Protect Our Communities v. Sally Jewell ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PROTECT OUR COMMUNITIES No. 14-55666
FOUNDATION,
Plaintiff, D.C. No.
3:13-cv-00575-
and JLS-JMA
BACKCOUNTRY AGAINST DUMPS;
DONNA TISDALE,
Plaintiffs-Appellants,
v.
SALLY JEWELL, in her official
capacity as Secretary of the United
States Department of the Interior;
MIKE POOL, in his capacity as
Acting Director of the United States
Bureau of Land Management;
THOMAS ZALE, in his official
capacity as El Centro Field Office
Manager for the United States
Bureau of Land Management;
BUREAU OF LAND MANAGEMENT;
U.S. DEPARTMENT OF THE INTERIOR,
Defendants-Appellees,
TULE WIND, LLC,
Intervenor-Defendant-Appellee.
2 PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL
PROTECT OUR COMMUNITIES No. 14-55842
FOUNDATION,
Plaintiff-Appellant, D.C. No.
3:13-cv-00575-
and JLS-JMA
BACKCOUNTRY AGAINST DUMPS;
DONNA TISDALE, OPINION
Plaintiffs,
v.
SALLY JEWELL, in her official
capacity as Secretary of the United
States Department of the Interior;
MIKE POOL, in his capacity as
Acting Director of the United States
Bureau of Land Management;
THOMAS ZALE, in his official
capacity as El Centro Field Office
Manager for the United States
Bureau of Land Management;
BUREAU OF LAND MANAGEMENT;
U.S. DEPARTMENT OF THE INTERIOR,
Defendants-Appellees,
TULE WIND, LLC,
Intervenor-Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL 3
Argued and Submitted April 6, 2016
Pasadena, California
Filed June 7, 2016
Before: JEROME FARRIS, TIMOTHY M.
TYMKOVICH,* and MILAN D. SMITH, JR., CIRCUIT
JUDGES.
Opinion by Judge Milan D. Smith, Jr.
SUMMARY**
Environmental Law
The panel affirmed the district court’s summary judgment
in favor of federal agencies and officials and intervenor Tule
Wind, LLC in an action challenging the Bureau of Land
Management’s decision to grant a right-of-way on federal
lands in southeast San Diego County, permitting Tule Wind
to construct and operate a wind energy project.
The panel held that the BLM was not liable under the
National Environmental Policy Act, the Migratory Bird
Treaty Act, the Bald and Golden Eagle Protection Act, or the
Administrative Procedure Act for its regulatory decision to
*
The Honorable Timothy M. Tymkovich, Chief Judge of the U.S. Court
of Appeals for the Tenth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL
grant Tule a right-of-way to develop and operate a renewable
wind energy project.
Specifically, concerning plaintiffs’ allegations that the
BLM failed to comply with the National Environmental
Policy Act in preparing the environmental impact statement,
the panel held that: the district court properly determined that
the environmental impact statement’s purpose-and-need-
statement was adequately broad; the BLM acted within its
discretion in dismissing alternative proposals; the mitigation
measures provided ample detail and adequate baseline data
for the agency to evaluate the overall environmental impact
of the project; and the environmental impact statement took
a “hard look” at the environmental impact of the project.
Concerning plaintiffs’ allegations of BLM’s violations of
the Migratory Bird Treaty Act, the panel held that the Act did
not contemplate attenuated secondary liability on agencies
like the BLM that act in a purely regulatory capacity, and
whose acts do not directly or proximately cause the “take” of
migratory birds, within the meaning of 16 U.S.C. § 703(a).
The panel concluded that the BLM did not act to “take”
migratory birds without a permit within the meaning of the
Act.
The panel held that the BLM’s regulatory role in this case
was too far removed from the ultimate legal violation to be
independently unlawful under the Administrative Procedure
Act.
Finally, for similar reasons that applied to defeat liability
under the Migratory Bird Treaty Act, the panel held that the
BLM was not liable under the Bald and Golden Eagle
Protection Act, and was not responsible for violations that
PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL 5
might be independently committed by right-of-way grantees,
such as Tule Wind.
COUNSEL
Eric R. Glitzenstein (argued) and William S. Eubanks, II,
Meyer Glitzenstein & Crystal LLP, Washington, D.C., for
Plaintiff-Appellee Protect Our Communities Foundation.
Stephen C. Volker (argued), Jamey M.B. Volker, Marcus
Eichenberg, and Stephanie Clark, Law Offices of
Stephan C. Volker, Oakland, California, for Plaintiffs-
Appellants/Plaintiffs-Appellees Backcountry Against Dumps
and Donna Tisdale.
Allen M. Brabender (argued), John H. Martin, and Stacey
Bosshardt, Attorneys; John C. Cruden, Assistant Attorney
General; United States Department of Justice, Environmental
& Natural Resources Division, Washington, D.C.; for
Defendants-Appellees.
Daniel P. Brunton (argued), Latham & Watkins LLP, San
Diego, California, for Intervenor-Defendant/Appellee Tule
Wind, LLC.
6 PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL
OPINION
M. SMITH, Circuit Judge:
Protect Our Communities Foundation (Protect),
Backcountry Against Dumps (Backcountry), and Donna
Tisdale (collectively, Plaintiffs) appeal the decision of the
Bureau of Land Management to grant Defendant-Intervenor
Tule Wind, LLC, (Tule) a right-of-way on federal lands in
southeast San Diego County. Plaintiffs named several federal
defendants in this action, including the Bureau of Land
Management (BLM), the Department of the Interior, and
various officials of those agencies (collectively, Defendants).
The BLM’s right-of-way grant permits Tule to construct
and operate a wind energy project, which Plaintiffs claim will
harm birds in violation of the Migratory Bird Treaty Act
(MBTA), 16 U.S.C. §§ 703–12, and the Bald and Golden
Eagle Protection Act (Eagle Act), 16 U.S.C. §§ 668–668d. In
addition, Plaintiffs challenge the adequacy of the BLM’s
Environmental Impact Statement (EIS) for the project, which
was prepared pursuant to the National Environmental Policy
Act (NEPA), 42 U.S.C. §§ 4321–70h. The district court
rejected Plaintiffs’ challenges and granted summary judgment
to Defendants. We affirm.
FACTS AND PRIOR PROCEEDINGS
A. The Right-of-Way Grant
The BLM, which is an agency within the Department of
the Interior, is charged with the management of federally
owned land. See 43 U.S.C. §§ 1732(a), 1702(c). Among the
BLM’s responsibilities is the determination of whether to
PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL 7
grant rights-of-way for the use of such lands. See id.
§ 1761(a). Plaintiffs, which are a collection of environmental
advocacy organizations and a local resident, challenge a
right-of-way grant by the BLM that would permit Tule to
construct and operate a wind energy facility on 12,360 acres
of land in the McCain Valley, 70 miles east of San Diego (the
Project).
Tule’s original right-of-way proposal envisioned the
construction of 128 wind turbines and supporting
infrastructure, which could generate up to 200 megawatts of
electricity. On December 23, 2010, the BLM released a
lengthy draft EIS for public comment. The EIS discussed the
environmental impacts of the Project and considered a range
of alternative approaches.
Ultimately, the BLM decided to grant Tule a right-of-way
for the development of a more modest wind-energy facility,
which eliminated thirty-three of the originally proposed
turbines from the Project. Moreover, in order to help reduce
the risk of avian collisions with turbine blades, the approved
Project repositioned several wind turbines that were
originally proposed to be located on top of ridgelines. As
modified, the Project was expected to generate up to 186
megawatts of electricity, thereby meeting the electrical
energy needs of approximately 65,000 homes and businesses.
On October 3, 2011, the BLM released a final EIS
reflecting these modifications. The agency published a
Record of Decision (ROD) on December 19, 2011,
memorializing its grant of a right-of-way for the Project. The
ROD specified that the right-of-way grant would be issued
for a thirty-year term, with an option to renew. It further
provided that the grant of the right-of-way was expressly
8 PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL
conditioned on the “implementation of mitigation measures
and monitoring programs,” as well as “the issuance of all
other necessary local, state, and Federal approvals,
authorizations, and permits.”
Included among the mitigation measures required for the
Project was the Project-Specific Avian and Bat Protection
Plan (the Protection Plan). Tule developed the Protection Plan
in conjunction with the BLM and the U.S. Fish and Wildlife
Service (FWS), which is the federal agency responsible for
enforcing the MBTA and the Eagle Act. The Protection Plan
was based on scientific literature and research studies,
including field surveys conducted by Tule over several years
in the Project area. Based on this information, the Protection
Plan outlines a number of measures that would, if
implemented, mitigate the impacts of the Project on bird and
bat species.
The Protection Plan provides for continuous monitoring
and inspection of the Project’s environmental impacts on bird
and bat species as part of an adaptive-management plan. The
FWS endorsed the Protection Plan, stating that it was
“appropriate in its adaptive management approach to avoid
and minimize take of migratory birds, bats and eagles.”
Although the FWS advised that the Protection Plan was not
a “take permit,” it acknowledged that it could serve as the
basis for a future permit application with the FWS. The BLM
incorporated the Protection Plan by reference into the final
EIS and conditioned its right-of-way grant on Tule’s
adherence to the mitigation measures described therein.
PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL 9
B. Procedural History
Plaintiffs jointly brought an action in federal district
court, challenging the BLM’s issuance of a right-of-way grant
to Tule, and seeking injunctive and declaratory relief under
the Administrative Procedure Act (APA), 5 U.S.C.
§§ 701–06, to address Defendants’ alleged unlawful actions
under NEPA, the MBTA, and the Eagle Act. Tule intervened
as a defendant in the lawsuit.
The parties filed cross-motions for summary judgment,
and the district court granted Defendants’ motion for
summary judgment on all claims. Specifically, the district
court held that the final EIS had sufficiently articulated a
proposed goal and need for the Project, properly reviewed a
number of alternatives, and proposed reasonable mitigation
measures. The district court also held that the final EIS
complied with NEPA by taking a “hard look” at the
environmental impacts of the Project, including impacts such
as noise and electromagnetic energy or stray voltage, as well
as effects on avian species and greenhouse-gas emissions.
Finally, the district court concluded that the BLM was not
responsible for ensuring that it or Tule obtain MBTA and
Eagle Act permits from the FWS prior to issuing its right-of-
way grant.
Plaintiffs filed two separate notices of appeal from the
district court’s judgment, with Plaintiff Protect addressing the
MBTA issue, and Plaintiffs Backcountry and Tisdale
addressing all issues appealed. We consolidated these appeals
from the district court’s judgment.
10 PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL
STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review the district court’s grant of summary judgment de
novo. United States v. City of Tacoma, 332 F.3d 574, 578 (9th
Cir. 2003). Under the 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). In general, a court 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 Selkirk
Conservation Alliance v. Forsgren, 336 F.3d 944, 953–54
(9th Cir. 2003)). This deference is particularly appropriate
when a court is reviewing “issues of fact,” “where analysis of
the relevant documents requires a high level of technical
expertise.” City of Sausalito, 386 F.3d at 1206.
DISCUSSION
I. The Environmental Impact Statement’s Compliance
with NEPA
NEPA, which provides the statutory framework for
federal agencies reviewing the environmental effects of a
PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL 11
proposed action, requires the preparation of an EIS for “major
Federal actions significantly affecting the quality of the
human environment.” 42 U.S.C. § 4332(2)(C). The EIS must
contain, among other things, a detailed discussion of “the
environmental impact of the proposed action,” “adverse
environmental effects which cannot be avoided,”
“alternatives to the proposed action,” and a statement of the
purpose and need for the action. 42 U.S.C. § 4332(2)(C);
40 C.F.R. § 1502.13.
NEPA outlines a series of procedural steps, but it does not
impose any particular substantive result on an agency. Hells
Canyon Alliance v. U.S. Forest Serv., 227 F.3d 1170, 1177
(9th Cir. 2000). Rather, compliance with NEPA involves the
application of a “rule of reason,” which involves “a pragmatic
judgment whether the EIS’s form, content, and preparation
foster both informed decision-making and informed public
participation.” Churchill Cty. v. Norton, 276 F.3d 1060, 1071
(9th Cir. 2001) (quoting California v. Block, 690 F.2d 753,
761 (9th Cir. 1982)). Specifically, a reviewing court will take
a “hard look” at the EIS to determine whether it “contains a
reasonably thorough discussion of the significant aspects of
the probable environmental consequences.” Id. at 1071–72
(quotation marks omitted). NEPA favors “coherent and
comprehensive up-front environmental analysis to ensure . . .
that the agency will not act on incomplete information, only
to regret its decision after it is too late to correct.” Id. at
1072–73 (quotation marks omitted).
Plaintiffs allege that Defendants failed to comply with
NEPA in a number of respects in preparing the EIS. First,
Plaintiffs maintain that the scope of the Project’s purpose and
need statement was too narrow. Second, Plaintiffs argue that
the EIS failed to adequately examine viable alternatives,
12 PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL
including a “distributed generation” alternative involving the
use of rooftop solar panels. Third, Plaintiffs claim that the
Project’s proposed mitigation strategies are too vague and
speculative to satisfy NEPA. Finally, Plaintiffs maintain that
the EIS fails to take a “hard look” at the environmental
impact of the Project in several distinct ways. Specifically,
they note that the EIS omits a comprehensive discussion of
the impacts of noise on bird species and fails to conduct a
survey of nighttime migratory birds. In addition, Plaintiffs
claim that the EIS does not fairly address the impacts of
inaudible noise, electromagnetic fields, and stray voltage on
humans, or the proposed consequences of the project on
global warming. We address each of these arguments in turn.
A. Statement of Purpose and Need
An agency tasked with preparing an EIS must prepare a
statement that “briefly specif[ies] the underlying purpose and
need to which the agency is responding.” 40 C.F.R.
§ 1502.13. This statement should inform the agency’s review
of alternatives to the proposed action and guide its final
selection. We accord the agency “considerable discretion to
define a project’s purpose and need” and review such
statements for reasonableness. Alaska Survival v. Surface
Transp. Bd., 705 F.3d 1073, 1084 (9th Cir. 2013). However,
a statement of purpose and need “will fail if it unreasonably
narrows the agency’s consideration of alternatives so that the
outcome is preordained.” Id. In a context, as here, where the
agency is tasked with deciding whether to issue a permit or
license, the statement of purpose and need may include
“private goals” alongside statutory policy objectives. Id. at
1085. However, it is the statutory goal that “serve[s] as a
guide by which to determine the reasonableness of the
objectives outlined.” Id. at 1084–85.
 PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL 13
In this case, the district court properly determined that the
EIS’s purpose-and need-statement was adequately broad,
such that the agency’s decision was not foreordained. The
statement specified that:
[T]he purpose and need for the proposed
action is to respond to a [Federal Land Policy
and Management Act (FLPMA)] right-of-way
application submitted by Tule Wind, LLC
. . . . In conjunction with FLPMA, the BLM’s
applicable authorities include the following:
• Executive Order 13212 . . . which
mandates that agencies act expediently
and in a manner consistent with applicable
laws to increase the production and
transmission of energy in a safe and
environmentally sound manner.
• Section 211 of the Energy Policy Act of
2005 . . . which established a goal for the
[DOI] to approve at least 10,000
megawatts of nonhydropower renewable
energy power on public lands by 2015.
• Secretarial Order 3285A1, [which]
establishes the development of renewable
energy as a priority for the DOI [and]
announced a policy goal of identifying
and prioritizing specific locations (study
areas) best suited for large-scale
production of solar energy.
14 PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL
The EIS’s purpose-and-need statement reflects both the
agency’s immediate objective, “to respond” to Tule Wind’s
right-of-way request, as well as the broader policy goals that
the agency considered in deciding among alternative
proposals. This statement is fully consistent with the agency’s
duty to consider federal policies in fashioning its response to
a right-of-way application, and constitutes a reasonable
formulation of project goals. See id. at 1084. The purpose-
and-need statement also permitted the agency to consider a
range of alternatives to Tule’s proposal, including one which
it ultimately adopted in order to reduce the impact of the
Project on the surrounding environment.
Although Plaintiffs also challenge the BLM’s purported
“need” for the action, the statement of need is adequately
supported by the federal objectives outlined in the EIS. In
particular, Section 211 of the Energy Policy Act of 2005 sets
forth an agency goal of approving up to 10,000 watts of
renewable energy development on public lands by 2015—a
time frame which, the agency determined, would be most
readily met through the development of a utility-scale energy
project.
B. Project Alternatives
Plaintiffs contend that the BLM dismissed viable
alternative projects out of hand. Specifically, Plaintiffs
challenge the BLM’s decision to reject a “distributed
generation” alternative, which would involve the use of
rooftop solar panels. Having found the agency’s statement of
purpose and need to be reasonable, we also conclude that the
BLM acted within its discretion in dismissing alternative
proposals.
PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL 15
First, the range of alternatives considered in the EIS was
not impermissibly narrow, as the agency evaluated all
“reasonable [and] feasible” alternatives in light of the
ultimate purposes of the project. City of Carmel-by-the-Sea
v. U.S. Dep’t of Transp., 123 F.3d 1142, 1155 (9th Cir. 1997).
An agency need not review “remote and speculative”
alternatives. Westlands Water Dist. v. U.S. Dep’t of Interior,
376 F.3d 853, 868 (9th Cir. 2004) (quoting Vt. Yankee
Nuclear Power Corp. v. Natural Res. Def. Council, Inc.,
435 U.S. 519, 551 (1978)). Instead, its review is guided by a
“rule of reason.” City of Carmel-by-the-Sea, 123 F.3d at
1155. Accordingly, the EIS need only “briefly discuss” the
reasons for eliminating an alterative not selected for detailed
examination. 40 C.F.R. § 1502.14(a).
Here, the agency reviewed five action alternatives to the
project originally proposed by Tule, as well as two no-action
alternatives. The agency also briefly considered seven
project-design alternatives and three energy-generation
alternatives, including distributed generation. The distributed-
generation alternative involved the use of rooftop solar panel
systems on buildings in San Diego County and the
development of other renewable-energy systems.
The BLM dismissed the distributed-generation alternative
because it failed to satisfy the agency’s goals and presented
a number of feasibility challenges. First, the distributed
generation alternative did not provide for utility-scale energy
generation on public lands, and therefore would have been
less effective at meeting the goals articulated by the agency.
Although an agency is not limited to considering alternatives
within its jurisdiction, the agency is not required to give
exhaustive consideration to an alternative that it appropriately
deems remote and speculative. City of Angoon v. Hodel,
16 PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL
803 F.2d 1016, 1021–22 (9th Cir. 1986) (alternatives “must
be ascertainable and reasonably within reach”). In this case,
the private installation and use of rooftop solar systems
presented significant feasibility issues that the agency decided
to take into account when choosing among alternative
proposals.
Specifically, the BLM found the implementation of this
alternative to be “speculative” given the current status of
solar technology and the regulatory and commercial
landscape. According to the BLM, the installation of at least
100,000 new rooftop solar units, primarily on private
residential or commercial properties, would be required in
order to match the energy generation from the original wind-
energy proposal. Even if such an outcome were feasible,
however, the BLM concluded that a project of such scale
might require “extensive upgrading” of infrastructure and
generate uncertain environmental impacts. These technical
determinations of the agency, reflecting the application of its
specialized expertise, merit particular deference on review.
See Lands Council v. McNair, 537 F.3d 981, 988 (9th Cir.
2008) (en banc), overruled on other grounds by Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). We
thus find that the BLM reasonably concluded that the overall
effectiveness of a distributed-generation alternative, reliant on
private installation and technical upgrading, remained
speculative in practice.1 Similarly, Plaintiffs’ final contention
that the distributed-generation systems would present a cost-
1
Plaintiffs highlight the fact that state legislation creating a system of
renewable-energy trading credits was passed two months after the final
EIS was issued. Notwithstanding this new development, the BLM acted
reasonably because it based its determination of feasibility on a number
of independently sufficient reasons discussed in the EIS.
PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL 17
effective alternative must be weighed against the feasibility
of the overall approach and its consistency with agency goals.
Considered as a whole, therefore, the BLM did not act
unreasonably in dismissing the distributed-generation
alternative.
C. Mitigation Measures
Pursuant to NEPA, an agency must also consider
appropriate mitigation measures that would reduce the
environmental impact of the proposed action. 42 U.S.C.
§ 4332(2)(C)(ii). As noted, our review is guided by whether
the agency’s analysis is reasonable and offers “sufficient
detail to ensure that environmental consequences have been
fairly evaluated.” S. Fork Band Council of W. Shoshone of
Nevada v. U.S. Dep’t of Interior, 588 F.3d 718, 727 (9th Cir.
2009) (quoting Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 352 (1989)). “Perfunctory descriptions or mere
lists of mitigation measures are insufficient.” Alaska Survival,
705 F.3d at 1088. Rather, the agency must provide “an
assessment of whether the proposed mitigation measures can
be effective . . . [and] whether anticipated environmental
impacts can be avoided.” S. Fork Band Council, 588 F.3d at
727. Because mitigation measures are projections that allow
an agency to alleviate “impact after construction,” the EIS
may not use them “as a proxy for [collecting] baseline data”
before construction that would enable the agency to “first
understand[] the extent of the problem.” N. Plains Res.
Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1084–86
(9th Cir. 2011). On the other hand, the EIS’s proposed
mitigation measures “need not be legally enforceable, funded
or even in final form to comply with NEPA’s procedural
requirements.” Nat’l Parks & Conservation Ass’n v. U.S.
Dep’t of Transp., 222 F.3d 677, 681 n.4 (9th Cir. 2000).
18 PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL
In this case, the agency drafted a comprehensive set of
mitigation measures relying, in part, on field studies
conducted by Tule over several years in the proposed Project
area. These studies, in combination with scientific research,
informed the BLM’s development of a number of mitigation
measures, including the creation of the lengthy Protection
Plan. The Protection Plan outlined additional methods of
achieving environmental mitigation at each stage of the
Project. The BLM incorporated the Protection Plan into the
final EIS by reference.
Plaintiffs claim that the mitigation measures outlined in
the EIS do not provide “sufficient detail,” and that the EIS
improperly defers the formulation of certain mitigation
measures until post-development monitoring and inspection,
notably through the use of an adaptive-management plan. Yet
the mitigation measures, including the 85-page Protection
Plan, provide ample detail and adequate baseline data for the
agency to evaluate the overall environmental impact of the
Project. Plaintiffs merely “fly speck” the EIS rather than
identify consequential flaws that would prevent the agency
from sufficiently grasping the Project’s potential
environmental consequences. Or. Envtl. Council v. Kunzman,
817 F.2d 484, 492 (9th Cir. 1987) (quotation marks omitted).
Moreover, the EIS’s inclusion of an adaptive-management
plan, among other mitigation measures, provides flexibility
in responding to environmental impacts through a regime of
continued monitoring and inspection. That an agency decides
to incorporate an adaptive management plan as one
component of a comprehensive set of mitigation measures
does not mean that the agency lacked a sufficient foundation
of current baseline data from which to evaluate the Project’s
environmental effects. Rather, the use of such a continuous
monitoring system may complement other mitigation
PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL 19
measures, and help to refine and improve the implementation
of those measures as the Project progresses.
D. “Hard Look” at Environmental Impacts
Plaintiffs also raise a series of four substantive challenges
to the BLM’s investigation of the environmental impacts of
the Project. As the district court correctly determined, each of
these challenges is unavailing and, in some cases, would
improperly compel a reviewing court to substitute its
judgment for that of the agency. See Lands Council, 537 F.3d
at 988.
1. Avian Impacts
Plaintiffs assert two primary challenges to the EIS’s
analysis of the Project’s avian impacts. Plaintiffs contend
that the EIS fails to comprehensively review the effects of
Project-related noise on birds at all life stages, not just the
nesting stage. Moreover, they claim that the agency failed to
conduct nighttime migratory-bird surveys in the Project area
to better estimate the numbers of such birds that might be
struck by wind turbines. We conclude that the EIS’s analysis
of the likelihood of various bird species frequenting the
Project area, as well as the potential impacts of the Project on
bird populations, is reasonable and satisfies NEPA’s “hard
look” requirement.
First, the agency outlined over a dozen noise-mitigating
measures that it determined would significantly reduce the
environmental impacts of noise on birds to “low” or minimal
levels. Because the BLM concluded that the Project’s noise
effects could be effectively reduced, it provided less analysis
of noise effects in the EIS as compared to other more
20 PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL
significant or unmitigable environmental impacts. See
40 C.F.R. § 1502.2(b) (“Impacts shall be discussed in
proportion to their significance. There shall only be brief
discussion of other than significant issues.”). Even though the
agency could have included more detailed discussion of noise
impacts or collected further information, its existing analysis
did not impermissibly misconstrue the existing data or force
the public and policymakers to speculate concerning
projected environmental effects. See Found. for N. Am. Wild
Sheep v. U.S. Dep’t of Agr., 681 F.2d 1172, 1179 (9th Cir.
1982). In addition, while the mitigation measures discussed
in the EIS focus on the nesting and fledgling phases, the BLM
reasonably deemed these life stages to be the most critical in
bird development, and accordingly focused its analysis on
those stages.2
Second, the agency’s failure to conduct a nighttime
migratory-bird survey was a discretionary judgment made by
the agency on the basis of available scientific data. When the
agency’s determination is founded on reasonable inferences
from scientific data, a reviewing court will not “substitute its
judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
Here, the BLM relied upon existing surveys and scientific
literature, which indicated that use of the Project area by
nocturnal species would be low and that most nocturnal
species would fly at altitudes higher than those of the
2
Plaintiffs also contend that the noise levels from the Project would be
incompatible with the use of the site by certain migratory songbirds, citing
several scientific studies. However, the agency exercised its discretion in
discounting the results of those scientific studies due, in part, to
differences in the noise generated by the wind turbines and those at issue
in the studies.
PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL 21
proposed turbines. This determination, too, was a reasonable
exercise of the agency’s discretion. Moreover, the BLM
chose to reposition turbines in valleys rather than on top of
ridgelines, which would lessen any risk to low-flying
nocturnal migrants.
2. Inaudible Noise
Plaintiffs contend that the EIS fails to adequately address
the environmental effects of inaudible noise, including
infrasound and low-frequency noise, on humans. In support
of their contentions, Plaintiffs rely on a 2011 scientific study,
which concludes that inaudible noise may have adverse
effects on human health. The BLM considered this study in
conjunction with an array of other scientific research
literature, and ultimately concluded that inaudible noise
generated by the Project would not cause discernable health
impacts, based on a “consensus among acoustic experts.” In
particular, the BLM explicitly distinguished the results of the
2011 study in its responses to public comments on the EIS.
See Save the Peaks Coal. v. U.S. Forest Serv., 669 F.3d 1025,
1037 n.5 (9th Cir. 2012). We defer to the agency’s
discretionary judgment with respect to the “evaluation of
complex scientific data within the agency’s technical
expertise.” Envtl. Defense Ctr., Inc. v. EPA, 344 F.3d 832,
869 (9th Cir. 2003). Plaintiffs have presented us with no
reason to deviate from this rule or question the agency’s well-
considered conclusions here.
3. Electromagnetic Fields and Stray Voltage
Similarly, Plaintiffs contend that the EIS fails to
adequately examine the adverse health effects of
electromagnetic fields and stray voltage that may be
22 PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL
generated by the Project. However, Plaintiffs’ argument
derives from an underlying substantive disagreement with the
EIS’s conclusions rather than a claim that the agency’s
methods of arriving at those conclusions are unreasonable. In
reaching its conclusion, the BLM properly canvassed the
available literature on electromagnetic fields and, in a
reasonable exercise of its technical expertise, determined that
any fields created by the Project did not present public health
risks that would cause concern.
In addition, the BLM analyzed the risk of stray voltage
and discussed appropriate mitigation efforts. Although the
EIS acknowledges the risk of stray voltage on human health
and safety, it reasonably discounted this risk in light of
mitigation plans that would ground the turbines and provide
for regular inspections to ensure their continued safety.
Therefore, the EIS conforms with NEPA’s requirement that
the agency engage in reasoned analysis of environmental
hazards, in proportion to their significance, to ensure that the
public is adequately informed of a project’s potential impacts.
See Churchill Cty., 276 F.3d at 1071.
4. Greenhouse-Gas Emissions
The EIS also takes a “hard look” at the impact of the
Project on greenhouse-gas emissions and global warming.
The EIS analyzes projected emissions from the Project and
concludes that these emissions, at 646 metric tons of carbon
dioxide per year, fall below the level of significance required
for further analysis under NEPA. In addition, the EIS states
that “the project would create a renewable source of energy,
thereby potentially decreasing overall emissions attributable
to electrical generation in California.” Contrary to Plaintiffs’
contention, this passing projection of potential emissions
PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL 23
reductions, simply by virtue of the Project’s creation of a new
source of renewable energy, is reasonable enough and does
not mandate the provision of conclusive proof through
additional evidence and analysis beyond that already
provided in the EIS.
Finally, Plaintiffs contend that the BLM failed to take into
account the emissions generated by the manufacture and
transportation of equipment to the Project area. Instead, the
BLM reasoned that these emissions levels were largely
outside the control of Tule and that attempts to estimate these
amounts would be overly speculative. The BLM was entitled
to choose among various reasonable methodologies, as it did
here, when estimating the emissions generated by the Project.
See Native Ecosystems Council v. Weldon, 697 F.3d 1043,
1053 (9th Cir. 2012).
II. Liability under the MBTA and Eagle Act
Plaintiffs raise the novel argument that the BLM—by the
mere act of granting Tule’s right-of-way request—is
complicit in future conduct by Tule that might result in
violations of the MBTA and the Eagle Act (collectively, the
Acts). Plaintiffs’ theory of liability is two-fold. First,
Plaintiffs assert that the BLM, acting in its regulatory
capacity, is directly liable for the unlawful “take” of birds
under the Acts, absent a permit from the FWS. Second,
Plaintiffs assert that the agency’s regulatory authorization is
“not in accordance with law” within the meaning of the APA,
5 U.S.C. § 706(2)(A), because the BLM did not condition its
right-of-way grant on Tule securing the appropriate permits
from the FWS. We address each of these arguments in turn.
24 PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL
A. The Migratory Bird Treaty Act
The MBTA is a criminal statute that prohibits an
individual, entity—or, in some cases, an agency—“at any
time, by any means or in any manner, to pursue, hunt, take,
capture [or] kill . . . any migratory bird, . . . nest, or egg of
any such bird” in the absence of a permit or other exemption.
16 U.S.C. § 703(a). The FWS is the federal agency tasked
with ensuring compliance with the MBTA, including issuing
permits and prosecuting offenders. See id. §§ 706, 707(a), (d).
Through the APA’s prohibition against unlawful agency
action, a plaintiff may bring a civil suit to compel agency
compliance with the MBTA. See City of Sausalito, 386 F.3d
at 1203.
1. Liability under the MBTA
As more fully discussed, infra Section II.A.2, we hold
that Plaintiffs’ argument that the Project will inevitably result
in migratory-bird fatalities, even if true, is unavailing because
the MBTA does not contemplate attenuated secondary
liability on agencies like the BLM that act in a purely
regulatory capacity, and whose regulatory acts do not directly
or proximately cause the “take” of migratory birds, within the
meaning of 16 U.S.C. § 703(a). Here, the BLM only
authorized Tule to construct and operate a wind energy
facility on public lands, and therefore did not act to “take”
migratory birds without a permit, within the meaning of the
MBTA.
The authorities Plaintiffs cite in support of its argument
are distinguishable. In Humane Soc’y of the United States v.
Glickman, 217 F.3d 882 (D.C. Cir. 2000), the U.S.
Department of Agriculture, in conjunction with state
PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL 25
agencies, was responsible for instituting a plan that would
intentionally capture and kill migratory geese. Id. at 884. In
that case, the agency itself was implicated in the killing of
migratory birds without a permit, in violation of the MBTA.
Similarly, Plaintiffs point to special legislation exempting
the Department of Defense from the MBTA’s prohibition
against the incidental take of migratory birds in the course of
its military readiness exercises. See National Defense
Authorization Act for Fiscal Year 2003, P.L. 107-314, 116
Stat. 2458 § 315 (2002). Such legislation merely proves the
point, established in Glickman, that agencies may be held
liable for violations of the MBTA when they themselves
engage in the taking of protected birds. However, such
actions are far removed from purely regulatory action that
does not constitute, or even proximately cause, an unlawful
“take” under the MBTA. Instead, the BLM’s decision to grant
Tule’s right-of-way request was many steps removed in the
causal chain from the potential commission of an unlawful
“take” caused by wind-turbine collisions.
Finally, Plaintiffs refer us to the recent actions of the
National Marine Fisheries Service (NMFS), which applied for
a permit from the FWS to cover the incidental take of
migratory seabirds by a Hawaii longline fishery. Under one
interpretation of that scenario, the NMFS could be said to
function in a managerial capacity over the activities of the
fishery. See Turtle Island Restoration Network v. U.S. Dep’t
of Commerce, 2013 WL 4511314, at * 6 (D. Haw. 2013). If
so, then NMFS would occupy a more directly supervisorial
position over a regulated third party than that of a typical
agency, and certainly that of the BLM vis-à-vis Tule.
Moreover, looking at the NMFS permit application from
another angle, the fact that one agency may choose to apply
26 PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL
for a permit from the FWS to further shield itself from the
risk of potential liability does not compel all agencies acting
in a regulatory capacity to do the same. Rather, as the FWS
has concluded, “the agencies themselves are not subject to the
prohibitions of the MBTA when acting in their regulatory
capacities,” and thus are generally not required to seek a
permit to cover the separate actions of “third parties regulated
by those agencies.” Migratory Bird Permits; Programmatic
Environmental Impact Statement, 80 Fed. Reg. 30,035 (May
26, 2015).
2. Liability under the APA
Alternatively, Plaintiffs argue that the BLM’s right-of-
way grant is “contrary to law” within the meaning of the APA
because it permits Tule to engage in otherwise lawful
activities that would incidentally lead to migratory-bird
deaths—a final result that is contrary to the MBTA. Plaintiffs
maintain that, even if the BLM is not directly liable under the
MBTA, the agency is compelled to deny the right-of-way
request unless Tule first obtains a permit for the incidental
take of migratory birds. To do otherwise, Plaintiffs contend,
would render the BLM complicit in the unlawful actions of a
third party, and in violation of the APA. However, the BLM’s
regulatory role in this case is too far removed from the
ultimate legal violation to be independently unlawful under
the APA.
Plaintiffs’ claim, which verges on argument for
unbounded agency vicarious liability, relies on a selective
characterization of the agency action at issue and fails for
reasons similar to those discussed above. The BLM, by the
mere act of granting Tule a right-of-way, has not behaved in
an unlawful manner under the APA. Rather, Plaintiffs’
PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL 27
argument hinges on the assumption that a third-party grantee
like Tule, in its operation of the wind turbines, will behave in
an unlawful manner under the MBTA. Based on this
assumption, Plaintiffs would impose an affirmative duty on
the BLM to guarantee Tule’s future compliance with the
MBTA by ensuring that Tule first secure a permit. To what
extent does the BLM have a duty under the APA to take
affirmative measures to prevent potential unlawful action by
Tule? Our concerns of agency complicity in the instant case
are substantially allayed by several considerations.
First, as discussed above, the APA does not target
regulatory action by the BLM that permits a third-party
grantee like Tule to engage in otherwise lawful behavior, and
only incidentally leads to subsequent unlawful action by that
third party. See supra Section II.A.1. The causal mechanism
in question is too speculative and indirect to impose liability
on the BLM for engaging in routine regulatory action. Here,
the BLM’s right-of-way did not sanction or authorize the
taking of migratory birds without a permit; it authorized the
development of a wind-energy facility. Without further
indication of its involvement in the putative violation, we
cannot hold the BLM complicit in future unlawful activity,
separately committed by a grantee, through a mere failure to
intervene at the permitting stage.
Moreover, the BLM has not sanctioned or encouraged an
unlawful course of action by Tule. Rather, it has done the
opposite. The BLM’s ROD indicates that its approval of the
Project is expressly contingent on Tule’s compliance with “all
applicable laws and regulations,” which in this case includes
the MBTA and the Eagle Act, as well as the securing of “all
necessary local, state, and Federal permits, authorizations,
and approvals.” The terms of the ROD further permit the
28 PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL
BLM to, at any time, withdraw its right-of-way approval if it
determines that Tule has failed to comply with these
provisions.
In contrast, in several cases implicating other
environmental-protection laws, the agencies in question acted
unlawfully because they improperly exercised their regulatory
authority to sanction conduct by third parties that was itself
unlawful. In Anderson v. Evans, 371 F.3d 475 (9th Cir. 2004),
for example, the agency permitted the unlawful hunting of
whales by an Indian tribe as a result of a legally erroneous
interpretation of a tribal treaty and in violation of the Marine
Mammal Protection Act. Id. at 480, 486 (explaining that the
agency environmental assessment unlawfully authorized “a
quota for the ‘land[ing]’ of five gray whales”).
Similarly, in Wilderness Society v. U.S. Fish & Wildlife
Service, 353 F.3d 1051 (9th Cir. 2003) (en banc), the FWS
issued a permit allowing a third party to operate a
“commercial enterprise” in a national wilderness area, based
on a legally mistaken construction of the governing federal
statute, which prohibited such commercial activities. Id. at
1055. Here, in contrast, the BLM has not misconstrued the
requirements of the MBTA; nor has it encouraged or ratified
unlawful acts taken by third parties in violation of the MBTA.
Plaintiffs’ reliance on Ctr. for Biological Diversity v.
Bureau of Land Mgmt., 698 F.3d 1101 (9th Cir. 2012) is also
inapposite. That case involved the BLM’s compliance with
the Endangered Species Act, a federal statute that reaches
farther than the MBTA in that it explicitly requires an agency
to engage in interagency consultations that will “[e]nsure that
any action authorized, funded, or carried out by such
agency. . . is not likely to jeopardize the continued existence
PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL 29
of any endangered species or threatened species.” 16 U.S.C.
§ 1536(a)(2). No such provision is included in the MBTA, or
the Eagle Act, which might otherwise create an analogous
affirmative duty on the part of the BLM to guarantee a
grantee’s compliance with the Acts.
B. The Bald and Golden Eagle Protection Act
Similar to the MBTA, the Eagle Act provides that, absent
a permit or other exemption, it is unlawful to “take, possess,
sell, purchase, barter, offer to sell, purchase or barter,
transport, export or import, at any time or in any manner, any
bald eagle, common known as the American eagle, or any
golden eagle, alive or dead, or any part, nest, or egg thereof.”
16 U.S.C. § 668(b). The FWS also administers the Eagle Act,
including overseeing the issuance of permits and ensuring
compliance with the statute. Unlike the MBTA, the Eagle Act
explicitly provides for both criminal and civil enforcement.
Id. § 668(a)–(b).
Despite some substantive differences between the MBTA
and the Eagle Act, the same reasoning applies to defeat the
imposition of liability on the BLM here. See supra Section
II.A. Further support for this conclusion is provided by a
FWS regulation that pertains to permits for the “incidental
take” of eagles. 50 C.F.R. § 22.26; see Eagle Permits; Take
Necessary To Protect Interests in Particular Localities,
74 Fed. Reg. 46,836 (Sep. 11, 2009). There, the FWS
explained that “[p]ersons and organizations that obtain
licenses, permits, grants, or other such services from
government agencies are responsible for their own
compliance with the Eagle Act and should individually seek
permits.” 74 Fed. Reg. 44,843 (Sep. 11, 2009). It further
explained, however, that “agencies must obtain permits for
30 PROTECT OUR COMMUNITIES FOUNDATION V. JEWELL
take that would result from agency actions that are
implemented by the agency itself (including staff and
contractors responsible for carrying out those actions on
behalf of the agency).” Id. We hold, in the narrow
circumstances of this case, that the BLM did not, by granting
Tule the referenced right-of-way, take “agency actions . . .
implemented by the agency itself” that would directly or
proximately result in the incidental take of eagles by it or
Tule.
As a result, a requirement that the BLM independently
seek a permit, or confirm that grantees seek permits before
issuing a right-of-way grant, would impose an attenuated
form of secondary liability on the BLM, an agency that is
neither statutorily tasked with policing third-party compliance
with the Eagle Act nor responsible for violations that might
be independently committed by grantees, such as Tule.3
CONCLUSION
We hold that the BLM is not liable under NEPA, the
MBTA, the Eagle Act, nor the APA for its regulatory
decision to grant Tule a right-of-way to develop and operate
a renewable wind energy project. The judgment of the district
court is AFFIRMED.
3
We note that even if the BLM were responsible for policing third-party
compliance with the Eagle Act, the Protection Plan, devised in conjunction
with the FWS, reasonably determined that the Project could “practicably
be modified to avoid the take.” 50 C.F.R. § 22.26 (e)(1).