By James Purvis, Esq.
Plaintiffs challenged the decision of the U.S. Bureau of Indian Affairs (BIA) to approve an industrial-scale wind facility in southern California, raising arguments under the Administrative Procedure Act (APA), the National Environmental Policy Act (NEPA), and the Bald and Golden Eagle Protection Act (BGEPA). The U.S. District Court granted summary judgment, finding that the environmental analysis was sufficient to satisfy NEPA, and BIA’s decision not to require the wind developer to obtain a BGEPA permit was justified. Following appeal, the Ninth Circuit affirmed. [Protect Our Communities Foundation v. Lacounte, 939 F.3d 1029 (9th Cir. 2019).]
Factual and Procedural Background
Tule Wind, LLC (Tule) intends to construct 85 wind turbines about 60 miles east of San Diego, California. During the planning and approval process, the project was split into two phases. Phase I concerned 65 turbines constructed on federal land in a valley, which required approval from the Bureau of Land Management (BLM), which is responsible for granting rights-of-way for use of federal lands. Phase II concerned 20 turbines on the Ewiiaapaayp Band of Kumeyaay Indians (Tribe) reservation on ridgelines above the valley. Phase II required approval from BIA, which serves as a trustee for federally recognized Indian tribes.
Before approving the respective project phases, the BLM and BIA were required to conduct environmental review under the National Environmental Policy Act. BLM prepared an Environmental Impact Statement (EIS) that covered both phases. Among other environmental impacts, the EIS expressly identified an “unavoidable adverse impact” to golden eagles from collisions with the turbines and loss of breeding territory. The EIS also considered five project alternatives, including one that would eliminate 63 turbines, including all of the Phase II turbines, from the 128 turbines that were originally proposed.
For Phase I, Tule drafted a Project-Specific Avian and Bat Protection Plan (Protection Plan), which described possible means of mitigating bird and bat impacts in detail. Relying on that plan and the EIS, the BLM approved Phase I. That approval was then upheld following judicial review. See, Protect Our Communities Foundation v. Jewell, 825 F.3d 571 (9th Cir. 2016).
For Phase II, Tule drafted a Supplemental Project-Specific Avian and Bat Protection Plan (Supplemental Protection Plan), which included updated eagle surveys and described measures to document and avoid bird impacts. The Supplemental Protection Plan concluded that, with mitigation measures, Phase II could “meet the current no-net loss standard for local breeding eagle populations.” The BIA made the Supplemental Protection Plan available for public comment. The U.S. Fish and Wildlife Service (FWS), among other entities, criticized the Supplemental Protection Plan’s methodologies and conclusion.
The BIA approved Phase II in a Record of Decision (ROD) that relied on BLM’s EIS and Tule’s Supplemental Protection Plan. The ROD adopted several mitigation measures designed to avoid impacts to golden eagles. These mitigation measures included a requirement that before operating, Tule had to apply for an eagle take permit under the Bald and Golden Eagle Protection Act.
Plaintiffs challenged the BIA’s approval in the District Court, asserting three alleged errors. The District Court granted Defendants’ motion for judgment on the pleadings on two of the claimed errors and granted Defendants’ motions for summary judgment on the third. Plaintiffs then timely appealed.
The Ninth Circuit’s Decision
BIA’s Decision to Rely on BLM’s EIS
The Ninth Circuit first addressed plaintiffs’ claim that the BIA improperly relied on BLM’s EIS to satisfy its NEPA obligations because the BIA did not explain its decision to not implement one of the EIS’ listed mitigation measures. Contrary to this claim, however, the Ninth Circuit found that the BIA had in fact followed the mitigation measure. The Ninth Circuit also rejected plaintiffs’ related argument that the BIA should have explained why its Record of Decision found no significant impact to eagles, even though the EIS had concluded that the entire project would impact eagles. The court found no such discrepancy, noting that the EIS considered whether the entire project would have any impact on eagles, whereas the Supplemental Protection Plan considered whether Phase II would have significant impacts, taking into account the Supplemental Protection Plan’s mitigation measures and analysis.
The EIS’s Analysis of Alternatives
The Ninth Circuit next addressed plaintiffs’ claim that the EIS’s alternatives analysis was deficient because it did not consider an alternative where only some of the Phase II turbines were authorized. After first rejecting the BIA’s contention that plaintiffs failed to preserve the issue for judicial review, the Ninth Circuit found that the alternatives analysis was sufficient when viewed in light of the project as a whole. Although no mid-range alternative was considered as to the 20 Phase II turbines, the EIS’s fifth alternative did consider a mid-range alternative for the project as a whole—construction of 63 out of 128 turbines. In addition, BLM ultimately only approved a configuration with fewer turbines that had been initially proposed. While the court noted that analysis of a larger project may not always be sufficient to satisfy NEPA for a smaller portion of the project, it found the alternatives analysis to be sufficient in this instance.
BIA’s Decision Not to Prepare a Supplemental EIS
The Ninth Circuit then addressed plaintiffs’ contention that the BIA should have prepared a supplemental EIS to analyze information that arose after the original EIS had been published. Plaintiffs raised five grounds in support of their argument, including claims that: information in the Supplemental Protection Plan constituted new and significant information; the EIS had “rejected” the Phase II turbines; certain information met the criteria for “significance” requiring further review; the BIA did not adequately respond to comments from FWS and the California Department of Fish and Wildlife; and the BIA failed to assess the significance of new information. The Ninth Circuit rejected all of these claims, finding that there was not any significant new information, and that the BIA had taken the requisite “hard look” required under the APA.
BIA’s Decision Not to Require Tule to Obtain a BGEPA Permit
Finally, the Ninth Circuit rejected plaintiffs’ challenges to BIA’s decision not to require Tule to obtain a Bald and Golden Eagle Protection Act permit from the FWS. Instead, the BIA only required Tule to apply for a permit before it began operation of the turbines. The Ninth Circuit found this to be appropriate, concluding that, while the BIA only required Tule to apply for a permit, it nonetheless required Tule to comply with all applicable laws, and the BIA’s decision not to condition its approval on prior acquisition of a permit from another agency was not arbitrary or capricious.
Conclusion and Implications
The case is significant because it analyzes a variety of NEPA concerns in the context of phased environmental review and provides a substantive analysis of issues in connection with Bald and Golden Eagle Protection Act. The decision is available online at: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/23/17-55647.pdf
