On December 13, 2018, the United States District Court for the District of Colorado vacated an eagle take permit issued by the U.S. Fish and Wildlife Service (“Service”) authorizing a construction company to disturb a pair of nesting bald eagles. Front Range Nesting Bald Eagle Studies v. U.S. Fish and Wildlife Service et al., No. 1:18-cv-00356. The Bald and Golden Eagle Protection Act (“BGEPA”), prohibits the disturbance of bald eagles or golden eagles. The Service’s regulations define disturb to mean:
to agitate or bother a bald or golden eagle to a degree that causes, or is likely to cause, based on the best scientific information available, (1) injury to an eagle, (2) a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior, or (3) nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior.
50 C.F.R. § 22.3. The Service established an eagle permit program in 2009 (amended in 2016) whereby activities that disturb an eagle can be authorized upon meeting certain criteria. 50 C.F.R. § 22.26. Pursuant to these regulations, Garrett Construction Company, LLC applied for and the Service issued an eagle take permit for disturbances that may arise from the construction of an apartment complex across the street from two nesting bald eagles. Front Range Nesting Bald Eagle Studies (“Front Range”), a local conservation group, challenged the Service’s issuance of the eagle take permit on both BGEPA and National Environmental Policy Act (“NEPA”) grounds. The Service had originally issued the eagle take permit without conducting a NEPA analysis, but upon the filing of Front Range’s lawsuit, the Service moved for voluntary remand to perform the analysis. Front Range nonetheless continued its challenges under both NEPA and BGEPA. Ultimately, the court deferred to the Service’s conclusions under BGEPA, but held in favor of Front Range on two of its NEPA claims: (1) the Service failed to perform a cumulative impacts analysis under NEPA; and (2) the Service failed to respond to comments criticizing the short comment period and requesting an extension. The court remanded the eagle take permit to the Service for further consideration.