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.