As we discussed in this post from May 2014, the American Bird Conservancy (“ABC”) in 2014 filed a lawsuit challenging the U.S. Fish and Wildlife Service’s (“USFWS”) 2013 revisions to its eagle permit rule, alleging violations of the National Environmental Policy Act (“NEPA”) and the Endangered Species Act (“ESA”). ABC’s challenge related to the revised eagle permit rule that was issued in December 2013 and that extended the maximum term for programmatic Eagle Take Permits under the Eagle Act to 30 years (the “Final 30-Year Rule”), subject to a recurring five-year review process throughout the permit life. Under the previous rule, the maximum term for programmatic permits for incidental “take” of bald and golden eagles was five years.
Yesterday, the U.S. District Court for the Northern District of California issued an order granting in part and denying in part ABC’s Motion for Summary Judgment as well as the Motions for Summary Judgment filed by the USFWS and the American Wind Energy Association. Notably, the Court ruled in favor of ABC and set aside the Final 30-Year Rule on NEPA grounds, concluding that the USFWS had “failed to show an adequate basis in the record for deciding not to prepare an EIS–much less an EA–prior to increasing the maximum duration for programmatic eagle take permits by sixfold.” The Court found the USFWS’s reliance on certain U.S. Department of Interior categorical exclusions misplaced. According to the Court, the USFWS failed to establish that the decision was “administrative” or “procedural” in nature and failed to address concerns by its own experts that the rule revisions might have highly controversial environmental effects.
Although the Court set aside the USFWS’s decision on NEPA grounds, the Court declined to set aside USFWS’s conclusion that the Final 30-Year Rule under the ESA. According to the Court, the plaintiffs failed to provide a basis for setting aside the USFWS’s conclusion that the Final 30-Year Rule would not affect endangered or threatened species or designated critical habitat.
The court set aside and remanded the Final 30-Year Rule to the USFWS for further consideration. Until the USFWS completes the appropriate NEPA analysis, the maximum term for programmatic Eagle Take Permits is five years.