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Protect Our Communities Foundation v. LaCounte

United States Court of Appeals, Ninth Circuit

September 23, 2019

Protect Our Communities Foundation; David Hogan; Nica Knite, Plaintiffs-Appellants,
v.
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.

          Argued and Submitted November 14, 2018 Pasadena, California

          Appeal 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 Plaintiffs-Appellants.

          Allen 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 Defendants-Appellees.

          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.

         SUMMARY[**]

         Environmental Policy

         The 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.

         Tule 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.

         The 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.

         The 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.

         Plaintiffs 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.

         The 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.

         The 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.

          OPINION

          GOULD, CIRCUIT JUDGE

         Plaintiffs 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.

         I

         Tule 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 Indian tribes.

         Before 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.

         Among 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.

         For 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"].

         For 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 conclusion.

         BIA 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. § 668.

         Plaintiffs 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.

         II

         A 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. 2017).

         Under 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).

         As a 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 ...


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