Endangered Species Law & Policy

On March 29, 2016, the U.S. District Court for the Southern District of California granted summary judgment in favor of the Bureau of Indian Affairs (BIA) in a lawsuit involving the grant of a lease to Tule Wind, LLC for construction of the second phase of an industrial-scale wind energy facility. The Protect Our Communities Foundation v. Black, Case No. 14-cv-2261 (S.D. Cal. March 29, 2016). Plaintiffs alleged that BIA’s approval of the project (1) violated the National Environmental Policy Act (NEPA); (2) violated the Bald and Golden Eagle Protection Act (BGEPA); and (3) violated the Migratory Bird Treaty Act (MBTA).

With respect to the BGEPA and MBTA claims, Plaintiffs alleged that by approving the Record of Decision granting the lease to Tule Wind, BIA permitted Tule Wind to violate these two laws given the wind energy facility’s proximity to eagle nests in the region.  The court disagreed with Plaintiffs allegations finding (1) the BIA lease does not authorize the killing of eagles or other migratory birds; (2) BGEPA and MBTA are reactive laws and do not require an agency permitting a third party’s otherwise lawful activity to condition approval on obtaining authorization under either law; (3) BIA does not administer or enforce either the MBTA or BGEPA; and (4) individuals are responsible for their own compliance under BGEPA and that an agency need only obtain a BGEPA permit if the take of eagles are likely to result from agency actions implemented by the agency.  With respect to the NEPA claim, plaintiffs alleged that BIA was required to prepare a supplemental NEPA analysis.  The court disagreed, finding that the approval of the lease was the major federal action and BIA had no further remaining major federal  actions requiring supplemental NEPA.