Gravel2Gavel Construction & Real Estate Law Blog
On August 11, 2015, the U.S. District Court for the Northern District of California, San Jose Division, issued a long ruling deciding a challenge to a new rule, adopted by the U.S. Fish and Wildlife Service (FWS) in December 2013, which increased the maximum duration of a “programmatic permit” to “take” bald and golden eagles incident to otherwise lawful activities from 5 to 30 years. The case is Shearwater, et. al. v. Dan Ashe, Director, U.S. Fish and Wildlife Service, et al.
Bald and Golden Eagles are protected by the Bald and Golden Eagle Protection Act, enacted in 1940. Accordingly, it is illegal to “take” these species without a FWS permit, and the agency has issued rules that govern the permitting process. As a protected species, these eagles are also protected by the Endangered Species Act (ESA), and National Environmental Policy Act (NEPA), insofar as the FWS rule is a major action requiring a “hard look” at its environmental consequences.
Ordinarily, a federal agency adheres to NEPA by preparing either an Environmental Assessment (EA) or Environmental Impact Statement (EIS), unless the action is categorically excluded from NEPA review. The initial FWS rules, issued in 2009, provided that the maximum permit duration of any permit to “take” these eagles would not exceed 5 years. However, the unanticipated growth of the wind energy industry, which often operates in corridors frequented by these eagles, caused FWS to consider expanding the term to 30 years. As a result, a proposed rule was published in 2012 to accomplish this change, which generated considerable opposition. FWS determined that since the extension in the permit term was “strictly administrative”, this action was subject to one of the categorical exclusions to NEPA compliance. FWS also determined that the new 30-year rule was also exempt from the ESA’s interagency consultation requirements.
After finding that the plaintiffs had standing to bring this case, which alleged they suffered procedural injuries subject to NEPA and the ESA, the District Court held that the new 30-year rule must be set aside for violating the Administrative Procedure Act and the procedural requirements of NEPA, and it was remanded to the FWS for further consideration. Basically, the District Court held that the FWS failed to show there was an adequate basis in the record supporting the decision not to prepare either an EIS or EA. In addition, the District Court held that the FWS’s argument that its reliance on the categorical exclusions not adequately explained and was, thus, unreasonable. However, the District Court was not convinced by the plaintiffs’ argument that the FWS’s decision to forego ESA consultations was arbitrary and capricious.