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Protect Our Communities Foundation v. Jewell

ELR Citation: 46 ELR 20106
Nos. 14-55666, -55842, (9th Cir., 06/07/2016)

The Ninth Circuit upheld BLM's decision to grant a right-of-way allowing a wind energy project to be built and operated on federal lands in southeast San Diego County. Community groups argued that BLM violated NEPA, the Migratory Bird Treaty Act (MBTA), and the Bald and Golden Eagle Protection Act in issuing the right-of-way. A lower court rejected their claims, and the Ninth Circuit affirmed. Despite the groups' arguments to the contrary, the EIS' purpose-and-need statement was adequately broad; BLM acted within its discretion in dismissing alternative proposals; the mitigation measures provided ample detail and adequate baseline data for the agency to evaluate the overall environmental impact of the project; and the EIS took a “hard look” at the environmental impact of the project. Nor did BLM violate the MBTA. The MBTA does not contemplate attenuated secondary liability on agencies like BLM that act in a purely regulatory capacity, and whose acts do not directly or proximately cause the “take” of migratory birds. Here, BLM only authorized an energy company to construct and operate a wind energy facility on public lands. BLM therefore did not act to “take” migratory birds without a permit, within the meaning of the MBTA. Similarly, BLM was not liable under the Bald and Golden Eagle Protection Act.