Deborah Shearwater et al v. Dan Ashe, et al

Filing 73

ORDER by Judge Lucy H. Koh granting in part and denying in part 52 Plaintiffs' Motion for Summary Judgment; granting in part and denying in part 64 Defendant-Intervenor's Motion for Summary Judgment; granting in part and denying in part 65 Federal Defendants' Motion for Summary Judgment (lhklc3, COURT STAFF) (Filed on 8/11/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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DEBRA SHEARWATER et al.,
Plaintiffs,

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Case No. 14-CV-02830-LHK
ORDER GRANTING IN PART AND
DENYING IN PART MOTIONS FOR
SUMMARY JUDGMENT OF
PLAINTIFFS, FEDERAL
DEFENDANTS, AND DEFENDANTINTERVENOR

v.

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DAN ASHE, Director, U.S. Fish and
Wildlife Service; SALLY JEWELL,
Secretary, U.S. Department of the Interior,

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Defendants,

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– and –

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AMERICAN WIND ENERGY
ASSOCIATION,

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Defendant-Intervenor.
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Plaintiffs Debra Shearwater, Stephen A. Thal, Dr. Carolyn Crockett, Michael Dee, Robert

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M. Ferris, and American Bird Conservancy (collectively, “Plaintiffs”) challenge the December 9,

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2013 adoption by the U.S. Fish and Wildlife Service (“FWS”) of a new rule increasing the

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Case No. 14-CV-02830-LHK
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT OF
PLAINTIFFS, FEDERAL DEFENDANTS, AND DEFENDANT-INTERVENOR

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maximum duration of programmatic permits to “take”1 bald and golden eagles incident to

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otherwise lawful activities from five years to thirty years. Before the Court are cross-motions for

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summary judgment: one filed by Plaintiffs, see ECF No. 52 (“Pls. MSJ”); one filed by Defendants

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FWS Director Dan Ashe and Secretary of the U.S. Department of the Interior (“DOI”) Sally

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Jewell (collectively, “Federal Defendants”), see ECF No. 65 (“Fed. Defs. MSJ”); and one filed by

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Defendant-Intervenor American Wind Energy Association (“AWEA”), see ECF No. 64 (“AWEA

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MSJ”).
Having considered the submissions of the parties, the relevant law, and the record in this

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case, the Court hereby GRANTS in part and DENIES in part Plaintiffs’ motion for summary
judgment and the summary judgment motions filed by Federal Defendants and AWEA. The case

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management conference set for August 26, 2015, at 1:30 p.m. is hereby VACATED.

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I.

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BACKGROUND
A. Regulatory Framework

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1. National Environmental Policy Act

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The National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., “is a

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procedural statute that does not ‘mandate particular results, but simply provides the necessary

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process to ensure that federal agencies take a hard look at the environmental consequences of their

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actions.’” High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 639 (9th Cir. 2004) (quoting

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Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1070 (9th Cir. 2002)). NEPA

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requires a federal agency, such as FWS, to prepare a detailed Environmental Impact Statement

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(“EIS”) for all “major Federal actions significantly affecting the quality of the human

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environment.” 42 U.S.C. § 4332(C). “Major federal actions” are defined to include, inter alia,

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“new or revised agency rules, regulations, plans, policies, or procedures.” 40 C.F.R. § 1508.18(a).

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Alternatively, under regulations issued by the Council on Environmental Quality, a federal

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The term “take” is defined to include “wound, kill, capture, trap, collect, molest or
disturb.” 16 U.S.C. § 668c.
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ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT OF
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agency may prepare an Environmental Assessment (“EA”) to evaluate whether an EIS is required.

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40 C.F.R. §§ 1501.3, 1501.4, 1508.9. In contrast to the detailed EIS, an EA is meant to be a

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“concise public document” that “[b]riefly provide[s] sufficient evidence and analysis for

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determining whether” an EIS is required. Id. § 1508.9. If, after preparing an EA, the agency finds

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that the proposed action would have no significant impact on the environment, the agency issues a

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Finding of No Significant Impact (“FONSI”) and no EIS is required. Id. § 1508.13. Agencies

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must solicit public comment on EISs, id. § 1503.1, and “shall involve environmental agencies,

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applicants, and the public, to the extent practicable, in preparing [EAs],” id. § 1501.4(b).
Federal agencies may avoid preparing either an EIS or an EA only when the agency action

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is “categorically excluded” from NEPA review. A “categorical exclusion” refers to a “category of

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actions which do not individually or cumulatively have a significant effect on the human

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environment and which have been found to have no such effect” in an agency’s NEPA

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implementing regulations. 40 C.F.R. § 1508.4. However, even if a proposed action would

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otherwise fall within a CE, an agency must prepare an EIS or an EA when certain “extraordinary

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circumstances” exist. California v. Norton, 311 F.3d 1162, 1168 (9th Cir. 2002) (quoting 40

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C.F.R. § 1508.4). Extraordinary circumstances are those “in which a normally excluded action

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may have a significant environmental effect.” 40 C.F.R. § 1508.4. Before relying on a CE in a

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particular instance, an agency must therefore determine that extraordinary circumstances do not

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exist. Norton, 311 F.3d at 1177.

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2. Bald and Golden Eagle Protection Act

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The Bald and Golden Eagle Protection Act (“BGEPA”), which was enacted in 1940,

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imposes criminal and civil penalties against “whoever” shall “take, possess, sell, purchase, barter,

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offer to sell, purchase or barter, transport, export or import” bald and golden eagles, except as

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permitted by the DOI Secretary. 16 U.S.C. § 668(a)-(b). This “prohibition,” the U.S. Supreme

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Court has explained, “is ‘sweepingly framed.’” United States v. Dion, 476 U.S. 734, 740 (1986)

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(quoting Andrus v. Allard, 444 U.S. 51, 56 (1979)). By enacting BGEPA, and its subsequent

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amendments, “Congress intended to ban all threats” to bald and golden eagles’ ability to survive,

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and sought to eliminate “even incidental dangers” to their survival.” United States v. Fryberg, 622

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F.2d 1010, 1015-16 (9th Cir. 1980). Congress did so initially because “the bald eagle is not a

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mere bird of biological interest but a symbol of the American ideals of freedom.” United States v.

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Vasquez-Ramos, 531 F.3d 987, 991 (9th Cir. 2008) (brackets omitted) (quoting 54 Stat. 250

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(1940)). Equivalent congressional protection was extended to golden eagles in 1962, in large part

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because “the golden eagle is an important part of the ceremonies and religion of many Indian

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tribes.” Dion, 476 U.S. at 740-43.

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Against that backdrop, BGEPA makes it unlawful for anyone to “take” bald or golden
eagles without a permit. As indicated above, BGEPA defines “take” broadly to include, inter alia,

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“wound, kill, capture, trap, collect, molest or disturb.” 16 U.S.C. § 668c. BGEPA is implemented

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by FWS on behalf of the DOI Secretary. Fed. Defs. MSJ at 4. Pursuant to this authority, FWS has

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promulgated regulations under BGEPA that authorize FWS to issue permits for take of bald and

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golden eagles for scientific or exhibition purposes, religious purposes, to protect human or eagle

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health and safety, and falconry. See 50 C.F.R. §§ 22.21-22.25. The regulations also expressly

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authorize FWS to issue permits for take of eagles that is “associated with, but not the purpose of,

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an activity.” Id. § 22.26. Such incidental take must be “compatible with the preservation of the

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bald eagle and the golden eagle” and “necessary to protect an interest in a particular locality.” Id.

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§ 22.26(a). For “individual instances” of such take, a permit application is appropriate only where

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take “cannot practicably be avoided.” Id. § 22.26(a)(1). For instances of “programmatic take”—

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i.e., take that is “recurring” and “occurs over the long term,” id. § 22.3—a permit application is

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appropriate only where take is “unavoidable even though advanced conservation practices

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[(“ACPs”)]2 are being implemented.” Id. § 22.26(a)(2).

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ACPs are “scientifically supportable measures that are approved by [FWS] and represent
the best available techniques to reduce eagle disturbance and ongoing mortalities to a level where
remaining take is unavoidable.” 50 C.F.R. § 22.3.
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3. Endangered Species Act

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The Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., contains both substantive

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and procedural provisions designed to protect species listed under the act as threatened or

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endangered. See Forest Guardians v. Johanns, 450 F.3d 455, 457 (9th Cir. 2006). Section

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7(a)(2), ESA’s substantive provision, requires federal agencies to “insure that any action

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authorized, funded, or carried out by [the] agency . . . is not likely to jeopardize the continued

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existence of any endangered species or threatened species or result in the destruction or adverse

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modification of habitat of such species.” 16 U.S.C. § 1536(a)(2).

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Section 7(b) then sets forth the process of consultation with FWS, 16 U.S.C. § 1536(b),
which consists of two varieties: formal and informal. Formal consultation is required if the

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proposed action “may affect” a listed species or critical habitat. 50 C.F.R. § 402.14(a). The

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phrase “may affect” has been interpreted broadly to mean that “any possible effect, whether

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beneficial, benign, adverse, or of an undetermined character, triggers the formal consultation

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requirement.” W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 496 (9th Cir. 2011)

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(brackets omitted) (quoting 51 Fed. Reg. 19,926, 19,949 (June 3, 1986)). Formal consultation

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requires FWS to produce a “biological opinion” that evaluates “whether the action, taken together

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with cumulative effects, is likely to jeopardize the continued existence of listed species or result in

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the destruction or adverse modification of critical habitat.” 50 C.F.R. § 402.14(g)(4).

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Where a proposed action “may affect” a listed species or critical habitat, but the agency

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desires to avoid the lengthy and costly process of formal consultation, the agency may first initiate

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informal consultation with FWS. See 50 C.F.R. § 402.13. Informal consultation “includes all

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discussions, correspondence, etc., between [FWS] and the Federal agency . . . designed to assist

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the Federal agency in determining whether formal consultation . . . is required.” Id. § 402.13(a).

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“If during informal consultation it is determined by the Federal agency, with the written

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concurrence of [FWS], that the action is not likely to adversely affect listed species or critical

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habitat, the consultation process is terminated, and no further action is necessary.” Id. If,

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however, informal consultation reveals that the proposed action is “likely to adversely affect” a

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listed species or critical habitat, the agency must then engage in formal consultation. Id.

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§ 402.14(a)-(b).

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B. Factual Background

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1. 5-Year Rule (2009)

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On September 11, 2009, FWS issued regulations for the first time that “authorize limited

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take of bald eagles . . . and golden eagles . . . under [BGEPA], where the take to be authorized is

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associated with otherwise lawful activities”—i.e., where the take is not the purpose of the activity

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but is a foreseeable consequence of that activity. 74 Fed. Reg. 46,836, 46,836 (Sept. 11, 2009)
(codified at 50 C.F.R. § 22.26).3 These regulations authorize FWS to issue permits for such

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incidental take of bald and golden eagles. See id. Incidental eagle take permits, as stated above,

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could be issued for “individual instances of take” or for “programmatic take,” id. at 46,877

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(codified at 50 C.F.R. § 22.26(a)(1)-(2)), the latter of which refers to take that is “recurring” and

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“occurs over the long term,” id. at 46,876 (codified at 50 C.F.R. § 22.3). Before issuing a permit,

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FWS must determine whether the take will be “[c]ompatible with the preservation of the bald

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eagle and the golden eagle.” Id. at 46,878 (codified at 50 C.F.R. § 22.26(e)(2)(i)). This

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assessment requires “consideration of indirect effects and the cumulative effects of other permitted

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take and other additional factors affecting eagle populations.” Id.

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As relevant here, the 2009 BGEPA regulations provided that the maximum “duration of

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each permit issued under this section,” including programmatic take permits, “will not exceed 5

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years.” 74 Fed. Reg. at 46,878 (the “5-Year Rule”). At the end of the five-year period, the

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“applicant could submit a request for renewal,” affording FWS the opportunity, in a new decision,

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“to re-evaluate the permit conditions if more take is occurring than anticipated,” as well as to

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address any other factors bearing on whether the permit should be renewed or modified. Id. at

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The 2009 BGEPA regulations are reproduced in the administrative record (“AR”). See
AR 41-85.
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46,845. At the renewal stage, the permit applicant would have to establish to FWS’s satisfaction

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that the requested take during the subsequent five years would be “compatible with the

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preservation of the bald eagle or the golden eagle, which is the statutory mandate.” Id. at 46,851.

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Moreover, because permit renewal decisions are affirmative agency actions triggering procedural

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obligations under NEPA, see id. at 46,862 (“Programmatic permits will each be subject to

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NEPA.”), the 5-Year Rule allowed for public access to, and involvement in, agency decision

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making at least every five years on programmatic permits affecting eagles.

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Responding to public comments regarding the 2009 BGEPA regulations, FWS justified the
5-Year Rule as follows:
the rule limits permit tenure to five years or less because factors may change over a
longer period of time such that a take authorized much earlier would later be
incompatible with the preservation of the bald eagle or the golden eagle.
Accordingly, [FWS] believe[s] that five years is a long enough period within which
a project proponent can identify when the proposed activity will result in take.

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74 Fed. Reg. at 46,856. FWS explained further that periodic renewal decisions were important

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because “[w]e expect that circumstances will often change such that the original ACPs for

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minimizing take may no longer be considered the most effective measures that could be adopted.”

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Id. at 46,861. This was so, FWS continued, because “[t]here are likely to be technological

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advances in some industries that would warrant adoption of new, more effective conservation

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measures.” Id. In addition, “new information regarding eagle biology, behavior, and responses to

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the permitted activity may warrant re-examination of the effects of the permitted activity and re-

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evaluation of the permit conditions.” Id.

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FWS analyzed the environmental effects of the incidental take regulations, which included

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the 5-Year Rule, in an extensive EA that was published in April 2009 (the “2009 EA”), five

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months before the regulations were issued. See AR 92-301. The 2009 EA acknowledged that

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issuing programmatic permits for incidental take would “indirectly result in impacts to habitat

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from loss, fragmentation, and reduced suitability for eagles and other wildlife due to

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implementation of projects or portions of projects that may not have proceeded without the permit

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because they are located in areas that are currently considered too high-risk for eagle mortality.”

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AR 196. Ultimately, however, the 2009 EA concluded that issuing a conservative number of such

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programmatic permits would have “no significant, direct impacts to the biological and physical

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environment.” AR 196. Accordingly, FWS issued a FONSI, see AR 86-91, which concluded that

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“preparation of an [EIS] on the proposed action is not required,” AR 91. That conclusion was

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based in part on the fact that “[FWS] will review take thresholds on a regular basis (at least once

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every five years),” allowing FWS “to modify or adjust permitting accordingly.” AR 89.
There is little indication in the 2009 BGEPA regulations that FWS anticipated issuing a

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large number of programmatic permits to the wind power industry. An internal FWS document

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explained that when the 2009 BGEPA regulations were developed, “[FWS] anticipated that most

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permits would be for short-term disturbance of eagles, or to authorize historic forms of

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programmatic take where conservation measures were being implemented to yield a net benefit to

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eagles.” AR 11234. Indeed, the 2009 EA “primarily assessed affects [sic] associated with these

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kinds of take.” AR 11234.

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Furthermore, the 2009 BGEPA regulations themselves included but a few references to

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wind power. For instance, FWS cited “a company interested in siting a wind-power facility” as an

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example of an entity that “may qualify for a programmatic take permit.” 74 Fed. Reg. at 46,842.

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At the same time, however, FWS indicated it was “currently unaware of any measures that would

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eliminate eagle mortalities when turbines are sited in golden eagle habitat (including migration

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corridors).” Id. As a result, the wind power facility could obtain a programmatic permit only “[i]f

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ACPs can be developed to significantly reduce the take” resulting from “the operation of the

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turbines.” Id. The other references to wind power emphasize the potential dangers posed to bald

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and golden eagles. See, e.g., id. at 46,862 (explaining that “[t]he location of facilities often can

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have significant impacts to eagles (e.g., wind farms)”); id. at 46,863 (“We agree that take of eagles

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within migratory corridors is a significant concern with regard to certain activities, particularly

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wind-power facilities. However, we think the majority of applicants for individual permits will

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not be engaging in activities that are likely to take eagles in migration corridors . . . .”).

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2. Proposed 30-Year Rule (2012)

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Soon after the 5-Year Rule was issued in September 2009, “there was a substantial

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increase in the development of wind power for renewable energy purposes.” AR 11234. Because

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“eagles can be killed by colliding with structures such as wind turbines,” AR 10372, FWS

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developed the Eagle Conservation Plan Guidance (the “ECPG”) for the wind industry. The

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ECPG, which is voluntary, was designed to “help project operators in complying with regulatory

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requirements and avoiding the unintentional ‘take’ of eagles at wind energy facilities.” AR 10372.

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The ECPG “will also assist the wind energy industry in providing the biological data needed to

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support permit applications for facilities that may pose a risk to eagles.” AR 10372.
The ECPG introduced the concept of “Experimental ACPs” as part of FWS’s adaptive

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management process. Experimental ACPs are prospective measures identified in a programmatic

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take permit whose implementation is deferred until post-construction monitoring results indicate

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that measures may be effective in reducing eagle mortality. AR 10374-75, 10393, 10418. These

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“ACPs are considered experimental because they would not currently meet the definition of an

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ACP in the eagle permit regulation,” AR 10374—i.e., they “have not yet been scientifically

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demonstrated to be effective” in reducing eagle mortality, AR 3.

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One issue not addressed by the ECPG “was the wind industry’s extensive comments that

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the five-year maximum tenure of permits under the Eagle Take Rule is fundamentally unworkable

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for the industry considering the life of most wind projects is 20 to 30 years.” AR 11235. The

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industry’s chief complaint was that the uncertainty surrounding the renewal of programmatic eagle

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take permits was preventing operators from obtaining the necessary financing for wind energy

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projects that might last up to thirty years. See AR 7439. FWS had initially intended to consider

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the issue of permit duration as part of a future substantive revision to the 2009 BGEPA

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regulations. However, “given the gravity of the situation as conveyed by industry,” and in light of

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agency concerns that wind project operators were not obtaining permits as a result, FWS “moved

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forward with a proposed rule to extend the maximum tenure of programmatic permits under the

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Eagle Take Rule to 30 years as soon as possible.” AR 11235; see also AR 1760.

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Consequently, on April 13, 2012, FWS proposed a new rule that would “extend the

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maximum term for programmatic permits to 30 years.” 77 Fed. Reg. 22,267, 22,267 (Apr. 13,

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2012) (the “Proposed 30-Year Rule”).4 The stated purpose of the Proposed 30-Year Rule was to

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“facilitate the development of renewable energy and other projects that are designed to be in

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operation for many decades,” and to “provide more certainty to project proponents and their

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funding sources, while continuing to protect eagles consistent with statutory mandates.” Id. at

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22,275. At bottom, FWS issued the Proposed 30-Year Rule “[b]ecause industry has indicated that
it desires a longer permit.” Id. at 22,270. Finding the Proposed 30-Year Rule “strictly

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administrative” in nature, FWS determined that the rule was “categorically excluded from further

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NEPA requirements.” Id. at 22,276 (citing 43 C.F.R. § 46.210(i)). As a result, FWS did not

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prepare an EIS or an EA in connection with the Proposed 30-Year Rule.5

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FWS’s decision not to conduct any further NEPA analysis before increasing the maximum

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duration of programmatic eagle take permits from five to thirty years was met with considerable

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opposition from non-profit conservation organizations, Indian tribes, and other governmental

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agencies. See AR 3132 (memo from FWS Director stating that “[t]he environmental community

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has adamantly opposed the Department/Service promulgating the final rule to extend the permit

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duration up to 30 years”); AR 4812-16 (table summarizing NEPA comments from public).

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Governmental bodies opposing the Proposed 30-Year Rule included: (1) the Pacific Flyway

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The Proposed 30-Year Rule is reproduced at AR 29-40.
As noted above, the 5-Year Rule was included in the 2009 BGEPA regulations. At the
same time the Proposed 30-Year Rule was published, FWS issued an Advance Notice of Proposed
Rulemaking, which advised the public that FWS would consider comprehensive changes to the
2009 BGEPA regulations, specifically in the areas of unavoidable take, mitigation requirements,
and BGEPA’s “preservation” standard. 77 Fed. Reg. 22,278, 22,279-80 (Apr. 13, 2012). On June
23, 2014, FWS stated its intent to prepare an EIS or EA on these comprehensive changes to the
2009 BGEPA regulations. See 79 Fed. Reg. 35,564 (June 23, 2014).
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Council, an entity within the Association of Fish and Wildlife Agencies, AR 7553; and (2) the

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National Park Service (“NPS”), FWS’s sister agency within DOI, which has a “particular interest”

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in “[w]ind energy developments near NPS lands or located in migratory fly-ways,” AR 7545.

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NPS emphasized that it “does not support extending the term for programmatic take permits of

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bald and golden eagles to 30 years as proposed” because “[t]he proposed rule appears to designate

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30 years based on the lifecycle of industry development rather than the life history of the species

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under protection,” and because the rule “may fail to provide adequate response time for mitigating

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a species decline.” AR 7545 (emphasis in original).

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The conservation, wildlife protection, and scientific organizations urging withdrawal of the
Proposed 30-Year Rule included the American Bird Conservancy, AR 7584; the National

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Audubon Society, as well as many local Audubon chapters throughout the country, AR 7547,

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7825, 7838, 7852, 8058, 8115, 8220; the National Parks Conservation Association, AR 8075; the

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Wyoming Outdoor Council, AR 8062; Defenders of Wildlife, AR 8115; the Natural Resources

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Defense Council, AR 8115; the Center for Biological Diversity, AR 7862; the Nature

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Conservancy, AR 7856; the Humane Society of the United States, AR 7841; the Ornithological

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Council, AR 7806; the Hawk Migration Association, AR 7806; the Oregon Natural Desert

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Association, AR 7730; Save the Eagles International, AR 7727; and the Maryland Ornithological

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Society, AR 7496.

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In addition, Indian tribes and tribal representatives opposing the Proposed 30-Year Rule

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included the Inter Tribal Council of Arizona, AR 2320; the Salt River Pima-Maricopa Indian

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Community, AR 8222; the San Carlos Apache Tribe, AR 8148; the Fort McDowell Yavapai

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Nation, AR 8089; the Sault Ste. Marie Tribe of Chippewa Indians, AR 8241; the Nez Perce Tribe,

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AR 7882; Confederated Bands and Tribes of the Yakama, AR 7531; and the Hopi Tribe, AR 7508.

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Opposition to the lack of NEPA analysis was not limited to individuals outside FWS. For

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example, Eliza Savage, who is the “Eagle Program Manager for the Division of Migratory Bird

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Management” in FWS and had “responsibility for overseeing the drafting and revision” of the

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Proposed 30-Year Rule, ECF No. 49-1 (“Savage Decl.”) ¶ 1; see also AR 11360 (identifying Ms.

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Savage as the “rule writer”), offered the following recommendation in response to public

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comments about the rule: “EIS needed.” AR 11248-50. In her view, many of the comments “have

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a great deal of merit,” AR 5083, and it was therefore a “no-brainer that [FWS] needed to do a

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NEPA analysis,” AR 11242; see also AR 11294 (Ms. Savage referring to the rule’s “critical

6

NEPA deficiencies”). According to Ms. Savage, “the [30-year] permits will be inherently less

7

protective for eagles than 5-year permits that require, upon renewal, the project proponent to

8

implement any known measures to reduce take, many of which would not have been known when

9

the original permit was issued.” AR 11246. She also criticized the process by which FWS
ultimately decided to increase the maximum duration of programmatic eagle take permits from

11
United States District Court
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10

five to thirty years. Labeling the process a “train wreck” that “no one could be proud of,” Ms.

12

Savage warned: “Once again, we find ourselves having taken sloppy action that we will have to do

13

over instead of doing things the way they should have been done to begin with.” AR 11360.

14

Similarly, Diana Whittington, a FWS biologist who co-authored the 2009 EA, see AR 94,

15

207, stressed that the “issuance of long-term, industrial scale programmatic permits for lethal take

16

was outside the scope of the 2009 [EA],” which “did not envision or address numerous

17

prospective permits authorizing activities causing on-going and sustained eagle mortality—such as

18

wind development,” AR 5124. Ms. Whittington warned further:

19
20
21
22

Some of the major points upon which we are vulnerable (and frankly, will likely
not be able to make our case on either NEPA or APA – we have no admin[i]strative
record demonstrating consideration of the issues) include:


Misuse of categorical exclusion (the one we applied should not be used
for this kind [of] action) . . .



Failure to consider extraordinary circumstances

23

AR 5248. On this basis, Ms. Whittington recommended repeatedly that FWS “conduct a full and

24

comprehensive NEPA analysis” because “all the extraordinary circumstances from the 2008 DOI

25

Regulations Implementing NEPA likely apply” and “FWS’s application of a categorical exclusion

26

for the proposed regulation is beyond the plain meaning of the terms of the categorical exclusion.”
12

27
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1
2

AR 5251-54.
Other agency personnel recognized the risks of increasing the maximum duration of
programmatic eagle take permits from five to thirty years absent further NEPA review. An FWS

4

memo dated September 20, 2012, recommended that the agency “complete an Environmental

5

Impact Statement that addresses both adaptive management and tribal concerns before proceeding

6

further on the tenure rule.” AR 5200. The following day, the Chief of FWS’s Division of

7

Migratory Bird Management wrote in an email that the agency was “vulnerable in several areas

8

and . . . should propose a more comprehensive strategy to more fully develop our approach to

9

eagle management and permits.” AR 11362. In response to that email, FWS’s National Raptor

10

Coordinator predicted that the agency would “spend the next 2 years in court” if it went forward

11
United States District Court
Northern District of California

3

with the “risky” Final 30-Year Rule. AR 11361.

12

On October 12, 2012, FWS staff working on the Proposed 30-Year Rule met with FWS

13

Director Dan Ashe (the “Director”). See AR 4770. Prior to that meeting, FWS had drafted a

14

memo to the Director advising that the agency “prepare an environmental impact statement”

15

before increasing the maximum duration of programmatic eagle take permits from five to thirty

16

years, and that preparing an EIS “would result in a significantly improved, legally defensible

17

regulation.” AR 11257. At the meeting itself, the staff’s “[b]ottomline” recommendation to the

18

Director was to “shelve the tenure rule and do an EIS.” AR 4771. The Director disagreed.

19

Finding the Proposed 30-Year Rule “administrative in nature,” and believing it was “[u]nlikely

20

we’ll be sued by NGOs,” the Director instructed the staff to “[g]o ahead with finalizing the tenure

21

rule.” AR 4771. The final outcome of the meeting pursuant to the Director was: “Don’t do more

22

NEPA. Don’t do an EA, they will only want an EIS.” AR 4879.

23

3. Final 30-Year Rule (2013)

24

Following the Director’s instructions, FWS issued the final rule on December 9, 2013,

25

“extend[ing] the maximum term for programmatic permits to 30 years.” 78 Fed. Reg. 73,704,

26
27
28

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73,704 (Dec. 9, 2013) (codified at 50 C.F.R. § 22.26(i)) (“Final 30-Year Rule”).6 As with the

2

proposed version, the stated purpose of the Final 30-Year Rule is to “facilitate the development of

3

renewable energy and other projects that are designed to be in operation for many decades” and to

4

“provide more certainty to project proponents and their funding sources, while continuing to

5

protect eagles consistent with statutory mandates.” Id. at 73,721; see also id. at 73,708 (“One of

6

the central objectives of [the Final 30-Year Rule] is to provide more certainty to project

7

developers for the operational life of a project.”). Specifically, the Final 30-Year Rule “will

8

facilitate the funding, construction, and operation of numerous energy generation projects,

9

including wind power facilities.” Id. at 73,722. “Wind developers,” FWS explained, “have
informed the DOI and [FWS] that 5-year permits have inhibited their ability to obtain financing,

11
United States District Court
Northern District of California

10

and [FWS] changed the regulations to accommodate that need while protecting eagles.” Id. at

12

73,709; see also AR 318 (DOI Secretary press release explaining that the Final 30-Year Rule “will

13

help the renewable energy industry and others develop projects that can operate in the longer

14

term”). Thus, “[b]y extending the duration of permits [FWS] expect[s] to have more entities apply

15

for permits.” 78 Fed. Reg. at 73,708. Further, in promulgating the Final 30-Year Rule, FWS

16

acknowledged that “[l]eaving the 5-year maximum permit term in place would have allowed for

17

additional public and Tribal comment during the NEPA process for each of the multiple permit

18

applications [FWS] would have evaluated for an activity expected to last decades.” 78 Fed. Reg.

19

at 73,709.7

20

The Final 30-Year Rule differs in several respects from the Proposed 30-Year Rule. First,

21
22
23
24
25
26
27
28

6

The Final 30-Year Rule is reproduced at AR 1-22.
In addition to extending the maximum duration for programmatic eagle take permits to
thirty years, the Final 30-Year Rule substantially increases the fees charged both for processing
programmatic permit applications and for monitoring the effectiveness of the terms and conditions
of those permits. 78 Fed. Reg. at 73,707-08. The Final 30-Year Rule also allows programmatic
permits to be transferable to new owners of projects, provided that any successor is qualified and
committed to carrying out the conditions of the permit. Id. at 73,725 (codified at 50 C.F.R.
§ 22.26(j)). Those changes are not at issue here.
14
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the Final 30-Year Rule provides that FWS will internally review programmatic eagle take permits

2

every five years. 78 Fed. Reg. at 73,725 (codified at 50 C.F.R. § 22.26(h)). That provision

3

requires the permittee to furnish FWS with a report documenting “eagle fatality data or other

4

pertinent information that is site-specific for the project.” 50 C.F.R. § 22.26(h). FWS will make

5

eagle mortality data compiled in these reports “available to the public.” Id. FWS will then review

6

the information with the permittee to determine if a trigger point has been reached that requires

7

implementation of one or more experimental ACPs—these were not mentioned in the Proposed

8

30-Year Rule—or additional mitigation measures designed to reduce eagle mortalities. Id. FWS’s

9

evaluation will reassess fatality rates, effectiveness of measures to reduce take, the appropriate
level of compensatory mitigation, and eagle population status. Id. § 22.26(h)(1). Based upon its

11
United States District Court
Northern District of California

10

internal review, FWS will amend the permit as necessary, including requiring additional reporting,

12

conservation, and mitigation requirements, or it may “suspend or revoke the permit.” Id.

13

§ 22.26(h)(2).

14

Notwithstanding the addition of the five-year permit reviews, which were proposed

15

internally as early as October 2012, see AR 4731, opposition remained within FWS to increasing

16

the maximum duration of programmatic eagle take permits to thirty years. For instance, on March

17

11, 2013, the rule’s author, Ms. Savage, repeated her comment that “the [30-year] permits will be

18

inherently less protective for eagles than 5-year permits that require, upon renewal, the project

19

proponent to implement any known measures to reduce take.” AR 2998. According to Ms.

20

Savage:

21
22
23
24
25
26
27
28

The proposed rule changes are more than “administrative” in nature and so do not
fall under the NEPA categorical exclusion invoked by [FWS]. Real, significant,
and cumulative biological impacts will result if the proposed regulatory changes are
implemented. . . . Extending the permit tenure to 30 years without undergoing a
new, comprehensive NEPA analysis, much less carrying out the commitments
made in the 2009 FONSI is not in accordance with NEPA.
AR 2998. Similarly, on June 27, 2013, Ms. Savage, in an email to the Chief of FWS’s Division of
Migratory Bird Management, asked: “Since, the tenure rule is opposed by the wind industry, the
15
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1

enviros, Native American tribes, general public, and the biologists and other staff within [FWS]

2

who will have to implement it, why is [FWS] still planning to finalize it?” AR 2295. Reiterating

3

her opposition to “this current rulemaking that would extend permit tenure to up to 30 years,” Ms.

4

Savage wrote later that day: “The continuing urge to put the tenure rule forward ahead of the rest

5

of the overhaul, in spite of nearly total opposition to it, is what I’m not understanding.” AR 2295.

6

In the Final 30-Year Rule, FWS added another justification for avoiding further NEPA

7

review. As with the Proposed 30-Year Rule, FWS found that the Final 30-Year Rule is

8

categorically “excluded from further NEPA analysis in an Environmental Assessment or an

9

Environmental Impact Statement” because the rule is “primarily administrative in nature.” 78
Fed. Reg. at 73,721-22 (quoting 43 C.F.R. § 46.210(i)). In the Final 30-Year Rule, however, FWS

11
United States District Court
Northern District of California

10

added a second basis for the categorical exclusion: the rule’s “environmental effects are too broad,

12

speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to

13

the NEPA process, either collectively, or case-by-case.” Id. at 73,721 (quoting 43 C.F.R.

14

§ 46.210(i)). Moreover, FWS addressed for the first time whether any “extraordinary

15

circumstances” precluded agency reliance on a categorical exclusion, concluding that “none apply

16

to this final rule.” Id. at 73,722. Finding that “this rulemaking is not expected to have any

17

potentially significant environmental effects on future protection of eagles or other environmental

18

resources,” and that “the effects of this rule are not highly controversial,” FWS decided that

19

“further NEPA analysis in an Environmental Assessment or an Environmental Impact Statement

20

of this change to the regulations is not required.” Id.

21

In addition to finding no need for further NEPA review, FWS concluded that the Final 30-

22

Year Rule was exempt from ESA’s consultation requirements. In particular, FWS found: “This

23

rule, which amends the regulations governing administration of the permitting process under the

24

Eagle Act, will not affect endangered or threatened species or designated critical habitat.” 78 Fed.

25

Reg. at 73,722. “The rule,” continued FWS, “simply increases the number of years that a

26

programmatic permit may be valid under certain conditions and requires [FWS] to conduct 5-year

27

16

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reviews to monitor compliance with the permit conditions.” Id. FWS did note, however, that

2

“consultation under ESA Section 7 may be required prior to issuance of a permit for an individual

3

project.” Id.

4
5

C. Procedural History
The Final 30-Year Rule took effect on January 8, 2014. See 50 C.F.R. § 22.26. On June

6

19, 2014, Plaintiffs filed suit in federal court. ECF No. 1. The case was reassigned to the

7

undersigned judge on July 14, 2014. ECF No. 17.

8
9

On September 25, 2014, Plaintiffs filed a First Amended Complaint against Federal
Defendants. ECF No. 21 (“FAC”). In the FAC, Plaintiffs seek to have the Final 30-Year Rule
declared in violation of NEPA, BGEPA, ESA, and the Administrative Procedure Act (“APA”), 5

11
United States District Court
Northern District of California

10

U.S.C. §§ 701-706. FAC at 26. As a result, Plaintiffs ask the Court to set aside the rule and

12

remand it to FWS for further consideration. Id. Federal Defendants answered the FAC on

13

October 9, 2014. ECF No. 22.

14

On January 13, 2015, AWEA filed a motion to intervene as a defendant in this action.

15

ECF No. 33. In a declaration supporting AWEA’s motion, AWEA’s “Director of Permitting

16

Policy and Environmental Affairs,” John Anderson, stated that “AWEA and its members believe

17

that [the Final 30-Year Rule’s] extension is necessary for the future of wind energy development”

18

because “occasional, unintentional eagle mortality is an unavoidable reality for wind energy

19

facilities.” ECF No. 33-1 (“Anderson Decl.”) ¶¶ 7, 9. On January 16, 2015, Plaintiffs filed a

20

statement indicating that they did not oppose AWEA’s intervention. ECF No. 36. So too did

21

Federal Defendants on January 22, 2015. ECF No. 38. That same day, the Court granted

22

AWEA’s motion to intervene. ECF No. 39.

23

Pursuant to the case schedule, see ECF No. 31, Federal Defendants filed the AR on

24

January 30, 2015, ECF No. 40. A revised AR was filed on March 23, 2015. ECF No. 49. This

25

was done “to include the final [ECPG] from April 2013 and additional emails that were

26

inadvertently left out of the original administrative record.” Savage Decl. ¶ 5.

27
28

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On March 31, 2015, Plaintiffs filed their motion for summary judgment. See Pls. MSJ.

1

Each of the five individual plaintiffs, as well as plaintiff American Bird Conservancy (“ABC”),

3

filed declarations in support of their motion. ECF Nos. 52-1, 52-2, 52-3, 52-4, 52-5, 52-6. With

4

the Court’s permission, the Conservation Congress and the Inter Tribal Association of Arizona8

5

filed amicus briefs in support of Plaintiffs on April 7, 2015, and April 9, 2015, respectively. ECF

6

Nos. 59, 62. AWEA filed its combined cross-motion for summary judgment and opposition to

7

Plaintiffs’ motion on May 7, 2015. See AWEA MSJ. Federal Defendants did so as well. See Fed.

8

Defs. MSJ. Plaintiffs filed their combined reply in support of their summary judgment motion and

9

opposition to that of Federal Defendants on June 15, 2015. ECF No. 66 (“Pls. Reply”). That same

10

day, Plaintiffs separately opposed AWEA’s motion for summary judgment. ECF No. 67. On July

11
United States District Court
Northern District of California

2

7, 2015, AWEA and Federal Defendants filed their respective replies. ECF No. 69; ECF No. 70

12

(“Fed. Defs. Reply”).
On July 20, 2015, and pursuant to Civil Local Rule 7-1(b), the Court vacated the July 23,

13
14

2015 hearing date set for the parties’ summary judgment motions. ECF No. 72. The case

15

management conference set for that date was continued to August 26, 2015, at 1:30 p.m. Id.

16

II.

17
18

LEGAL STANDARDS
A. APA Review
Alleged procedural violations of NEPA “are reviewed under the Administrative Procedure

19

Act.” Kraayenbrink, 632 F.3d at 481. The same is true for ESA claims, whether they are

20

“brought under the citizen-suit provision of the ESA or . . . under the APA.” Id.

21

Under the APA, “a court may set aside an agency action if the court determines that the

22

action is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’”

23

Sierra Club v. Bosworth, 510 F.3d 1016, 1022 (9th Cir. 2007) (quoting 5 U.S.C. § 706(2)(A)).

24
25
26
27
28

8

In 2014, the Inter Tribal Council of Arizona formally changed its name to the Inter Tribal
Association of Arizona. See ECF No. 62 at 1 n.2. Because nothing in the governance structure of
the organization was altered as a result of this name change, see id., the Court uses the names
interchangeably.
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“To determine whether agency action is arbitrary or capricious, a court must consider ‘whether the

2

decision was based on a consideration of the relevant factors and whether there has been clear

3

error of judgment.’” Alaska Ctr. for Env’t v. U.S. Forest Serv., 189 F.3d 851, 859 (9th Cir. 1999)

4

(quoting Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989)). This standard is a

5

“deferential” one. Bosworth, 510 F.3d at 1022.

6

Nonetheless, “to withstand review the agency must articulate a rational connection

7

between the facts found and the conclusions reached.” Bosworth, 510 F.3d at 1023 (brackets and

8

internal quotation marks omitted). Courts “will defer to an agency’s decision only if it is ‘fully

9

informed and well-considered.’” Id. (quoting Save the Yaak Comm. v. Block, 840 F.2d 714, 717
(9th Cir. 1988)). Importantly, “when an agency has taken action without observance of the

11
United States District Court
Northern District of California

10

procedure required by law, that action will be set aside.” Id. “‘Unexplained inconsistency’

12

between agency actions” is a reason for finding “an arbitrary and capricious change.” Organized

13

Vill. of Kake v. U.S. Dep’t of Agric., — F.3d —, 2015 WL 4547088, at *7 (9th Cir. July 29, 2015)

14

(en banc) (quoting Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981

15

(2005)).

16
17

B. Summary Judgment
In general, summary judgment is appropriate if, viewing the evidence and drawing all

18

reasonable inferences in the light most favorable to the nonmoving party, there are no genuine

19

disputes of material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.

20

56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 321 (1986).

21

In an APA case, however, a district court’s function at summary judgment is not to resolve

22

disputed facts and make de novo factual determinations, but rather “to determine whether or not as

23

a matter of law the evidence in the administrative record permitted the agency to make the

24

decision it did.” Occidental Eng’g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985); accord Nw.

25

Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468, 1472 (9th Cir. 1994) (explaining that

26

because “this case involves review of a final agency determination under the Administrative

27
28

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1

Procedure Act, . . . resolution of this matter does not require fact finding on behalf of this court”).

2

A court’s review is therefore “limited to the administrative record.” Nw. Motorcycle Ass’n, 18

3

F.3d at 1472.

4

III.

5

DISCUSSION
Plaintiffs seek to set aside the Final 30-Year Rule and remand it to FWS on grounds that

6

the agency failed to comply with NEPA’s procedural requirements and ESA’s consultation

7

requirements in promulgating the rule. See Pls. MSJ at 14-25. Federal Defendants argue that

8

Plaintiffs lack Article III standing to challenge the Final 30-Year Rule. See Fed. Defs. MSJ at 11-

9

13. Federal Defendants and AWEA argue further that Plaintiffs cannot show that FWS acted in an
arbitrary and capricious manner in promulgating the Final 30-Year Rule. See Fed. Defs. MSJ at

11
United States District Court
Northern District of California

10

14-25; AWEA MSJ at 5-23.

12

For the reasons stated below, the Court concludes that Plaintiffs have Article III standing,

13

that FWS violated NEPA’s procedural requirements, and that the Final 30-Year Rule must

14

therefore be set aside and remanded to FWS. The Court also concludes that Plaintiffs have not

15

shown a violation of ESA’s consultation requirements.

16
17

A. Plaintiffs’ Standing
For an action to proceed in federal court, it must satisfy the “case or controversy”

18

requirement of Article III of the U.S. Constitution. “One element of the case-or-controversy

19

requirement is that plaintiffs must establish that they have standing to sue.” Clapper v. Amnesty

20

Int’l USA, 133 S. Ct. 1138, 1146 (2013) (internal quotation marks omitted). To establish Article

21

III standing, a plaintiff must allege: injury-in-fact that is (1) concrete and particularized, as well as

22

actual and imminent; (2) fairly traceable to the challenged action of the defendant; and (3)

23

redressable by a favorable ruling. See Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009).

24

At the summary judgment stage, a plaintiff seeking to establish standing “must set forth by

25

affidavit or other evidence specific facts, which for purposes of the summary judgment motion

26

will be taken to be true.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (citation

27
28

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1

omitted). Article III standing is analyzed “claim by claim,” and a court “need not address the

2

standing of each plaintiff if [the court] conclude[s] that any plaintiff has standing.” California ex

3

rel. Imperial Cnty. Air Pollution Control Dist. v. U.S. Dep’t of the Interior, 767 F.3d 781, 789 (9th

4

Cir. 2014).

5

Federal Defendants argue here that the six declarations filed by Plaintiffs do not satisfy the
Article III standing requirements, as articulated in Summers. See Fed. Defs. MSJ at 11-13.

7

Specifically, Federal Defendants contend that Plaintiffs “have not met their burden to show a

8

‘certainly impending’ injury-in-fact, as required to establish standing.” Id. at 12 (quoting Clapper,

9

133 S. Ct. at 1147). According to Federal Defendants, “Plaintiffs merely speculate” that the Final

10

30-Year Rule “might encourage development of wind projects at as-yet-unknown locations within

11
United States District Court
Northern District of California

6

large expanses of eagle habitat that they claim they use.” Id. “Mere conjecture,” Federal

12

Defendants say, “that, at some time in the future, a permit might be issued under the [Final 30-

13

Year Rule] for a project in an area that one or more of the plaintiffs might visit later on does not

14

satisfy the strict requirements of Article III standing.” Id. (citing Summers, 555 U.S. at 495-96).9

15

In Summers, a group of environmental organizations sought a nationwide injunction

16

against the enforcement of regulations issued by the U.S. Forest Service that exempted small-scale

17

fire-control and timber-salvage projects from the notice, comment, and appeal process that applied

18

to more substantial land management decisions. 555 U.S. at 490. The plaintiffs in Summers also

19

specifically challenged a 238-acre salvage sale of timber, called the Burnt Ridge Project, in the

20

Sequoia National Forest. Id. at 491. During the course of litigation, however, the parties settled

21

their dispute over the Burnt Ridge Project, and the plaintiffs filed only one affidavit—from Jim

22

Bensman, a member of one of the plaintiff organizations—that purported to involve a threatened

23

interest beyond the Burnt Ridge Project. Id. at 491, 495.

24
25
26
27
28

9

AWEA does not vigorously challenge Plaintiffs’ Article III standing, spending just one
sentence in a single footnote asserting that Plaintiffs “have suffered no cognizable injury to
support standing to bring this action.” AWEA MSJ at 9 n.1.
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On these facts the U.S. Supreme Court held that the plaintiffs had failed to establish injury-

1
2

in-fact necessary to satisfy Article III standing requirements. Summers, 555 U.S. at 494-97. The

3

Summers Court held that Mr. Bensman’s representation of general plans to visit “several unnamed

4

National Forests in the future” was insufficient to establish standing because Mr. Bensman

5

“fail[ed] to allege that any particular timber sale or other project claimed to be unlawfully subject

6

to the regulations will impede a specific and concrete plan . . . to enjoy the National Forests.” Id.

7

at 495. The Summers Court emphasized that, although Mr. Bensman referred to a series of

8

projects in the Allegheny National Forest, he did not “assert . . . any firm intention to visit their

9

locations, saying only that [he] ‘wants to’ go there.” Id. at 496. Thus, the Summers Court
concluded, there was “a chance, but . . . hardly a likelihood, that Bensman’s wanderings w[ould]

11
United States District Court
Northern District of California

10

bring him to a parcel about to be affected by a project unlawfully subject to the regulations.” Id. at

12

495.

13

Here, by contrast, Plaintiffs’ six declarations offer far greater specificity. For instance, the

14

declaration of Debra Shearwater, an ABC member who owns and operates a private birdwatching

15

company, details her decades-long history of observing bald and golden eagles in specific locales

16

throughout California, especially San Benito County. ECF No. 52-1 (“Shearwater Decl.”) ¶¶ 1-2.

17

In particular:

18
19
20
21
22
23
24
25
26
27
28

Since moving to California [in 1976], I have enjoyed observing eagles throughout
the region, particularly during my regular relaxation drives through Santa Ana
Valley. During one visit to Santa Ana Valley, I observed as many as thirty Golden
Eagles at one time in one small location. I also document and track nesting pairs of
Golden Eagles throughout the region. In 2004, I discovered the first-ever breeding
Bald Eagles in San Benito County, just seven miles from my home. Ever since, I
have reported annually to the local Bald Eagle expert regarding the pair’s nesting
success, and the pair has successfully fledged two young every year but one. In
addition, I have recently documented nesting Bald Eagles at Hernandez Reservoir,
San Felipe Lake, the Gabilan Mountains, and very likely at San Justo Reservoir, all
of which are within San Benito County.
Id. ¶ 3. Ms. Shearwater, who “purchased [her] current home [in Hollister] in 1996 specifically to
observe Golden Eagles on a near-daily basis,” id. ¶ 2, also “enjoy[s] observing other animal
22
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1

species whose habitats overlap with those of eagles,” id. ¶ 5. These animals include “a number of

2

species protected under the Endangered Species Act,” such as “the San Joaquin Kit Fox, the

3

Blunt-Nosed Leopard Lizard, the Giant Kangaroo Rat, and the California Condor.” Id. ¶ 5. Ms.

4

Shearwater “will continue to devote . . . much of [her] time to the observation, study, and

5

monitoring of Bald and Golden Eagles” on these lands. Id. ¶ 6.

6

Ms. Shearwater’s declaration, unlike Mr. Bensman’s affidavit in Summers, demonstrates

7

certain plans to visit specific geographic areas for the express purpose of observing, enjoying, and

8

studying bald and golden eagles, as well as additional species protected by ESA. See Cottonwood

9

Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1080 (9th Cir. 2015) (distinguishing Summers
because declarations from plaintiff’s members establish that they “extensively utilize specific

11
United States District Court
Northern District of California

10

National Forests where the Lynx Amendments apply and demonstrate their date-certain plans to

12

visit the forests for the express purpose of viewing, enjoying, and studying Canada lynx”).

13

Plaintiffs’ other declarations contain similar details. See, e.g., ECF No. 52-5 (“Thal Decl.”)

14

(stating that Mr. Thal, an ABC member, “will continue to visit” the following areas to observe

15

bald and golden eagles: “the Sacramento Refuge near Willows, California” and “the Lake Tule

16

Refuge, the Lower Klamath Refuge, and the Upper Klamath Refuge on the border of California

17

and Oregon”).

18

As Plaintiffs bring a claim for “procedural injury” under NEPA and ESA—i.e., FWS’s

19

failure to prepare an EIS or an EA under NEPA and failure to consult under ESA—Plaintiffs must

20

show that “the procedures in question are designed to protect some threatened concrete interest of

21

[theirs] that is the ultimate basis of [their] standing.” Kraayenbrink, 632 F.3d at 485 (quoting

22

Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 969 (9th Cir. 2003)). “Of

23

course,” the U.S. Supreme Court has said, “the desire to use or observe an animal species, even for

24

purely esthetic purposes, is undeniably a cognizable interest for purpose of standing.” Lujan, 504

25

U.S. at 562-63. To satisfy the “concrete interest test,” Plaintiffs must establish “a geographic

26

nexus between the individual asserting the claim and the location suffering an environmental

27
28

23
Case No. 14-CV-02830-LHK
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1

impact.” Kraayenbrink, 632 F.3d at 485 (quoting Citizens for Better Forestry, 341 F.3d at 971).

2

Plaintiffs have done so here. As Ms. Shearwater’s declaration makes clear, she has long

3

been documenting bald and golden eagles in San Benito County, and “FWS’s promulgation of the

4

thirty-year eagle take rule without any review of the rule’s environmental impacts under NEPA—

5

through preparation of an Environmental Impact Statement or at least an Environmental

6

Assessment—is extremely detrimental to [her] interests in enjoying, observing, and studying

7

eagles.” Shearwater Decl. ¶¶ 1-3, 9. This is so, Ms. Shearwater says, because NEPA review

8

would require FWS “to analyze the potential cumulative effects on eagles of facilitating and

9

encouraging the expansion of wind power and other projects in eagle habitat.” Id. ¶ 9.

10

Ms. Shearwater’s alleged procedural injury is far from speculative. On May 1, 2015, FWS

United States District Court
Northern District of California

11

published a notice in the Federal Register that Pacific Gas and Electric Company (“PG&E”), a

12

California-based utility, is seeking “a 30-year programmatic eagle take permit for take of bald

13

eagles and golden eagles” over a large area that includes fifty-four California counties. 80 Fed.

14

Reg. 24,955, 24,956 (May 1, 2015).10 One of the counties specifically mentioned is “San

15

Benito.”11 Id. Accordingly, Plaintiffs’ “declarations sufficiently establish ‘a geographic nexus

16

between the individual[s] asserting the claim and the location suffering an environmental

17

impact.’” Cottonwood, 789 F.3d at 1081 (quoting Kraayenbrink, 632 F.3d at 485); see also

18

WildEarth Guardians v. U.S. Dep’t of Agric., — F.3d —, 2015 WL 4604142, at *5 (9th Cir. Aug.

19

3, 2015) (finding concrete injury with geographic nexus where plaintiff alleged “his reduced

20

recreational and aesthetic enjoyment of . . . specific wilderness areas in Nevada that he has visited

21

and has specific plans to visit again” and that were impacted by the agency action).

22
23
24
25
26
27
28

10

The Court sua sponte takes judicial notice of this entry in the Federal Register. See City
of Las Vegas v. FAA, 570 F.3d 1109, 1118 (9th Cir. 2009) (taking “judicial notice of Federal
Register Notices”). Neither Federal Defendants nor AWEA disputes the accuracy of the notice or
that PG&E has applied for a programmatic eagle take permit under the Final 30-Year Rule. See
Fed. R. Evid. 201(b).
11
The notice also mentions Glenn and Siskiyou counties, see 80 Fed. Reg. at 24,956,
which contain eagle refuges that Mr. Thal declares he “will continue to visit.” Thal Decl. ¶¶ 2-3.
24
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1

As the Ninth Circuit explained recently, the fact that Plaintiffs are challenging

2

“programmatic management direction without also challenging an implementing project that will

3

cause discrete injury” does not deprive them of Article III standing. Cottonwood, 789 F.3d at

4

1081. Plaintiffs are “not required to challenge directly any specific project” because their

5

“procedural injury was complete” when FWS failed to conduct further NEPA analysis or failed to

6

engage in ESA consultation. Id. (brackets omitted) (quoting Sierra Forest Legacy v. Sherman,

7

646 F.3d 1161, 1179 (9th Cir. 2011)).

8
9

Nor must Plaintiffs establish that further NEPA review or ESA consultation “would lead to
different, injurious results.” Cottonwood, 789 F.3d at 1082. It is well established in the Ninth
Circuit that Plaintiffs’ “allegation of a procedural injury relaxes [their] burden of showing

11
United States District Court
Northern District of California

10

causation and redressability.” Id. at 1083; see also Lujan, 504 U.S. at 572 n.7 (“The person who

12

has been accorded a procedural right to protect his concrete interests can assert that right without

13

meeting all the normal standards for redressability and immediacy.”). “This relaxed redressability

14

standard governs procedural challenges to programmatic actions as well as to specific

15

implementing actions.” WildEarth Guardians, 2015 WL 4604142, at *6. To that end, “a litigant

16

need only demonstrate that he has a procedural right that, if exercised, could protect his concrete

17

interests and that those interests fall within the zone of interests protected by the statute at issue.”

18

Cottonwood, 789 F.3d at 1082-83 (quoting Natural Res. Def. Council v. Jewell, 749 F.3d 776, 783

19

(9th Cir. 2014) (en banc)).

20

Plaintiffs, like the plaintiff organization in Cottonwood, have “properly alleged” that

21

further NEPA analysis and ESA consultation “could result in the protection of [their] interests in

22

specific [eagle habitats] where [they] recreate.” 789 F.3d at 1083; see also Shearwater Decl. ¶¶ 1-

23

3, 7-9; Thal Decl. ¶¶ 2-3, 5. “Those interests,” moreover, “are clearly within the “zone of interests

24

protected by” NEPA and ESA. Cottonwood, 789 F.3d at 1083. “Because it is enough that [NEPA

25

analysis or ESA consultation] may redress plaintiffs’ alleged injuries,” Plaintiffs have “satisfie[d]

26

the causation and redressability requirements” of Article III standing. Kraayenbrink, 632 F.3d at

27
28

25
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1
2
3
4

485 (emphasis added) (internal quotation marks omitted).12
For these reasons, the Court concludes that Plaintiffs have Article III standing to pursue
their claims for procedural injury under NEPA and ESA.13
B. NEPA Compliance

5

NEPA “is our basic national charter for protection of the environment.” California ex rel.

6

Lockyer v. U.S. Dep’t of Agric., 575 F.3d 999, 1012 (9th Cir. 2009). In enacting NEPA, Congress

7

“recogniz[ed] the profound impact of man’s activity on the interrelations of all components of the

8

natural environment” and set out “to create and maintain conditions under which man and nature

9

can exist in productive harmony.” 42 U.S.C. § 4331(a). To accomplish that goal, “NEPA
‘establishes “action-forcing” procedures that require agencies to take a “hard look” at

11
United States District Court
Northern District of California

10

environmental consequences.’” Kraayenbrink, 632 F.3d at 486 (quoting Metcalf v. Daley, 214

12

F.3d 1135, 1141 (9th Cir. 2000)).

13

“Foremost among those procedures,” as explained previously, “is the preparation of an

14

environmental impact statement (EIS).” Kraayenbrink, 632 F.3d at 486. For all “major Federal

15

actions significantly affecting the quality of the human environment,” 42 U.S.C. § 4332(C),

16

agencies “are required to prepare an EIS,” Kraayenbrink, 632 F.3d at 486-87. “When it is unclear

17

whether the federal action will have a significant effect on the environment, the agency must

18

prepare an ‘environmental assessment’ to determine whether an EIS is required.” WildEarth

19

Guardians, 2015 WL 4604142, at *1 (citing 40 C.F.R. § 1501.4(b)). The purpose of preparing an

20

EIS—or an EA to determine whether an EIS is necessary—is twofold:

21
22
23
24
25
26
27
28

12

Federal Defendants’ citation to Wilderness Society, Inc. v. Rey, 622 F.3d 1251 (9th Cir.
2010), is unavailing. See Fed. Defs. MSJ at 12-13; Fed. Defs. Reply at 1. There, unlike here, the
plaintiff declared little more than a “‘some day’ general intention to return to the national forests
of two geographically large states.” Rey, 622 F.3d at 1256. As explained above, Plaintiffs’
declarations are far more concrete.
13
Because the Court concludes that Plaintiffs have established a procedural injury that
confers Article III standing, the Court “need not address” whether ABC has independently shown
organizational standing. Imperial Cnty., 767 F.3d at 789.
26
Case No. 14-CV-02830-LHK
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1
2
3

First, it ensures that the agency, in reaching its decision, will have available, and
will carefully consider, detailed information concerning significant environmental
impacts. Second, it guarantees that the relevant information will be made available
to the larger audience that may also play a role in both the decisionmaking process
and the implementation of that decision.

4

Kraayenbrink, 632 F.3d at 487. “By focusing agency and public attention on the environmental

5

effects of proposed agency action, ‘NEPA ensures that the agency will not act on incomplete

6

information, only to regret its decision after it is too late to correct.’” Id. at 487 (quoting Marsh,

7

490 U.S. at 371).

8
9

“When,” however, “an action falls within a categorical exclusion and an agency reasonably
determines that there are no extraordinary circumstances,” the agency need not prepare an EIS or
an EA. Lockyer, 575 F.3d at 1013. “Categorical exclusions, by definition, are limited to

11
United States District Court
Northern District of California

10

situations where there is an insignificant or minor effect on the environment.” Bosworth, 510 F.3d

12

at 1027 (quoting Alaska Ctr., 189 F.3d at 859). Application of a categorical exclusion (“CE”) is

13

therefore “inappropriate if there is the possibility that an action may have a significant

14

environmental effect.” Citizens for Better Forestry v. U.S. Dep’t of Agric., 481 F. Supp. 2d 1059,

15

1087 (N.D. Cal. 2007).

16

As indicated previously, FWS elected not to prepare an EIS—let alone an EA—before

17

promulgating the Final 30-Year Rule. Instead, FWS relied on a single two-part CE to avoid

18

NEPA review: (1) that several provisions of the Final 30-Year Rule were merely “administrative

19

or financial in nature”; and (2) that the rule’s “environmental effects are too broad, speculative, or

20

conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA

21

process, either collectively, or case-by-case.” 78 Fed. Reg. at 73,721-22 (quoting 43 C.F.R.

22

§ 46.210(i)). FWS found further that “none” of the extraordinary circumstances listed in the DOI

23

regulations at 43 C.F.R. § 46.215 applied to the Final 30-Year Rule. Id. at 73,722. As a result,

24

FWS concluded, “further NEPA analysis in an Environmental Assessment or an Environmental

25

Impact Statement of this change to the regulations is not required.” Id.

26

Plaintiffs here challenge FWS’s decision to prepare neither an EIS nor an EA before

27

27

28

Case No. 14-CV-02830-LHK
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1

increasing the maximum duration of programmatic permits to take bald and golden eagles from

2

five years to thirty years. See Pls. MSJ at 14-24. Because “the very purpose of the [Final 30-Year

3

Rule] is to have a significant impact on the environment by encouraging the development of

4

industrial wind power and other renewable energy projects in eagle habitat,” Plaintiffs argue that

5

“FWS cannot invoke a CE” as a matter of law. Id. at 15-16 (emphasis omitted). Plaintiffs argue

6

further that the CE invoked by FWS does not apply to the Final 30-Year Rule. Id. at 17-20. Even

7

if that CE applied, Plaintiffs contend that “extraordinary circumstances” exist that preclude FWS’s

8

reliance on it. Id. at 20-24. For the reasons stated below, the Court agrees with Plaintiffs.

9
10

1. CE Designation
Courts “generally review [an agency’s] compliance with the National Environmental

United States District Court
Northern District of California

11

Policy Act . . . under the ‘arbitrary and capricious’ standard of the Administrative Procedure Act.”

12

Lockyer, 575 F.3d at 1011 (quoting 5 U.S.C. § 706(2)(A)). “An ‘agency’s interpretation of the

13

meaning of its own categorical exclusion should be given controlling weight unless plainly

14

erroneous or inconsistent with the terms used in the regulation.’” Id. (quoting Alaska Ctr., 189

15

F.3d at 857). “In the Ninth Circuit,” however, “an agency’s threshold decision that certain

16

activities are not subject to NEPA is reviewed for reasonableness.” Id. (quoting Kern v. U.S.

17

Bureau of Land Mgmt., 284 F.3d 1062, 1070 (9th Cir. 2002)). “When an agency decides to

18

proceed with an action in the absence of an EA or EIS, the agency must adequately explain its

19

decision.” Bosworth, 510 F.3d at 1026 (quoting Alaska Ctr., 189 F.3d at 859).

20
21
22
23
24

In declining to conduct further NEPA review before promulgating the Final 30-Year Rule,
FWS relied on the following two-part CE from DOI regulations:
Policies, directives, regulations, and guidelines: [(1)] that are of an administrative,
financial, legal, technical, or procedural nature; or [(2)] whose environmental
effects are too broad, speculative, or conjectural to lend themselves to meaningful
analysis and will later be subject to the NEPA process, either collectively or caseby-case.

25

43 C.F.R. § 46.210(i) (emphases added). As discussed below, because FWS did not adequately

26

explain its reliance on either part of this CE as a basis for avoiding further NEPA review of the

27
28

28
Case No. 14-CV-02830-LHK
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT OF
PLAINTIFFS, FEDERAL DEFENDANTS, AND DEFENDANT-INTERVENOR

1

Final 30-Year Rule, the Court concludes that FWS’s application of the CE was unreasonable. See

2

Lockyer, 575 F.3d at 1014-15 (rejecting as “unreasonable” the U.S. Forest Service’s reliance on a

3

CE reserved for “administrative” or “procedural” agency actions where the rule at issue had the

4

effect of “taking substantive environmental protections off the books”).

5
6

a. Administrative in Nature
It is not entirely clear that FWS, in promulgating the Final 30-Year Rule, relied on the

7

“administrative” portion of the CE to avoid NEPA review of its decision to increase the maximum

8

duration for programmatic eagle take permits from five years to thirty years. Rather, FWS stated

9

that “[s]everal provisions of this rule are specifically administrative or financial in nature,” such as
“the implementation of a new fee schedule, the adjustments to the permit transfer and right of

11
United States District Court
Northern District of California

10

succession requirements, and the reduction of the administrative burdens and duplication of effort

12

represented by the extension of permit duration to a possible 30-years, instead of the current 5-

13

year limit, under which proponents of longer-term projects must apply for, and the FWS review

14

permits more frequently.” 78 Fed. Reg. at 73,721. FWS offers no further explanation.

15

Plaintiffs, however, do not challenge the Final 30-Year Rule’s changes to the fee schedule

16

or the adjustments to permit transferability. See supra note 7. What Plaintiffs challenge is FWS’s

17

decision to increase the maximum duration for programmatic eagle take permits from five years to

18

thirty years. As to that issue, FWS says only that increasing the maximum duration will have the

19

effect of reducing the “administrative burdens” on the agency. 78 Fed. Reg. at 73,721. That may

20

be true, but just because a regulation might reduce an agency’s administrative burden does not

21

necessarily mean that the regulation itself is administrative in nature. The Court can imagine

22

plenty of substantive regulations that, if promulgated, might also have the effect of reducing an

23

agency’s administrative burden.

24

In any event, the evidence before the Court suggests that FWS’s decision to increase the

25

maximum duration for programmatic eagle take permits from five years to thirty years is not

26

merely administrative in nature. As the Ninth Circuit explained in Kraayenbrink, regulations that

27

29

28

Case No. 14-CV-02830-LHK
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT OF
PLAINTIFFS, FEDERAL DEFENDANTS, AND DEFENDANT-INTERVENOR

1

“increase the barriers to public involvement” in agency management “are not purely

2

administrative.” 632 F.3d at 498. In that case, the Ninth Circuit reviewed certain regulations that

3

altered the Bureau of Land Management’s (“BLM”) oversight of livestock grazing on public

4

lands. Id. at 478-81. One of the “major modifications” imposed by the new regulations was to

5

“narrow the definition of ‘interested public’ and remove the requirement that the BLM consult,

6

cooperate, and coordinate with the ‘interested public’ with respect to various management

7

decisions.” Id. at 479. Specifically, BLM was “no longer required to involve interested members

8

of the public when issuing or renewing an individual grazing permit.” Id. at 480. In

9

Kraayenbrink, unlike here, BLM actually prepared an EIS, but the EIS concluded that the
proposed regulations would have no significant environmental impact. Id. at 487. Nevertheless,

11
United States District Court
Northern District of California

10

the Ninth Circuit held that BLM’s failure to provide “a reasoned explanation” in the EIS for such

12

“substantial reductions in the avenues for public input” violated NEPA’s “hard look” requirement.

13

Id. at 494-95.

14

Similarly, here, there is no serious dispute that a sixfold increase in the maximum duration

15

of programmatic eagle take permits will have the effect of reducing public participation in

16

permitting decisions. Over the lifespan of a thirty-year permit, a project might be subject to

17

NEPA’s public participation requirements only once, when that permit is first issued. By contrast,

18

a project under a five-year permitting regime would be subject to NEPA’s public participation

19

requirements six times during that same thirty-year period. FWS’s apparent compromise to make

20

eagle mortality data compiled by permittees every five years “available to the public” in some

21

unspecified manner is no substitute for the public’s right under NEPA to participate in permitting

22

decisions. 50 C.F.R. § 22.26(h). Nothing in the Final 30-Year Rule requires FWS to provide the

23

agency’s analysis of that data to the public, and Federal Defendants acknowledge that under the

24

new rule the public may become involved only “if” FWS decides that there is a “need for a

25

significant permit amendment.” Fed. Defs. MSJ at 15. Unsurprisingly, one of the public

26

comments when FWS adopted the Final 30-Year Rule stated: “A 30-year permit would decrease

27
28

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Case No. 14-CV-02830-LHK
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1

opportunities for public stakeholder involvement because decisions on issuance and reissuance are

2

subject to NEPA analysis and tribal consultation.” 78 Fed. Reg. at 73,709. In response to that

3

comment, FWS conceded the inevitable: “Leaving the 5-year maximum permit term in place

4

would have allowed for additional public and Tribal comment during the NEPA process for each

5

of the multiple permit applications [FWS] would have evaluated for an activity expected to last

6

decades.” Id.

7

Another arguably substantive change effected by the Final 30-Year Rule is that it “shifts

8

the burden” from the permittee to FWS. 78 Fed. Reg. at 73,709. This is the case because, under

9

the old five-year regime, a permittee would be required to satisfy the criteria for permit renewal
every five years. See 74 Fed. Reg. at 46,845, 46,851. Under the new thirty-year regime, however,

11
United States District Court
Northern District of California

10

the burden shifts to FWS to determine every five years whether any changes to the permit are

12

necessary. See 50 C.F.R. § 22.26(h) (discussing internal five-year permit reviews). It is not clear

13

how onerous these five-year reviews will be. The wind industry’s criticism of the 5-Year Rule

14

was that it was “fundamentally unworkable for the industry considering the life of most wind

15

projects is 20 to 30 years.” AR 11235. In the Final 30-Year Rule, FWS stated: “One of the

16

central objectives of this regulation is to provide more certainty to project developers for the

17

operational life of a project.” Id. Thus, FWS rejected a proposal that would have allowed “[t]he

18

burden of proof [to] remain with the permittee” because doing so “would not provide project

19

developers the certainty provided by a permit for the anticipated project life.” 78 Fed. Reg. at

20

73,709.

21

In addition, the primary purpose of the Final 30-Year Rule, according to the regulation

22

itself, was not to reduce FWS’s administrative burden. Rather, the primary purpose was to

23

“facilitate the responsible development of renewable energy and other projects designed to operate

24

for decades.” 78 Fed. Reg. at 73,704. In particular, the Final 30-Year Rule would “facilitate the

25

funding, construction, and operation of numerous energy generation projects, including wind

26

power facilities.” Id. at 73,722; see also AR 2251 (July 18, 2013 email from a senior advisor to

27
28

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PLAINTIFFS, FEDERAL DEFENDANTS, AND DEFENDANT-INTERVENOR

the Director: “At the urging of the wind industry, [FWS] is in the final stages of promulgating a

2

rule to extend the duration of eagle take permits from 5 to up to 30 years”). A press release from

3

the DOI Secretary accompanying the Final 30-Year Rule’s publication emphasized that the rule

4

“will help the renewable energy industry and others develop projects that can operate in the longer

5

term.” AR 318. Considering that the wind industry’s substantive—and not procedural—concerns

6

drove the Final 30-Year Rule’s promulgation, and in the absence of further explanation from

7

FWS, the Court fails to see how the regulation could be considered strictly administrative. Cf.

8

Lockyer, 575 F.3d at 1017 n.16 (listing the following as examples of “routine and procedural

9

matters” properly subject to the CE: “changes to locations at which the Forest Service may charge

10

admission fees, clarifications of the appraisal procedures for determining fair market value when

11
United States District Court
Northern District of California

1

appraising timber, updates for field unit names and addresses, clarification of appeal procedures,

12

and revisions to building standards for residential outbuildings”).

13

The record bolsters the Court’s conclusion, as FWS’s failure to adequately “address

14

concerns raised by its own experts” is cause for the Court to find a NEPA violation.

15

Kraayenbrink, 632 F.3d at 492. Ms. Whittington, a FWS biologist who co-authored the 2009 EA,

16

see AR 94, 207, explained in an email dated September 14, 2012, that FWS’s reliance on the

17

administrative CE was “vulnerable” to the following criticism: “Misuse of categorical exclusion

18

(the one we applied should not be used for this kind [of] action),” AR 5248. In her candid

19

assessment, FWS “will likely not be able to make [its] case on either NEPA or APA.” AR 5248.

20

This was so, Ms. Whittington explained, because “FWS’s application of a categorical exclusion

21

for the proposed regulation is beyond the plain meaning of the terms of the categorical exclusion.”

22

AR 5253-54. Id. According to Ms. Savage, who authored the Final 30-Year Rule, see Savage

23

Decl. ¶ 1, it was a “no-brainer that [FWS] needed to do a NEPA analysis,” AR 11242.

24

On October 12, 2012, just two days after Ms. Savage had expressed that view, FWS staff

25

working on the Proposed 30-Year Rule met with the Director to give their final recommendation.

26

See AR 4770. Prior to that meeting, FWS had drafted a memo to the Director advising that the

27
28

32
Case No. 14-CV-02830-LHK
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT OF
PLAINTIFFS, FEDERAL DEFENDANTS, AND DEFENDANT-INTERVENOR

1

agency “prepare an environmental impact statement” before adopting the Final 30-Year Rule and

2

that doing so “would result in a significantly improved, legally defensible regulation.” AR 11257.

3

The staff’s “[b]ottomline” message to the Director at the meeting itself was to “shelve the tenure

4

rule and do an EIS.” AR 4771. The Director disagreed, however. Finding the Proposed 30-Year

5

Rule “administrative in nature,” and believing it was “[u]nlikely we’ll be sued by NGOs,” the

6

Director instructed the staff to “[g]o ahead with finalizing the tenure rule.” AR 4771. The final

7

outcome of the meeting pursuant to the Director was: “Don’t do more NEPA. Don’t do an EA,

8

they will only want an EIS.” AR 4879.
Criticism by FWS experts of the decision to label the Final 30-Year Rule “administrative”

10

in nature did not end with that October 2012 meeting. Ms. Savage wrote on March 11, 2013, that

11
United States District Court
Northern District of California

9

the decision to increase the maximum duration for programmatic eagle take permits from five

12

years to thirty years was “more than ‘administrative’ in nature and so do[es] not fall under the

13

NEPA categorical exclusion invoked by [FWS].” AR 2998. “Real, significant, and cumulative

14

biological impacts will result,” Ms. Savage continued, “if the proposed regulatory changes are

15

implemented.” AR 2998.

16

Federal Defendants argue that these “citations to internal agency staff e-mails appear to

17

concern the [Proposed and not the Final 30-Year Rule]—that is, without the five-year review,

18

public information, and permit modification or revocation procedures.” Fed. Defs. MSJ at 15.

19

The Court finds this argument unpersuasive for two reasons. First, the Final 30-Year Rule

20

explains that it was finalizing the Proposed 30-Year Rule subject to only “minor modifications.”

21

78 Fed. Reg. at 73,705. Although Federal Defendants assert that these minor changes adequately

22

“addressed” the criticism from FWS’s own NEPA experts, Fed. Defs. MSJ at 18, Federal

23

Defendants do not explain why. Nor do they cite any evidence in the record to support their

24

assertion. Second, as a factual matter, the five-year reviews were proposed within the agency as

25

early as October 2012. See AR 4731. However, several of the more trenchant internal criticisms

26

of the decision to increase the maximum duration for programmatic eagle take permits from five

27
28

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years to thirty years were issued well after that date. See, e.g., AR 2998 (March 11, 2013

2

statement by Ms. Savage that the rule was “more than ‘administrative’ in nature and so do[es] not

3

fall under the NEPA categorical exclusion invoked by [FWS]”); AR 2295 (June 27, 2013 email

4

from Ms. Savage questioning FWS’s decision to press on with the rule despite the “nearly total

5

opposition to it,” including from “the wind industry, the enviros, Native American tribes, general

6

public, and the biologists and other staff within [FWS] who will have to implement it”); AR 2283

7

(July 5, 2013 memo from FWS staff to the Director labeling the rule “highly controversial within

8

the environmental community”).

9

Accordingly, the Court concludes that FWS has failed to “adequately explain its decision”
to rely on the “administrative” portion of the CE to avoid NEPA review. Bosworth, 510 F.3d at

11
United States District Court
Northern District of California

10

1026 (quoting Alaska Ctr., 189 F.3d at 859). Such reliance, the Court finds, was therefore

12

“unreasonable.” See Lockyer, 575 F.3d at 1014.

13

b. Environmental Effects Too Broad, Speculative, or Conjectural to Yield
Meaningful Analysis and Will Later Be Subject to NEPA Process

14
In deciding to increase the maximum duration for programmatic eagle take permits from
15
five years to thirty years, FWS appears to rely primarily on the second portion of the CE to avoid
16

NEPA review. See 78 Fed. Reg. at 73,714 (“More importantly, however, the extension of the

17
allowable permit duration from 5 to 30 years is subject to the second part of this categorical
18
19
20
21

exclusion . . . .”). To rely on this part of the CE, FWS must establish that the environmental
effects of the Final 30-Year Rule are both (1) “too broad, speculative, or conjectural to lend
themselves to meaningful analysis”; and (2) “will later be subject to the NEPA process, either
collectively or case-by-case.” 43 C.F.R. § 46.210(i).

22
FWS, however, has not adequately explained why the environmental effects of the Final
23
24
25

30-Year Rule are “too broad, speculative, or conjectural to lend themselves to meaningful
analysis.” In fact, FWS, as far as the Court can tell, did not offer any explanation in the Final 30Year Rule itself beyond the assertion that the rule “will be broadly implemented.” 78 Fed. Reg. at

26
27
28

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73,714. Such a “cursory statement” is insufficient. Lockyer, 575 F.3d at 1018; see also Cal.

2

Wilderness Coal. v. U.S. Dep’t of Energy, 631 F.3d 1072, 1097 (9th Cir. 2011) (“[O]ur precedents

3

hold that an agency cannot merely assert that its decision will have an insignificant effect on the

4

environment, but must adequately explain its decision” (internal quotation marks omitted));

5

Alaska Ctr., 189 F.3d at 859 (“An agency cannot avoid its statutory responsibilities under NEPA

6

merely by asserting that an activity it wishes to pursue will have an insignificant effect on the

7

environment.” (quoting Jones v. Gordon, 792 F.2d 821, 828 (9th Cir. 1986))).

8
9

In addition, FWS does not explain how or why the environmental effects of the Final 30Year Rule do not “lend themselves to meaningful analysis.” 43 C.F.R. § 46.210(i). Indeed, the
record indicates that the Final 30-Year Rule’s effects may be amenable to such analysis. As

11
United States District Court
Northern District of California

10

Plaintiffs point out, see Pls. MSJ at 18, FWS did conduct an extensive EA in connection with the

12

2009 BGEPA regulations, which included the 5-Year Rule, see AR 92-301. The fact that FWS

13

prepared the 2009 EA suggests that the environmental effects on bald and golden eagles of a

14

decision to increase the maximum duration for programmatic take permits from five years to thirty

15

years may very well be subject to meaningful analysis. See Cal. Wilderness Coal., 631 F.3d at

16

1104 (finding that an agency’s previous preparation of a related programmatic EIS was “strong

17

evidence . . . that it is possible to determine the environmental impacts of a proposed [action]”

18

through further NEPA study).

19

As indicated earlier, the 2009 EA was published in April, five months before the 5-Year

20

Rule was promulgated. The 5-Year Rule is consistent with the following statement found in the

21

2009 EA’s discussion of the “environmentally-preferred alternative”: “Because the [FWS] will

22

review take thresholds on a regular basis (at least once every five years) relative to eagle

23

population and demographic parameters, [FWS] will be able to modify or adjust permitting

24

accordingly.” AR 106. Moreover, in responding to comments regarding the 2009 BGEPA

25

regulations, FWS justified the 5-Year Rule as follows:

26
27
28

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2
3

the rule limits permit tenure to five years or less because factors may change over a
longer period of time such that a take authorized much earlier would later be
incompatible with the preservation of the bald eagle or the golden eagle.
Accordingly, [FWS] believe[s] that five years is a long enough period within which
a project proponent can identify when the proposed activity will result in take.

4

74 Fed. Reg. at 46,856. FWS explained further that five-year renewal decisions were important

5

because “[w]e expect that circumstances will often change such that the original ACPs for

6

minimizing take may no longer be considered the most effective measures that could be adopted.”

7

Id. at 46,861. This was the case, FWS continued, because “[t]here are likely to be technological

8

advances in some industries that would warrant adoption of new, more effective conservation

9

measures.” Id. In addition, “new information regarding eagle biology, behavior, and responses to
the permitted activity may warrant re-examination of the effects of the permitted activity and re-

11
United States District Court
Northern District of California

10

evaluation of the permit conditions.” Id. If such analysis went into adopting the 5-Year Rule in

12

the first place, it appears that additional meaningful analysis could have been conducted before

13

increasing the maximum duration for programmatic eagle take permits by sixfold.14

14

Lastly, while Federal Defendants assert post-hoc that any environmental effects of the

15

Final 30-Year Rule are “purely conjectural,” Fed. Defs. MSJ at 15, they point to nothing in the

16

record to support that assertion. See Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378

17

F.3d 1059, 1071 n.7 (9th Cir. 2004) (“In no case are we to hypothesize the FWS’s rationales; nor

18

are we to accept the FWS’s post hoc rationalizations . . . .”). Plaintiffs, on the other hand, cite

19

specific predictions as to the number of long-term programmatic eagle take permits that might be

20

issued under the Final 30-Year Rule. See Pls. MSJ at 19. For example, an economic analysis

21

performed by FWS in November 2011 predicted that “[o]ver the next thirty years, [FWS] could

22

issue 1,108 30-year permits.” AR 6644. This prediction was based on the assumption that “by

23
24
25
26
27
28

14

According to Federal Defendants, “FWS had limited data available on golden eagles at
the time it issued the [5-Year Rule].” Fed. Defs. MSJ at 6. Federal Defendants, however, point to
no subsequent data in the record suggesting that the decision to increase the maximum duration for
programmatic take permits from five years to thirty years would have insignificant environmental
effects on bald and golden eagles. Studying this issue is the very purpose of preparing an EIS.
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2020 industry will be seeking on average 40 permits per year.” AR 6644. “[T]he majority of

2

private applicants seeking a 30-year permit,” FWS expected, “will be in the wind energy

3

production business.” AR 6644. According to AWEA, “the level of [wind power] production

4

[was] expected to double by the end of this century in order to meet a goal of providing 20 percent

5

of the country’s electricity supply.” AR 6644. These predictions are consistent with FWS’s own

6

acknowledgement that “[b]y extending the duration of permits [FWS] expect[s] to have more

7

entities apply for permits.” 78 Fed. Reg. at 73,708. Other estimates of thirty-year programmatic

8

eagle take permits exist in the record. See AR 5595 (estimating 22 thirty-year programmatic take

9

permits issued per year by 2020); AR 5751 (estimating programmatic take permits by industry).

10

For these reasons, the Court concludes that FWS has failed to “adequately explain its

United States District Court
Northern District of California

11

decision” to rely on the “too broad, speculative, or conjectural to lend themselves to meaningful

12

analysis” prong of the second portion of the CE to avoid NEPA review. Bosworth, 510 F.3d at

13

1026 (quoting Alaska Ctr., 189 F.3d at 859). Such reliance, the Court finds, was therefore

14

“unreasonable.” See Lockyer, 575 F.3d at 1014. Because FWS must establish both prongs of the

15

second portion of the CE, the Court need not address whether FWS erred in finding that the

16

environmental effects of the Final 30-Year Rule “will later be subject to the NEPA process, either

17

collectively or case-by-case.” 43 C.F.R. § 46.210(i).

18

2. Extraordinary Circumstances

19

Even if either of the two portions of the CE discussed in Part III.B.1, supra, applied to

20

FWS’s decision to increase the maximum duration for programmatic eagle take permits from five

21

years to thirty years, the Court finds that “extraordinary circumstances” preclude FWS from

22

relying on the CE. As explained above, an agency “must ‘provide for extraordinary circumstances

23

in which a normally excluded action may have a significant environmental effect.’” Norton, 311

24

F.3d at 1175 (quoting 40 C.F.R. § 1508.4). Before a CE may be invoked for a particular agency

25

action, the agency must “determine whether [the action] meets any of the extraordinary

26

circumstances.” 43 C.F.R. § 46.205(c)(1). It is well established that “an agency may not use a CE

27

37

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when ‘extraordinary circumstances’ exist.” Citizens for Better Forestry, 481 F. Supp. 2d at 1081.

2

“In such extraordinary circumstances, a categorically excluded action would nevertheless trigger

3

preparation of an EIS or an EA.” Norton, 311 F.3d at 1168. Importantly, “the fact that

4

[extraordinary circumstances] may apply is all that is required to prohibit use of the categorical

5

exclusion.” Id. at 1177 (emphasis added). “Where there is substantial evidence in the record that

6

exceptions to the categorical exclusion may apply, the agency must at the very least explain why

7

the action does not fall within one of the exceptions.” Id.

8
9
10

United States District Court
Northern District of California

11
12
13
14

DOI regulations provide for a number of extraordinary circumstances. See 43 C.F.R.
§ 46.215. According to Plaintiffs, see Pls. MSJ at 21-24, at least four of the listed extraordinary
circumstances apply to the Final 30-Year Rule:
(b) Have significant impacts on such natural resources and unique geographic
characteristics as historic or cultural resources; park, recreation or refuge lands . . .
migratory birds; and other ecologically significant or critical areas.
(c) Have highly controversial environmental effects or involve unresolved conflicts
concerning alternative uses of available resources . . . .

15

(d) Have highly uncertain and potentially significant environmental effects or
involve unique or unknown environmental risks.

16

(e) Establish a precedent for future action or represent a decision in principle about
future actions with potentially significant environmental effects.

17

43 C.F.R. § 46.215. In promulgating the Final 30-Year Rule, FWS stated: “we have reviewed our

18

reliance upon this categorical exclusion against the Department of the Interior’s list of

19

extraordinary circumstances, at 43 CFR 46.215, and have found that none apply to this final rule.”

20

78 Fed. Reg. at 73,722.

21

The Court is not convinced. At the very least, there is substantial evidence in the record

22

indicating that the Final 30-Year Rule’s increase in the maximum duration for programmatic take

23

permits may have “highly controversial environmental effects” on bald and golden eagles. 43

24

C.F.R. § 46.215(c).

25
26
27
28

“A proposal is highly controversial when substantial questions are raised as to whether a
project may cause significant degradation of some human environmental factor, or there is a
38
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substantial dispute about the size, nature, or effect of the major Federal action.” Bosworth, 510

2

F.3d at 1030-31 (citations, alterations, and internal quotation marks omitted). Although the mere

3

“existence of opposition” to a rule is insufficient, Native Ecosystems Council v. U.S. Forest Serv.,

4

428 F.3d 1233, 1240 (9th Cir. 2005), the agency must adequately explain why such opposition

5

“do[es] not suffice to create a public controversy based on potential environmental consequences,”

6

Bosworth, 510 F.3d at 1032 (internal quotation marks omitted). Further, the “substantial

7

questions” standard, the Ninth Circuit has held, “is a low” one. Cal. Wilderness Coal., 631 F.3d at

8

1097 (quoting Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549, 562 (9th Cir. 2006)).

9

That standard is met here. First of all, FWS is well aware that “eagles can be killed by
colliding with structures such as wind turbines.” AR 10372; see also 78 Fed. Reg. at 73,705

11
United States District Court
Northern District of California

10

(citing “evidence show[ing] that in some areas or specific situations, large soaring birds,

12

specifically raptors, are especially vulnerable to colliding with wind turbines”). In the years prior

13

to adopting the Final 30-Year Rule, FWS expressed concern over the deleterious effects wind

14

power facilities may have on eagle populations. In promulgating the 2009 BGEPA regulations,

15

for example, FWS said it was “currently unaware of any measures that would eliminate eagle

16

mortalities when turbines are sited in golden eagle habitat (including migration corridors).” 74

17

Fed. Reg. at 46,842. “We agree,” the agency continued, “that take of eagles within migratory

18

corridors is a significant concern with regard to certain activities, particularly wind-power

19

facilities.” Id. at 46,863; see also id. at 46,862 (explaining that “[t]he location of facilities often

20

can have significant impacts to eagles (e.g., wind farms)”).

21

FWS’s concerns were assuaged in 2009 because the agency believed “the majority of

22

applicants for individual permits will not be engaging in activities that are likely to take eagles in

23

migration corridors.” 74 Fed. Reg. at 46,863. By November 2011, however, FWS had apparently

24

changed its position. At that point, the agency “expect[ed] that the majority of private applicants

25

seeking a 30-year permit will be in the wind energy production business.” AR 6644. According

26

to AWEA, moreover, “the level of [wind power] production [was] expected to double by the end

27
28

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of this century in order to meet a goal of providing 20 percent of the country’s electricity supply.”

2

AR 6644. Considering that the primary aim of the Final 30-Year Rule’s sixfold increase in the

3

maximum duration for programmatic eagle take permits was to “facilitate the funding,

4

construction, and operation of numerous energy generation projects, including wind power

5

facilities,” 78 Fed. Reg. at 73,722, it stands to reason that bald and golden eagles may face greater

6

mortality risks as a result.15 At the very least, substantial questions are raised as to whether the

7

Final 30-Year Rule may have a significant adverse effect on bald and golden eagle populations.

8
9

The record bears this point out. NPS, the sister agency of FWS, opposed FWS’s decision
to increase the maximum duration for programmatic eagle take permits from five years to thirty
years. See Bosworth, 510 F.3d at 1031 (finding “highly controversial” extraordinary

11
United States District Court
Northern District of California

10

circumstances precluded use of CE where another federal agency had “raised substantial questions

12

as to whether the [rule] would cause significant environmental harm”). NPS, which has a

13

“particular interest” in “[w]ind energy developments near NPS lands or located in migratory fly-

14

ways,” emphasized that it “does not support extending the term for programmatic take permits of

15

bald and golden eagles to 30 years.” AR 7545 (emphasis in original). NPS so concluded because

16

“[t]he proposed rule appears to designate 30 years based on the lifecycle of industry development

17

rather than the life history of the species under protection,” and because the rule “may fail to

18

provide adequate response time for mitigating a species decline.” AR 7545; see also AR 7553

19

(letter detailing opposition to thirty-year permits by the Pacific Flyway Council).

20

In addition, Ms. Savage, the FWS employee who wrote the Final 30-Year Rule, opined

21

repeatedly that “the [30-year] permits will be inherently less protective for eagles than 5-year

22

permits that require, upon renewal, the project proponent to implement any known measures to

23

reduce take.” AR 2998. According to Ms. Savage, “Real, significant, and cumulative biological

24
25
26
27
28

15

Contrast the stated purpose of the Final 30-Year Rule with the position staked out by
AWEA in its summary judgment motion: “Simply put, the Rule itself has no impact on the
environment.” AWEA MSJ at 8.
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impacts will result if the proposed regulatory changes are implemented.” AR 2998. In her view,

2

many of the public comments opposing the decision to increase the maximum duration for

3

programmatic eagle take permits from five years to thirty years “have a great deal of merit,” AR

4

5083, and it was therefore a “no-brainer that [FWS] needed to do a NEPA analysis,” AR 11242;

5

see also AR 11294 (Ms. Savage referring to the rule’s “critical NEPA deficiencies”). Ms. Savage

6

also criticized the process by which FWS ultimately decided to go through with the Final 30-Year

7

Rule without an EIS, or even an EA. Calling the process a “train wreck” that “no one could be

8

proud of,” Ms. Savage warned: “Once again, we find ourselves having taken sloppy action that we

9

will have to do over instead of doing things the way they should have been done to begin with.”

10

United States District Court
Northern District of California

11

AR 11360.
Other agency personnel recognized the risks of proceeding with the Final 30-Year Rule

12

absent further NEPA review. An FWS memo dated September 20, 2012, recommended that the

13

agency “complete an Environmental Impact Statement that addresses both adaptive management

14

and tribal concerns before proceeding further on the tenure rule.” AR 5200. The following day,

15

the Chief of FWS’s Division of Migratory Bird Management wrote in an email that the agency

16

was “vulnerable in several areas and . . . should propose a more comprehensive strategy to more

17

fully develop our approach to eagle management and permits.” AR 11362. In response to that

18

email, FWS’s National Raptor Coordinator predicted that the agency would “spend the next 2

19

years in court” if it went forward with the “risky” Final 30-Year Rule. AR 11361.

20

In light of these examples of dissenting expert opinion within the government, it comes as

21

little surprise that Ms. Whittington, a NEPA specialist at FWS, concluded in September 2012 that

22

“all the extraordinary circumstances from the 2008 DOI Regulations Implementing NEPA,”

23

including the one for highly controversial environmental effects, “likely apply” to the Final 30-

24

Year Rule. AR 5253 (emphasis added). Less than a month after Ms. Whittington reached this

25

conclusion, FWS staff met with the Director to give their final recommendation. See AR 4770.

26

Prior to that meeting, FWS had drafted a memo to the Director advising that the agency “prepare

27
28

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an environmental impact statement” before adopting the Final 30-Year Rule and that doing so

2

“would result in a significantly improved, legally defensible regulation.” AR 11257. At the

3

meeting itself, the staff’s “[b]ottomline” message to the Director was to “shelve the tenure rule and

4

do an EIS.” AR 4771. However, the Director disagreed, finding it “[u]nlikely we’ll be sued by

5

NGOs” and instructing the staff to “[g]o ahead with finalizing the tenure rule.” AR 4771. The

6

result of the meeting pursuant to the Director was: “Don’t do more NEPA. Don’t do an EA, they

7

will only want an EIS.” AR 4879.

8
9

Other FWS documents raise substantial questions that the Final 30-Year Rule might have
highly controversial environmental effects. In an email dated June 27, 2013, Ms. Savage
questioned FWS’s decision to press on with “this current rulemaking that would extend permit

11
United States District Court
Northern District of California

10

tenure to up to 30 years” despite the “nearly total opposition to it.” AR 2295. That opposition,

12

Ms. Savage noted further, included “the wind industry, the enviros, Native American tribes,

13

general public, and the biologists and other staff within [FWS] who will have to implement it.”

14

AR 2295. In a memo to the Director dated July 5, 2013, FWS staff described the decision to

15

increase the maximum duration for programmatic eagle take permits from five years to thirty years

16

as “highly controversial within the environmental community.” AR 2283 (emphasis added).

17

Another email dated July 18, 2013, from a senior advisor to the Director explained: “At the urging

18

of the wind industry, [FWS] is in the final stages of promulgating a rule to extend the duration of

19

eagle take permits from 5 to up to 30 years.” AR 2251. “Environmentalists and tribes,” however,

20

“have expressed significant concern about this change.” AR 2251.

21

As those documents suggest, FWS’s decision to increase the maximum duration for

22

programmatic eagle take permits from five years to thirty years was the subject of considerable

23

opposition outside of the agency. The following conservation, wildlife protection, and scientific

24

organizations opposed the rule: plaintiff ABC, AR 7584; the National Audubon Society, as well as

25

many local Audubon chapters throughout the country, AR 7547, 7825, 7838, 7852, 8058, 8115,

26

8220; the National Parks Conservation Association, AR 8075; the Wyoming Outdoor Council, AR

27

42

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8062; Defenders of Wildlife, AR 8115; the Natural Resources Defense Council, AR 8115; the

2

Center for Biological Diversity, AR 7862; the Nature Conservancy, AR 7856; the Humane Society

3

of the United States, AR 7841; the Ornithological Council, AR 7805; the Hawk Migration

4

Association, AR 7805; the Oregon Natural Desert Association, AR 7730; Save the Eagles

5

International, AR 7727; and the Maryland Ornithological Society, AR 7496.
Several Indian tribes and tribal representatives expressed similar opposition: the Inter

6
7

Tribal Council of Arizona, AR 2320; the Salt River Pima-Maricopa Indian Community, AR 8222;

8

the San Carlos Apache Tribe, AR 8148; the Fort McDowell Yavapai Nation, AR 8089; the Sault

9

Ste. Marie Tribe of Chippewa Indians, AR 8241; the Nez Perce Tribe, AR 7882; Confederated

10

Bands and Tribes of the Yakama, AR 7531; and the Hopi Tribe, AR 7508.
Notwithstanding the aforementioned controversy, FWS’s response was limited to one

United States District Court
Northern District of California

11
12

sentence: “the effects of this rule are not highly controversial as they mainly involve procedural

13

alterations to regulatory permit provisions that are not anticipated to have any meaningful or

14

significant environmental effects on eagle populations.” 78 Fed. Reg. at 73,722. The Court finds

15

this justification inadequate because, for the reasons stated in Part III.B.1.a, supra, FWS has failed

16

to establish that the Final 30-Year Rule is “administrative” or “procedural” in nature. Like the

17

U.S. Forest Service in Bosworth, FWS has “failed to meet its burden to provide a ‘well-reasoned

18

explanation’ demonstrating that these responses to the [Final 30-Year Rule] do not suffice to

19

create a public controversy based on potential environmental consequences.” 510 F.3d at 1032

20

(internal quotation marks omitted); see also Norton, 311 F.3d at 1176-77 (rejecting agency’s

21

reliance on CE because the exception for “highly controversial” actions “may apply” and agency

22

failed to “explain why the action does not fall within one of the exceptions”). Where, as here, the

23

agency has failed to adequately “address concerns raised by its own experts” indicating that the

24

Final 30-Year Rule may have highly controversial environmental effects—and has failed to cite

25

expert opinion to the contrary—the agency action should be set aside. Kraayenbrink, 632 F.3d at

26

492.

27
28

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1

3. NEPA Conclusion

2

In light of the foregoing, the Court concludes that FWS has failed to show an adequate

3

basis in the record for deciding not to prepare an EIS—much less an EA—prior to increasing the

4

maximum duration for programmatic eagle take permits by sixfold. See Klamath Siskiyou

5

Wildlands Ctr., 468 F.3d at 562 (“[N]ot only did [the agency] fail to conduct an EIS . . . , it did not

6

even conduct an EA.”). While promoting renewable energy projects may well be a “worthy goal,

7

it is no substitute for the [agency’s] obligations to comply with NEPA and to conduct a studied

8

review and response to concerns about the environmental implications of major agency action.”

9

Kraayenbrink, 632 F.3d at 492. Accordingly, the Court holds that FWS violated NEPA’s
procedural requirements and that the Final 30-Year Rule must therefore be set aside and remanded

11
United States District Court
Northern District of California

10

to FWS for further consideration.

12

C. ESA Consultation

13

As explained earlier, courts “generally review [an agency’s] compliance with . . . the

14

Endangered Species Act under the ‘arbitrary and capricious’ standard of the Administrative

15

Procedure Act.” Lockyer, 575 F.3d at 1011 (quoting 5 U.S.C. § 706(2)(A)). ESA section 7

16

requires federal agencies to “insure that any action authorized, funded, or carried out by [the]

17

agency . . . is not likely to jeopardize the continued existence of any endangered species or

18

threatened species or result in the destruction or adverse modification of habitat of such species.”

19

16 U.S.C. § 1536(a)(2). To that end, federal agencies must complete formal consultation with

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FWS whenever the proposed agency action “may affect” a listed species or critical habitat. 50

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C.F.R. § 402.14(a). The phrase “may affect” has been interpreted broadly to mean that “any

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possible effect, whether beneficial, benign, adverse, or of an undetermined character, triggers the

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formal consultation requirement.” Kraayenbrink, 632 F.3d at 496 (brackets omitted) (quoting 51

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Fed. Reg. at 19,949). The threshold for triggering ESA consultation, the Ninth Circuit has

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explained, “is relatively low.” Lockyer, 575 F.3d at 1018. The consultation requirement applies

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equally when “the action agency is [FWS] itself.” Nat’l Wildlife Fed’n v. Babbitt, 128 F. Supp. 2d

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Case No. 14-CV-02830-LHK
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT OF
PLAINTIFFS, FEDERAL DEFENDANTS, AND DEFENDANT-INTERVENOR

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1274, 1286 (E.D. Cal. 2000).
In the instant case, Plaintiffs’ argument concerning ESA consultation occupies just two
sentences of their twenty-five-page summary judgment motion:
This low “may affect” standard is satisfied here since many ESA-protected species
share the same habitat as eagles and thus may be affected by the expansion of
industrial wind projects in eagle habitat that the rule seeks to foster. Yet the FWS
refused to engage in any section 7 consultation, in violation of the ESA.
Pls. MSJ at 25 (citation and footnote omitted). In a footnote, Plaintiffs cite four pages from the

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record to support their assertion that FWS violated ESA’s consultation requirements. Id. at 25

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n.14 (citing AR 196, 2327, 7727, 11825).
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These four pages, without more, do not provide the Court with a basis for setting aside as
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United States District Court
Northern District of California

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arbitrary and capricious FWS’s conclusion that the Final 30-Year Rule “will not affect endangered
or threatened species or designated critical habitat.” 78 Fed. Reg. at 73,722. None of the four

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pages even mentions ESA or its consultation requirements. Page 11825 is part of a June 7, 2011
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draft memo to the Secretary of the Interior that makes no mention of the proposal to increase the
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maximum duration for programmatic eagle take permits from five years to thirty years. AR
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11825. In fact, the memo’s reference to “loss of habitat for endangered species” pertained to
“solar farms that are many square miles in size,” not wind projects. AR 11825. Page 196, which

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comes from the 2009 EA, concerns the threshold effects of allowing incidental take permits in the
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first place, not the duration of such permits. AR 196. Moreover, this page makes no mention of
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potential effects to ESA-listed species; it only mentions “other wildlife.” AR 196. Page 2327,
from the Inter Tribal Council of Arizona’s letter opposing the proposal to increase the maximum
duration for programmatic eagle take permits, says only that such a rule “will impact the fabric of
countless natural ecosystems.” AR 2327. No ESA-protected species are identified. Lastly, page
7727, from Save the Eagles International’s public comment, asserts that wind turbines have had
“an even worse impact of [sic] the Whooping Crane and Condor.” AR 7727. This comment,

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however, provides no support, scientific or otherwise, for its assertion. Nor does it make any
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Case No. 14-CV-02830-LHK
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT OF
PLAINTIFFS, FEDERAL DEFENDANTS, AND DEFENDANT-INTERVENOR

1

attempt to connect the proposal to increase the maximum duration for programmatic eagle take

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permits with any potential adverse impacts on such endangered species.
Because Plaintiffs have not pointed to evidence in the record showing that FWS “entirely

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4

failed to consider an important aspect of the problem” or “offered an explanation that runs counter

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to the evidence before the agency,” Kraayenbrink, 632 F.3d at 496 (internal quotation marks

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omitted), the Court cannot conclude that FWS’s decision to forgo internal ESA consultation was

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arbitrary and capricious.

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IV.

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CONCLUSION
For the reasons stated above, the Court hereby GRANTS in part and DENIES in part

Plaintiffs’ motion for summary judgment. Specifically, Plaintiffs’ motion is granted as to

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United States District Court
Northern District of California

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Plaintiffs’ NEPA claim but denied as to Plaintiffs’ ESA claim. The Court also GRANTS in part

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and DENIES in part the summary judgment motions filed by Federal Defendants and AWEA.

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These motions are denied as to Plaintiffs’ NEPA claim but granted as to Plaintiffs’ ESA claim.

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The Final 30-Year Rule is hereby set aside and remanded to FWS for further consideration
consistent with this Order.
The Clerk shall close the case file.
IT IS SO ORDERED.

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Dated: August 11, 2015
______________________________________
LUCY H. KOH
United States District Judge

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Case No. 14-CV-02830-LHK
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT OF
PLAINTIFFS, FEDERAL DEFENDANTS, AND DEFENDANT-INTERVENOR