939 F.3d 1029
9th Cir.2019Background
- Tule Wind proposed a 128-turbine wind development split into Phase I (65 turbines on federal land; BLM jurisdiction) and Phase II (20 turbines on Ewiiaapaayp tribal ridgeline; BIA jurisdiction).
- BLM prepared a single EIS covering both phases and identified unavoidable adverse impacts to golden eagles, particularly from Phase II.
- Tule prepared a Supplemental Project‑Specific Avian and Bat Protection Plan for Phase II; FWS and others criticized its methods and conclusions.
- BIA issued a Record of Decision (ROD) approving Phase II, relying on the EIS and the Supplemental Protection Plan and requiring Tule to apply for an eagle-take permit under the Bald and Golden Eagle Protection Act (BGEPA) before operation.
- Plaintiffs challenged BIA’s approval under NEPA and the APA and argued BIA should have required a BGEPA permit pre‑construction; the district court granted judgment for defendants.
- The Ninth Circuit affirmed, rejecting Plaintiffs’ challenges to BIA’s NEPA/APA analysis and its decision not to condition approval on pre‑construction issuance of a BGEPA permit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Reliance on BLM EIS / failure to explain not adopting mitigation MM BIO‑10f and apparent discrepancy on eagle impacts | BIA improperly relied on BLM EIS and failed to explain why it did not implement MM BIO‑10f or reconcile the EIS’s finding of unavoidable eagle impacts with the ROD’s conclusion | BIA in fact followed MM BIO‑10f by evaluating each turbine, used the Supplemental Protection Plan to establish final risk criteria, consulted with FWS, and thus had no unexplained departure | Court: BIA complied with MM BIO‑10f and the ROD’s analysis was consistent with the EIS plus mitigation; no legal error. |
| 2. Alternatives analysis (partial ridgeline build) | EIS unlawfully omitted a reasonable mid‑range alternative authorizing some but not all Phase II turbines | Plaintiffs preserved the issue; but BIA/BLM argued the EIS considered reasonable alternatives for the overall project (including a 63‑turbine mid‑range alternative) and the project must be viewed as a whole | Court: Issue preserved; because Phase I and II are one connected project the EIS’s mid‑range alternative for the whole project was sufficient under NEPA. |
| 3. Need for Supplemental EIS (SEIS) based on new info in the Supplemental Plan and comments | New surveys and FWS comments supplied significant new information requiring an SEIS | Defendants: the new information merely confirmed risks already disclosed in the EIS; BIA took a "hard look" in the ROD and Supplemental Plan | Court: New information was not significant in the Marsh sense; BIA maintained a hard look; no SEIS required. |
| 4. Conditioning approval on BGEPA permit pre‑construction / legality of approval | BIA should have required Tule to obtain a BGEPA permit prior to construction; approval otherwise facilitates unlawful take | Defendants: BIA required Tule to apply and comply with BGEPA; enforcement and permitting are FWS/Tule responsibilities; prior precedent forecloses invalidating agency action that authorizes lawful development absent sanctioning unlawful take | Court: BIA’s approach was lawful and not arbitrary; it reasonably declined to condition approval on prior issuance of a permit. |
Key Cases Cited
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary and capricious standard for agency action)
- Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989) (when supplemental EIS required; significance standard)
- Protect Our Communities Found. v. Jewell, 825 F.3d 571 (9th Cir. 2016) (prior decision addressing BLM’s approval and limits on agency responsibility for third‑party illegal takes)
- Muckleshoot Indian Tribe v. United States Forest Service, 177 F.3d 800 (9th Cir. 1999) (insufficient alternatives where only no‑action and similar alternatives considered)
- Friends of the Clearwater v. Dombeck, 222 F.3d 552 (9th Cir. 2000) (agencies must remain alert to new information and take a hard look)
- Klamath‑Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989 (9th Cir. 2004) (programmatic analysis cannot substitute for required site‑specific analysis)
- Western Watersheds Project v. Abbey, 719 F.3d 1035 (9th Cir. 2013) (distinguishing programmatic and site‑specific adequacy of alternatives and analysis)
- Anderson v. Evans, 371 F.3d 475 (9th Cir. 2004) (agency action invalid where it sanctions unlawful third‑party conduct)