Protect Our Communities Found. v. Jewell

Plaintiffs 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. View "Protect Our Communities Found. v. Jewell" on Justia Law