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Judge Throws Out Suit Against Ocotillo Wind

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One of Anza Borrego's bighorn sheep | Photo: djfrantic/Flickr/Creative Commons License

A Southern California judge has ruled that the U.S. Fish and Wildlife Service paid enough attention to the welfare of Endangered Peninsular bighorn sheep when it assessed the environmental effects of an Imperial County wind facility near Anza-Borrego Desert State Park.

In a November 20 decision, U.S. Superior Court Judge Gonzalo P. Curiel dismissed a lawsuit by three plaintiffs against the U.S. Fish and Wildlife Service and the Ocotillo Express Wind project, in which the plaintiffs -- Protect Our Communities Foundation; Backcountry Against Dumps; and Boulevard resident Donna Tisdale -- claimed that USFWS's Biological Opinion (BiOp) on the Ocotillo Express project didn't use the best available science on Peninsular bighorn sheep, and failed to recognize the importance of low-elevation habitat to the subspecies.

The plaintiffs had sought to force USFWS to reexamine the threat to bighorn from Pattern Energy's 315-megawatt turbine array in southwestern Imperial County. In its BiOp for the project, USFWS had said that building and operating Ocotillo could harm up to five adult ewes and their lambs without posing a threat to the survival of the species.

Peninsular bighorn sheep are a subspecies, Ovis canadensis nelsoni, of the bighorn sheep species Ovis canadensis that is widespread throughout the West. Though the subspecies' numbers have been recovering for some years, there are still likely fewer than a thousand individual Peninsular bighorns in the world. Threats include pneumonia and other diseases, habitat loss, and injuries from vehicles, among other issues. With numbers so low, threats to even a few individual sheep could be bad for the subspecies' survival.

A key part of the plaintiffs' case was the importance of so-called "low-elevation habitat" to the peninsular bighorn. Bighorn sheep in the desert are well-known for preferring to hang out in craggy mountainous areas. Ocotillo Express' wind turbines are mainly sited in the alluvial slopes at the western edge of Imperial County, not in the mountains to the west along the San Diego County line that constitute the usual conception of bighorn habitat.

But bighorn do venture out onto the alluvial plains, especially after rains have produced a crop of desert annuals suitable for foraging. One of the plaintiffs' main contentions was that USFWS didn't consider whether the project would interfere with sheep migration in that low-elevation habitat. USFWS and Pattern Energy contended that migration through that habitat was already obstructed by Interstate 8, among other human intrusions on the landscape.

Judge Curiel sided with the defendants on that and a few related questions, denying the plaintiffs' motion for summary judgment and tossing the case out of court. That marks the fourth suit against the project Curiel has tossed out.

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