEPA. But we do not hold that habitat extrapolations from

one site to another are impermissible. Instead, our holding is

that any such extrapolation must be based on accurate

information and defensible reasoning.

The errors in the BLM’s analysis were not harmless. See

Tucson Herpetological Soc’y v. Salazar, 566 F.3d 870, 880
16 ONDA V. JEWELL

(9th Cir. 2009). The inaccurate information and unsupported

assumption materiallyimpeded informed decisionmaking and

public participation. See id.; cf. Montana Snowmobile,

790 F.3d at 926. Without appropriate data regarding sage

grouse use of the Echanis site during the winter, whether

direct or via a supportable extrapolation, it was not possible

to begin to assess whether sage grouse would be impacted

with regard to access to viable sagebrush habitat in the winter

months.

In addition, had the BLM assumed the Echanis site

provides winter sage grouse habitat, rather than that it does

not, the site would be deemed “Category-1 Habitat” pursuant

to the Sage Grouse Strategy and Mitigation Framework. 

Under that designation and the mitigation measures adopted

in the FEIS and ROD, the Project would not go forward

there.5 FEIS 3.5-53; ROD 14–15; see Sage Grouse Strategy

at 83, 86; Mitigation Framework at 1–2. In that respect, the

BLM’s analysis materially affected the outcome of

environmental review. See Idaho Wool Growers Ass’n v.

Vilsack, 816 F.3d 1095, 1104 (9th Cir. 2016).

5 The Sage Grouse Strategy, which the BLM relied on for its sage

grouse conservation approach, FEIS ES-19, 3.5-25–26, identifies winter

habitat as “Category-1,” meaning that it is “essential for greater sagegrouse populations and is limited by the inability to mitigate for habitat

loss . . . in [a] reasonable time frame, and is irreplaceable.” Sage Grouse

Strategy at 86. Pursuant to that designation, the “mitigation goal . . . is no

loss of either habitat quality or quantity,” so impacts are to be “avoid[ed]

through [the use of] alternatives to the proposed development action,” or,

if impacts cannot be avoided through the use of alternatives, there should

be “[n]o authorization of the proposed development action.” Id. In

addition, the Mitigation Framework recommends that impacts to

Category-1 Habitat “with documented sage-grouse presence” be avoided,

as such habitat is “both essential and irreplaceable.” Mitigation

Framework at 1–2.
ONDA V. JEWELL 17

The defendants urge that the mitigation measures adopted

in the FEIS cured any potential prejudice resulting from a

faulty baseline analysis.6 Mitigation measures, however,

while relevant to the adequacy of an environmental analysis,

see City of Sausalito v. O’Neill, 386 F.3d 1186, 1212–13 (9th

Cir. 2004), are not a panacea for inadequate data collection

and analysis. More specifically, they do not address the

concerns relevant to the prejudice analysis: the error’s effect

on informed decisionmaking and public participation, and on

the outcome of the decision. See, e.g., Cal. Wilderness Coal.

v. U.S. Dep’t of Energy, 631 F.3d 1072, 1093 (9th Cir. 2011). 

Here, with baseline conditions inadequately established, the

public was not able to tailor its comments to address concerns

regarding the potential winter presence of sage grouse at the

Echanis site. Nor was the BLM’s explanation of the impacts

to winter grouse habitat adequately informed. Having no

reasonable assessment as to whether sage grouse are present

at the Echanis site in winter, the BLM could not assess the

Project’s impacts to them, qualitatively or quantitatively. 

And with the impacts on sage grouse not properlyestablished,

the BLM did not know what impacts to mitigate, or whether

6 The FEIS and ROD incorporated the sage grouse mitigation measures

recommended in the Mitigation Framework. See FEIS ES-18–19. These

measures include the no-impact recommendation for Category-1 Habitat,

described supra n.5, as well as a “no net loss with a net benefit” strategy,

leading to the rehabilitation of approximately 9,000 acres of non-Projectarea sagebrush habitat to make up for the habitat potentially lost within the

Project-area. FEIS ES-18–19;see Mitigation Framework at 1–2, 5–6. To

effect these measures, the BLM, Harney County, and Columbia Energy

Partners could take measures to improve the quality of grouse habitat,

including could securing conservation easements for or purchasing

particular mitigation sites. Mitigation Framework at 6. In addition,

modeling and monitoring strategies would be used to assess the

effectiveness of proposed and implemented rehabilitation of given areas,

respectively. See, e.g., id. at 2, 5.
18 ONDA V. JEWELL

the mitigation proposed would be adequate to offset damage

to wintering sage grouse. Most importantly, had the BLM

assumed the presence of sage grouse, rather than their

absence, the Echanis site would be deemed Category-1

Habitat, and the mitigation measures adopted in the FEIS and

ROD would not allow development to go forward there.

Given the BLM’s prejudicial error, the district court’s

entry of summary judgment in favor of the defendants must

be reversed.

B. Genetic Connectivity

ONDA next asserts that the FEIS erroneously failed to

address genetic connectivity between sage grouse

populations. “Genetic connectivity” means the extent to

which separate populations of a species are able to share

genes and thereby to maintain a healthy genetic diversity

within each population. The defendants argue that ONDA

failed to exhaust this argument during environmental review. 

They also point out that the FEIS and ROD adequately

addressed the more general issue of habitat connectivity and

fragmentation. We agree with the defendants.

Judicial review is available for NEPA challenges under

the APA only if the NEPA plaintiffs exhaust their

administrative remedies. Great Basin Mine Watch v.

Hankins, 456 F.3d 955, 965 (9th Cir. 2006); see 5 U.S.C.

§ 704. ONDA did not use the term “genetic connectivity” in

its comments on the draft EIS, nor did it make specific

arguments about that issue, separately from the more general

issues of habitat connectivity and fragmentation.
ONDA V. JEWELL 19

The closest ONDA came to raising the genetic

connectivity argument as a distinct issue was the following

comment to the BLM:

According to [the U.S. Fish & Wildlife

Service’s] candidate species listing decision,

leks within 18 km (11.2 miles) of each other

have common features, such as genetic

characteristic[s] (genetic evidence proves that

exchange between different leks by individual

birds has not been restricted), compared to

leks farther away. [The U.S. Fish & Wildlife

Service] used this distance to determine

connectivity between lek sites. Because

Echanis and the transmission line alternatives

fall within the parameters of connectivity,

there will likely be impacts on the ability for

sage-grouse to move across the landscape to

lek sites for breeding and courtship.

Comment Letter from ONDA to BLM (September 17, 2010),

at 35–36 (“ONDA Comment Letter”) (footnote omitted). 

Notably, the foregoing statement mentions the issue of

genetic exchange only as a premise to assert that the Project

will affect connectivity in general. This statement, although

related to genetic connectivity concerns, is not

sufficient—particularly in light of ONDA’s otherwise

extremely comprehensive comments—to alert the BLM that

ONDA was asking for a genetic connectivity analysis

regarding separate sage grouse populations.

In one of its comment letters ONDA, quoted a BLM

instruction memorandum, which articulated BLM policy

regarding the designation of priority habitat for various
20 ONDA V. JEWELL

wildlife species, as stating that “[p]riority habitat will be

areas of high qualityhabitat supporting important sage-grouse

populations, including those populations that are vulnerable

to localized extirpation but necessary to maintain range-wide

connectivity and genetic diversity.” ONDA Comment Letter

at 25 (emphasis added) (quoting BLM, IM 2010-071,

Gunnison and Greater Sage-grouse Management

Considerations for Energy Development (2010)). In context,

this statement was insufficient to put the BLM on notice that

ONDA sought discussion of the genetic connectivity issue as

such. The overall comment of which the statement was a part

asserted that the DEIS did not demonstrate that the BLM

properly followed its own statutory, regulatory, and guidance

mandates. The comment referred to “range-wide

connectivity” and “genetic diversity” only as a subpremise of

its insistence that the BLM should follow mandates regarding

the designation of priority habitat for many species, including

sage grouse. This opaque comment was not adequately

specific to alert the BLM that it should analyze the

substantively distinct issue of cross-population genetic

connectivity.

Elsewhere, ONDA’s comments address connectivity and

fragmentation at length, but only in a general sense, not

specifically with regard to cross-population genetic

connectivity. See ONDA Comment Letter at 22 (noting that

the Project will “riddle[]” core sage grouse habitat in the

Steens Protection Area with turbines, transmission lines,

roads, and other infrastructure), 26 (noting the BLM policy

that “it is imperative that fragmentation and degradation of

. . . greater sage-grouse habitat not continue to the point that

sustainable sage-grouse populations can no longer be

supported”), 33 (“Habitat fragmentation and disturbance

across much of the sage-grouse’s range has contributed to
ONDA V. JEWELL 21

significant population declines over the past century. If

current trends persist, many local populations may disappear

in the next several decades, with the remaining fragmented

population vulnerable to extinction.”), 34–35 (referring to

habitat fragmentation), 36 (referring to “connectivity

corridors”), 37 (referring to “new habitat loss and

fragmentation”), 38 (noting “habitat loss, fragmentation, or

degradation” concerns), 39 (referring to “the need for

excluding habitat-fragmenting activities from sage-grouse

core habitat”), 80–82 (referring to habitat fragmentation), 86

(referring to habitat fragmentation and degradation); Letter

from ONDA to Secretary, Dep’t of Interior (November 15,

2011), at 1 (referring to habitat fragmentation and a

“fragmented population”); Letter from ONDA to Secretary,

Dep’t of Interior (July 21, 2011), at 2, (“fragment vital

habitat”), 3 (“loss of irreplaceable habitat . . . due to

fragmentation”), 5 (“wildlife habitat connectivity”);

Supplemental Comment Letter from ONDA to BLM (January

26, 2011), at 2 (“[H]arm to sage-grouse on Steens would be

exacerbated by habitat fragmentation . . . .”). Because

ONDA’s comments refer only to overall habitat connectivity

and fragmentation, they were too vague to raise the specific

genetic connectivity issue regarding separate populations as

a distinct concern. Great Basin Mine Watch, 456 F.3d at 967.

Barnes v. U.S. Department of Transportation confirms

that ONDA’s comments were inadequate to exhaust the

genetic connectivity issue. See 655 F.3d 1124, 1133, 1135

(9th Cir. 2011). Barnes ruled that where a commenter could

have been “more expansive or more detailed with his

comments,” he nonetheless adequately raised his concerns

regarding increased air traffic by specifically noting the

“increased air traffic” the project would cause. Id. at 1133. 

By contrast, Barnes held that commenters did not adequately
22 ONDA V. JEWELL

raise the issue of impacts caused by a potential new control

tower, because the comments “did not include one single

reference to a new control tower.” Id. at 1135. Here, ONDA

did not use the phrase “genetic connectivity” anywhere in its

comments, nor did it raise any distinct concern regarding

genetic interchange between otherwise separate sage grouse

populations. Under Barnes, therefore, ONDA did not put the

BLM sufficiently on notice that it should address genetic

connectivity in the FEIS.

Contrary to ONDA’s assertion, genetic connectivity and

the distinction between genetic connectivity and habitat

connectivity are not such obvious issues that ONDA had no

obligation to raise them to the agency. ONDA cites

Department of Transportation v. Public Citizen for the

proposition that “an EIS’s flaws might be so obvious that

there is no need for a commentator to point them out

specifically in order to preserve its ability to challenge a

proposed action.” See 541 U.S. 752, 765 (2004). But Public

Citizen decided that the issue of alternatives to the project

under review was not so obvious that it did not have to be

exhausted. See id. If the analysis of alternatives in Public

Citizen was not an obvious issue, then the much more specific

issue of genetic connectivity, as well as the fairly nuanced

distinction between genetic connectivity and habitat

connectivity, are also not that “obvious.”

ONDA also cites the Steens Act’s reference to “genetic

interchange,” 16 U.S.C. § 460nnn(5)(B); several passages in

the Sage Grouse Strategy, Sage Grouse Strategy at 10, 57;

discussion by the U.S. Fish & Wildlife Service in its March

2010 determination not to list the sage grouse as an

endangered species; and mention in the proposed Resource

Management Plan and Final Environmental Impact Statement
ONDA V. JEWELL 23

for the Andrews Management Area, which covers some of the

land that the proposed right of way would cross, to suggest

that genetic connectivity is an important issue and therefore

that the FEIS should have discussed it. But where no other

exceptions to the exhaustion requirement are met, the

importance of genetic connectivity to the health and

wellbeing of the greater sage grouse does not excuse ONDA

from raising the issue to the BLM so that the agency could

“give the issue meaningful consideration.” Great Basin Mine

Watch, 456 F.3d at 965 (citations omitted).7

ONDA cites Oregon Natural Desert Association v.

Bureau of Land Management, 625 F.3d 1092, 1112 (9th Cir.

2008), for the proposition that the Steens Act’s mention of the

BLM’s duty to manage the long-term ecological integrity of

the Steens Protection Area, including the maintenance of

genetic interchange, indicates that the BLM had to discuss

genetic connectivity in the FEIS. But the statutes at issue in

Oregon Natural Desert Association specifically required the

BLM to undertake review of certain issues, not, as is the case

with the Steens Act, to undertake management. Because the

Steens Act does not impose a requirement to review the issue

7 ONDA has not argued that the BLM had “independent knowledge” of

a genetic connectivity impact of the Project, so that exhaustion was not

required. See Barnes, 655 F.3d at 1132. Nor has ONDA argued that other

commenters raised the issue of genetic connectivity, and therefore that it

did not have to exhaust the issue. See, e.g., Shasta Res. Council v. U.S.

Dep’t of Interior, 629 F. Supp. 2d 1045, 1052 (E.D. Cal. 2009). At most,

ONDA cites sections of the U.S. Fish & Wildlife Service’s March 2010

decision not to list the sage grouse as endangered to suggest that genetic

connectivity was a live issue in this administrative process. The

discussion in that decision, however, is not a comment on this Project’s

impact on genetic interchange.
24 ONDA V. JEWELL

of genetic interchange, Oregon Natural Desert Association is

not pertinent.

Although ONDA never raised the genetic connectivity

issue, as such, to the BLM, it suggests that it did so by

making a distinction between inter-population connectivity

(essentially the issue of genetic connectivity) and intrapopulation connectivity. Not so. Although ONDA now

clearly distinguishes between inter- and intra-population

connectivity, its comments to the BLM did not mention that

distinction. For that reason as well, the comments were

simply not “structure[d] . . . [to] alert[] the agency to

[ONDA’s] positions and contentions.” Barnes, 655 F.3d at

1132 (citations and alterations omitted).

ONDA also maintains that it raised the inter-population

connectivity issue by pointing to what it calls the Steens

Mountain connectivity corridor. But ONDA did not

specifically identify the Steens Corridor in its comments; it

only referred generally to “connectivity corridors.” Again,

ONDA did not point to the inter-population connectivityissue

as a separate, more specific concern that the BLM should

address in the FEIS.

In short, ONDA never raised the issue of cross-population

genetic connectivity, specifically, to the BLM, either by using

the term “genetic connectivity” or bymaking the inter- versus

intra-population connectivity distinction, or by referring to

the Steens Corridor. The BLM responded to comments

regarding habitat connectivity and fragmentation issues at the

level of detail at which those comments were presented. See

FEIS 3.5-22–23, 3.5-25–26. Because ONDA never brought

the issue of inter-population or genetic connectivity to the

BLM’s attention during the environmental review process,we
ONDA V. JEWELL 25

conclude that the issue was not exhausted and is not now

subject to review.8, 9

III.

For the foregoing reasons, we reverse the district court’s

entry of summary judgment in part.

REVERSED.

8 ONDA made the inter-population connectivity argument clearly

enough to the district court that it ruled on the issue. It thus was not

waived. See State of Ariz. v. Components Inc., 66 F.3d 213, 217 (9th Cir.

1995).

9 We note that the exhaustion analysis in this case is unusual, as the

issue of genetic connectivity is a technical, specific issue that in this

context required clear differentiation fromthe general habitat connectivity

issue. The same mode of analysis might not apply to cases involving the

exhaustion of more generic issues.