Union Neighbors United, Inc. v. Jewell

• Decision Date: 17 March 2015
• Docket Number: Civil Case No. 13–01435 RJL
• Citation: 83 F.Supp.3d 280
• Parties: Union Neighbors United, Inc., Plaintiff, v. S.M.R. Jewell, et al., Defendants.
• Court: U.S. District Court — District of Columbia

83 F.Supp.3d 280

Union Neighbors United, Inc., Plaintiff

v.S.M.R. Jewell, et al., Defendants.

Civil Case No. 13–01435 RJL

United States District Court, District of Columbia.

Signed March 17, 2015

Filed March 18, 2015

W. William Weeks, Jeffrey B. Hyman, Bloomington, IN, for Plaintiff.

Bridget Kennedy McNeil, U.S. Department of Justice, Denver, CO, Kenneth Dean Rooney, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

[Dkt. # # 35, 37, 38]

RICHARD J. LEON, United States District Judge

Plaintiff Union Neighbors United, Inc. (“plaintiff” or “Union Neighbors”),¹ brought this action against Sally Jewell in her official capacity as the Secretary of the United States Department of the Interior (“DOI”), Daniel Ashe in his official capacity as Director of the United States Fish and Wildlife Service (“FWS” or “Service”), and Tom Melius, in his official capacity as Regional Director for the Midwest Region of the FWS (together “defendants”) on September 20, 2013, challenging defendants' final approval and issuance of an incidental take permit for the killing of endangered Indiana bats at the Buckeye Wind Power Project in Ohio.See Complaint at ¶¶ 1–3 (“Compl.”) [Dkt. # 1]. Plaintiff claims that defendants' issuance of an incidental take permit violated the Administrative Procedure Act, 5 U.S.C. §§ 701 –706, the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq., and the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531 et seq., as arbitrary and capricious, an abuse of discretion, and not in accordance with the ESA's requirement that an applicant will, to the maximum extent practicable, minimize and mitigate the impacts of a taking. See Pl.'s Mem. of Law in Support of Pl.'s Mot. for Summary Judgment (“Pl.'s Mem.”) [Dkt. # 35–1] at 1–3. Now before the Court are plaintiff's Motion for Summary Judgment (“Pl.'s Mot.”) [Dkt. # 35], defendants Jewell, Ashe, and Mellius (the “federal defendants”) Cross Motion for Summary Judgment [Dkt. # 38], and defendant-intervenor Buckeye Wind, LLC's Cross Motion for Summary Judgment [Dkt. # 37].² After due consideration of the parties' pleadings, the relevant law, and the entire record in this case, the Court agrees with defendants that the incidental take permit was issued in accordance with the law. Accordingly, the defendants' motions for summary judgment are GRANTED, the plaintiff's motion for summary judgment is DENIED, and the case is DISMISSED.

FACTUAL BACKGROUND

The Indiana bat is a medium-sized migratory bat found in much of the eastern half of the United States with major populations hibernating in Indiana, Kentucky, and Missouri, as well as smaller populations hibernating in other states such as Ohio. AR 49774.³ The Indiana bat was listed as an endangered species in 1967 due to large decreases in population size and an apparent lack of winter habitat. 32 Fed.Reg. 4,001 (Mar. 11, 1967) ; AR 49775. There are many ongoing threats to the Indiana bat, including diseases such as white nose syndrome as well as the relatively new threat of wind turbines. AR 49781–82.

Under development since 2006, the Buckeye Wind Project (the “Project”) is planned to be a 100–turbine wind generation facility in west-central Champaign County, Ohio, that will generate 657,000 megawatt hours of electricity annually. AR 47741–42, 47749. Although there are no Indiana bat hibernacula in the immediate area, summer resident bats occur within the vicinity of the Project in June and July, and Indiana bats travel through the area during the spring (April and May) and fall (August through October) as part of their migration to and from hibernacula. AR 47737.⁴ Because the operation of the turbines has the potential to injure or kill individual bats, Buckeye Wind applied for an ESA Section 10 Incidental Take Permit (“ITP”) and the Project was subjected to a NEPA analysis, which resulted in an environmental impact statement (“EIS”).

In the habitat conservation plan (“HCP”) submitted by Buckeye Wind as part of its ITP application, an operational scheme was proposed to minimize injury or death to individual bats through the use of higher cut-in speeds that are “feathered.” The cut-in speed is the wind speed at which the turbines begin rotating and producing power. When turbines are “feathered,” they do not rotate below the increased cut-in speed. AR 47738. While the general risk of bat species collision with turbine blades is well-documented, there is little specific data on the risk of Indiana bat collision or what operational speeds would reduce that risk. AR 47855. Accordingly, Buckeye Wind developed a collision risk model based on the available literature, expert opinion, and site-specific empirical data.Id.⁵ Using studies on the effectiveness of feathering and cut-in speeds, the Project proposal resulted in a take estimate of about 5.2 bats per year using feathered cut-in speeds ranging between 3 m/s and 6 m/s depending on habitat sensitivity and season. AR 47860.⁶ The Project proposal also included measures to mitigate the impacts of the takes, such as the acquisition and protection of 217 acres of habitat within seven miles of a “Priority 2”⁷ hibernaculum in Ohio. AR 47911.

The Service considered three action alternatives in addition to a no-action alternative in its EIS analysis. First, the Service considered Buckeye Wind's proposal of feathered cut-in speeds, as described above, that vary based on habitat sensitivity and season. See AR 45818–37. Second, the Service evaluated the maximally restrictive alternative that required full turbine curtailment at night for a seven month period, thereby eliminating altogether the take of Indiana bats. See AR 45837–38. Third, the Service considered a minimally restrictive alternative that required a 5.0 m/s cut-in speed from August through October, the timeframe when most bats of all species are killed. See AR 45838.

On July 17, 2013, the Service issued its findings with respect to the Section 10 ITP application based on the analyses from the habitat conservation plan, biological opinion,⁸ and environmental impact statement. The Service explained that the statutory standard requires minimization of impacts of the proposed taking to the maximum extent practicable and then mitigation of any remaining impacts to the maximum extent practicable. AR 49964. The Service further explained that these standards are based on a biological determination of the impacts of the project, what would further minimize those impacts, and what would biologically compensate for the remaining impacts. Id. The Service's interpretation of the standard is that it is

the Service's obligation to provide or approve a biologically based suite of avoidance, minimization, and mitigation options that allow the applicant to fully neutralize and/or compensate for the impacts of the taking. If the applicant provides these minimization measures and mitigation measures that are fully commensurate with the level of impacts, then it has met that issuance criterion and detailed discussion of ‘practicability’ is not required.

AR 49964–65 (emphasis added). The Service found that the Project met the required standard, explaining that the feathered cut-in speeds are the “strictest operational protocols,” provide the highest quality habitat areas during the seasonal periods of highest risk, and provide “avoidance measures that are commensurate with potential risk to Indiana bats.” AR 49965. Based on the take estimated to occur from this operational plan, Buckeye Wind was approved for a five-year take limit of 26 individual takes or 130 individual takes over a 25 year period. AR 50040–42, 47861.

LEGAL STANDARDS

I. Standard of Review

Summary judgment is appropriate when the pleadings and the record demonstrate that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(C). The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In this case, where cross-motions for summary judgment are at issue, the Court draws all reasonable inferences regarding the assertions made in a light favorable to the non-moving party. Flynn v. Dick Corp., 384 F.Supp.2d 189, 192 (D.D.C.2005). The Court will “grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed.” Consumer Fed'n of Am. v. U.S. Dep't of Agric., 383 F.Supp.2d 1, 3 (D.D.C.2005).

II. Standard of Review for Agency Actions Pursuant to ESA and NEPA

FWS's actions are reviewed by this Court in accordance with the judicial review provisions of the Administrative Procedure Act. NRDC v. Daley, 209 F.3d 747, 752 (D.C.Cir.2000) ; Gerber v. Norton, 294 F.3d 173, 178 n. 4 (D.C.Cir.2002) ; Tulare County v. Bush, 306 F.3d 1138, 1143 (D.C.Cir.2002). When doing so, the Court must determine whether the challenged decision is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). In making this inquiry, the Court “ ‘consider[s] whether the [agency's] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park, 401 U.S. 402, 415–16, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). At a minimum, the agency must have weighed the relevant data and articulated an explanation that establishes a “rational connection between the facts found and the choice made.” Bowen v. Am. Hosp. Ass'n, 476 U.S. 610, 626, 106 S.Ct. 2101, 90 L.Ed.2d 584 (1986). In the final analysis, an agency decision is arbitrary and capricious if the agency:

has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to evidence

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