meyer glitzenstein & eubanks llp william s. … · michael black, director, bureau ... new...

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MEYER GLITZENSTEIN & EUBANKS LLP William S. Eubanks II, DC Bar No. 987036 (pro hac vice) [email protected] 245 Cajetan Street Fort Collins, CO 80524 Telephone: (970) 703-6060 Facsimile: (202) 588-5049 Eric Glitzenstein, DC Bar No. 358287 (pro hac vice) [email protected] 4115 Wisconsin Ave. N.W. Suite 210 Washington, DC 20016 Telephone: (202) 588-5206 Facsimile: (202) 588-5049 Attorneys for Plaintiffs PROTECT OUR COMMUNITIES FOUNDATION, DAVID HOGAN, and NICA KNITE

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

PROTECT OUR COMMUNITIES FOUNDATION, DAVID HOGAN, and NICA KNITE,

Plaintiffs,

v. MICHAEL BLACK, Director, Bureau of Indian Affairs; SALLY JEWELL, Secretary, Department of the Interior; KEVIN WASHBURN, Assistant Secretary for Indian Affairs, Department of the Interior; 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.

Case No. 3:14-cv-02261-JLS-JMA Plaintiffs’ Memorandum Of Points And Authorities In Support Of Their Motion For Summary Judgment

Hearing Date: Feb. 16, 2017

Time: 1:30 p.m.

Place: 4A

Judge: Hon. Janis L. Sammartino

Case 3:14-cv-02261-JLS-JMA Document 59-1 Filed 09/09/16 PageID.768 of 51

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TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ................................................................................... iv INTRODUCTION .................................................................................................... 1 BACKGROUND ...................................................................................................... 2

A. PERTINENT LEGAL BACKGROUND .................................. 2

1. Administrative Procedure Act ......................................... 2

2. NEPA ............................................................................... 2

B. PERTINENT FACTUAL BACKGROUND ............................. 5

1. The Tule Wind Project .................................................... 5

2. BLM’s December 2011 ROD Authorizing Tule Wind

Phase I ............................................................................. 6

3. BIA’s September 2012 Tule Wind Phase II NOA .......... 9

4. BIA’s December 2013 Tule Wind Phase II ROD ......... 13

5. Plaintiffs’ Lawsuit And Proceedings To Date .............. 16

LEGAL STANDARD ............................................................................................ 17 ARGUMENT .......................................................................................................... 18

I. BIA VIOLATED NEPA BY RELYING ON BLM’S EIS UNDER THE CIRCUMSTANCES, RATHER THAN PREPARING ITS OWN INDEPENDENT NEPA REVIEW IN CONNECTION WITH ITS LEASE APPROVAL TO TULE WIND LLC. ........................................................ 18

A. BECAUSE BIA AUTHORIZED ACTIVITIES IN A MANNER

DIRECTLY AT ODDS WITH BLM’S OCTOBER 2011 EIS,

BIA’S LEASE APPROVAL REQUIRED INDEPENDENT

NEPA REVIEW TO ANALYZE THIS ACTION. ................. 18

B. BECAUSE BLM’S OCTOBER 2011 EIS DOES NOT

CONSIDER A REASONABLE RANGE OF ALTERNATIVES

WITH RESPECT TO TULE WIND PHASE II, BIA WAS

OBLIGATED TO PREPARE NEPA REVIEW IN

CONNECTION WITH ITS LEASE APPROVAL. ................ 24


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II. EVEN IF IT WERE APPROPRIATE UNDER THE CIRCUMSTANCES

FOR BIA TO RELY ON BLM’S OCTOBER 2011 EIS, BIA WAS

NEVERTHELESS OBLIGATED TO PREPARE SUPPLEMENTAL

NEPA REVIEW TO ANALYZE SIGNIFICANT POST-2011 DATA

AND INFORMATION, AS WELL AS SUBSTANTIAL CHANGES IN

THE PROJECT DESIGN, BEFORE APPROVING THE LEASE. .......... 29

A. CRITICAL NEW INFORMATION RELEVANT TO

ENVIRONMENTAL CONCERNS AND BEARING ON BIA’S

ACTION AND ITS IMPACTS TRIGGERED BIA’S DUTY TO

PREPARE SUPPLEMENTAL NEPA REVIEW TO UPDATE

THE OCTOBER 2011 EIS. ..................................................... 30

B. SUBSTANTIAL CHANGES IN THE PROJECT

CONFIGURATION ALSO TRIGGERED BIA’S DUTY TO

PREPARE SUPPLEMENTAL NEPA REVIEW. .................. 37

III. BY RELYING ON BLM’S EIS AND PREPARING NO INDEPENDENT NEPA REVIEW IN CONNECTION WITH ITS DECEMBER 2013 ROD, BIA VIOLATED NEPA’S PUBLIC DISCLOSURE AND PUBLIC PARTICIPATION REQUIREMENTS. .................................................................................... 40

CONCLUSION ....................................................................................................... 44


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iv

TABLE OF AUTHORITIES

CASES PAGE

Ariz. Cattle Growers Ass’n. v. U.S. Fish & Wildlife Serv., 273 F.3d 1229 (9th Cir. 2001) ................................................................................. 2

Baltimore Gas and Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87 (1983) ............................................................................................... 3, 4

Center for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157 (9th Cir. 2003) ............................................................................... 43

Citizens for a Better Henderson v. Hodel, 768 F.2d 1051 (9th Cir. 1985) ............................................................................... 25

City of Sausalito v. O’Neill, 386 F.3d 1186 (9th Cir. 2004) ............................................................................... 42

Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975) ................................................................................. 43

Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752 (2004) ............................................................................................. 2, 3

Dubois v. U.S. Dep’t of Agric., 102 F.3d 1273 (1st Cir. 1996) ................................................................................ 40

Envtl. Def. Fund v. Marsh, 651 F.2d 983 (5th Cir. 1981) ................................................................................. 38

Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 234 Fed. Appx. 440 (9th Cir. 2007) ...................................................................... 27

Friends of Animals v. BLM, CV-15-59, 2016 WL 4082631 (D. Mont. July 29, 2016) ...................................... 20

Friends of the Clearwater v. Dombeck, 222 F.3d 552 (9th Cir. 2000) ..................................................................... 31, 34, 42

Friends of the Earth v. Hall, 693 F. Supp. 904 (W.D. Wash. 1988) ................................................................... 43

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000) ............................................................................................... 18

Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024 (9th Cir. 2008) ......................................................................... 25, 26

Idaho Sporting Cong. Inc. v. Alexander, 222 F.3d 562 (9th Cir. 2000) ........................................................................... 26, 34


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v

League of Wilderness Defenders / Blue Mountains Biodiversity Project v. Connaughton, No. 3:12-cv-2271, 2014 WL 697761119 (D. Or. Dec. 9, 2014) ........................... 43

Lee v. U.S. Air Force, 220 F. Supp. 2d 1229 (D.N.M. 2002) .................................................................... 20

Marsh v. Or. Natural Res. Council, 490 U.S. 360 (1989) ......................................................................... 5, 30, 31, 35, 38

Massachusetts v. Watt, 716 F.2d 946 (1st Cir. 1983) .................................................................................. 38

Metcalf v. Daley, 214 F.3d 1135 (9th Cir. 2000) ............................................................................... 23

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ........................................................................................... 17, 23

Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800 (9th Cir. 1999) ..................................................................... 25, 26, 29

Neighbors United, Inc. v. Jewell, No. 15-5147, __ F.3d ___, 2016 WL 4151237 (D.C. Cir. Aug. 5, 2016) ............. 28

New England Coal. on Nuclear Pollution v. NRC, 727 F.2d 1127 (D.C. Cir. 1984) ............................................................................. 22

New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683 (10th Cir. 2009) ......................................................................... 40, 42

Portland Audubon Soc’y v. Babbitt, 998 F.2d 705 (9th Cir. 1993) ................................................................................. 36

Protect Our Communities Found. v. Jewell, 825 F.3d 571 (9th Cir. 2016) ............................................................................. 9, 37

Protect Our Communities Found. v. Jewell, No. 13-cv-575, 2014 WL 1364453 (S.D. Cal. Mar. 25, 2014) ............................... 9

Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) ............................................................................................... 41

Sierra Club v. Jacobs, No. 04-cv-374, 2005 WL 6247793 (S.D. Tex. Sept. 30, 2005) ............................ 20

Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549 (9th Cir. 2006) ................................................................................. 38

Tyler v. Cisneros, 136 F.3d 603 (9th Cir. 1998) ................................................................................. 20

W. Watersheds Project v. Abbey, 719 F.3d 1035 (9th Cir. 2013) ............................................................................... 25


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Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017 (9th Cir. 1980) ......................................................................... 31, 36

STATUTES

5 U.S.C. § 706 ........................................................................................................ 2, 17

16 U.S.C. §§ 668-668d ................................................................................................ 1

16 U.S.C. §§ 703-712 .................................................................................................. 1

42 U.S.C. §§ 4321-4370m ........................................................................................... 1

REGULATIONS

40 C.F.R. § 1500.2 ................................................................................................. 4, 41

40 C.F.R. § 1500.3 ....................................................................................................... 3

40 C.F.R. § 1501.5 ....................................................................................................... 4

40 C.F.R. § 1501.6 ....................................................................................................... 4

40 C.F.R. § 1502.2(g) ................................................................................................ 23

40 C.F.R. § 1502.9(b) ................................................................................................ 43

40 C.F.R. § 1502.9(c)(1) ................................................................ 5, 30, 32, 35, 37, 40

40 C.F.R. § 1505.2 ....................................................................................................... 4

40 C.F.R. § 1505.3 ................................................................................................. 5, 20

40 C.F.R. § 1508.8 ....................................................................................................... 4

40 C.F.R. § 1508.26 ................................................................................................... 36

OTHER AUTHORITIES

46 Fed. Reg. 18026 (Mar. 23, 1981) ................................................................... 4, 23, 30


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INTRODUCTION

Plaintiffs Protect Our Communities Foundation (“POC”), David Hogan, and

Nica Knite challenge the Bureau of Indian Affairs’ (“BIA”) December 16, 2013

Record of Decision (“ROD”) approving a lease to Tule Wind LLC to construct and

operate twenty industrial wind turbines on a ridgeline on the Ewiiaapaayp Indian

Reservation administered by BIA in San Diego County, California (“the project” or

“Tule Wind Phase II”). According to the U.S. Fish and Wildlife Service (“Service”

or “FWS”)—the expert federal wildlife agency that Congress tasked with

administering the Bald and Golden Eagle Protection Act (“BGEPA”), 16 U.S.C. §§

668-668d, and the Migratory Bird Treaty Act (“MBTA”), 16 U.S.C. §§ 703-712—

this project, as approved by BIA, presents an extremely high risk to federally

protected golden eagles, is anticipated to kill many golden eagles during the

project’s lifespan, and is highly likely to cause the loss of at least one golden eagle

breeding territory. In addition, this project will also kill many federally protected

migratory birds, such as red-tailed hawks.

Despite the exceptionally high risk that this project poses to federally

protected golden eagles and migratory birds, BIA issued its December 2013 ROD

and the associated lease without conducting any independent review whatsoever

under the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370m.

Instead, in authorizing Tule Wind Phase II, BIA relied entirely on an October 2011

Environmental Impact Statement (“EIS”) prepared by a different agency—the

Bureau of Land Management (“BLM”)—and in the process ignored critically

important information and recommendations concerning the project’s impacts and

configuration that the Service provided to BIA after BLM completed its October

2011 EIS. Due to the existence of this significant new information concerning the

project’s impacts to eagles and reasonable alternatives to the project layout that were

never considered in any prior NEPA document by BLM or any other agency, as well

as other reasons described below, BIA’s failure to prepare any independent NEPA


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review in connection with its December 2013 ROD was arbitrary and capricious,

and contrary to NEPA and its implementing regulations. Accordingly, this Court

should set aside the December 2013 lease approval and ROD, and remand to BIA

for further proceedings consistent with NEPA.

BACKGROUND

The following legal and factual background is necessary to place Plaintiffs’

NEPA claims in proper context.

A. Pertinent Legal Background

1. Administrative Procedure Act

Pursuant to the Administrative Procedure Act (“APA”), a “reviewing court

shall . . . hold unlawful and set aside agency action . . . found to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law. . . [or]

without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (D). The

Ninth Circuit has held that under the APA, “[j]udicial review is meaningless . . .

unless [courts] carefully review the record to ensure that agency decisions are

founded on a reasoned evaluation of the relevant factors.” Ariz. Cattle Growers

Ass’n. v. U.S. Fish & Wildlife Serv., 273 F.3d 1229, 1236 (9th Cir. 2001).

Accordingly, courts “must not rubber-stamp administrative decisions that they deem

inconsistent with a statutory mandate or that frustrate the congressional policy

underlying a statute.” Id.

2. NEPA

Congress enacted NEPA more than four decades ago “[t]o declare a national

policy which will encourage productive and enjoyable harmony between man and

his environment; [and] to promote efforts which will prevent or eliminate damage to

the environment . . . .” 42 U.S.C. § 4321. In light of this mandate, the Supreme

Court has explained that NEPA is “intended to reduce or eliminate environmental

damage and to promote ‘the understanding of the ecological systems and natural

resources important to’ the United States.” Dep’t of Transp. v. Pub. Citizen, 541


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U.S. 752, 756 (2004) (quoting 42 U.S.C. § 4321). The Court has further explained

that “NEPA has twin aims . . . [of] plac[ing] upon an agency the obligation to

consider every significant aspect of the environmental impact of a proposed action

. . . [and of] ensur[ing] that the agency will inform the public that it has indeed

considered environmental concerns in its decisionmaking process.” Baltimore Gas

and Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97 (1983).

To achieve NEPA’s substantive goals, Congress created specific mechanisms

whereby federal agencies must evaluate the environmental and related impacts of,

and reasonable alternatives to, a particular federal action. The regulations

implementing NEPA define two such mechanisms as the Environmental Impact

Statement (“EIS”) and the Environmental Assessment (“EA”). These procedural

mechanisms are designed to inject environmental considerations “in the agency

decisionmaking process itself,” and to “‘help public officials make decisions that are

based on understanding of environmental consequences, and take actions that

protect, restore, and enhance the environment.’” Pub. Citizen, 541 U.S. at 768-69

(emphasis added) (quoting 40 C.F.R. § 1500.1(c)). Therefore, “NEPA’s core focus

[is] on improving agency decisionmaking,” Pub. Citizen, 541 U.S. at 769 n.2, and

specifically on ensuring that agencies take a “hard look” at potential environmental

impacts and environmentally enhancing alternatives—and publicly disclose all such

information in order to foster meaningful public participation—“as part of the

agency’s process of deciding whether to pursue a particular federal action.”

Baltimore Gas, 462 U.S. at 100.

The Council on Environmental Quality (“CEQ”) has promulgated regulations

implementing NEPA that are “binding on all Federal agencies.” 40 C.F.R. § 1500.3.

These regulations provide that the agency’s alternatives analysis “is the heart” of an

EIS or EA. Id. § 1502.14. The regulations require that the decisionmaking agency

“present the environmental impacts of the proposal and the alternatives in

comparative form, thus sharply defining the issues and providing a clear basis for


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choice among options by the decisionmaker and the public.” Id. In addition to

analyzing reasonable alternatives to the proposed action, an EIS or EA must

thoroughly analyze the direct, indirect, and cumulative environmental impacts of the

proposed action and any alternatives considered by the agency. See id. § 1508.8.

Federal agencies “shall to the fullest extent possible . . . encourage and

facilitate public involvement in decisions which affect the quality of the human

environment.” 40 C.F.R. § 1500.2. The discovery of significant new circumstances

or information must be made “available to public officials and citizens before

decisions are made and before actions are taken,” because “public scrutiny [is]

essential to implementing NEPA.” Id. § 1500.1(b) (emphases added). “In the case

of an action with effects of national concern notice shall include publication in the

Federal Register,” as well as other means of reasonably informing the interested

public of the proposed decision. Id. § 1506.6(b). At the conclusion of the NEPA

process—once all minimization and mitigation measures have been considered and

certain measures have been adopted as enforceable conditions of the decision under

review—the agency issues a ROD. See id. § 1505.2.

Where more than one agency has jurisdiction over portions of a federal

project, the agencies may work collaboratively with one agency serving as the “lead

agency” and all other agencies serving as “cooperating agencies.” See 40 C.F.R. §§

1501.5, 1501.6. As CEQ has explained, “[a] cooperating agency with jurisdiction

by law . . . has an independent legal obligation to comply with NEPA.” Forty Most

Asked Questions Concerning CEQ’s NEPA Regulations (“Forty Questions”), 46

Fed. Reg. 18026, 18035 (Mar. 23, 1981). “[I]f the cooperating agency determines

that the [lead agency’s] EIS is wrong or inadequate, it must prepare a supplement to

the EIS, replacing or adding any needed information, and must circulate the

supplement as a draft for public and agency review and comment.” Id. Thus, “[a]

final supplemental EIS would be required before the agency could take action.” Id.

“A cooperating agency with jurisdiction by law will have to prepare its own Record


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of Decision for its action, in which it must explain how it reached its conclusions.”

Id. “Each agency should explain how and why its conclusions differ, if that is the

case, from those of other agencies which issued their Records of Decision earlier.”

Id. Further, the CEQ regulations dictate that “[m]itigation and other conditions

established in the environmental impact statement or during its review and

committed as part of the decision shall be implemented by the lead agency or other

appropriate consenting agency.” 40 C.F.R. § 1505.3.

When a federal action or its impacts present “significant new circumstances

or information relevant to environmental concerns and bearing on the proposed

action or its impacts” or “[t]he agency makes substantial changes in the proposed

action that are relevant to environmental concerns,” the agency must supplement a

pre-existing EIS or EA, regardless of whether that NEPA document was prepared by

the agency itself or by a lead agency in which this agency participated as a

cooperating agency. 40 C.F.R. § 1502.9(c)(1). “Whether to prepare a supplemental

EIS is similar to the decision whether to prepare an EIS in the first instance: If there

remains ‘major Federal action’ to occur, and if the new information is sufficient to

show that the remaining action will ‘affect the quality of the human environment’ in

a significant manner or to a significant extent not already considered, a

supplemental EIS must be prepared.” Marsh v. Or. Natural Res. Council, 490 U.S.

360, 374 (1989).

B. Pertinent Factual Background

1. The Tule Wind Project

The Tule Wind Project is proposed for construction in southeastern San Diego

County. See TULE9756.1 The Tule Wind Project comprises two distinct

components—a 65-turbine project that BLM authorized in December 2011 on

BLM-administered lands in the McCain Valley (“Tule Wind Phase I”), see

1 All administrative record citations refer to the Bates-stamped pages of the record lodged with the Court by Federal Defendants as follows: TULEXXXX (single page cited) or TULEXXXX-XX (multiple pages cited).


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TULE9789, and the 20-turbine project that BIA separately authorized in December

2013 on trust lands administered by BIA for the Ewiiaapaayp Band of Kumeyaay

Indians (“Tribe”) on ridgelines located above the McCain Valley (“Tule Wind Phase

II”) which is the subject of this lawsuit, see TULE105453-54.

Initially, BLM intended to serve as the lead agency authorizing both phases of

the Tule Wind Project for a combined build-out of up to 134 turbines on lands

administered by BLM, BIA, and California state agencies. See TULE6986.

However, as explained below, after FWS expressed concerns that the proposed

ridgeline turbines would kill many golden eagles, BLM deliberately chose not to

authorize any turbines on BIA trust land and instead ultimately ceded responsibility

to BIA for authorizing Tule Wind Phase II. See TULE9756 (“Through this ROD,

the BLM makes no decision regarding those portions of the Tule Wind Project that

are not located on BLM-managed lands.”)

2. BLM’s December 2011 ROD Authorizing Tule Wind Phase I

In November 2010, BLM issued its Draft EIS, which analyzed five

alternatives for the Tule Wind project, four of which proposed constructing all 134

turbines (including all 18 turbines proposed on the tribal ridgeline) and one

alternative proposing to reduce the overall turbine layout by eliminating 62 turbines,

including all of those on the tribal ridgeline. See TULE6995-96. With regard to the

ridgeline turbines, none of the Draft EIS alternatives considered modifications to the

project’s layout or any other alternatives that could avoid or minimize those

turbines’ lethal impacts on eagles, birds, and other wildlife. Id. Ultimately, BLM’s

Draft EIS selected a preferred alternative that did not authorize any turbines on the

tribal ridgeline because under that alternative “impacts to golden eagles would be

reduced with the removal of turbines within areas considered high risk [for] any

known active golden eagle nest”—i.e., the ridgeline on BIA trust lands. TULE7001.

BLM acknowledged that “[t]he proximity of active golden eagle nests to the


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proposed turbines in the western portion of the project area makes it probable that an

adult or juvenile eagle could collide with the turbines at some point within the

lifetime of the project”; thus, “[i]n the worst case, this western area of the project

could become a continuing sink for golden eagles attempting to use nesting sites

west of the project area.” TULE7492. BLM therefore explained that “[t]his

alternative would reduce impacts to golden eagles by siting turbines farther away

from nesting eagles,” and would avoid the potential loss of the Canebrake eagle

territory. TULE7001.

Plaintiff POC, FWS, and others submitted comments on the Draft EIS

criticizing the Tule Wind Project and in particular the high risk posed to golden

eagles by the project’s tribal ridgeline turbines. See, e.g., TULE20611-31. In

response to these comments, and in consultation with the Service, BLM, BIA, and

Tule Wind LLC decided to divide the project into two separate phases with BLM

authorizing turbines on its lands in the McCain Valley and BIA being responsible

for any subsequent review or authorization of turbines on the ridgeline’s tribal trust

land, with the specific duty to “avoid[] or offset” adverse effects to golden eagles.

See TULE21774 (explaining that Tule Wind LLC “agreed to phase the project”

whereby “[t]he second (northern) phase would be built if and when monitoring

results and/or conservation measures indicate that [eagle] take would either avoided

or offset” because “[t]he Service believes that phasing the project in this manner

would substantially reduce the risk of take of golden eagles”).

On October 14, 2011, BLM issued its Tule Wind Phase I Final EIS, see

TULE1-5877, for which BIA served as a cooperating agency, see TULE6. The EIS

reiterated the risks to eagles—particularly on the ridgeline on BIA trust land, see,

e.g., TULE620—and endorsed as the preferred BLM action a reduced turbine

alternative authorizing construction only of 65 turbines in the McCain Valley (i.e.,

Phase I) but specifically not authorizing any turbines on the ridgeline administered

by BIA on behalf of the Tribe. TULE89-90. The only alternatives considered in the


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Final EIS with respect to the Tule Wind Project other than the preferred alternative

(which contemplated zero turbines on the tribal ridgeline) would have contained 128

turbines, including all 18 turbines on the tribal ridgeline. TULE74-76. None of the

alternatives considered any number of turbines between the minimum number (zero)

and the maximum number (18) of turbines on the tribal ridgeline, nor did any

alternative specifically consider macrositing changes (i.e., moving the entire

ridgeline turbine project to a new location) or micrositing changes (i.e., eliminating

or at least moving the location of specific turbines within the ridgeline project

footprint) which could reduce the grave risk to eagles. In the Final EIS, BLM

explained that “[t]urbines removed under this alternative include the turbines

presenting high risk of collision for golden eagles based on topography, landforms,

and distance to known active nests.” TULE672. “Removed turbines were those

turbines along the entire northwestern ridgeline east of the known active golden

eagle territories within the potential use areas of these eagles.” Id. BLM’s Final

EIS also emphasized the high mortality risk to other migratory birds if the ridgeline

turbines were ultimately constructed. TULE672-73.

One of the key mitigation measures that BLM built into its EIS to bring the

project’s environmental impacts to a permissible level—identified as “MM BIO-

f10”—was that “[c]onstruction of the Tule Wind project would be authorized in two

portions.” TULE624. Importantly, as part of that mitigation measure, BLM—and

BIA as a cooperating agency on the Final EIS—explained:

Construction of the second portion of the project 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 the BLM or the

appropriate land management agency, in consultation with the required

resource agencies, tribes, and other relevant permitting entities . . . .


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Turbine locations exceeding the acceptable risk levels to golden eagles

based on these final criteria will not be authorized for construction.

TULE624-25 (emphases added). In other words, BLM and BIA committed in the

October 2011 Final EIS that BIA would not subsequently authorize any ridgeline

turbines for construction until and unless the relevant resource agency—FWS—

determined that each turbine location would not pose an unacceptable level of risk

to golden eagles. Id.

In December 2011, BLM released its ROD for Tule Wind Phase I, adopting

as its Selected Alternative the preferred action from the Final EIS authorizing the

construction and operation of 65 turbines, but authorizing none on the tribal

ridgeline. See TULE9750-95. BLM emphasized that “[t]hrough this ROD, the

BLM makes no decision regarding those portions of the Tule Wind Project that are

not located on BLM-managed lands.” TULE9756 (emphasis added).2

3. BIA’s September 2012 Tule Wind Phase II NOA

Immediately after issuance of BLM’s Phase I ROD, BIA set in motion the

separate process by which BIA would issue a lease to Tule Wind LLC to construct

Phase II of the project on the tribal ridgeline. Tule Wind LLC and its contractors

2 Conservation organizations challenged BLM’s 2011 EIS in this Court. In March 2014, the Court granted BLM’s motion for summary judgment on all claims. See Protect Our Communities Found. v. Jewell, No. 13-cv-575, 2014 WL 1364453 (S.D. Cal. Mar. 25, 2014). In reviewing BLM’s EIS, the Court noted that “the Court is deeply troubled by the Project’s potential to injure golden eagles and other rare and special-status birds,” id. at 21, but explained that “BLM selected the ‘Reduction in Turbines’ alternative, which calls for the removal of 63 turbines from the proposed Project”—including those on BIA-administered trust lands—because “BLM determined that removing the selected wind turbines would substantially reduce adverse impacts to golden eagles and other rare and special-status birds.” Id. at *6 (emphases added). Thus, in light of BLM adopting a reduced-risk alternative and several bird-protective mitigation measures, the Court ultimately held that BLM’s EIS complied with NEPA because “BLM provided more than sufficient discussion and analysis” of impacts and alternatives with respect to the valley turbines authorized by BLM through its EIS and ROD. Id. at *7. On appeal, the Ninth Circuit affirmed this Court’s summary judgment ruling, relying both on the fact that BLM “drafted a comprehensive set of mitigation measures” in its EIS to reduce risks to birds and also because “BLM chose to reposition turbines in valleys rather than on top of ridgelines, which would lessen any risk to” birds and especially golden eagles. Protect Our Communities Found. v. Jewell, 825 F.3d 571, 582-83 (9th Cir. 2016) (emphasis added).


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began drafting a Tule Wind Phase II Avian and Bat Protection Plan (“ABPP”),

which does not supplant the permitting requirements under BGEPA or the MBTA

when a project will kill or otherwise “take” eagles or other migratory birds. The

only mechanism for obtaining legal authorization to take eagles and other migratory

birds is by obtaining from FWS both an eagle take permit under BGEPA and a

special purpose permit or other migratory bird take authorization under the

MBTA—neither of which BIA or Tule Wind LLC has obtained to date for Phase II.

From the outset, FWS raised numerous concerns with Tule Wind LLC’s

Phase II Draft ABPP and its underlying data concerning the risk to golden eagles.

For example, while noting in April 2012 that FWS received some new data

concerning eagle telemetry and use of the ridgelines, a Service official indicated that

the agency needed to review “the full data set on eagles as part of our review of the

ABPP.” TULE107160. In addition, in light of the information that Tule Wind LLC

had provided at that time, the FWS official explained that because “the project

description includes turbines in close proximity to an eagle nest (an active eagle

territory), the Service has concerns that operation of this facility will result in the

loss of a golden eagle breeding territory.” Id.

In June 2012, the FWS Regional Director sent a formal memorandum to BIA

raising serious concerns with the Phase II Draft ABPP and the viability of the

ridgeline turbines at the locations contemplated by BIA and Tule Wind LLC.

TULE106445-50. In that letter, FWS stated in unequivocal terms the agency’s

expert determination that “construction and operation of Phase II of the Tule Wind

facility has a high potential to result in injury or mortality of golden eagles, and

the loss of golden eagle breeding territories.” TULE106445 (emphasis added).

While noting that the “Draft ABPP states that Tule Wind LLC has agreed to apply

for a programmatic eagle take permit prior to operation of the Reduced Ridgeline

Project,” the Service explained that “[t]he conditions outlined in the Draft ABPP as

presented would not likely meet the conservation standard of [BGEPA].”


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TULE106445-46 (emphasis added). Accordingly, the Service strongly

“recommend[ed] the Bureau of Indian Affairs and the project proponent consider a

different turbine siting design or moving the project to another location to minimize

and avoid eagle take”—i.e., the types of micrositing or macrositing changes that

were not analyzed for Phase II in BLM’s EIS. TULE106446 (emphasis added).

Despite the proposed curtailment and other mitigation measures contained in

the Draft ABPP, the Service explained that there is “great potential to cause the loss

of a territory and would likely cause ongoing mortality of breeding eagles and their

offspring,” and “[t]he options proposed in the draft ABPP to curtail up to 4 turbines

near this nest site, would not alleviate the potential loss of this territory” because the

“curtailment options presented do not span enough of the golden eagle breeding

season and fledgling period to avoid loss of the Cane Brake nest territory.”

TULE106447 (emphasis added). Finally, the Service explained that it “does not

agree with the project proponent’s assertion that risk of taking eagles from project

operations of Phase II would be low to moderate”; instead, the Service formally

determined that “Phase II of this project represents a high risk for golden eagle

mortality.” TULE106446-47 (emphasis added).

In addition to FWS’s specific concerns about impacts to golden eagles, the

Service instructed that BIA also needed “to address and reduce potential risk to

other species of birds protected under the [MBTA].” TULE106646. In reviewing

the Draft ABPP, the Service stated that “[t]he project proponent present little data to

analyze the impact of the project to other species of birds, including passerines and

raptors.” TULE106449-50. FWS criticized the Draft ABPP because it “does not

include an evaluation of potential rates of mortality for other avifauna, specific

advanced conservation practices and/or propose any adaptive management

measures, which can be used to lessen impacts to migratory birds.” Id.

Undeterred by FWS’s concerns and its formal scientific determination that the

Phase II turbines present a high risk to eagles and other birds, BIA issued a brief


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Notice of Availability of the Phase II Draft ABPP and the Phase II Fire Plan for a

30-day comment period on September 19, 2012. TULE107639-41. BIA did not

publish this notice in the Federal Register. Nor did BIA issue for public comment

any draft EIS or EA—supplemental or otherwise—analyzing the environmental

impacts of constructing up to 20 tribal ridgeline turbines (a more than 10% increase

over the largest Phase II configuration contemplated by BLM in its October 2011

EIS) or considering reasonable alternatives to constructing all 20 turbines, such as

the micrositing and macrositing options urged by FWS in June 2012. Id. Instead,

anomalously, BIA stated in the Notice of Availability that the proposed action is

somehow “consistent with” the Final EIS prepared by BLM in 2011, and thus that

BIA would rely on BLM’s EIS as “the primary NEPA document used in the

decisionmaking process” for BIA’s lease approval for Tule Wind Phase II, despite

acknowledging that BLM’s “ROD made no decisions for lands under the

jurisdiction of BIA . . . [and] made no decision to move forward with the wind

turbines on the ridgeline portion of project,” and therefore did not consider any

alternatives to that action or any information, data, or evidence compiled after

BLM’s October 2011 EIS. Id.

In response to the Notice of Availability and the Phase II Draft ABPP

contained therein, the FWS Regional Director reiterated the agency’s serious

concerns with the methodologies and conclusions of the Draft ABPP, and criticized

the Draft ABPP’s refusal to acknowledge the high eagle mortality risk and the

highly likely loss of an eagle breeding territory that will occur if the project is

constructed as planned. See TULE106452-53. For example, FWS explained that

Tule Wind Phase II has “a high potential for ongoing take of eagles and the loss of a

productive golden eagle breeding territory” and also expressed concerns that “there

is a potential for this territory to become an ecological trap by attracting eagles into

a desirable nest site that possess high risk for both breeding eagles and any young

they produce.” TULE106453. The Service also explained that the revised Draft


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ABPP did not “sufficiently address our [previous’ concerns” because “[a]

comparison of documents revealed minimal changes were made.” TULE106453.

Thus, the Service explained that “[t]he conditions outlined in the ABPP, as

presented, would not likely meet the conservation standard of [BGEPA].” Id. In

turn, FWS continued to urge “BIA, the Ewiiaapaayp Band of Kumeyaay Indians,

and the project proponent [to] consider a different turbine siting design or moving

the project to another location to minimize and avoid eagle take”—i.e., micrositing

or macrositing changes to reduce eagle mortality risk. Id. Echoing FWS’s

recommendation that BIA consider micrositing alternatives, the California

Department of Fish and Game (“CDFG”)—the state wildlife agency with

jurisdiction over migratory birds (including golden eagles)—stated that “[d]ue to

their proximity to the nest site, the relative nest density, overall productivity of the

Cane Brake nests, and the overlap of the estimated home range with the Reduced

Ridgeline Project, the Department recommends the BIA remove turbines H-1 and

H-2 as part of the Reduced Ridgeline Project.” TULE111549.3

4. BIA’s December 2013 Tule Wind Phase II ROD

After receiving critical comments on the Notice of Availability from FWS,

CDFG, and members of the public, BIA and Tule Wind LLC never meaningfully

addressed the golden eagle and bird mortality concerns repeatedly raised by FWS,

CDFG, and others. Nor did BIA conduct any NEPA review whatsoever to analyze:

(1) the serious impacts to eagles and other birds that FWS and others predicted if

BIA followed through with authorizing Tule Wind Phase II on the ridgeline in its

current alignment, or (2) reasonable Tule Wind Phase II alternatives, such as

macrositing or micrositing changes, urged by FWS and CDFG to avoid or at least

3 Plaintiff POC also submitted detailed comments in response to BIA’s Notice of Availability. See TULE107663-69. In addition to raising serious concerns with the Phase II Draft ABPP, its methodologies, and its inadequate mitigation measures, POC also explained that, under NEPA, “BIA must rectify the . . . deficient environmental review, and require or conduct additional impact analysis before deciding whether to approve the Project lease.” TULE107669.


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reduce the anticipated impacts to golden eagles and other birds. Neither of these

issues—which had arisen after BLM’s October 2011 Final EIS—was analyzed in

any way in BLM’s EIS or ROD, meaning that they entirely escaped review under

NEPA. However, on March 8, 2013, Tule Wind LLC finalized its Phase II ABPP

(“Final ABPP”), which continued to rely on the same outdated methodologies that

FWS had harshly criticized. TULE110297-392.

Despite the serious concerns about the high risk of eagle mortality held by the

federal (FWS) and state (CDFG) expert wildlife agencies that had never been

addressed by BIA and Tule Wind LLC, on December 16, 2013, BIA issued its ROD

authorizing a lease to Tule Wind LLC to construct and operate up to 20 turbines on

the ridgelines on BIA trust land—i.e., two turbines more than BLM’s EIS ever

contemplated (but still never thoroughly analyzed) on BIA trust land. See

TULE110190-235. Thus, instead of altering the project to reduce its documented

negative impacts on eagles, BIA expanded the project by more than 10% without

even considering the expanded project’s negative impacts in any NEPA document.

BIA’s ROD relied heavily on the Final ABPP in reaching an extremely low

prediction of eagle mortality compared to FWS’s estimate of high mortality and the

disturbance or complete loss of an eagle breeding territory, while nevertheless

conceding that Tule Wind Phase II will kill several golden eagles during the

anticipated 20-year project operation. See TULE110332.

Despite acknowledging that this project will inevitably kill golden eagles and

other migratory birds, BIA issued its December 2013 ROD authorizing construction

and operation without preparing any independent NEPA review in connection with

approving the lease to Tule Wind LLC to construct and operate 20 turbines on the

tribal ridgeline. Rather than preparing its own NEPA review to analyze the impacts

of construction and operation of the 20 ridgeline turbines, BIA relied solely on

BLM’s October 2011 EIS for BIA’s own NEPA compliance in issuing the lease.

See TULE110192 (“Consistent with the Tule Wind Energy Project FEIS/EIS, the


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BIA is relying on that document for decisionmaking purposes for approval of the

lease with the Tribe.”).

Although BIA admitted that it “must comply with NEPA” in issuing this

lease, BIA asserted that it “can adopt another agency’s environmental review to

meet those requirements if it has addressed all the environmental issues associated

with the trust land action,” and in BIA’s view, “[t]he BLM’s [FEIS] fully addressed

all of the environmental issues for the Proposed Action,” TULE110199. BIA did

not mention the fact that BLM explicitly did not endorse the ridgeline part of the

project in the EIS precisely because of the extremely high risk to golden eagles and,

instead, BLM incorporated a mitigation measure aimed at ensuring that no ridgeline

turbines would be constructed without a determination by FWS that they posed a

low risk to eagles—i.e., the opposite conclusion from what the Service actually

found. Importantly, in relying on BLM’s EIS in its December 2013 ROD, BIA did

not disavow the mitigation measure that BLM had included requiring that BIA

would not authorize the construction of any ridgeline turbine unless FWS

determined that a particular turbine location demonstrated an acceptable level of risk

to eagles, TULE624-25. To the contrary, BIA expressly adopted as part of its ROD

most mitigation measures contained in BLM’s EIS, including the measure requiring

FWS’s approval of turbine sites on the ridgeline. See TULE110218-19.

Despite the existence of important post-2011 information at the time that BIA

issued its December 2013 ROD that necessarily was not considered in BLM’s

October 2011 EIS—such as the Phase II Final ABPP, new eagle use data and

telemetry information, and recent expert comments from FWS and CDFG

concerning impacts to birds (including eagles) and reasonable project alternatives

that BIA should consider—BIA gave none of that information a “hard look,” or, for

that matter, even a sideways glance, in any NEPA document, much less provided

that information to the public as part of any formal NEPA process subject to public

comment. Nor, for that matter, did BIA supplement BLM’s October 2011 EIS by


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analyzing the impacts of authorizing 20 turbines on the tribal ridgeline, rather than

18 turbines previously contemplated (though not analyzed) by BLM; BIA instead

merely asserted that BLM’s EIS analyzed the impacts of these two turbines “in areas

straddling BLM and trust lands” but the final siting of those turbines “may actually

be on trust land within the area analyzed in the [EIS].” TULE110192. Nowhere in

its ROD did BIA explain how its approval of turbine construction and operation in

these specific areas demonstrated an acceptable level of risk to eagles—as required

by the mitigation measure developed by BLM in its October 2011 EIS and expressly

adopted by BIA in its subsequent ROD. Nor did BIA even purport in the ROD to

reference the views of the relevant resource agencies (FWS and CDFG) with respect

to whether these turbine locations pose an acceptable level of risk to eagles.4

5. Plaintiffs’ Lawsuit And Proceedings To Date

Plaintiffs filed their Complaint on September 24, 2014, raising claims under

three statutes: NEPA, BGEPA, and the MBTA. In response to Defendants’ motions

for partial judgment on the pleadings, the Court dismissed with prejudice Plaintiffs’

BGEPA and MBTA claims, as well as “Plaintiffs’ NEPA claim to the extent it seeks

a remedy for BIA’s refusal to supplement the EIS after it had approved the lease.”

ECF No. 50 at 19-20. Thus, Plaintiffs’ remaining NEPA claims—as set forth in

4 Because the Phase II ABPP only looked narrowly at the minimization measure of curtailment—rather than macrositing and micrositing alternatives urged by the Service and CDFG—the Phase II ABPP, at best, only adopted a curtailment strategy for two of the 20 turbines that would only minimally reduce eagle and bird mortality risk. See TULE110334 (“Curtailing turbines during the period of highest activity (February – April) resulted in the largest reduction in the number of predicted fatalities per curtailed turbine compared to the other seasonal curtailment options. . . . [t]he most effective curtailment scenario, based on these data, is curtailment of turbines H1 and H2 during February – April.”). And even then, the Phase II ABPP made clear that “Tule Wind will curtail turbines H1 and H2 during daylight hours” only when “one of the two nearest Cane Brake nests is active”—meaning that this measure will not be implemented for the life of the project but only if certain triggering conditions are met—which the company made clear was to further the company’s own profit incentives. Id. (explaining that this is “the curtailment scenario that produces the greatest reduction in fatality risk with the least reduction in energy production”) (emphasis added). Moreover, the Phase II ABPP conditioned this curtailment strategy on only being triggered after “one eagle [is] taken,” TULE110371, meaning that the measure will not even be implemented until the project has already killed at least one federally protected eagle.


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Claim 1 of their Complaint, ECF No. 1 ¶¶ 59-63—are appropriate for summary

judgment and serve as the basis of this motion.

To be clear, to the extent that the instant motion contends that BIA had a legal

duty to prepare its own EIS and/or to supplement BLM’s October 2011 EIS before

BIA issued its December 2013 ROD and lease approval, see infra at 18-44,

Plaintiffs only rely on materials in the administrative record that BIA received

before issuing its final decision on December 16, 2013—i.e., at a time when BIA

retained full discretion as to whether it would issue the lease and conduct NEPA

review in connection with that decision. In contrast, the supplemental NEPA sub-

claim dismissed by this Court focused on materials that BIA did not obtain until

after issuing its final decision on December 16, 2013, at which time the Court has

held there was “no remaining major federal action” for purposes of NEPA. ECF

No. 50 at 19.

LEGAL STANDARD

Because NEPA does not contain a private right of action, the APA governs

judicial review of agency action pursuant to NEPA. Based on its review of the

“whole record,” the Court “shall . . . hold unlawful and set aside agency action,

findings, and conclusions found to be . . . arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law . . . [or] without observance of

procedure required by law.” 5 U.S.C. § 706(2)(A), (D). An “agency must cogently

explain why it has exercised its discretion in a given manner,” Motor Vehicle Mfrs.

Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48 (1983)), and “[n]ormally,

an agency [decision] would be arbitrary and capricious if the agency has . . . entirely

failed to consider an important aspect of the problem, [or] offered an explanation for

its decision that runs counter to the evidence before the agency.” Id. at 43. The

reviewing court “may not supply a reasoned basis for the agency’s action itself has

not given.” Id.


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ARGUMENT

For the reasons explained in detail below, in issuing its December 2013 ROD

and accompanying lease approval, BIA violated NEPA in myriad ways by failing to

prepare any NEPA review whatsoever independent of BLM’s October 2011 EIS,

and in the process failing to take a “hard look” at critically significant post-2011

information from the expert wildlife agencies concerning bird (including eagle)

mortality risks and reasonable alternatives to reduce such risk, among other highly

pertinent materials, thereby rendering BIA’s ROD and lease approval arbitrary and

capricious. Accordingly, this Court must set aside these agency decisions.5 I. BIA VIOLATED NEPA BY RELYING ON BLM’S EIS UNDER THE

CIRCUMSTANCES, RATHER THAN PREPARING ITS OWN

INDEPENDENT NEPA REVIEW IN CONNECTION WITH ITS

LEASE APPROVAL TO TULE WIND LLC.

Although, as explained above, there are certain scenarios under which a

cooperating agency may rely on a lead agency’s EIS to satisfy its own NEPA

compliance obligations when issuing a separate ROD, see supra at 4, under the

circumstances present here, BIA’s exclusive reliance on BLM’s October 2011 EIS

when issuing its December 2013 ROD and lease approval was arbitrary and

capricious and otherwise contrary to NEPA and its implementing regulations.

A. Because BIA Authorized Activities In A Manner Directly At

Odds With BLM’s October 2011 EIS, BIA’s Lease Approval

Required Independent NEPA Review To Analyze This Action.

As described, BIA deliberately opted to forgo preparing any independent

NEPA review in approving its December 2013 lease to Tule Wind LLC to construct

5 As set forth in the accompanying standing declarations, see Exhibits A-C, Plaintiffs have standing to assert the claims raised herein. As explained in these declarations, Plaintiffs possess the requisite recreational, aesthetic, professional, and other cognizable interests to challenge BIA’s decision to approve the Tule Wind Phase II lease without conducting any independent NEPA review in connection with that decision. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000) (explaining the requirements for Article III standing).


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and operate 20 turbines on the tribal ridgeline, and instead chose to “rely[] on” “the

Tule Wind Energy Project FEIS/EIS . . . for decisionmaking purposes for approval

of the lease with the Tribe.” TULE110192. However, as explained above, BLM’s

October 2011 EIS—and BIA’s 2013 ROD reliance on the prior EIS—expressly

adopted a key mitigation measure requiring that: (1) BIA would “consult[] with the

required resource agencies” concerning the project’s risks to eagles; (2) after such

consultation, BIA would only authorize construction of Phase II turbines on the

tribal ridgeline “at those turbine locations that show reduced risk to the eagle

population”; and (3) “[t]urbine locations exceeding the acceptable risk levels to

golden eagles . . . will not be authorized for construction.” TULE624-25 (emphasis

added). Thus, BLM’s EIS made clear that, pending further eagle use data and

consultation with the relevant resource agencies with respect to golden eagles (FWS

and CDFG), “all, none or part of the second portion of the project would be

authorized.” Id. (emphasis added).

Notwithstanding these commitments, in approving the Tule Phase II lease,

BIA not only disregarded the expert opinions and recommendations of FWS and

CDFG concerning bird mortality risks and reasonable alternatives for reducing such

risk, but BIA also made clear that it never intended even to consider any project

configurations consisting of less than the full build-out of 20 turbines, despite an

express mitigation measure predicated on the possibility that “none or part of the

second portion of the project will be authorized.” Id. Under pertinent precedent,

BIA’s failure to prepare any independent NEPA review for an action that deviates

so drastically from that contemplated in BLM’s EIS cannot withstand scrutiny.

It is well-established that agencies are either bound by any mitigation

measures adopted in a formal NEPA process, or, alternatively, that agencies

declining to adhere to mitigation measures previously adopted must, at minimum,

prepare new NEPA review disclosing and analyzing the impacts of the action in the

absence of those measures. For example, the CEQ regulations mandate that


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“[m]itigation and other conditions established in the environmental impact statement

or during its review and committed as part of the decision shall be implemented by

the lead agency or other appropriate consenting agency.” 40 C.F.R. § 1505.3

(emphasis added). Analyzing this regulation, courts in this and other Circuits have

repeatedly held that an agency is bound to the commitments it makes in its EIS or

other environmental decisionmaking documents. See, e.g., Tyler v. Cisneros, 136

F.3d 603, 308 (9th Cir. 1998) (finding that an agency must comply with mitigation

measures agreed to by agency in NEPA review process); Lee v. U.S. Air Force, 220

F. Supp. 2d 1229, 1236 (D.N.M. 2002), aff’d, 354 F.3d 1229 (10th Cir. 2004)

(explaining that agencies are “legally bound” by the environmental reviews and are

“obligated” to act as promised under 40 C.F.R. § 1505.3); Friends of Animals v.

BLM, CV-15-59, 2016 WL 4082631, at *6-9 (D. Mont. July 29, 2016) (“find[ing]

that BLM made a binding commitment in the 2009 ROD” and that “BLM's failure

to adhere to this commitment is a violation of process prohibited by NEPA”); Sierra

Club v. Jacobs, No. 04-cv-374, 2005 WL 6247793, at *7 (S.D. Tex. Sept. 30, 2005)

(holding that mitigation measures set out in an environmental impact statement are

“directly binding”).

Here, BIA seeks coverage from BLM’s October 2011 EIS—in lieu of

preparing its own EIS or EA—but in the process BIA has failed to comply with a

critically important mitigation measure to which BIA committed in both BLM’s EIS

(as a cooperating agency) and in BIA’s December 2013 ROD adopting the prior

EIS. BIA cannot have it both ways.

As a threshold matter, BIA has eviscerated the purpose behind this vital

mitigation measure by disregarding, and failing even to address in a NEPA

document, highly relevant expert comments and recommendations from the

“required resource agencies,” TULE624-25—i.e., FWS and CDFG—that have

repeatedly raised grave concerns about the extremely high mortality risks this

project poses to golden eagles individually and the regional eagle population as a


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whole, and urging BIA to consider macrositing and micrositing changes to the

project layout to address these major bird fatality concerns. See, e.g., TULE107160;

TULE106445-50; TULE106452-53; TULE11547-54. Perhaps most importantly

with respect to this mitigation measure, in approving a lease for 20 turbines on the

tribal ridgeline, BIA refused to accept the formal determinations by these expert

agencies that the project as a whole—and especially certain turbines located closest

to active golden eagle nests—pose an extremely high risk to golden eagles and thus,

under any yardstick, at least some “[t]urbine locations exceed[] the acceptable risk

levels to golden eagles” and therefore should not have been “authorized for

construction” in their current proposed configuration. TULE624-25.

In short, BIA has run roughshod over this binding mitigation measure by

rendering its consultation provision pointless, authorizing turbine construction and

operation in locations that plainly exceed acceptable risk levels according to the

agencies with scientific expertise on that matter, and refusing even to consider the

expert agencies’ recommendations as to how BIA might reduce the level of eagle

mortality risk to an acceptable threshold consistent with that contemplated in BLM’s

EIS. Accordingly, because BIA’s action in authorizing 20 turbines in high-risk

locations is not at all consistent with the terms of BLM’s October 2011 EIS and the

mitigation measures incorporated therein, BIA flouted NEPA by relying on BLM’s

EIS for its own NEPA compliance while failing even to prepare any NEPA review

to disclose to the public, and to analyze the reasons for, its abandonment of this vital

measure.

Moreover, even aside from BIA’s refusal to consider and address the expert

recommendations of FWS and CDFG as required by BLM’s EIS for any subsequent

authorization of Tule Wind Phase II, BIA’s post-EIS statements made before BIA

issued its ROD make clear that BIA never intended to consider any project

modifications based on input from the relevant wildlife agencies, which further

renders BIA’s reliance on BLM’s EIS (and the mitigation measures therein) legally


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improper. For example, in response to FWS’s serious eagle mortality concerns and

recommendations to consider alternative layouts through macrositing changes (i.e.,

moving the entire ridgeline turbine project to a new location) or micrositing changes

(i.e., eliminating or moving the location of specific high-risk turbines within the

ridgeline project footprint) so as to at least reduce the grave risk to eagles and other

birds, BIA responded in September 2012, without even considering the issue in a

NEPA document, that it “has rejected the alternative of developing no turbines on

tribal land” because it would be “economically infeasible” and would “not meet the

BIA’s trust obligation to the [Tribe].” TULE107519.

Although this statement—issued more than a year before BIA signed the

ROD—fails to even consider recommended micrositing modifications such as

removing the most problematic and highest-risk turbines from the project design, in

any event it makes clear BIA’s stance that it never seriously contemplated, as

required by the mitigation measure adopted by BLM, that “none” or only “part of

the second portion of the project” might be authorized on the basis of consultation

with FWS and CDFG determining that certain turbines pose an unacceptable level

of risk. TULE624-25. NEPA, as well as the most basic strictures of reasoned

decisonmaking under the APA, dictate that BIA cannot on the one hand publicly

commit to following a specific process and making a decision at the culmination of

that process in consultation with the relevant expert agencies, while at the same time

BIA is refusing to adhere to that process or the determinations and recommendations

provided by the expert agencies. See New England Coal. on Nuclear Pollution v.

NRC, 727 F.2d 1127, 1130 (D.C. Cir. 1984) (Scalia, J.) (explaining that for an

agency to say one thing and do another is the “essence of arbitrary and capricious

action”) (quotation marks and citation omitted). By the same token, BIA acted

arbitrarily and capriciously by failing to prepare any NEPA review in connection

with its December 2013 decision, by instead relying on BLM’s EIS that did not

contemplate—much less analyze—a scenario in which BIA would authorize


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construction of 20 extremely high-risk turbines on the tribal ridgeline against the

advice of the expert wildlife agencies, and by flatly admitting that it never intended

to even consider less harmful alternatives.6

Even more fundamentally, under both NEPA and the APA, a cooperating

agency must at least explain any significant discrepancies between the NEPA

document it is relying on and the final action. See Forty Questions, 46 Fed. Reg. at

18035 (“A cooperating agency with jurisdiction by law will have to prepare its own

[ROD] for its action, in which it must explain how it reached its conclusions. Each

agency should explain how and why its conclusions differ, if that is the case, from

those of other agencies which issued their Records of Decision earlier.”); State

Farm, 463 U.S. at 48 (an “agency must cogently explain why it has exercised its

discretion in a given manner”). Here, despite the fact that BIA’s action stands in

stark contrast to the process committed to in BLM’s EIS, nowhere in BIA’s ROD

does the agency mention—much less explain—the views of these expert agencies,

why BIA has refused to address these agencies’ concerns and recommendations, or

why BIA has chosen not to follow the process outlined in BLM’s EIS. Thus, on that

basis alone, BIA has violated NEPA and the APA by failing to “explain how it

reached its conclusions” and “how and why its conclusions differ” from BLM’s EIS

in significant respects, Forty Questions, 46 Fed. Reg. at 18035, thereby further

undermining BIA’s reliance on BLM’s EIS as the sole NEPA document for BIA’s

6 BIA’s result-oriented outcome—in which it reached a decision early in its decisionmaking process that it would authorize all 20 turbines regardless of risk and thereby refuse to accept the expert determinations made by FWS and CDFG—violates NEPA for another, related reason. As the CEQ regulations direct, the NEPA process “shall serve as the means of assessing the environmental impact of proposed agency actions, rather than justifying decisions already made.” 40 C.F.R. § 1502.2(g) (emphasis added); id. § 1502.5 (NEPA review “will not be used to rationalize or justify decisions already made”). Here, plainly, BIA’s ROD and the process leading to that decision merely justified an approach that BIA was intent on achieving regardless of the wildlife risks involved. See, e.g., Metcalf v. Daley, 214 F.3d 1135, 1142-45 (9th Cir. 2000) (NEPA review “must be taken objectively and in good faith, not as an exercise in form over substance, and not as a subterfuge designed to rationalize a decision already made”).


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decision that departs in drastic fashion from the action contemplated and the

mitigation measure incorporated in BLM’s EIS.

For all of these reasons, BIA’s reliance on BLM’S EIS in connection with its

lease approval for Tule Wind Phase II—and its failure to prepare its own NEPA

documentation for that decision—cannot pass muster under NEPA or the APA.

B. Because BLM’s October 2011 EIS Does Not Consider A

Reasonable Range Of Alternatives With Respect To Tule

Wind Phase II, BIA Was Obligated To Prepare NEPA

Review In Connection With Its Lease Approval.

Even if there were no binding mitigation measure from which BIA departed,

BIA’s reliance on BLM’s October 2011 EIS is nevertheless improper under NEPA

for an independent reason. In its EIS, BLM recognized that the second portion of

the project—i.e., the tribal ridgeline turbines—presented the highest risk to golden

eagle populations, and as a result the EIS expressly left open the possibility that BIA

may authorize all, some, or none of the Phase II turbines upon further study,

analysis, and consultation with FWS and CDFG. See TULE624-25. In turn,

because BLM’s analysis in its EIS of Tule Wind Phase II was necessarily a

preliminary assessment, BLM only considered two options with respect to Tule

Wind Phase II—i.e., BLM’s preferred alternative authorizing zero turbines on the

tribal ridgeline (and instead deferring that decision to BIA after further study and

consultation with FWS and CDFG) and several alternatives authorizing the full

build-out of 18 turbines on the tribal ridgeline in essentially the same configuration.

See TULE74-76. In other words, BLM’s initial assessment in its EIS only

considered the maximum number (18) and the minimum number (zero) of possible

turbines on the tribal ridgeline, and did not consider any reduced-turbine micrositing

alternatives that would eliminate what FWS and CDFG regarded as the highest-risk

Phase II turbines to reduce risks to golden eagles and other birds, presumably

because BLM assumed that BIA would conduct its own NEPA review analyzing


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updated alternatives of this kind if and when it contemplated authorizing Tule Wind

Phase II. Accordingly, as explained below, BIA’s reliance on BLM’s EIS cannot

withstand scrutiny because that EIS did not even purport to analyze a reasonable

range of alternatives sufficient to discharge BIA’s NEPA responsibilities in

approving the Tule Wind Phase II lease.

As explained, an agency’s alternatives analysis “is the heart” of its NEPA

review because it must “present the environmental impacts of the proposal and the

alternatives in comparative form, thus sharply defining the issues and providing a

clear basis for choice among options by the decisionmaker and the public.” 40

C.F.R. § 1502.14. Thus, the Ninth Circuit has repeatedly confirmed that “a ‘viable

but unexamined alternative renders [the] environmental impact statement

inadequate.’” Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 814

(9th Cir. 1999) (citing Citizens for a Better Henderson v. Hodel, 768 F.2d 1051,

1057 (9th Cir. 1985)). A NEPA violation of this kind is especially egregious where

an agency only considers action alternatives where there exists no meaningful

difference between those alternatives. See, e.g., id. at 812-13 (rejecting EIS where

“[t]he EIS considered only a no action alternative along with two virtually identical

alternatives”); W. Watersheds Project v. Abbey, 719 F.3d 1035, 1051 (9th Cir. 2013)

(finding that BLM failed to consider a reasonable range of alternatives when it

considered a no-action alternative and four action alternatives that all “reauthorized

grazing at the exact same level” but failed to meaningfully consider a reduced-

grazing alternative, and noting that “we do question how an agency can make an

informed decision on a project’s environmental impacts when each alternative

considered would authorize the same underlying action”); Friends of Yosemite

Valley v. Kempthorne, 520 F.3d 1024, 1038 (9th Cir. 2008) (finding that an SEIS

“lacked a reasonable range of action alternatives” where all of the action alternatives

“are virtually indistinguishable from each other”).


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The facts of this case make clear that BLM never intended for its preliminary

assessment of alternatives with respect to Tule Wind Phase II to serve as the

required “hard look” at a reasonable range of alternatives concerning a final decision

by BIA as to whether “all, none or part of the second portion of the project” should

be authorized. TULE624-25 (emphasis added). In fact, although BLM’s EIS

included consideration of five alternatives with respect to Tule Wind Phase II, one

alternative (Alternative 5) analyzed the effects of zero turbines and the four other

alternatives (Alternatives 1-4) considered the construction and operation of all 18

turbines on the tribal ridgeline. See TULE74-76. Indeed, BLM even explained in

the EIS that Alternatives 1-4, with respect to Tule Wind Phase II, “would essentially

be the same.” Id. Therefore, given the lack of any analysis whatsoever in BLM’s

EIS concerning reduced-turbine alternatives containing some number of turbines

between the maximum and minimum number, and the concession that all of the

action alternatives in the EIS were “essentially . . . the same,” id., BIA ran afoul of

NEPA by relying only on BLM’s preliminary assessment of alternatives in the

October 2011 EIS and failing to prepare its own NEPA review when subsequently

authorizing Tule Wind Phase II. See Muckleshoot Indian Tribe, 177 F.3d at 812-13;

Abbey, 719 F.3d at 1051; Friends of Yosemite Valley 520 F.3d at 1038.7

Moreover, BIA’s attempt to rely entirely on BLM’s preliminary alternatives

analysis is especially untenable under the circumstances in light of repeated

recommendations by the expert wildlife agencies and members of the public

7 Although failing to consider reduced-turbine options, BIA and Tule Wind LLC did consider curtailment of a few turbines in the Final Phase II ABPP. However, even aside from the fact that the ABPP is not a NEPA document and hence cannot satisfy the agency’s NEPA obligations, see e.g., Idaho Sporting Cong. Inc. v. Alexander, 222 F.3d 562, 566-67 (9th Cir. 2000) (holding that non-NEPA documents “cannot serve as a substitute” for NEPA review) (emphasis added), FWS made clear that this consideration was not sufficient to address the impact on golden eagles. Rather, as FWS explained in reviewing a nearly identical curtailment approach in the draft ABPP, “[t]he options proposed in the draft ABPP to curtail up to 4 turbines near this nest site, would not alleviate the potential loss of this territory” because the “curtailment options presented do not span enough of the golden eagle breeding season and fledgling period to avoid loss of the Cane Brake nest territory.” TULE106447 (emphasis added).


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specifically requesting that BIA consider reduced-turbine alternatives. See, e.g.,

TULE106446 (FWS “recommend[ing] the Bureau of Indian Affairs and the project

proponent consider a different turbine siting design . . . to minimize and avoid eagle

take”) (emphasis added); TULE106453 (FWS urging “BIA, the Ewiiaapaayp Band

of Kumeyaay Indians, and the project proponent [to] consider a different turbine

siting design . . . to minimize and avoid eagle take”); TULE111549 (“Due to their

proximity to the nest site, the relative nest density, overall productivity of the Cane

Brake nests, and the overlap of the estimated home range with the Reduced

Ridgeline Project, [CDFG] recommends the BIA remove turbines H-1 and H-2 as

part of the Reduced Ridgeline Project.”) (emphasis added); TULE107615 (public

comment requesting a “micrositing study” so that “impacts to birds and bats can be

minimized”). Not only was BIA urged by many stakeholders, including the expert

wildlife agencies, to consider reduced-turbine alternatives, but even Tule Wind LLC

admits in the Phase II ABPP that “the risk of mortality varies more among turbine

location than among wind farms (Ferrer et al. 2011), and therefore micrositing

decisions based on eagle behavior . . . are probably the best means of avoiding and

minimizing take.” TULE110336 (emphasis added).

Notwithstanding the importance of turbine micrositing in eliminating or

relocating high-risk turbines to reduce the risk of eagle mortality—as FWS and

others repeatedly made known to BIA during its decisionmaking process—BIA

never analyzed in any formal NEPA process viable Phase II alternatives, such as the

specific options urged by FWS and CDFG, containing less than the full project

build-out of 18 turbines in order to eliminate the highest-risk turbines to eagles. In

light of these highly probative comments—from the expert federal and state wildlife

agencies no less—that result cannot be sustained under NEPA. See Envtl. Prot.

Info. Ctr. v. U.S. Forest Serv., 234 Fed. Appx. 440, 442–43 (9th Cir. 2007) (holding

that an agency’s “analysis of only a no action alternative and [the agency’s]

preferred alternative (the proposed project) was insufficient” where public


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comments had identified a seemingly viable alternative and the agency had offered

only “[a] cursory dismissal of a proposed alternative unsupported by agency

analysis”).8

The D.C. Circuit recently addressed an analogous situation in which it found

that another commercial wind project authorized by the federal government—the

Buckeye Wind Project in Ohio—did not comport with NEPA because it, too, failed

to analyze a reasonable range of alternatives for addressing impacts on a protected

bat species. See Union Neighbors United, Inc. v. Jewell, No. 15-5147, __ F.3d ___,

2016 WL 4151237 (D.C. Cir. Aug. 5, 2016). In that case, FWS served as the lead

agency in authorizing the project under the Endangered Species Act. In preparing

its EIS for the project, FWS only considered two action alternatives to the proposed

action—“a minimally restricted operations alternative” and a “maximally restricted

operations alternative” that the Service conceded “is not an economically feasible

alternative”—despite public comments specifically requesting that FWS consider

mid-range alternatives between the maximum and the minimum operational

restrictions. Id. at *5, *8. On those facts, the court concluded that “the Service

failed to consider a reasonable range of alternatives because it did not consider any

reasonable alternative that would be economically feasible while taking fewer bats

than Buckeye’s proposal,” and the court therefore remanded the decision to FWS for

“[a]n analysis of a realistic mid-range alternative with a cut-in speed that would take

materially fewer bats than Buckeye’s proposal while allowing the project to go

forward.” Id. at *8.

8 Here, BIA did not even provide a cursory dismissal of any reduced-turbine alternatives. As explained, although BIA summarily asserted that “the alternative of developing no turbines on tribal land” would be “economically infeasible” and would “not meet the BIA’s trust obligation to the [Tribe],” TULE107519 (emphasis added), without any explanation as to why BIA deemed that to be the case, BIA never explained why it refused even to consider the reduced-turbine options repeatedly urged by FWS, CDFG, and others. Thus, there is no basis upon which the Court may defer to BIA’s decision—or lack thereof—to not consider reduced-turbine alternatives in a formal NEPA document.


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The same reasoning applies here. Because BLM’s EIS only considered

alternatives with respect to Tule Wind Phase II that would have authorized all or

none of the turbines contemplated on the tribal ridgeline—i.e., the maximum and

minimum number of possible turbines located there—BIA acted arbitrarily and

capriciously, and failed to consider a reasonable range of alternatives under the

circumstances in connection with its decision to authorize Tule Wind Phase II, by

relying only on the preliminary alternatives set forth in BLM’s EIS and failing,

instead, to independently analyze viable mid-range alternatives long urged by FWS,

CDFG, and members of the public that would have allowed the project to operate in

a manner posing a significantly reduced risk to golden eagles and other birds. For

this reason, BIA’s decision must be set aside and remanded for additional NEPA

analysis.9

II. EVEN IF IT WERE APPROPRIATE UNDER THE CIRCUMSTANCES

FOR BIA TO RELY ON BLM’S OCTOBER 2011 EIS, BIA WAS

NEVERTHELESS OBLIGATED TO PREPARE SUPPLEMENTAL

NEPA REVIEW TO ANALYZE SIGNIFICANT POST-2011 DATA

AND INFORMATION, AS WELL AS SUBSTANTIAL CHANGES IN

THE PROJECT DESIGN, BEFORE APPROVING THE LEASE.

Even if the Court finds that it could have been appropriate in theory for BIA

to rely on BLM’s October 2011 EIS to discharge its own NEPA obligations in

9 BIA’s reliance on BLM’s preliminary Tule Wind Phase II assessment in its EIS—in which BLM expressly raised questions concerning the adverse environmental consequences to eagles and birds that would likely result from authorization of Tule Wind Phase II—violated NEPA for an additional related reason. An agency may only “tier” to a prior NEPA document that raised concerns as to the impacts of a possible future action if, before authorizing the new action, the agency fully analyzes the impacts of, and reasonable alternatives to, that action. See Muckleshoot Indian Tribe, 177 F.3d at 811 (rejecting Forest Service’s attempt to tier to a prior EIS and report because the new NEPA document failed to analyze impacts previously identified). As the Ninth Circuit has noted, because of the preliminary nature of any pre-existing EIS, that earlier NEPA document “is only the starting point for the required analysis. It does not fill the gaps in the [] EIS.”). Id. The same is true here—although BLM’s EIS may have served as “the starting point,” it “does not fill the gaps” with respect to BIA’s obligations under NEPA to analyze relevant impacts and reasonable alternatives to reduce those impacts.


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connection with its December 2013 decision to authorize construction and operation

of Tule Wind Phase II, BIA nevertheless violated NEPA by failing to supplement

BLM’s EIS in order to analyze significant new information bearing on the

environmental impacts of, and reasonable alternatives to, Tule Wind Phase II that

emerged only after BLM issued its EIS, as well as substantial changes in the project

design on the tribal ridgeline occurring after BLM issued its EIS.10

A. Critical New Information Relevant To Environmental Concerns

And Bearing On BIA’s Action And Its Impacts Triggered BIA’s

Duty To Prepare Supplemental NEPA Review To Update The

October 2011 EIS.

NEPA’s implementing regulations require that, where there exists a prior EIS

analyzing a particular action, an agency nonetheless “[s]hall prepare supplements to

. . . final environmental impact statements if . . . [t]here are significant new

circumstances or information relevant to environmental concerns and bearing on the

proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1)(ii). As the Supreme

Court has explained:

Whether to prepare a supplemental EIS is similar to the decision whether to prepare an EIS in the first instance: If there remains ‘major Federal action’ to occur, and if the new information is sufficient to show that the remaining action will ‘affect the quality of the human environment’ in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared.

Marsh v. Or. Natural Res. Council, 490 U.S. 360, 374 (1989). CEQ’s NEPA

guidance notes that, in the context of a cooperating agency relying on a lead

agency’s EIS, “if the cooperating agency determines that the [lead agency’s] EIS is

. . . inadequate, it must prepare a supplement to the EIS, replacing or adding any

needed information, and must circulate the supplement as a draft for public and

agency review and comment.” Forty Questions, 46 Fed. Reg. at 18035. Thus, “[a]

10 As explained, see supra at 17, Plaintiffs’ supplemental NEPA claims on summary judgment relate only to materials contained in the administrative record that BIA received before issuing its final decision on December 16, 2013, at which time major Federal action still remained for purposes of NEPA.


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final supplemental EIS would be required before the agency could take action.” Id.

Moreover, supplemental NEPA review is not required if a new alternative proposed

by a commenter “is a minor variation of one of the alternatives” previously analyzed

or “is qualitatively within the spectrum of alternatives” already discussed. Id.

It is well-established in Ninth Circuit case law that “an agency that has

prepared an EIS cannot simply rest on the original document”; to the contrary, “[t]he

agency must be alert to new information that may alter the results of its original

environmental analysis, and continue to take a ‘hard look at the environmental

effects of [its] planned action, even after a proposal has received initial approval.’”

Friends of the Clearwater v. Dombeck, 222 F.3d 552, 557 (9th Cir. 2000) (quoting

Marsh, 490 U.S. at 374). In Dombeck, for example, the Court explained that

“‘[w]hen new information comes to light the agency must consider it, evaluate it,

and make a reasoned determination whether it is of such significance as to require

[an SEIS].’” Id. at 558 (quoting Warm Springs Dam Task Force v. Gribble, 621

F.2d 1017, 1024 (9th Cir. 1980)). Thus, in reviewing the facts of that case, the

Court of Appeals found that the Forest Service violated NEPA because “[t]here is

no evidence in the record that . . . the Forest Service ever considered whether the

seven new sensitive species designations or the inadequacy of the snag and old

growth standards upon which the original EIS relied were sufficiently significant to

require preparation of an SEIS.” Id. Thus, the Court held that “[w]hen confronted

with this important new information, it was incumbent on the Forest Service to

evaluate the existing EIS to determine whether it required supplementation.” Id.

Even where an agency has made a formal determination that NEPA

supplementation is not required, “courts should not automatically defer to the

agency[] . . . without carefully reviewing the record and satisfying themselves that

the agency has made a reasoned decision based on its evaluation of the

significance—or lack of significance—of the new information.” Marsh, 490 U.S. at

378. In Marsh, the Supreme Court reviewed the U.S. Army Corps of Engineers’


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formal decision—as documented in a Supplemental Information Report—not to

prepare supplemental NEPA review upon the emergence of an interoffice

memorandum and a soil survey. Id. at 378-80. Although the Court ultimately

deferred to the Corps’ decision not to prepare a supplemental EIS because “[t]he

significance of the [new information] is subject to some doubt,” id. at 379, it

clarified that “if all of the information contained in the Cramer Memorandum and

SCS survey was both new and accurate, the Corps would have been required to

prepare a second supplemental EIS.” Id. at 385 (emphasis added). Thus, while

noting that “[i]t is also clear that, regardless of its eventual assessment of the

significance of this information, the Corps had a duty to take a hard look at the

proffered evidence,” the Court upheld the Corps’ decision because the agency

“determined based on careful scientific analysis that the new information was of

exaggerated importance.” Id.

Here, BIA bulldozed over NEPA in several distinct ways by failing to prepare

any supplemental NEPA review in connection with its December 2013 decision—

whether a supplemental EIS or at least an EA—analyzing the critically significant

information that had come to light in the more than two years since BLM issued its

October 2011 EIS that only preliminarily considered Tule Wind Phase II

alternatives and ultimately deferred authorizing that portion of the project precisely

so that BIA could gather new eagle mortality data, evaluate that new information,

and make an informed decision in consultation with FWS and CDFG as to whether

to authorize “all, none or part of” Tule Wind Phase II. TULE624-25 (emphasis

added).

At the outset, it is beyond legitimate dispute that, between BLM’s October

2011 EIS and BIA’s December 2013 ROD, BIA received copious amounts of

“significant new . . . information relevant to environmental concerns and bearing on

the proposed action or its impacts,” thereby triggering BIA’s duty to supplement

BLM’s pre-existing EIS. 40 C.F.R. § 1502.9(c)(1)(ii). For example, although none


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of these materials was ever disclosed to the public through a formal NEPA

process—much less given the “hard look” that NEPA dictates—the record

demonstrates that, at minimum, BIA received the following highly pertinent

documents, which did not exist at the time of BLM’s EIS, before making its

decision: (1) FWS, in its role as the expert federal wildlife agency with jurisdiction over federally protected golden eagles and migratory birds, sent BIA at least two formal interagency memoranda raising grave concerns about eagle mortality risks and the loss of an eagle breeding territory, criticizing the methodologies employed by BIA and Tule Wind LLC in estimating eagle fatalities, formally determining that this is a high-risk project for eagles and other birds, and urging BIA to consider various macrositing and micrositing alternatives to reduce the risk to eagles and other birds, see TULE106445-50; TULE106452-53; (2) CDFG, in its role as the expert state wildlife agency, submitted formal interagency comments to BIA raising serious concerns about risks to eagles and other migratory birds and recommending that, at minimum, BIA “remove turbines H-1 and H-2” from the turbine configuration to lessen the risks to eagles and other birds, TULE111549; and (3) BIA received newly collected telemetry data documenting significant eagle use of the tribal ridgeline, and provided at least some of that data to FWS and CDFG for review, see TULE107818 (2012 Third Quarter Eagle Telemetry Report); TULE108837 (2012 Fourth Quarter Eagle Telemetry Report); TULE107160 (discussing new telemetry data); TULE105829 (referring to 2012 telemetry data); TULE106447 (explaining the importance of “telemetry data to assess risk”); TULE107792 (CDFG evaluating the eagle use telemetry data in assessing the project’s risk to eagles).

Although such highly relevant new information received by BIA after issuance of

the 2011 EIS is more than sufficient to trigger the need for supplemental NEPA

review, BIA’s own ROD further highlights the agency’s error in this respect by

admitting that, in addition to BLM’s “FEIR/EIS,” “BIA’s decision . . . is based on

. . . supplemental documents such as the Fire Plan, the revised [Tule Wind Phase II]

ABPP, and related responses to public comments.” TULE110202 (emphasis

added). Accordingly, under these facts in which BIA’s own decision document

concedes that BIA relied on key “supplemental documents” never before analyzed

in any formal NEPA process, id., there is no legal or logical basis for the Court to


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condone BIA’s failure to prepare a supplemental EIS or at least a supplemental EA

under the circumstances.

Moreover, it is important to stress that BIA’s September 2012 Notice of

Availability and accompanying Draft Phase II ABPP and Fire Plan, see

TULE107639-41, cannot substitute for supplemental NEPA review. Not only did

the notice fail to incorporate the most important materials available to BIA from the

expert wildlife agencies, but the process did not even purport to incorporate the

formality required by NEPA mandating detailed analysis in a formal EIS or EA for

which notice must be provided in the Federal Register. To the contrary, BIA’s

notice solicited public comment only from an arbitrary selection of interested parties

as to a random subset of documents in BIA’s possession. Thus, as the Ninth Circuit

has held, an informal process that does not achieve NEPA’s underlying goals cannot

substitute for the formal procedures mandated by NEPA. See, e.g., Idaho Sporting

Cong., 222 F.3d at 566-67 (finding that “once an agency determines that new

information is significant, it must prepare a supplemental EA or EIS; [other

documents] cannot serve as a substitute” because “[i]t is inconsistent with NEPA

for an agency to use an[other document], rather than a supplemental EA or EIS, to

correct this type of lapse”) (emphasis added).

Indeed, it is not clear from the record that BIA ever even considered the

significance of these new and critically significant materials bearing directly on the

proposed action and its adverse impacts and then made any formal determination not

to prepare a supplemental EIS or EA. As was the case in Dombeck, “[t]here is no

evidence in the record that . . . the [agency] ever considered whether the” new

information concerning eagle and bird mortality, reasonable turbine configuration

alternatives, and other relevant materials “were sufficiently significant to require

preparation of an SEIS.” Dombeck, 222 F.3d at 558. Thus, as in Dombeck, given

the lack of any detailed consideration of these materials or any formal determination

that these materials are not “significant,” BIA flouted NEPA because “[w]hen


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confronted with this important new information, it was incumbent on the [agency] to

evaluate the existing EIS to determine whether it required supplementation.” Id.

That alone renders BIA’s decision arbitrary and capricious.

Furthermore, even had BIA properly analyzed these materials and formally

determined that they did not warrant supplemental NEPA review—which is

nowhere documented in the record—that decision would also be arbitrary and

capricious and in violation of NEPA under the circumstances. As explained, there

can be no legitimate dispute that the new materials received by BIA after BLM

issued its EIS—especially the formal interagency materials submitted to BIA by the

expert federal and state wildlife agencies with jurisdiction over golden eagles

determining that this project poses an extremely high risk to birds (including eagles)

and recommending that BIA consider and analyze specific risk-reducing alternatives

that had never before been subject to any NEPA review—individually and

collectively constituted “significant new . . . information relevant to environmental

concerns and bearing on the proposed action or its impacts.” 40 C.F.R. §

1502.9(c)(1)(ii). In turn, BIA had no choice under NEPA and its regulations but to

prepare supplemental NEPA review considering these new materials, analyzing the

new alternatives urged therein, and assessing the impacts of reduced-turbine and

other reasonable alternatives urged by the expert wildlife agencies and the public.

This is precisely the result contemplated by the Supreme Court in Marsh.

Although the Court ultimately deferred to the Corps’ decision not to supplement a

prior EIS because the purportedly new materials reached questionable conclusions,

the Court unequivocally stated that “[t]here is little doubt that if all of the

information contained in the Cramer Memorandum and SCS survey was both new

and accurate, the Corps would have been required to prepare a second supplemental

EIS.” Marsh, 490 U.S. at 385 (emphasis added). This proposition applies with

particular force in this case because the materials at issue are not informal

interoffice memoranda (as was the case with one of the documents in Marsh), but


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instead constitute the formal interagency determinations and recommendations of

the federal and state agencies designated by Congress and the California State

Legislature to administer laws protecting and conserving golden eagles and

migratory birds. On those facts, the Ninth Circuit has long recognized that an

agency violates NEPA by failing to heed—much less analyze in a supplemental

EIS—the expert agency’s advice, warnings, and recommendations based on that

agency’s scientific and technical expertise. See, e.g., Warm Springs Dam Task

Force, 621 F.2d at 1021 (noting “that the USGS is an agency having special

expertise in geology and seismic activity within the meaning of the statute” and

finding that “[t]he Corps’ response to the new information contained in the [USGS]

report did not satisfy NEPA” because “[o]n the basis of the information then

available, the Corps’ decision not to file a further supplement to the SEIS was not

reasonable”); Portland Audubon Soc’y v. Babbitt, 998 F.2d 705, 708-09 (9th Cir.

1993) (holding that “BLM's decision not to supplement the [timber management]

EISs was arbitrary and capricious” because “the body of scientific evidence

available by 1987 concerning the effect of continued logging on the ability of the

owl to survive as a species”—much of which had been studied by the Department of

the Interior (through FWS)—“raised serious doubts about the BLM’s ability to

preserve viability options for the owl if logging continued at the rates and in the

areas authorized”).11

Accordingly, in light of myriad documents constituting critically significant

new information bearing on BIA’s action, whether the Court determines that BIA

failed even to consider the “significance” of this new information before issuing its

lease approval decision, or that BIA somehow did in fact consider this information

and determined that no supplemental NEPA review was warranted, binding

11 In fact, the CEQ regulations deem agencies to have “special expertise” for purposes of NEPA where an agency has “statutory responsibility, agency mission, or related program experience” in the matter at hand. 40 C.F.R. § 1508.26.


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precedent compels the conclusion that BIA acted arbitrarily and capriciously, and at

odds with NEPA, by failing to prepare any supplemental NEPA review in

connection with its December 2013 ROD.12

B. Substantial Changes In The Project Configuration Also

Triggered BIA’s Duty To Prepare Supplemental NEPA

Review.

NEPA’s implementing regulations also require that, where there exists a prior

EIS for a particular action, an agency nonetheless “[s]hall prepare supplements to

. . . final environmental impact statements if [t]he agency makes substantial changes

in the proposed action that are relevant to environmental concerns.” 40 C.F.R. §

1502.9(c)(1)(i). In its December 2011 ROD, BLM emphasized this point by

explaining that “[a] proposed project change that has the potential for creating

significant environmental effects or represents a substantial change to the location or

use of the Selected Alternative will be evaluated to determine whether an amended

application and/or supplemental NEPA analysis is required.” TULE9766.

Here, BIA ultimately authorized the construction and operation of 20

commercial wind turbines on the tribal ridgeline that will have significant impacts to

golden eagles and other migratory birds, see TULE110202 (defining the action as

12 In stark contrast to how BLM addressed pertinent information from FWS raising serious concerns about eagle and bird mortality on the ridgeline—i.e., by adopting in its EIS “a comprehensive set of mitigation measures” to reduce risks to birds and by specifically “reposition[ing] turbines in valleys rather than on top of ridgelines, which would lessen any risk to” birds and especially golden eagles, see Protect Our Communities, 825 F.3d at 582-83 (emphasis added)—BIA never even looked at the expert federal agency’s scientific determinations and recommendations as part of any formal NEPA process, nor solicited public comment on the alternatives urged by those experts. Given that this Court “is deeply troubled by the Project’s potential to injure golden eagles and other rare and special-status birds,” 2014 WL 1364453, at *21, and the fact that both this Court and the Ninth Circuit relied heavily on BLM’s “removal” of all ridgeline turbines in finding that BLM had taken the requisite “hard look” in its detailed EIS, see id. at *6-7, it was especially incongruous for BIA to not prepare any NEPA review whatsoever when subsequently authorizing the turbines that BLM deliberately removed from its decisionmaking process on the advice of FWS, particularly in light of FWS’s repeated instructions to BIA to analyze specific alternatives to reduce the risk to eagles.


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“construction, maintenance, operation, and decommissioning of up to 20 turbines”),

despite the fact that BLM’s EIS—on which BIA relies—only considered a

maximum of 18 turbines on the tribal ridgeline, see TULE74-76 (Alternatives 1-4 in

BLM’s EIS would authorize construction and operation of up to 18 turbines on the

tribal ridgeline). Not only does the addition of two turbines on the tribal ridgeline

substantially increase the footprint of Tule Wind Phase II—as authorized by BIA—

by 11% in raw numbers, but given the expert predictions by FWS and CDFG of

high mortality of eagles and other birds on the tribal ridgeline, the expansion of this

project to include two more massive commercial wind turbines with large rotor-

swept areas likely to increase bird and eagle fatalities cries out for additional review

through a formal NEPA process to analyze the impacts of these new turbines and

reasonable alternatives to including them on BIA’s trust land. See, e.g., Envtl. Def.

Fund v. Marsh, 651 F.2d 983, 993 (5th Cir. 1981) (finding that a 50% increase in

land use was a substantial change requiring supplemental NEPA review);

Massachusetts v. Watt, 716 F.2d 946, 948-51 (1st Cir. 1983) (Breyer, J.) (finding

that a supplemental EIS was required even where the agency reduced by 97% the

amount of oil expected to be discovered in an offshore lease sale because “it is

important to know the probable magnitude of this change”); cf. Klamath Siskiyou

Wildlands Ctr. v. Boody, 468 F.3d 549 (9th Cir. 2006) (finding that an amendment

to a forest management plan was a substantial change under NEPA).

BIA’s only explanation for this substantial change in the project configuration

and the consequent effects that will result from Phase II turbines to eagles and other

birds is the agency’s assertion in the December 2013 ROD that:

While the Final EIR/EIS (FEIR/EIS) identified only 18 turbines as being located on the trust land, the FEIR/EIS analyzed the impact of siting 2 additional turbines in areas straddling BLM and trust lands, and therefore, this ROD anticipates that the final placement of those two turbines, which the EIS/EIR depicted as being located on BLM land directly adjacent to the trust land, may actually be on trust land within the area analyzed in the EIR/EIS after final engineering of the project is completed. Therefore, this ROD approves up to 20 wind turbines which may be sited on trust land, and which are consistent with the


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environmental evaluation completed as part of the NEPA process for the Project.

TULE110192.

BIA’s cursory rationale for substantially expanding the footprint of Tule

Wind Phase II on BIA-administered trust land—by incorporating and adding two

large turbines never before contemplated on BIA trust land—cannot withstand

scrutiny for several reasons. First, because it is evident from the record that “BLM’s

ROD made no decision to move forward with the wind turbines on the ridgeline

portion of project that were located on BLM land,” TULE107639-40, BLM could

still, in the future, decide to authorize the maximum number of turbines it previously

contemplated on BLM-administered ridgeline lands. This means that the collective

number of turbines on BIA and BLM ridgeline lands could ultimately be higher than

previously contemplated in BLM’s EIS due to BIA’s expansion to authorize 20,

instead of 18, commercial wind turbines on its trust lands. BIA’s ROD ignores that

concern entirely.

Second, alternatively, assuming that BLM’s EIS and ROD indicate that

agency’s intention not to authorize any ridgeline construction on BLM lands in the

future, as would be consistent with the mitigation measure BLM incorporated in its

EIS, see TULE624-25 (indicating that “none or part of the second portion of the

project” may be authorized by BLM and other agencies), then BIA’s subsequent

commandeering of two BLM-rejected turbines for its own purposes undermines

BLM’s EIS and mitigation measure, which were expressly crafted in an effort to

avoid the risks associated with ridgeline construction, and in the process

unavoidably triggers the need for supplemental NEPA review to consider the

impacts of BIA building two turbines that BLM itself chose not to construct in order

to reduce eagle mortality risks.

Finally, even aside from the number of turbines authorized on the ridgeline,

the BIA ROD undoubtedly approved the two turbines in a different location than


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were addressed in the BLM’s EIS. Given the significant consequences, this alone

has potential environmental implications that need to be analyzed in a supplemental

NEPA document.

For all of these reasons, BIA’s failure to prepare supplemental NEPA review

to analyze its new turbine configuration that substantially increases the project

footprint of Tule Wind Phase II and expands the magnitude of effects to eagles and

other migratory birds in a manner never contemplated by BLM’s EIS or the

mitigation measures found therein, is arbitrary and capricious and must be set aside

and remanded for fuller consideration by the agency. See, e.g., Dubois v. U.S. Dep’t

of Agric., 102 F.3d 1273, 1292 (1st Cir. 1996) (concluding “that a supplemental EIS

was required” because the selected action “entails a different configuration of

activities and locations, not merely a reduced version of a previously-considered

alternative.”); New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d

683, 708 (10th Cir. 2009) (rejecting “BLM’s unanalyzed, conclusory assertion that

its modified plan would have the same type of effects as previously analyzed

alternatives . . . . [b]ecause location, not merely total surface disturbance, affects

habitat fragmentation” and holding that “Alternative A-modified was qualitatively

different and well outside the spectrum of anything BLM [previously] considered

. . . and BLM was required to issue a supplement analyzing the impacts of that

alternative under 40 C.F.R. § 1502.9(c)(1)(i)”). III. BY RELYING ON BLM’S EIS AND PREPARING NO INDEPENDENT

NEPA REVIEW IN CONNECTION WITH ITS DECEMBER 2013

ROD, BIA VIOLATED NEPA’S PUBLIC DISCLOSURE AND PUBLIC

PARTICIPATION REQUIREMENTS.

For many of the reasons described above, BIA also violated NEPA and its

implementing regulations by withholding from the public highly germane materials

bearing on the environmental impacts of, and reasonable alternatives to, BIA’s

action in approving Tule Wind Phase II.


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Public disclosure of important information concerning an agency’s proposed

action, its impacts, and reasonable alternatives to the action is central to NEPA’s

statutory and regulatory scheme. For example, the CEQ regulations require that

federal agencies “shall to the fullest extent possible . . . encourage and facilitate

public involvement in decisions which affect the quality of the human environment.”

40 C.F.R. § 1500.2 (emphasis added). Thus, “NEPA procedures must insure that

environmental information is available to public officials and citizens before

decisions are made and before actions are taken.” Id. § 1500.1(b) (emphasis

added). Accordingly, NEPA’s implementing regulations explain that “[a]ccurate

scientific analysis, expert agency comments, and public scrutiny are essential to

implementing NEPA.” Id. (emphasis added). To accomplish these objectives,

agencies conducting NEPA review “shall provide full and fair discussion of

significant environmental impacts and shall inform decisionmakers and the public of

the reasonable alternatives which would avoid or minimize adverse impacts or

enhance the quality of the human environment.” Id. § 1502.1 (emphasis added).

In reviewing these public disclosure and public involvement obligations, the

Supreme Court has explained that the NEPA process ensures that “the agency, in

reaching its decision, will have available, and will carefully consider, detailed

information concerning significant environmental impacts; [and] it also guarantees

that the relevant information will be made available to the larger audience that may

also play a role in both the decisionmaking process and the implementation of that

decision.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989)

(emphasis added). This is crucial because “[s]imply by focusing the agency’s

attention on the environmental consequences of a proposed project, NEPA ensures

that important effects will not be overlooked or underestimated only to be

discovered after resources have been committed or the die otherwise cast.” Id.

Thus, as this Court noted in its Order dismissing some of Plaintiffs’ claims, “[t]he

key question is whether the EIS’s form, content, and preparation foster both


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informed decisionmaking and informed public participation.” ECF No. 50 at 18

(quoting City of Sausalito v. O’Neill, 386 F.3d 1186, 1207 (9th Cir. 2004)). In this

case, BIA has failed on both counts—i.e., BIA’s failure to prepare any independent

NEPA review in connection with its December 2013 lease approval decision did not

promote informed public participation in the process nor did it facilitate informed

decisionmaking by BIA.

Not only did BIA disregard highly pertinent expert determinations and

recommendations from FWS and CDFG and fail to analyze them in any formal

NEPA document, but BIA failed even to disclose to the public in its Notice of

Availability that FWS and CDFG had raised these concerns and urged specific

project design alternatives to reduce the risks to golden eagles. See TULE107639.

Hence, by soliciting public comment only on self-serving materials hand-picked by

BIA, and failing to make available to the public (or even mention the existence of)

highly pertinent materials by the expert agencies opposing the proposed action, BIA

thwarted NEPA’s public disclosure and public involvement mandates and in the

process undermined the integrity of the process by stripping the public of its ability

to ultimately inform the agency’s decision in a manner that would minimize and

mitigate the project’s impacts. See, e.g., New Mexico ex rel. Richardson, 565 F.3d

at 708 (“A public comment period is beneficial only to the extent the public has

meaningful information on which to comment, and the public did not have

meaningful information on the fragmentation impacts of [the proposed action].

Informed public input can hardly be said to occur when major impacts of the

adopted alternative were never disclosed.”).13

13 To obtain this crucial information that should have been made available to the public as part of a formal NEPA process by BIA, members of the public—such as Plaintiff POC—had to resort to seeking these and other project-related materials through the Freedom of Information Act. By the time that BIA finally released these materials to POC and others subject to that statute, the 30-day comment period on BIA’s Notice of Availability had long expired and the materials were no longer of use in informing BIA’s decision through public comment. This is not how NEPA is intended to work. See Dombeck, 222 F.3d at 559 (“‘Compliance with NEPA is a primary duty of every federal agency; fulfillment of this vital responsibility should


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At minimum, in light of BIA’s apparent disagreement with the expert

agencies’ scientific assessment of the project’s bird (and especially golden eagle)

mortality risk and necessary alternatives to be considered in order to reduce that

risk, BIA had a duty under NEPA to publicly acknowledge that disagreement, solicit

public comment on it, and provide a detailed and reasoned response to those

materials. See, e.g., 40 C.F.R. § 1502.9(b) (requiring that NEPA document “discuss

. . . any responsible opposing view . . . and indicate the agency’s response to the

issues raised”). BIA’s action here is functionally indistinguishable from the

situation in Center for Biological Diversity v. U.S. Forest Service, 349 F.3d 1157,

1167 (9th Cir. 2003), in which the Ninth Circuit found that “the concerns raised by

the FWS” and other experts “represent responsible opposing scientific viewpoints”

and that “those concerns identify scientific evidence and opinions contradicting the

[Forest] Service’s conclusion[s].” On that basis, the Court held that “[t]he Service’s

failure to disclose and analyze these opposing viewpoints violates NEPA”

“[b]ecause the commenters’ evidence and opinions directly challenge the scientific

basis upon which the Final EIS rests and which is central to it”; hence, the agency

was “required to disclose and respond to such viewpoints in the final impact

statement itself.” Id.; see also Friends of the Earth v. Hall, 693 F. Supp. 904, 934

(W.D. Wash. 1988) (holding that a NEPA document that “fails to disclose and

respond to the opinions held by well-respected scientists concerning the hazards of

the proposed action is fatally deficient”).

By failing to make available to the public all relevant materials bearing on the

proposed action, its impacts, and reasonable alternatives to it—and, instead, failing

even to reference those materials and to publicly respond in any meaningful fashion

not depend on the vigilance and limited resources of environmental plaintiffs.’”) (quoting Davis v. Coleman, 521 F.2d 661, 667 (9th Cir. 1975)); League of Wilderness Defenders / Blue Mountains Biodiversity Project v. Connaughton, No. 3:12-cv-2271, 2014 WL 6977611, at *14-19 (D. Or. Dec. 9, 2014) (finding that the Forest Service should have included an expert report in an EIS where the agency disclosed the report “in response to a second FOIA request, after the final EIS and the ROD were completed”)


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to the expert scientific determinations and recommendations contained therein—

BIA flouted NEPA, its implementing regulations, and the public disclosure and

public participation purposes that undergird the statute.

CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that the Court

declare that BIA’s December 2013 ROD and lease approval violated NEPA and its

implementing regulations—and was arbitrary, capricious, and issued without

observance of procedure required by law—and therefore set aside and remand

BIA’s decision for further consideration consistent with NEPA and the APA.

DATED: September 9, 2016

Respectfully submitted,

By: /s/ William S. Eubanks II

William S. Eubanks II (pro hac vice)

MEYER GLITZENSTEIN & EUBANKS LLP

William S. Eubanks II, DC Bar No. 987036

[email protected]

245 Cajetan Street

Fort Collins, CO 80524

(970) 703-6060

Eric Glitzenstein, DC Bar No. 358287

[email protected]

4115 Wisconsin Ave., N.W., Suite 210

Washington, DC 20016

(202) 588-5206 / Fax: (202) 588-5049

Attorneys for Plaintiffs


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CERTIFICATE OF SERVICE

I hereby state and certify that today I filed the foregoing document using the

ECF system, and that such document will be served electronically on all parties of

record.

Respectfully submitted,

/s/ William S. Eubanks II


meyer glitzenstein & eubanks llp william s. … · michael black, director, bureau ... new...

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