Jump to Navigation
Jump to Content

Protect Our Communities Foundation v. LaCounte

ELR Citation: 49 ELR 20156
Nos. 17-55647, (9th Cir., 09/23/2019)

The Ninth Circuit affirmed a summary judgment in favor of the Bureau of Indian Affairs (BIA) and its approval of an industrial-scale wind facility in southern California. A conservation group argued that BIA improperly relied on BLM's EIS for the project because BIA failed to explain its decision not to implement one of the EIS' listed mitigation measures. The court found that BIA did implement the measure by establishing criteria that determined the risk each turbine location presented to eagles, determining that all ridgeline turbines could be constructed in a way that met those criteria, and deciding to limit daytime operations of certain turbines based on their primary period of risk. The group next argued that the EIS' consideration of five alternatives was deficient because it failed to consider an alternative where only some of the 20 turbines proposed for a Native American tribe's reservation were authorized. The court found that, viewing the project as a whole, the alternatives analysis contained in the EIS was sufficient—though a mid-range alternative was not considered as to those 20 turbines, a mid-range alternative was considered for the project as a whole that involved constructing 63 out of 128 turbines. It therefore concluded that the project could proceed and affirmed summary judgment.