Ninth Circuit Affirms Federal Critical Habitat Rules for Polar Bears

Here is the opinion in Alaska Oil and Gas Assn. v. Jewell.

We posted lower court materials here and here.

30 Year Maximum “Take” FWS Rule Struck Down

Judge Koh (N.D. Calif.) set aside and remanded the Fish & Wildlife Service’s Final 30-Year Rule that extended the maximum duration of permits to take bald and golden eagles from five years to thirty years. The order states that the FWS failed to demonstrate that neither an EIS nor EA was needed for this twenty-five year extension.

The motion for summary judgment was granted for all NEPA claims, denied in part due to unsubstantiated (two sentences) ESA claims.

Order here.

Original complaint and previous coverage 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.

 

Wind Energy Fatality Study Published

K. Shawn Smallwood has published “Comparing bird and bat fatality-rate estimates among North American wind-energy projects” in the Wildlife Society Bulletin. Here is the abstract:

Estimates of bird and bat fatalities are often made at wind-energy projects to assess impacts by comparing them with other fatality estimates. Many fatality estimates have been made across North America, but they have varied greatly in field and analytical methods, monitoring duration, and in the size and height of the wind turbines monitored for fatalities, and few benefited from scientific peer review. To improve comparability among estimates, I reviewed available reports of fatality monitoring at wind-energy projects throughout North America, and I applied a common estimator and 3 adjustment factors to data collected from these reports. To adjust fatality estimates for proportions of carcasses not found during routine monitoring, I used national averages from hundreds of carcass placement trials intended to characterize scavenger removal and searcher detection rates, and I relied on patterns of carcass distance from wind turbines to develop an adjustment for variation in maximum search radius around wind turbines mounted on various tower heights. Adjusted fatality rates correlated inversely with wind-turbine size for all raptors as a group across the United States, and for all birds as a group within the Altamont Pass Wind Resource Area, California. I estimated 888,000 bat and 573,000 bird fatalities/year (including 83,000 raptor fatalities) at 51,630 megawatt (MW) of installed wind-energy capacity in the United States in 2012. As wind energy continues to expand, there is urgent need to improve fatality monitoring methods, especially in the implementation of detection trials, which should be more realistically incorporated into routine monitoring.

And two news articles on the killing of condors and eagles and the decision by USFWS not to prosecute….

Email me if you want a pdf of the study.

News Profile of USFWS Decisionmaking Process in Question of Bald Eagles and Wind Turbines

Here.

An excerpt:

The U.S. Fish and Wildlife Service (FWS) is considering eliminating most public oversight of wind turbine impacts on protected bald and golden eagles by offering developers 30-year permits to kill eagles by accident, as opposed to the current 5-year permits. What’s more, they’re shaping the implementation of that proposed policy change in a series of private “stakeholders'” meetings to which the public is not invited.

American Bird Conservancy letter here.

Update in Ruby Pipeline Case

Guess the big win wasn’t all that big. Here are two unpublished opinions from the Ninth Circuit in related cases that are not so excellent for the tribes.

CENTER FOR BIOLOGICAL DIVERS. V. BLM

SUMMIT LAKE PAIUTE TRIBE V. BLM

Ninth Circuit Hands Summit Lake Paiute Tribe & Fort Bidwell Indian Community Big Win in Challenge to BLM Approval of Ruby Pipeline

Here is the opinion in Center for Biological Diversity v. BLM.

An excerpt:

Our case concerns a decision by the Bureau of Land Management (“BLM”) to authorize the Ruby Pipeline Project (“Project”). The Project involves the construction, operation, and maintenance of a 42-inch-diameter natural gas pipeline extending from Wyoming to Oregon, over 678 miles. The right-of-way for the pipeline encompasses approximately 2,291 acres of federal lands and crosses 209 rivers and  streams that support federally endangered and threatened fish species. According to a Biological Opinion (“the Biological Opinion” or “the Opinion”) formulated by the Fish and Wildlife Service (“FWS”), the project “would adversely affect” nine of those species and five designated critical habitats. The FWS nonetheless concluded that the project “would not jeopardize these species or adversely modify their critical habitat.” The propriety of the FWS’s “no jeopardy” conclusion, and the BLM’s reliance on that conclusion in issuing its Record of Decision, are at the heart of this case. This opinion addresses those challenges to the Project that petitioners Center for Biological Diversity, Defenders of Wildlife et al., and Summit Lake Paiute Tribe have raised under the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq. Specifically, we resolve petitioners’ claims that the Biological Opinion and its accompanying Incidental Take Statement were arbitrary and capricious because: (1) the Biological Opinion’s “no jeopardy” and “no adverse modification” determinations relied on protective measures set forth in a conservation plan not enforceable under the ESA; (2) the Biological Opinion did not take into account the potential impacts of withdrawing 337.8 million gallons of groundwater from sixty-four wells along the pipeline; (3) the Incidental Take Statement miscalculated the number of fish to be killed, by using a “dry-ditch construction method” for water crossings; and (4) the Incidental Take Statement placed no limit on the number of “eggs and fry” of threatened Lahontan cutthroat
trout to be taken during construction. We agree with the first two contentions and so set aside the Biological Opinion as arbitrary and capricious. We also set aside the Record of Decision, as it relied on the invalid Biological Opinion.

Briefs here.

Congrats to Colette Routel and the tribes.

Eric Biber (Boalt) on the Dysfunctions of Multiple-Goal Agencies

Friend of the blog Eric Biber has posted “Too Many Things to Do: How to Deal with the Dysfunctions of Multiple-Goal Agencies” on SSRN. Here’s the abstract:

All federal agencies must cope with the challenges of trying to achieve success on the multiple goals laid out for them by Congress, the President, or the public-at-large, with varying degrees of success. Recent economics and political science literature has laid out a theoretical framework that helps us understand why agencies might succeed in achieving some goals and fail in achieving other goals: Agencies will systematically underperform on goals that are hard to measure and that conflict with the achievement of other more measurable goals. The lack of information about these hard-to-measure goals means that there will be fewer rewards to agencies for any success on those goals. While agencies in theory might be able to overcome this lack of information problem through technological and organizational innovation (where feasible), in many cases agency missions, historical inertia, and the professional orientation of agency staff will interfere with innovation, as shown by a case study of the U.S. Forest Service. Having diagnosed the source of the problem, the paper then examines various options that principals (such as Congress) might have to address it.

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