Protect Our Communities Foundation; David Hogan; Nica Knite, Plaintiffs-Appellants,
Darryl LaCounte, Acting Director, Bureau of Indian Affairs; David L. Bernhardt, Secretary, Department of the Interior; Tara Katuk MacLean Sweeney, Assistant Secretary for Indian Affairs; Amy Dutschke, Regional Director, Bureau of Indian Affairs Pacific Region; John Rydzik, Chief, Bureau of Indian Affairs Pacific Region Division of Environmental Cultural Resources Management & Safety, Defendants-Appellees, Tule Wind, LLC; Ewiiaapaayp Band of Kumeyaay Indians, Intervenor-Defendants-Appellees.
and Submitted November 14, 2018 Pasadena, California
from the United States District Court, No.
3:14-cv-02261-JLS-JMA for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
William S. Eubanks II (argued), Meyer Glitzenstein &
Eubanks LLP, Fort Collins, Colorado; William N. Lawton, Meyer
Glitzenstein & Eubanks LLP, Washington, D.C.; for
M. Brabender (argued), Brian Collins, and John H. Martin,
Attorneys; Eric Grant, Deputy Assistant Attorney General;
Jeffrey H. Wood, Acting Assistant Attorney General;
Environment & Natural Resources Division, United States
Department of Justice, Washington, D.C.; for
Jeffrey Durocher, Portland, Oregon; for
Intervenor-Defendant-Appellee Tule Wind, LLC.
Bradley G. Bledsoe Downes, Bledsoe Downes PC, Chandler,
Arizona, for Intervenor-Defendant-Appellee Ewiiaapaayp Band
of Kumeyaay Indians.
Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges,
and Carol Bagley Amon, [*] District Judge.
panel affirmed the district court's summary judgment in
favor of Bureau of Indian Affairs ("BIA")
officials, Tule Wind, LLC and Ewiiaapaayp Band of Kumeyaay
Indians in an action challenging the BIA's approval of an
industrial-scale wind facility in Southern California.
plans to construct eighty-five wind turbines, and the project
was split into two phases. Phase I concerned sixty- five
turbines constructed on federal land, requiring approval from
the Bureau of Land Management ("BLM"). Phase II
concerned twenty turbines on the Tribe's reservation,
requiring approval from the BIA, which serves as a trustee
for the Tribe. BLM prepared an environmental impact statement
("EIS") under the National Environmental Policy Act
("NEPA") that covered both phases. BIA approved
Phase II in a Record of Decision that relied on BLM's EIS
and Tule's Supplemental Protection Plan.
panel considered plaintiffs' contention that BLM's
reliance on the EIS was improper because BIA did not explain
its decision not to implement one of the EIS's listed
mitigation measures. The panel agreed with the defendants
that the BIA did follow the command of this mitigation
measure, and for that reason, did not need to explain its
decision not to implement it.
panel next considered plaintiffs' contention that the
EIS's consideration of five action alternatives was
deficient because it did not consider an alternative where
only some of the Phase II turbines were authorized. The panel
held that the issue was properly preserved, and not waived.
The panel further held that viewing the project as a whole,
the alternatives analysis was sufficient.
argued that BIA should have prepared a supplemental EIS to
analyze information that arose after the EIS was published.
The panel considered five grounds asserted by plaintiffs in
support of their argument, and concluded that additional
environmental review was not required.
panel rejected plaintiffs' challenges to BIA's
decision not to require Tule to obtain an eagle take permit
under the Bald and Golden Eagle Protection Act
("BGEPA") from the U.S. Fish and Wildlife Service.
BIA did not require Tule to obtain a permit before Tule began
construction as the Service had urged, and only required Tule
to apply for a permit before it began operation of the
turbines. The panel rejected plaintiffs' false contention
that BIA intimated that Tule could comply with BGEPA merely
by applying for a permit. The panel held that BIA's
authorization was not in any way a violation of the law
because the BIA, like the BLM, required Tule to apply for a
permit and required Tule to comply with all applicable laws.
In addition, the panel held that the BIA did not act
arbitrarily and capriciously by not conditioning its approval
of Phase II on Tule obtaining a permit.
panel concluded that in the total circumstances of this case,
the EIS analysis was sufficient to satisfy NEPA, and so far
as the demands of NEPA and the Administrative Procedure Act
were concerned, this project could proceed.
Protect Our Communities Foundation, David Hogan, and Nica
Knite ("Plaintiffs") challenge the decision of the
Bureau of Indian Affairs ("BIA") to approve an
industrial-scale wind facility in Southern California. The
district court granted summary judgment to Defendant BIA
officials, Defendant-Intervenor Tule Wind, LLC
("Tule"), and Defendant-Intervenor Ewiiaapaayp Band
of Kumeyaay Indians ("the Tribe") (collectively,
"Defendants"). We affirm.
plans to construct eighty-five wind turbines about sixty
miles east of San Diego, California. During the planning and
approval process, the project was split into two phases.
Phase I concerned sixty-five turbines constructed on federal
land in a valley and required approval from the Bureau of
Land Management ("BLM"), which is responsible for
granting rights-of-way for use of federal lands. Phase II
concerned twenty turbines on the Tribe's reservation on
ridgelines above the valley. Phase II required approval from
BIA, which serves as a trustee for federally recognized
BLM and BIA approved the respective phases, the agencies were
required to analyze environmental impacts under the National
Environmental Protection Act ("NEPA"), 42 U.S.C.
§§ 4321 et seq. BLM prepared an environmental
impact statement ("EIS") that covered both phases.
other environmental impacts, the EIS expressly identified an
"unavoidable adverse impact" to golden eagles from
collisions with the turbines and loss of breeding territory,
impacts that were especially acute for the Phase II turbines.
The EIS considered five project alternatives for the Tule
project, including one that would eliminate 63 turbines,
including all of the Phase II turbines, from the 128 that
were originally proposed.
Phase I, Tule drafted a Project-Specific Avian and Bat
Protection Plan ("Protection Plan") that described
possible means of mitigating bird and bat impacts in detail.
Relying on that plan and the EIS, BLM approved Phase I.
Importantly, that approval survived review in this court.
See Protect Our Communities Found. v. Jewell, 825
F.3d 571, 577 (9th Cir. 2016) [hereinafter "Protect
Our Communities I"].
Phase II, Tule drafted a Supplemental Project-Specific Avian
and Bat Protection Plan ("Supplemental Protection
Plan") that included updated eagle surveys and described
measures to document and avoid bird impacts. The Supplemental
Protection Plan concluded that, with mitigation measures,
Phase II could "meet the current no-net loss standard
for local breeding eagle populations." BIA made the
Supplemental Protection Plan available for public comment.
The United States Fish and Wildlife Service
("FWS"), among other entities, criticized the
Supplemental Protection Plan's methodologies and
approved Phase II in a Record of Decision ("ROD")
that relied on BLM's EIS and Tule's Supplemental
Protection Plan. The ROD adopted several mitigation measures
designed to avoid impacts to golden eagles. These mitigation
measures included a requirement that before operating, Tule
had to apply for an eagle take permit under the Bald and
Golden Eagle Protection Act ("BGEPA"), 16 U.S.C.
challenged BIA's approval in the district court,
asserting three alleged errors. The district court granted
Defendants' motion for judgment on the pleadings on two
of the claimed errors and granted Defendants' motions for
summary judgment on the third. Plaintiffs timely appealed.
district court's grant of summary judgment is reviewed de
novo. United States v. City of Tacoma, 332 F.3d 574,
578 (9th Cir. 2003). Dismissal on the pleadings pursuant to
Rule 12(c) is also reviewed de novo. See Daewoo Elecs.
Am. Inc. v. Opta Corp., 875 F.3d 1241, 1246 (9th Cir.
the Administrative Procedure Act ("APA"), we review
agency action to determine whether it is "arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law." 5 U.S.C. § 706(2)(A). An
agency acts in an "arbitrary and capricious" manner
when it "relie[s] on factors which Congress has not
intended it to consider, entirely fail[s] to consider an
important aspect of the problem, offer[s] an explanation for
its decision that runs counter to the evidence before the
agency, or is so implausible that it c[an]not be ascribed to
a difference in view or the product of agency
expertise." Motor Vehicle Mfrs. Ass'n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
general rule, we will "uphold agency decisions so long
as the agencies have 'considered the relevant factors and
articulated a rational connection between the factors found
and the choices made.'" City of Sausalito v.
O'Neill, 386 F.3d 1186, 1206 (9th Cir. 2004)
(quoting Selkir ...