Ninth Circuit Decides Protect Our Communities v. LaCounte [Wind Energy and Eagle Protection]

Here is the opinion.

Briefs here.

Interior Starts Process to Undo Eagle Act Regulations to Allow Non-Indians to Access Eagle Feathers

Here is the notice:

2019-04-30 FR

An excerpt:

We, the U.S. Fish and Wildlife Service (Service), have received a petition for rulemaking, which asks the Service to revise the existing rules pertaining to the religious use of federally protected bird feathers. The petition is being published pursuant to the terms of a settlement agreement entered into in 2016 by the United States with McAllen Grace Brethren Church and the Becket Fund for Religious Liberty. Any changes to existing rules will be subject to a public comment period, and tribal consultation consistent with Executive Order 13175 and the Department of the Interior Policy on Consultation with Indian Tribes. The Service seeks comments on the petition.

Ninth Circuit Briefs in Protect Our Communities Foundation v. Loudermilk

Here:

Protect Our Communities Opening Brief

Federal Answer Brief

Tribe Answer Brief

Reply

Oral argument video here.

Lower court materials here.

Ninth Circuit Rejects Challenge to Federal Approval of Tule Wind Project over Eagle-Based Challenge

Here is the opinion in Protect Our Communities v. Jewell.

From the syllabus:

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.

Briefs:

POC Opening Brief

Backcountry Against Dumps Opening Brief

Answer Brief

POC Reply

Related lower court materials here.

 

Fifth Circuit Holds Eagle Act Regulations May Violate RFRA

Here is the opinion.

An excerpt:

Appellants filed suit against the Department of the Interior (the
“Department”) seeking a declaration of rights that the Department’s enforcement of the Migratory Bird Treaty Act (the “MBTA”) and the Bald and Golden Eagle Protection Act (the “Eagle Protection Act”) violates the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act (“RFRA”) because it prohibits American Indians who are not members of federally recognized tribes from possessing bald and golden eagle feathers. The district court granted the Department’s motion for summary judgment, finding that the Department’s implementation of the Eagle Protection Act was narrowly tailored to a compelling governmental interest. Because we find that the Department did not provide sufficient evidence that the policy of limiting permits for the possession of eagle feathers to members of federally recognized tribes survives the scrutiny required by RFRA, we REVERSE the district court’s grant of summary judgment and REMAND for proceedings consistent with this opinion.

Briefs here.

Complaint Challenging New 30-Year Eagle Permit Rule

Here is the complaint in Shearwater v. Ashe (N.D. Cal.).

Plaintiffs are challenging a final nationwide regulation promulgated by the U.S. Fish and Wildlife Service (“FWS” or “Service”) and the U.S. Department of the Interior (“DOI”) on December 9, 2013 that “extend[ed] the maximum term for programmatic permits” to kill or otherwise “take” bald and golden eagles from five years to thirty years. 78 Fed. Reg. 73704. This major rule change – the “thirty-year eagle take rule” – applies to industrial activities of all Case5:14-cv-02830 Document1 Filed06/19/14 Page1 of 23 kinds that incidentally take federally protected eagles in the course of otherwise lawful activities
but, as acknowledged by the Service, was promulgated specifically to respond to the wind power industry’s desire to facilitate the expansion of wind energy projects in areas occupied by eagles. Id. at 73709. However, the rule was adopted in flagrant violation of the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370f (“NEPA”) because the Service did not prepare any document analyzing the environmental impacts of the rule change, as required by NEPA and its implementing regulations. In addition, the rule change violates the Bald and Golden Eagle Protection Act, 16 U.S.C. §§ 668-668d (“BGEPA”), and the Administrative Procedure Act, 5 U.S.C. § 706(2), because the rule subverts the basic eagle protection purposes of BGEPA and eliminates crucial procedural and other safeguards for eagle populations without any adequate explanation. Accordingly, the regulation should be vacated and remanded to Defendants for compliance with federal law.

 

American Bird Conservancy Plans to Sue Interior over 30-Year Eagle Kill Rule

Here.

An excerpt:

A leading bird conservation organization—American Bird Conservancy (ABC)—has announced its intention to sue the Department of the Interior (DOI), charging DOI with multiple violations of federal law in connection with its December 9, 2013, final regulation that allows wind energy companies and others to obtain 30-year permits to kill eagles without prosecution by the federal government. The previous rule provided for a maximum duration of five years for each permit.

Notice of Intent to Sue (PDF)

New Study on Eagle Mortalities at Wind Energy Facilities

This study, collected by United States Fish and Wildlife Service employees, was published in the Journal of Raptor Research.

Here:

JRR-12-00019.1

 

Pending Lipan Apache Members Challenge to Eagle Acts

Here is the opening Fifth Circuit brief in Mc Allen Grace Brethren Church v. Dept. of Interior:

Opening Brief

Update (8/11/13): Interior Appellee Brief

No lower court opinion is available, but here is the cross-motions motion for summary judgment below:

Interior Motion for Summary J

Mc Allen Grace Motion