Protect Our Communities Foundation v. Black, 240 F. Supp. 3d 1055

Background

Tule Wind Project: two phases — Phase I (65 turbines on BLM land) and Phase II (20 turbines on tribal trust land); BLM prepared a 2011 Final EIS with BIA as a cooperating agency.
The 2011 EIS analyzed alternatives and stated that final siting/acceptance of Phase II turbines would be at the discretion of the appropriate land-management agency in consultation with resource agencies (e.g., FWS, CDFG).
After the EIS, BIA collected additional eagle telemetry data, revised an Avian and Bat Protection Plan (ABPP), received memoranda from FWS and CDFG expressing that Phase II was "high-risk" for golden eagles and recommending modifications, but did not adopt all recommendations.
BIA issued a December 2013 Record of Decision (ROD) approving Phase II with mitigation measures (curtailment periods, requirement to seek an eagle-take permit, monitoring) and concluded impacts would not be significant after mitigation.
Plaintiffs sued under NEPA and the APA, alleging (1) improper reliance on the 2011 EIS, (2) failure to prepare a supplemental EIS based on post-2011 information and project changes, and (3) withholding of material from the public. Court previously dismissed plaintiffs’ Eagle Act and MBTA claims.
The Court held that BIA permissibly relied on the 2011 EIS, that the EIS adequately considered golden-eagle impacts and alternatives, and that no new information or changes triggered the NEPA supplementation requirement; therefore defendants’ summary judgment motions were granted and plaintiffs’ motion denied.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether BIA could rely on the 2011 EIS as a cooperating agency when approving Phase II	BIA could not rely exclusively because it failed to follow EIS language limiting authorization where turbines exceeded "acceptable risk" and because the EIS didn’t meaningfully analyze Phase II alternatives	The EIS expressly left final risk criteria and authorization to the appropriate land manager (BIA here); the EIS analyzed a reasonable range of alternatives and was intended to serve cooperating agencies	Court: BIA permissibly relied on the 2011 EIS; EIS did not bind BIA to accept FWS/CDFG risk determinations and alternatives analysis was adequate
Whether BIA had a duty to prepare a supplemental EIS based on post-2011 agency memoranda and telemetry data	FWS memoranda, CDFG comments, and new telemetry data constituted significant new information requiring supplementation	The post-2011 materials largely confirmed concerns already considered in the 2011 EIS and therefore were not "significant" under NEPA’s supplementation standard	Court: No supplemental EIS required because new information was not a materially different picture warranting another "hard look"
Whether BIA had to supplement the EIS because the ROD authorized up to 20 turbines on trust land while the EIS referenced 18 turbines	The numerical difference was a substantial change relevant to environmental concerns that required supplementation	BIA explained EIS had analyzed siting of two turbines straddling BLM and trust land; final engineering could place them on trust land — impacts were within the EIS’s analyzed scope	Court: Not a substantial change; within spectrum of alternatives analyzed; supplementation not required
Whether BIA violated NEPA’s public disclosure requirements by withholding germane materials	Plaintiffs argued BIA withheld highly germane materials bearing on impacts and alternatives	Defendants showed BIA participated in EIS process, circulated the draft, addressed comments, and made additional documents available for comment (ABPP, Fire Plan)	Court: Public-disclosure requirements satisfied; additional materials did not trigger supplement or disclosure violations

Key Cases Cited

Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment burden allocation)
Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment standard and inferences)
Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (arbitrary-and-capricious standard under APA)
Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (NEPA exhaustion/agency process)
Dep’t of Transp. v. Public Citizen, 541 U.S. 752 (NEPA exhaustion/issue preservation)
Marsh v. Ore. Nat. Res. Council, 490 U.S. 360 (NEPA supplementation — significance requirement)
Norton v. S. Utah Wilderness All., 542 U.S. 55 (limits on judicially compelled agency action under APA)
City of Sausalito v. O’Neill, 386 F.3d 1186 (9th Cir.) (administrative-arbitrary-and-capricious review)
Protect Our Communities Found. v. Jewell, 825 F.3d 571 (9th Cir.) (prior appellate decision addressing Tule EIS and related NEPA issues)
State of Cal. v. Block, 690 F.2d 753 (9th Cir.) (rule-of-reason standard for alternatives in NEPA)