Ninth Circuit Lifts Injunction in Response to Company’s Pleas to Meet Construction Deadlines

The U.S. Court of Appeals for the Ninth Circuit recently lifted a preliminary injunction in Fallon Paiute-Shoshone Tribe, et al. v. U.S. Dep’t of Interior. The plaintiffs had challenged construction of the Dixie Meadows Geothermal Utilization Project, which is expected to help Nevada achieve its renewable portfolio requirement and would include two geothermal plants, at least 18 geothermal wells, and approximately 50 miles of transmission lines over a 2,000-acre plot of public land. The Bureau of Land Management (BLM) had approved the project, finding it would result in no significant impact on the environment. Plaintiffs argued the project will harm both the Fallon Paiute-Shoshone Tribe and the Dixie Valley toad, a potentially threatened species, and that BLM’s approval violated the National Environmental Policy Act and failed to adequately consider tribal concerns under the American Indian Religious Freedom Act and Religious Freedom Restoration Act. Although the district court found that the challengers were unlikely to succeed on the merits, the district court stayed the project for at least 90 days based on the tribe’s claims of irreparable harm. The intervening project developer appealed, arguing that the district court’s order was arbitrary as it would make construction deadlines impossible and threaten their investment, and the Ninth Circuit appeared to agree as it lifted the preliminary injunction without explanation. The court of appeals did also approve a request to expedite the case, so litigation and construction will likely move forward in tandem.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.