Protect Our Communities Foundation v. LaCounte, No. 17-55647 (9th Cir. 2019)
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The Ninth Circuit affirmed the district court's grant of summary judgment to defendants in an action challenging the BIA's decision to approve an industrial-scale wind facility in Southern California.
The panel held that the BIA was not required to explain why it did not adopt a mitigation measure that it did in fact follow. Similarly, the panel rejected plaintiffs' related argument that the BIA should have explained why its record of decision (ROD) found no significant impact to eagles where the environmental impact statement (EIS) considered the entire project and its impact on eagles. The panel also held that the BIA's consideration of five action alternatives was sufficient. The panel was not persuaded that additional environmental review was required and rejected plaintiffs' five grounds in support of their contention that the BIA should have prepared a supplemental EIS. The panel rejected plaintiffs' final two challenges to the BIA's decision concerning the agency's decision not to require Tule to obtain a Bald and Golden Eagle Protection Act permit from FWS. Therefore, the panel held that, under the total circumstances of this case, the EIS analysis was sufficient to satisfy the National Environmental Policy Act.
Court Description: Environmental Policy The panel affirmed the district court’s summary judgment in favor of Bureau of Indian Affairs (“BIA”) officials, Tule Wind, LLC and Ewiiaapaayp Band of Kumeyaay Indians in an action challenging the BIA’s approval of an industrial-scale wind facility in Southern California. Tule plans to construct eighty-five wind turbines, and the project was split into two phases. Phase I concerned sixty- * The Honorable Carol Bagley Amon, United States District Judge for the Eastern District of New York, sitting by designation. PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 3 five turbines constructed on federal land, requiring approval from the Bureau of Land Management (“BLM”). Phase II concerned twenty turbines on the Tribe’s reservation, requiring approval from the BIA, which serves as a trustee for the Tribe. BLM prepared an environmental impact statement (“EIS”) under the National Environmental Policy Act (“NEPA”) that covered both phases. BIA approved Phase II in a Record of Decision that relied on BLM’s EIS and Tule’s Supplemental Protection Plan. The panel considered plaintiffs’ contention that BLM’s reliance on the EIS was improper because BIA did not explain its decision not to implement one of the EIS’s listed mitigation measures. The panel agreed with the defendants that the BIA did follow the command of this mitigation measure, and for that reason, did not need to explain its decision not to implement it. The panel next considered plaintiffs’ contention that the EIS’s consideration of five action alternatives was deficient because it did not consider an alternative where only some of the Phase II turbines were authorized. The panel held that the issue was properly preserved, and not waived. The panel further held that viewing the project as a whole, the alternatives analysis was sufficient. Plaintiffs argued that BIA should have prepared a supplemental EIS to analyze information that arose after the EIS was published. The panel considered five grounds asserted by plaintiffs in support of their argument, and concluded that additional environmental review was not required. The panel rejected plaintiffs’ challenges to BIA’s decision not to require Tule to obtain an eagle take permit 4 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE under the Bald and Golden Eagle Protection Act (“BGEPA”) from the U.S. Fish and Wildlife Service. BIA did not require Tule to obtain a permit before Tule began construction as the Service had urged, and only required Tule to apply for a permit before it began operation of the turbines. The panel rejected plaintiffs’ false contention that BIA intimated that Tule could comply with BGEPA merely by applying for a permit. The panel held that BIA’s authorization was not in any way a violation of the law because the BIA, like the BLM, required Tule to apply for a permit and required Tule to comply with all applicable laws. In addition, the panel held that the BIA did not act arbitrarily and capriciously by not conditioning its approval of Phase II on Tule obtaining a permit. The panel concluded that in the total circumstances of this case, the EIS analysis was sufficient to satisfy NEPA, and so far as the demands of NEPA and the Administrative Procedure Act were concerned, this project could proceed.
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