Lawsuit challenges BIA’s approval of Calif. project, citing harm to eagles

Source: Scott Streater, E&E reporter • Posted: Thursday, September 25, 2014

A conservation group and two private landowners are suing the Interior Department and the agency’s Bureau of Indian Affairs for approving the expansion of a California wind farm in alleged violation of environmental laws and despite objections from federal and state wildlife officials who warned of significant impacts to eagles.

The group Protect Our Communities and the two landowners filed a federal lawsuit today in U.S. District Court for the Southern District of California, claiming BIA’s record of decision last year approving a lease that authorizes the second phase of the Tule Wind Energy Project in eastern San Diego County threatens golden eagles and other migratory birds, such as red-tailed hawks.

David Hogan and Nica Knite, who are both residents of Mount Laguna, Calif., are the landowner plaintiffs in the lawsuit.

The 33-page complaint — which names as defendants BIA Director Michael Black and Interior Secretary Sally Jewell, among others — claims that BIA was obligated by the National Environmental Policy Act (NEPA) to conduct additional environmental studies to evaluate new information about impacts to eagles that postdate the Bureau of Land Management’s approval in 2011 of the 65-turbine first phase of the Tule Wind Energy Project.

Phase II of the project, proposed by a subsidiary of Iberdrola Renewables, would consist of 20 turbines on tribal lands in the Ewiiaapaayp Indian Reservation along a ridgeline above McCain Valley, about 60 miles east of San Diego.

“When combined, Phases I and II of the Tule Wind Project have at least nine eagle nests within ten miles of the project site, with one nest closer than 1,000 feet of a turbine on the tribal ridgeline in Phase II,” according to the complaint.

One major problem, according to the lawsuit, is that Phase II of the project “was not the focus” of BLM’s original environmental impact statement. Yet BIA relied heavily on that original EIS in approving the second phase of the project, the complaint states.

The lawsuit also claims that BIA ignored numerous concerns from the Fish and Wildlife Service about the project expansion.

Fish and Wildlife officials had warned that “the location of this project 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 — which is equivalent to approximately four eagle deaths annually after the territory is lost,” the complaint says.

BIA relied on a formal Avian and Bat Protection Plan that was heavily criticized by the Fish and Wildlife Service, as well as California regulators.

FWS has not approved Tule’s request for a 30-year eagle “take” permit for Phase II that would allow the operation to kill, harm or harass eagles at the site in exchange for adopting mitigation measures to reduce impacts. The service last month determined the Eagle Conservation Plan included in the eagle take permit application was “incomplete” and sent it back to Iberdrola Renewables, according to the complaint.

Yet, despite the need for an eagle take permit, BIA issued the lease authorizing construction of the second phase of the Tule Wind project.

This, according to the complaint, violates the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act.

“These legal violations are compounded by the fact that the Service has explained to BIA that it would be difficult for BIA or Tule Wind LLC to ever obtain an eagle take permit for this project due to the grave eagle risk it presents, and thus BIA’s authorization to proceed with project construction and operation under the circumstances was ‘arbitrary and capricious’ and ‘not in accordance with law,'” the complaint says.

Interior spokeswoman Emily Beyer said the agency cannot comment on pending or ongoing litigation.

The plaintiffs — represented by the Washington, D.C.-based public interest law firm Meyer Glitzenstein & Crystal — are asking the court to order that the record of decision be remanded back to BIA “for further consideration, until Defendants have fully complied” with NEPA, the Bald and Golden Eagle Protection Act, and the Migratory Bird Treaty Act.

They also want the court to order BIA to prepare a supplemental NEPA review of the Phase II project and not rely on BLM’s 2011 analysis.

The issue of expanding commercial-scale wind power projects and their impacts to eagles has become a major issue in recent years.

The Fish and Wildlife Service, which has criticized Phase II of the Tule Wind project, has drawn criticism for its decision in December 2013 to approve a new rule allowing the service to grant programmatic incidental take permits to wind farms, transmission projects and other long-term energy operations for 30 years — a much longer period than the previous five-year term.

The American Bird Conservancy in June filed a federal lawsuit against Interior and the Fish and Wildlife Service, claiming the revised rule is riddled with violations of federal law, including NEPA, the Endangered Species Act, and the Bald and Golden Eagle Protection Act (Greenwire, June 19).

ABC is being represented in that lawsuit by Meyer Glitzenstein & Crystal, the same firm representing Protect Our Communities and the two landowners in today’s lawsuit against BIA and Interior.

Fish and Wildlife is currently conducting an in-depth review and analysis of its eagle management policies.

“San Diego’s majestic golden eagles are already in trouble, with their population predicted to drop by half to only 25 breeding pairs,” Kelly Fuller, executive director of Protect Our Communities, said in a statement. “The last thing San Diego’s golden eagles need are whirling blades near their nests and where they are soaring with the wind.”