Protect Our Communities Found. v. Jewell, No. 14-55666 (9th Cir. 2016)
Annotate this CasePlaintiffs challenged the BLM's decision to grant Tule a right-of-way on federal lands in southeast San Diego County. The BLM’s right-of-way grant permits Tule to construct and operate a wind energy project, which plaintiffs claim will harm birds in violation of the Migratory Bird Treaty Act (MBTA), 16 U.S.C. 703–12, and the Bald and Golden Eagle Protection Act (Eagle Act), 16 U.S.C. 668–668d. Plaintiffs also allege that defendants failed to comply with the National Environmental Policy Act (NEPA), 42 U.S.C. 4321–70h, in a number of respects in preparing the Environmental Impact Statement (EIS). The court concluded that the district court properly determined that the EIS’s purpose-and need-statement was adequately broad, such that the agency’s decision was not foreordained; the BLM acted within its discretion in dismissing alternative proposals; the mitigation measures, including the 85-page Protection Plan, provide ample detail and adequate baseline data for the agency to evaluate the overall environmental impact of the Project; and the BLM's investigation took a hard look at the environmental impacts of the Project. The court held that plaintiffs’ argument that the Project will inevitably result in migratory-bird fatalities, even if true, is unavailing because the MBTA does not contemplate attenuated secondary liability on agencies like the BLM that act in a purely regulatory capacity, and whose regulatory acts do not directly or proximately cause the “take” of migratory birds, within the meaning of 16 U.S.C. 703(a). The court further held that the BLM’s regulatory role in this case is too far removed from the ultimate legal violation to be independently unlawful under the Administrative Procedure Act (APA), 5 U.S.C. 701-06. Finally, in regard to the Eagle Act, the court held that, in the narrow circumstances of this case, the BLM did not, by granting Tule the referenced right-of-way, take “agency actions . . . implemented by the agency itself” that would directly or proximately result in the incidental take of eagles by it or Tule. Accordingly, the court affirmed the district court's grant of summary judgment for federal agencies and officials, as well as Tule.
Court Description: Environmental Law. The panel affirmed the district court’s summary judgment in favor of federal agencies and officials and intervenor Tule Wind, LLC in an action challenging the Bureau of Land Management’s decision to grant a right-of-way on federal lands in southeast San Diego County, permitting Tule Wind to construct and operate a wind energy project. The panel held that the BLM was not liable under the National Environmental Policy Act, the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act, or the Administrative Procedure Act for its regulatory decision to 4 BACKCOUNTRY AGAINST DUMPS V. JEWELL grant Tule a right-of-way to develop and operate a renewable wind energy project. Specifically, concerning plaintiffs’ allegations that the BLM failed to comply with the National Environmental Policy Act in preparing the environmental impact statement, the panel held that: the district court properly determined that the environmental impact statement’s purpose-and-need- statement was adequately broad; the BLM acted within its discretion in dismissing alternative proposals; the mitigation measures provided ample detail and adequate baseline data for the agency to evaluate the overall environmental impact of the project; and the environmental impact statement took a “hard look” at the environmental impact of the project. Concerning plaintiffs’ allegations of BLM’s violations of the Migratory Bird Treaty Act, the panel held that the Act did not contemplate attenuated secondary liability on agencies like the BLM that act in a purely regulatory capacity, and whose acts do not directly or proximately cause the “take” of migratory birds, within the meaning of 16 U.S.C. § 703(a). The panel concluded that the BLM did not act to “take” migratory birds without a permit within the meaning of the Act. The panel held that the BLM’s regulatory role in this case was too far removed from the ultimate legal violation to be independently unlawful under the Administrative Procedure Act. Finally, for similar reasons that applied to defeat liability under the Migratory Bird Treaty Act, the panel held that the BLM was not liable under the Bald and Golden Eagle Protection Act, and was not responsible for violations that BACKCOUNTRY AGAINST DUMPS V. JEWELL 5 might be independently committed by right-of-way grantees, such as Tule Wind.
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