Law 360

March 19, 2018

By Michael Phillis   — A conservation group said Friday that the Bureau of Indian Affairs ignored the input of another federal agency and neglected important information when it approved a lease between a wind farm developer and a California tribe, asking the Ninth Circuit to overturn a lower court decision allowing the lease.

Protect Our Communities Foundation and two environmental advocates said the BIA didn’t properly address risks the wind farm posed to nearby protected golden eagles. The agency not only ignored concerns from the U.S. Fish and Wildlife Service over the potential impact of the project on the eagles, but it also relied on an environmental analysis done by the Bureau of Land Management that didn’t properly consider alternatives, according to the conservation group.

“Plaintiffs explained that the [FWS] — the agency with statutory responsibility for protecting, and undisputed ‘special expertise’ regarding, golden eagles — provided extensive reasons why BIA should not authorize the full Phase II project, but should instead consider alternatives to reduce threats to eagles,” the reply brief said. “BIA, without reasonable explanation in the record, rejected FWS’ expert input.”

In March 2017, a California federal judge threw out the conservation group’s suit over the BIA’s 2013 approval of the Ewiiaapaayp Band of Kumeyaay Indians’ lease to Tule Wind LLC for a wind farm project on the tribe’s San Diego County reservation. U.S. District Judge Janis L. Sammartino ruled that the BIA didn’t need to do a further review under the National Environmental Policy Act, despite the group’s claims about potential harm to the eagles.

The appeal asks the Ninth Circuit to overturn the lower court’s opinion and force the BIA to revisit its analysis of the lease, saying that turbines proposed for a ridgeline would endanger the eagles. The lease at issue allows Tule Wind to build and operate 20 industrial wind turbines on the tribe’s reservation. Both the tribe and Tule Wind have intervened in the suit.

The reply brief details a range of alleged deficiencies in the BIA’s decision-making. It says the final environmental impact statement forced the BIA to determine how much risk each turbine posed to eagles. That risk was never properly calculated, the reply said. The analysis the BIA used didn’t consider a “reasonable range” of alternatives, nor did it properly take into account new information, such as studies of golden eagle behavior, according to the group.

In addition, the FWS had expressed concerns about the risk the project posed to golden eagles, which should have been part of a deeper analysis, the group said.

“FWS’ post-FEIS memoranda provided BIA with important risk assessments beyond the FEIS, including new explanations of the severity of the risks to golden eagles,” the reply said.

Back in January, the government, the tribe and the renewable energy company filed separate briefs telling the Ninth Circuit that the BIA comprehensively looked at the impact of the project on golden eagles when it approved the lease. Tule Wind added that the conservation group’s assertions were unfounded.

“Eagle issues were addressed extensively in the [environmental impact statement],” Tule Wind’s brief said in January. “Indeed, it was identified as a ‘major issue’ for evaluation.”

Plus, the allegedly new information isn’t really new, the response briefs said.

Protect Our Communities previously unsuccessfully challenged the BLM’s approval of the first phase of the project: 65 turbines on lands the Bureau of Land Management administers in the county. In that case, the group took issue with the adequacy of an environmental impact statement, but in August 2016, the Ninth Circuit determined that the environmental impact statement was legally sufficient, according to court documents. The BIA adopted that same environmental impact statement when approving the lease for the project’s second phase.

William S. Eubanks II, counsel for Protect Our Communities, said the BIA had approved a project that would be dangerous to eagles and relied on another agency’s review.

“They are relying on an EIS that said we aren’t doing an alternative analysis,” Eubanks told Law360, adding that this went against NEPA’s requirements.

Representatives for the various defendants did not return a request for comment.

The federal government is represented by Brian Collins, John H. Martin and Allen M. Brabender of the U.S. Department of Justice Environment and Natural Resources Division.

The tribe is represented by Bradley G. Bledsoe Downes of Bledsoe Downes PC.

Tule Wind LLC is represented in-house by Jeffrey Durocher.

Protect Our Communities Foundation and the two environmental advocates are represented by William N. Lawton, Eric R. Glitzenstein and William S. Eubanks II of Meyer Glitzenstein & Eubanks LLP.

The case is Protect Our Communities Foundation et al. v. Weldon Loudermilk et al., case number 17-55647, in the U.S. Court of Appeals for the Ninth Circuit.

–Additional reporting by Andrew Westney. Editing by Jack Karp.