Protect Our Communities Foundation v. LaCounte, 17-55647

• Citation: 939 F.3d 1029
• Decision Date: 23 September 2019
• Docket Number: No. 17-55647,17-55647
• Parties: PROTECT OUR COMMUNITIES FOUNDATION ; David Hogan; Nica Knite, Plaintiffs-Appellants, v. Darryl LACOUNTE, Acting Director, Bureau of Indian Affairs; David L. Bernhardt, Secretary, Department of the Interior; Tara Katuk Maclean Sweeney, Assistant Secretary for Indian Affairs; Amy Dutschke, Regional Director, Bureau of Indian Affairs Pacific Region; John Rydzik, Chief, Bureau of Indian Affairs Pacific Region Division of Environmental Cultural Resources Management & Safety, Defendants-Appellees, Tule Wind, LLC ; Ewiiaapaayp Band of Kumeyaay Indians, Intervenor-Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

939 F.3d 1029

PROTECT OUR COMMUNITIES FOUNDATION ; David Hogan; Nica Knite, Plaintiffs-Appellants,

v.Darryl LACOUNTE, Acting Director, Bureau of Indian Affairs; David L. Bernhardt, Secretary, Department of the Interior; Tara Katuk Maclean Sweeney, Assistant Secretary for Indian Affairs; Amy Dutschke, Regional Director, Bureau of Indian Affairs Pacific Region; John Rydzik, Chief, Bureau of Indian Affairs Pacific Region Division of Environmental Cultural Resources Management & Safety, Defendants-Appellees,Tule Wind, LLC ; Ewiiaapaayp Band of Kumeyaay Indians, Intervenor-Defendants-Appellees.

No. 17-55647

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 14, 2018 Pasadena, California

Filed September 23, 2019

William S. Eubanks II (argued), Meyer Glitzenstein & Eubanks LLP, Fort Collins, Colorado; William N. Lawton, Meyer Glitzenstein & Eubanks LLP, Washington, D.C.; for Plaintiffs-Appellants.

Allen M. Brabender (argued), Brian Collins, and John H. Martin, Attorneys; Eric Grant, Deputy Assistant Attorney General; Jeffrey H. Wood, Acting Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

Jeffrey Durocher, Portland, Oregon; for Intervenor-Defendant-Appellee Tule Wind, LLC.

Bradley G. Bledsoe Downes, Bledsoe Downes PC, Chandler, Arizona, for Intervenor-Defendant-Appellee Ewiiaapaayp Band of Kumeyaay Indians.

Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges, and Carol Bagley Amon,^* District Judge.

GOULD, Circuit Judge:

Plaintiffs Protect Our Communities Foundation, David Hogan, and Nica Knite ("Plaintiffs") challenge the decision of the Bureau of Indian Affairs ("BIA") to approve an industrial-scale wind facility in Southern California. The district court granted summary judgment to Defendant BIA officials, Defendant-Intervenor Tule Wind, LLC ("Tule"), and Defendant-Intervenor Ewiiaapaayp Band of Kumeyaay Indians ("the Tribe") (collectively, "Defendants"). We affirm.

I

Tule plans to construct eighty-five wind turbines about sixty miles east of San Diego, California. During the planning and approval process, the project was split into two phases. Phase I concerned sixty-five turbines constructed on federal land in a valley and required approval from the Bureau of Land Management ("BLM"), which is responsible for granting rights-of-way for use of federal lands. Phase II concerned twenty turbines on the Tribe's reservation on ridgelines above the valley. Phase II required approval from BIA, which serves as a trustee for federally recognized Indian tribes.

Before BLM and BIA approved the respective phases, the agencies were required to analyze environmental impacts under the National Environmental Protection Act ("NEPA"), 42 U.S.C. §§ 4321 et seq. BLM prepared an environmental impact statement ("EIS") that covered both phases.

Among other environmental impacts, the EIS expressly identified an "unavoidable adverse impact" to golden eagles from collisions with the turbines and loss of breeding territory, impacts that were especially acute for the Phase II turbines. The EIS considered five project alternatives for the Tule project, including one that would eliminate 63 turbines, including all of the Phase II turbines, from the 128 that were originally proposed.

For Phase I, Tule drafted a Project-Specific Avian and Bat Protection Plan ("Protection Plan") that described possible means of mitigating bird and bat impacts in detail. Relying on that plan and the EIS, BLM approved Phase I. Importantly, that approval survived review in this court. See Protect Our Communities Found. v. Jewell , 825 F.3d 571, 577 (9th Cir. 2016) [hereinafter "Protect Our Communities I "].

For Phase II, Tule drafted a Supplemental Project-Specific Avian and Bat Protection Plan ("Supplemental Protection Plan") that included updated eagle surveys and described measures to document and avoid bird impacts. The Supplemental Protection Plan concluded that, with mitigation measures, Phase II could "meet the current no-net loss standard for local breeding eagle populations." BIA made the Supplemental Protection Plan available for public comment. The United States Fish and Wildlife Service ("FWS"), among other entities, criticized the Supplemental Protection Plan's methodologies and conclusion.

BIA approved Phase II in a Record of Decision ("ROD") that relied on BLM's EIS and Tule's Supplemental Protection Plan. The ROD adopted several mitigation measures designed to avoid impacts to golden eagles. These mitigation measures included a requirement that before operating, Tule had to apply for an eagle take permit under the Bald and Golden Eagle Protection Act ("BGEPA"), 16 U.S.C. § 668.

Plaintiffs challenged BIA's approval in the district court, asserting three alleged errors. The district court granted Defendants' motion for judgment on the pleadings on two of the claimed errors and granted Defendants' motions for summary judgment on the third. Plaintiffs timely appealed.

II

A district court's grant of summary judgment is reviewed de novo. United States v. City of Tacoma , 332 F.3d 574, 578 (9th Cir. 2003). Dismissal on the pleadings pursuant to Rule 12(c) is also reviewed de novo. See Daewoo Elecs. Am. Inc. v. Opta Corp. , 875 F.3d 1241, 1246 (9th Cir. 2017).

Under the Administrative Procedure Act ("APA"), we review agency action to determine whether it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). An agency acts in an "arbitrary and capricious" manner when it "relie[s] on factors which Congress has not intended it to consider, entirely fail[s] to consider an important aspect of the problem, offer[s] an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it c[an]not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).

As a general rule, we will "uphold agency decisions so long as the agencies have ‘considered the relevant factors and articulated a rational connection between the factors found and the choices made.’ " City of Sausalito v. O'Neill , 386 F.3d 1186, 1206 (9th Cir. 2004) (quoting Selkirk Conservation All. v. Forsgren , 336 F.3d 944, 953–54 (9th Cir. 2003) ).

In addition to APA challenges, Plaintiffs raise challenges under NEPA. NEPA requires agencies to prepare an EIS for "major Federal actions significantly affecting the quality of the human environment."

42 U.S.C. § 4332(2)(C). The EIS must contain, among other things, a detailed discussion of "the environmental impact of the proposed action," "adverse environmental effects which cannot be avoided," "alternatives to the proposed action," and possible mitigation measures. Id. ; 40 C.F.R. § 1502.16. If multiple federal agencies are "involved in the same action" or "involved in a group of actions directly related to each other," then "[a] lead agency shall supervise" the EIS preparation, or the agencies may act as joint lead agencies. 40 C.F.R. § 1501.5.

After finalizing the EIS, the agency must select a course of action within the range of alternatives analyzed and issue an ROD. Id. § 1505.1. The ROD explains why the agency chose a particular alternative, whether all practical means for avoiding or minimizing environmental harm have been adopted, and, if not, why not. See id. § 1505.2.

NEPA requires these procedural steps but does not require an agency to reach any particular result. Hells Canyon All. v. U.S. Forest Serv. , 227 F.3d 1170, 1177 (9th Cir. 2000). Rather, compliance with NEPA involves the application of a "rule of reason," which involves "a pragmatic judgment whether the EIS's form, content, and preparation foster both informed decision-making and informed public participation." Churchill Cty. v. Norton , 276 F.3d 1060, 1071 (9th Cir. 2001) (quoting California v. Block , 690 F.2d 753, 761 (9th Cir. 1982) ).

Nevertheless, a reviewing court will ensure that the agency took a "hard look" at the EIS to determine whether it "contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences." Id. at 1071–72 (quotation marks omitted). NEPA favors "coherent and comprehensive up-front environmental analysis to ensure ... that the agency will not act on incomplete information, only to regret its decision after it is too late to correct." Id. at 1072–73 (quotation marks omitted).

III

A

BIA relied on BLM's EIS, which addressed both Phase I and Phase II, to satisfy its NEPA review requirement. See 42 U.S.C. § 4332(2)(C). Plaintiffs contend that that reliance was improper because BIA did not explain its decision to not implement one of the EIS's listed mitigation measures, MM BIO-10f. That measure provides:

Authorize construction of portions of the project based on the results of behavioral and population studies of local golden eagles: Construction of [Phase II] would occur at those turbine locations that show reduced risk to the eagle population following analysis of detailed behavior studies of known eagles in the vicinity of the Tule Wind project. Pending the outcome of eagle behavior studies, all, none, or part of the second portion of the project would be authorized. ... The final criteria determining the risk each location presents to eagles will be determined [by BIA] in consultation with the required resource agencies, tribes, and other relevant permitting agencies .... Turbine locations exceeding the acceptable risk levels to golden eagles based on these final criteria will not be authorized for construction.

Defendants respond that in fact BIA did follow the command of this mitigation measure and, for that reason, did not need to explain its decision not to implement it. We agree. First, BIA considered whether to "authorize construction of portions of the project,"...