F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

P R O T E C T O U R C O M M

U N I T I E S F O U N D A T I O N , Plaintiff
,

and

B A C K C O U N T R Y A G A I N S T D U M P S ; D O N N A T I S D A L E , Plaintiffs-Appellants
,

v

.

S AL L Y J E W E L L , in her official capacity as Secretary of the United States Department of the I nterior; M I K E P O O L , in his capacity

as Acting Director of the United States B ureau of L and Manag ement; T H O M A S Z A L E , in his official capacity as El Centro F ield Office Manag er for the United States B ureau of L and Manag ement; B U R E A U O F L A N D M A N A G E M E N T ; U.S. D E P A R

T M E N T O F T H E I

N T E R I O R , Defendants-Appellees
,

T U L E W I

N D , L L C, Intervenor-Defendant-Appellee. N o. 14-55666

D.C. No. 3:13-cv-00575- J L S-J MAB A C K C O U N T R Y A G A I N S T D U M P S V

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P R O T E C T O U R C O M M

U N I T I E S F O U N D A T I O N , Plaintiff-Appellant
,

and

B A C K C O U N T R Y A G A I N S T D U M P S ; D O N N A T I S D A L E , Plaintiffs
,

v

.

S AL L Y J E W E L L , in her official capacity as Secretary of the United States Department of the I nterior; M I K E P O O L , in his capacity

as Acting Director of the United States B ureau of L and Manag ement; T H O M A S Z A L E , in his official capacity as El Centro F ield Office Manag er for the United States B ureau of L and Manag ement; B U R E A U O F L A N D M A N A G E M E N T ; U.S. D E P A R

T M E N T O F T H E I

N T E R I O R , Defendants-Appellees
,

T U L E W I

N D , L L C, Intervenor-Defendant-Appellee. N o. 14-55842

D.C. No. 3:13-cv-00575- J L S-J MA

OPI NI ON

Appeal from the United States District Court for the Southern District of California J anis L . Sammartino, District J udg e, PresidingB A C K C O U N T R Y A G A I N S T D U M P S V

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Arg ued and Submitted April 6, 2016 Pasadena, California

F iled J une 7, 2016

B efore: J EROME F ARRI S, TI MOTHY M. TYMKOVI CH, * and MI L AN D. SMI T H, J R., CI RCUI T

J UDGES.

O pinion by

J udg e Milan D. Smith, J r.

SUMMARY * *

Environm ental Law

The panel affirmed the d istrict court’s summary judg ment in favor o f federal ag encies a nd o fficials and intervenor Tule W ind, L L C in a

n action ch a l l e ng ing the B ureau of L a nd Manag ement’s decision to g rant a rig ht-of-way on federal lands in southeast San D ieg o County , permitting Tule Wind to construct and operate a wind energ y project.

The panel held that the B L M was not liab l e u n d er the National Environmental Pol i c y Act, the Mig ratory B ird Treaty Act, the B ald a

n d Golden Eag le Protection Act, or the Administrative Procedure Act for its regulatory decision to

* T h e Ho n o rab le T im o th y M. T y m k ov ich
, Ch ief J u d g e o f th e U.S. Co urt

o f A p p eals f o r th e T en t

h Circu it, sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.B A C K C O U N T R Y A G A I N S T D U M P S V

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g rant Tule a rig ht-of-way to develop and operate a renewable wind energ y

project.

Specifically
, concernin g plaintiffs’ alleg a tions that the B L M f ailed to c omply w ith the National Environmental Policy Act in p reparing the environmental impact statement, the panel held that: the district c ourt p roperly determined that the environmental impact s tatement’s purpose-and-needstatement was adequately broad; the B L M acted within its discretion in d ismissing alternative proposals; the mitig ation

measures provided ample detail and adequate baseline data for t he ag ency to evaluate the overall environmental impact

o f t h e p roject; and the environmental impact statement took a “hard look” at the environmental impact of the project.

Concerning p laintiffs’ a lleg ations o f B L M’s violations o f the Mig ratory B ird Treaty Act, the panel held that the Act did
not contemplate attenuated secondary liability on ag encies like the B L M that act in a p urely regulatory capacity
, a nd whose acts do not directly o r prox imately cause the “ take” o f mig ratory b irds, within the meaning o f 1 6 U.S.C. § 703(a). The panel conc l u d e d t h at the B L M did not a ct to “take” mig ratory b irds without a permit w i t h in the meaning of the Act.

The panel held that the B L M’s regulatory role in this case

was too far remove d from the ultimate leg al violation to be independently unlawful under the Administrative Procedure Act.

F inally
, for similar reasons that applied to defeat liability under the Mig ratory B ird Treaty Act, the p a n e l h eld that the B L M was not liable under the B ald and Golden Ea gl e P rotection A ct, and w as not responsible for violations t h atB A C K C O U N T R Y A G A I N S T D U M P S V

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mig ht be independently committed by rig ht-of-way g rantees, such as Tule W ind.

COUNSEL

Eric R. Glitz enstein (arg ued) and W illiam S. Eubanks, I I
, Mey er Glitz e nstein & Cry stal L L P, W a shing ton, D.C., for Plaintiff-Appellee Protect Our Communities F oundation.

Stephen C. Volker ( argued), J amey M.B

. V ol k er, Marcus E i chenberg
, and Stephanie Clark, L aw Offices o f Stephan C. Volker, Oa kland, California, for PlaintiffsAppellants/Plaintiffs-Appellees B ackcoun t r y A g a i n s t Dumps and Donna Tisdale.

Allen M. B r abender (arg ued), J ohn H. Ma rtin, a

nd Stacey B osshardt, Attorney s; J ohn C. Cruden, Assis t a nt Attorney General; United States Department of J ustice, Environmental & Natural Resources Division, W ashing ton, D .C.; for Defendants-Appellees.

Daniel P. B runton (arg

ued), L atham & W atkins L L P
, San Dieg o, California, for I n tervenor-Defendant/Appell e e Tule W ind, L L C.B A C K C O U N T R Y A G A I N S T D U M P S V

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OP INION

M. SMI TH, Circuit J udg e :

Protect Our C o mmunities F oundation (Protect), B ackcountry A g ainst Dumps ( B ackcountry ), a n d Donna Tisdale (collect i v e l y , Plaintiffs) a ppeal the decision of the B ureau of L and Manag ement to g rant Defendan t-I ntervenor Tule Wind, L L C, (Tule) a righ t -of-way on federal lands in southeast San Dieg o County

. Plaintiffs n amed several federal de fe n dants in this a ction, including the B ur eau o f L a nd Manag ement ( B L M), the Department of the I n te ri or, a nd various officials of those ag encies (collectively
, Defendants).

The B L M’s rig ht-of-way

g rant permits Tule to construct and operate a wind e nerg y project, w hich Plaintiffs claim will harm birds in violation of the Mi gr a t o r y B ird Treaty A ct (MB T A), 16 U.S.C. §§ 703–12, and the B ald and G o lden Eag le Protection Act (Eag le A ct), 16 U.S.C. §§ 668–668d. I n addition, Plaintiffs challeng e the adequac y o f the B L M’s Environmental I mpact Statement (EI S) f or the project, which

was prepared pursuant to the National Environmental Policy Act (NEPA), 42 U .S.C. §§ 4 321–70h. Th e district court rejected Plaintiffs’ c h a l l e n g e s a n d g ranted summary judg ment to Defendants. W e affirm.

F ACTS AND P RIOR P ROCEEDING S

A. The Right-of

-Way G rant

The B L M, which is a

n ag ency within the D e p a r t ment o f the I nterior, is c harg ed with the manag ement of fed e ra lly owned land. See 43 U.S.C. § § 1732(a), 1702(c). Among the B L M’s r esponsibilities is the determination of whethe r toB A C K C O U N T R Y A G A I N S T D U M P S V

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g rant r ig hts-of-way for the u s e of such lands. See id

. § 1761(a). Plaintiffs, which are a collection of environmental advocacy org aniz ations and a local resident, ch al l e ng e a rig ht-of-way g rant by t h e BL M that would permit T u le to construct and operate a wind energ y facility on 12,360 acres of land in the McCain Valley
, 7 0 miles east of San Dieg o (the Project).

Tule’ s orig inal rig h t-of-way proposal envisioned the construction of 128 w ind turbines and suppor t i n g infrastructure, which could g enerate up to 200 meg awatts of electricity

. O n December 23, 2010, the B L M released a leng thy draft EI S for public c omment. The EI S discussed the environmental impacts of the Project and considered a r ang e of alternative approaches.

Ultimately
, the B L M d ecided to g rant Tule a rig ht-of-way for the d evelopment of a more modest w in d

- e nerg y facility
, which eliminated thirty

- three of the or i g inally proposed turbines from the Project. Moreover, in order to help reduce the risk of avian collisions with turbine blades, the approved Project repositioned several wind turbines t h at were orig inally proposed to be located o n t o p of ridg e lines. A s

m o d i fied, the Project was ex p ected to g enerate up to 1 8 6 meg awatts of electricity
, thereby meeting the electrical
energ y needs o f approx imately 65,000 homes and businesses.

On O ctober 3, 2 011, the B L M released a f inal E I S reflectin g these modifications. The ag ency published a R e c o rd of Decision (ROD) on December 19, 201 1
, memorializ ing its g rant of a rig ht-of-way for the Project. The ROD specified that the r ig ht-of-way g r ant would be i s sued f o r a thirty -y ear term, with an option to renew. I t further
p r ovided that the g rant of the rig ht-of-way was ex p re s s l yB A C K C O U N T R Y A G A I N S T D U M P S V

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conditioned on the “ implementation of mitig ation measures and monitoring prog rams,” as well as “the issuance of all other necessary local, state, and F ederal a p provals, authoriz ations, and permits.”

I ncluded among the mitig ation measures required for the Project w as the Project-Sp ecific Avian and B a t Protection Plan (the Protection Plan). Tule devel o p e d the Protection Plan in conjunction with the B L M and the U.S. F ish and W ildlife Service (F W S), which is the federal ag e ncy r espo n s i b l e for enforcing the MB TA and the Eag le A ct. The Protection Plan

was based on scien tific literature and research studies, including field survey s conducted by Tule over several y ears in the Project area. B a sed on this information, the Protection Plan outlines a number of measures that would, if implemented, mitig ate the impacts of the Project on bird a nd bat species.

The Protection Plan provides f or c ontinuous mon itoring and inspection of the Project’s environmental impacts on bird and bat species as part of an adaptive-manag ement plan. The F W S e ndorsed the Protection P l a n , stating that it was “appropriate in its adaptive manag ement approach to avoid and minimiz e t a k e o f mig r atory b irds, bats and eag les.” Althoug h the F W S advised that the Protection P lan was not

a “take permit,” it a cknowledg e d that it could serve as the basis for a f

uture permit a

pplication with the F W S. The B L M in c orporated the Protection Plan by reference into the final EI S a nd condition ed i t s rig ht-of-way g r ant on Tule’s adherence to the mitig a tion measures described therein.B A C K C O U N T R Y A G A I N S T D U M P S V

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B. P rocedural History

Plaintiffs jointly broug ht an action in federal district court, challeng ing the B L M’s issuance of a rig ht-of-way g rant to Tule, and seeking injunctive and declaratory relief under the Administrati v e Procedure Act (APA), 5 U .S.C. §§ 701–06, to address Defendants’ a lleg ed unlawful a c t ions under NEPA, the MB TA, a nd the E ag le Act. Tule intervened as a defendant in the lawsuit.

The p arties filed cross-motions for summary judg ment, and the district court g ranted Defendants’ m o t i on for
summary judg ment on all claims. Specifically
, t he district
court held t h a t t h e final EI S had sufficiently articulated a p r oposed g oal and need for the Project, properly revie w e d a number of a lternatives, and proposed reasonable mitig ation

measures. The district court also he l d t h a t the final E I S complied with NEPA by taking a “hard l o ok” at the environmental impacts of the Project, including impacts such

as noise and electromagnetic energ y or stray voltag e, as w ell

as effects on avian species and g reenhouse-g as e missions. F inally
, the d istrict c ourt c o n clude d t h at the B L M was not

r e s ponsible for e nsuring that it or Tule obtain MB T A a n d Eag le Act permits from the F W S prior to issuing its rig ht-ofway g rant.

Plainti ffs filed two separate notices of a ppeal from the district court’s judg ment, with Plaintiff Protect addressing the MB TA issue, and Plaintiffs B ackcountry and T isdale addressing a ll issues appealed. W e consolidated these appeals from the district court’s judg ment.B A C K C O U N T R Y A G A I N S T D U M P S V

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STANDARD OF REVIEW

W e have jurisdiction pursuant to 28 U.S.C. § 1291. W e review the district court’s g rant of summary judg m e n t de

novo. United States v. City of Tacoma
, 332 F .3d 5 74, 578 (9th Cir. 2003). Under the APA, we review ag ency action to determine whether i t i s “arbitrary
, capricious, an abuse o f discretion, or otherwise not in accordance with law.” 5 U .S.C. § 706(2)(A). An ag ency acts in an “arbitrary and capricious”

manner when it “relie[ s] on factors which Cong re s s has not intended it to c o nsider, entirely fail[ s] to consider an important aspect of th e p r o b lem, offer[ s] an ex planation for its decision that runs counter t o t h e e vidence before the
ag ency , or is so implausible that it c[ a n] not b e a s cribed to a difference in view or the product of a g ency ex pertise.” Motor Vehicle Mfrs. Ass’n v. Sta te Farm Mut. Auto. Ins. Co
., 463 U.S. 2 9, 43 (1983). I n g enera l, a court will “ uphold
ag ency decisions so long as the ag encies have ‘considered the relevant f a ctors and a

rticulated a rational connection b etween the factors found and the choices made.’” City of Sausalito v

. O’Neill
, 386 F .3d 1186, 1206 (9th Cir. 2004) ( quoting Selkirk Co n s e r vation Alliance v. Forsgren
, 336 F .3d 944, 953–54 (9th Cir. 2003)). This defe rence is particularly appropriate when a court is reviewing “ issues of f act,” “where analy sis o f the relevant d ocuments requires a hig h level of technical

ex p ertise.” City of Sausalito , 386 F .3d at 1206.

D ISCUSSION

I. The Environm ental Im pact Statem ent’s Comp liance

w ith NEP A

NEPA, w hich provides the statutory framework for f e deral ag encies reviewing the environmental effects o f aB A C K C O U N T R Y A G A I N S T D U M P S V

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proposed action, requires the preparation of an EI S for “major Fe d eral actions sig nificantly affecting the quality of t h e human e nvironment.” 42 U.S.C. § 4332(2)(C). The EI S must

c o ntain, among other thing s, a detailed discussion of “ t h e

env ironmental impact of the proposed action,” “adverse

e n v i ro n m e n t a l e f

f e c t s w h i c h c an n o t b e a v o i d e d
, ” “alternatives to t h e p roposed action,” and a statement of the
purpos e a n d need for the action. 42 U.S.C. § 4332(2)(C); 40 C.F .R. § 1502.13.

NEPA outlines a series of procedural steps, but it does not impose any p articular substantive result on an ag ency

. Hells Canyon Alliance v. U.S. Forest S e rv. , 227 F .3d 1170, 1177 (9th Cir. 2000). Rather, compliance w ith NEPA involves the application of a “rule of reason,” which involves “a prag matic judg ment whether the EI S’s form, c ontent, and preparation foster both informed decision-making and informed public participation.” Churchill Cty. v

. Norton
, 276 F .3d 1060, 1071 (9th Cir. 2001) (quoting California v. B lo ck
, 690 F .2d 753, 761 (9th Cir. 1 982)). Specifically
, a reviewing court will take

a “hard look” at the EI S to determine w h e t h e r it “contains a reasonably thoroug h discussion o f the sig nificant aspects o f the probable environmental consequences.” Id. a t 10 71–72 (quotation mar k s omitted). NEPA f avors “coherent a

nd comprehensive up-front e n v ironmental analy sis to ensure

. . . that the ag ency will not a ct on incomplete information, only
to reg ret its decision after it is too late to co r r e ct.” I d. at 1072–73 (quotation marks omitted).

Plaintiffs alleg e that D efendants failed t o comply with NEPA in a number of respects in preparing the EI S. F i rst , Plaintiffs maintain that the scope of the Project’s purpose a nd need statement was too narrow. S econd
, Plaintiffs argue that
t h e E I S failed to adequately ex amine viable alternati v e s ,B A C K C O U N T R Y A G A I N S T D U M P S V

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including a “distributed g eneration” alternative involving the

use of rooftop solar p anels. Third
, Plaintiffs clai m that the Project’s proposed mitig ation strateg ies are too v ag ue a n d speculative to satisfy N EPA. Finally
, Plaintiffs maintain that
t h e E I S fails to take a “hard look” at the environmen t al impact o f the Project i n several d istinct way s. Specifically
, they note that the EI S omits a comprehensive discus s i o n o f the impacts of n o i s e o n bird species and fails to conduct a survey of nig h ttime mig ratory birds. I n addition, Plaintiffs claim that the EI S does not f a i r l y a d dress the impacts o f inaudible noise, electromagn etic fields, and stray voltag e on h umans, or the proposed consequences of the project o n g lobal w arming

. W e address each of these arguments in turn.

A. Statem ent of P urpose and Need

An ag ency tasked w ith preparing an E I S m ust p repare a statement that “ briefly specif[ ies] the underly ing purpose a

nd need to which the ag ency is respondin g. ” 40 C.F .R. § 1502.13. This statement should inform the ag ency ’s r eview of alternatives to the proposed actio n a n d guide its final selection. W e accord the ag ency “considerable discretion to def i n e a p roject’s purpose a nd need” and review such
statements for reasonableness. A laska Survi val v. Surface Transp. B d.
, 7 05 F .3d 1073, 1084 (9th Cir. 2013). However,

a sta t e ment o f purpose and need “will fail if it unreasonably

narrows the ag ency ’s consideration o f alternatives so that the outcome is preordained.” Id. I n a contex t, as here, where the
ag ency is ta s k ed with d eciding whether to issue a p ermit o r license, the sta t e m e n t of purpose and need may include “private g oals” along side statu tory policy objectives. Id. at 108 5

. However, it is the statutory g oal that “serve[ s] as a g uide by which to det e r m ine the r easonableness of the objectives outlined.” Id. at 1084–85.B A C K C O U N T R Y A G A I N S T D U M P S V

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I n this c ase, the district court properly determined that the EI S’s purpose-and need-statement was adequately broad, such that the a g ency ’s decision was not foreordained. The statement specified that:

[ T] he purpose and need for the propos ed action is to r espond to a [ F ederal L and Policy and Manag ement Act (F L PMA)] rig ht-of-way application submitt e d b y Tule W ind, L L C

. . . . I n conjunction with F L PMA, the B L M’s applicable authorities include the following :

• Ex ecutive Or d e r 13212

. . . which mandates that ag encies act ex pediently and in a manner consistent with applicable l aws to increase the production a n d transmission of energ y in a safe a nd environmentally sound manner.

• Section 211 of the Energ y Policy Act o f 2005

. . . which established a g oal for the [ DOI ] to approve a t least 10,000 meg awatts of n onhy dro power renewable
energ y power on public lands by 2015.

• Secretarial Order 3285A1, [ which] establishes the development of renewable
energ y as a priority f

o r t he DOI [ and] announced a policy g oal o f identify ing and p rioritiz ing specific locations (study

a r e a s ) b e s t s u i t e d f o r l a r g e

- s c a l e production of solar energ y

.B A C K C O U N T R Y A G A I N S T D U M P S V

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The EI S’s purpose-and-need st a t e m ent reflects both the
ag ency ’s immediate o b

j e ctive, “to respond” to Tule Wind’s rig ht-of-way request, as well as the broader policy g oals that the ag ency considered in decidin g a m ong a lternative proposals. This statement is fully consistent w ith the ag e ncy ’s duty to c onsider federal policies in fashioning its response to

a ri ght-of-way application, and constitutes a reasonable formulation of p r o

ject g oals. See id

. a t 1084. The purposeand-need statement also permitted the a g ency to consider a rang e of alternatives to Tule’s p roposal, including one which it u ltimately adopted in order to reduce the im p a c t of the Project on the surroundingenvironment.

Althoug h Plaintiffs also challeng e the B L M’s purported “need” for the action, the statement of nee d is adequately supported by the f

ederal objectives outlined in the EI S. I n particular, Section 2 11 of the Energ y Policy Act of 2005 sets forth an a g ency g oal of approving up t o 1 0
, 0 0 0 w atts o f renewable energ y d evelopment on public lands by 2 0 15—a
t i m e frame w hich, the ag ency determined, would be most readily met throug h the d e v elopment of a utility

- scale energ y project.

B. P roject Alternatives

Plaintiffs c o n t end that the B L M dismissed viable alternative p rojects out of han d. Specifically
, Plaintiffs challeng e the B L M’s decision to reject a “distributed
g eneration” alternative, which would involve the use o f rooftop solar panels. Since we find the ag ency ’s statement o f
purpose a nd need to be reasonable, the B L M a cted within its discretion in dismissing alternative proposals.B A C K C O U N T R Y A G A I N S T D U M P S V

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F irst, the r ang e of alternatives considered in the EI S was not imp e r missibly narrow, as the ag ency evaluated all “reasonable [ and] feasible” alternatives in ligh t of the ultimate purposes of the pro j e ct. City of Carmel-by-the-Sea

v. U.S. Dep’t o

f Transp
., 1 23 F .3d 1142, 1155 (9th Cir. 1997). An ag ency need not r eview “remote and speculative” alternatives. W

estlands W

ater Dist. v. U

.S. Dep’t of I

nterior
, 376 F .3d 8 5 3
, 868 (9th Cir. 2 004) ( quoting Vt. Y ankee Nuclear Power Corp. v. Natural Res. Def. Counci l

, Inc
., 435 U.S. 519, 551 (1978). I nstea d
, its review is g uided by a “rule of reason

. ” C i ty of Carmel-by-the-Sea
, 123 F .3d at 1155. A ccording ly
, the EI S need only “briefly d i s c uss” the

reasons for eliminating an alterative not selected for detailed

ex amination. 40 C.F .R. § 1502.14(a).

Here, the ag ency reviewed five action alternatives to the project orig inally proposed by Tule, as w ell as two no-action alternatives. T he ag e ncy also briefly co n s idered seven project-desig n a lternatives a nd three ener gy -g eneration alternativ e s , i n c l u d i n g d i s t r i b u t e d g e n eration. The distributedg eneration a lternative involved the use of rooftop solar panel
sy stems on building s in San Diego County and the development of other renewable-energ y sy stems.

T h e B L M d i s m i s s ed the distributed-g eneration a lternative becau s e i t failed to satisfy the ag ency ’ s g oals and presented

a number of feasibility challen ge s

. F irst, the distributed
g eneration a lternative did not provide for utility

- scale energ y g eneration on public lands, and therefore would have been less e ffective at meeting the g oals articulated by the ag ency

. Althoug h an ag ency is n ot limited to considering alternatives wit h i n its jurisdiction, the ag ency is not required to g ive

ex h austive consideration to a n alternative that it appropriately deems remote and speculative. City of Angoon v

. Hodel
,B A C K C O U N T R Y A G A I N S T D U M P S V

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803 F .2d 1016, 1021–22 (9th Cir. 1986) (alternatives “must be ascertainable and reasonably within r each”). I n t his c ase, the private installati o n and use of rooftop solar sy stems presented sig nificant f

eas i b i lity issues that the ag ency decided
to take into a ccount w hen choosing among a lternative proposals.

Specifically
, the B L M fo und the implementation o f this alternative t o b e “speculative” g iven the current status o f

so l a r technolog y and the regulatory and commercial landscape. A ccording to the B L M, the installation of at least 100,000 new rooftop solar units, primarily on private residential or commercial properties, would be required in order to match the energ y g eneration from the orig inal w indenerg y proposal. Even i f s uch an outcome w ere feasible, however, the B L M concluded t h a t a project of such scale mig ht require “ex tensive upg rading ” o f infrastructure a nd
g enerate uncertain environmental impa c ts. These technical determinations of the ag e ncy , r eflecting the application of its specializ ed e x pertise, merit particular de f e rence on review. See Lands Council v. McNair
, 537 F .3d 981, 98 8 ( 9 t h Cir. 2008) ( en banc), overruled on other grounds b y W inter v

. Natural Res. Def. Council, Inc.
, 55 5 U. S

. 7, 20 (2008). W e thus f ind that the B L M reasonably concluded that the overall effectivenes s o f a d i s t

r i b ut e d

- g e neration a lternative, r eliant on private installation and technical upg rading
, remained speculative in practice. 1 Similarly
, Plaintiffs’ final contention that the distributed-g e neration sy stems w ould p resent a cost1 P lain tif f s h ig h l i g h t t h e f

act th at state leg islatio n creatin g a sy s tem of

ren ew ab le- en erg y trad in g cred its w as p assed tw o m o n th s af ter th e f in al E I S w as issu ed

. N o t

w i th s tan d in g th is n ew d ev elo p m en t, th e B L M acted

reaso n ab ly b ecau se i t b ased its d eterm in atio n o f f easib ility o n a n

u m ber

o f in dep en d en tly

su f f icien t reaso n s d iscu ssed

inth e EIS.B A C K C O U N T R Y A G A I N S T D U M P S V

. J E W

E L L 17

effective alternative must b e weig hed a g ainst the feasibil ity of the overall approach and its consistency with ag ency g o als. Considered as a w h o l e , therefore, the B L M did n ot act unreasonably in dismissin g the distributed-g eneration alternative.

C. Mitigation Measures

Pursuant to NEPA, a

n ag ency must also consider appropriate mitig a tion mea s u r e s that would reduce the environmental impact of the proposed action. 4 2 U.S.C. § 43 3 2(2)(C)(ii). As noted, our r eview is g uided b y whether the ag ency ’s analy sis is reasonable and offer s “ sufficient detail to ensure that environmental consequences have been fairly e valuated.” S

. Fork Band Co u n c i l of W

. Shoshone of Nevada v. U.S. Dep’t of

Interior
, 588 F .3d 718, 7 27 ( 9th Cir. 2009) (quoting Robertson v. Methow Valley Citizens Council
, 490 U.S. 332, 352 ( 1989)). “Perfunctory descriptions or mere lists of mitig ation mea s u

r e s a re insufficient.” Alaska Survival
, 705 F .3d a t 1088. Rather, the ag ency must provide “an assessment of whether the proposed mitig ation measures can be effective

. . . [ and] whether ant i ci p a t ed environmental impacts can be avoided.” S. Fork Band Council
, 588 F .3d at 727. B ecause mitig ation measures are projections that allow

an ag ency to alleviate “ i mpact a fter construction,” the E I S may not use them “as a prox y for [ collecting ] baseline data” before construction that would e n a ble the ag ency to “first understand[ ] the e x tent of the p r o blem.” N. Plains Res. Council, Inc. v. Surface Transp. Bd
., 668 F .3d 1067, 1084–86 (9th Cir. 2 011). On the other hand, the EI S’s proposed mitig ation measures “need not be leg ally enforceable, funded

or even in final form to c ompl y with NEPA’s procedural

re quirements.” Nat’l Parks & Conservation Ass’n v. U .S. Dep’t of Transp ., 222 F .3d 677, 681 n.4 (9th Cir. 2000).B A C K C O U N T R Y A G A I N S T D U M P S V

. J E W

E L L 18

I n this c as e , the a g ency drafted a comprehensive set o f mitig ation measures relying
, in part , o n field studies conducted by T ule over several y ears in the p roposed Project

area. T hese studies, in combination w i th scientific research, informed the B L M’s development of a number of mitig ation
measures, including the creation of the leng thy Prot e c t i o n Pla n

. The Protection Plan o utlined additional methods o f achieving environmental mitig ation at each s t ag e of the Project. The B L M incorporated the Protection Plan i n t o the final EI S by

reference.

Plaintiffs c laim that the mitiga t i o n measures o utlined in the E I S do not pr ovide “ sufficient detail,” and that the E I S improperly defers t h e formulation of certain mitig ation

measures until post-development monitoring and inspection, notably throug h the use of a n adaptive-manag ement plan. Y et the mitig a tion measures, including t he 85-pag e Protection Plan, provide ample detail and adequate baseline d ata for the
ag ency to e valuate the overall environm e n tal impact o f the Project. Plaintiffs merely “fly speck” the EI S r ather than identify consequential flaws that w ou l d prevent the ag ency f r o m s u f f i c i e n t l y g r a s p i n g t h e P r o j e c t ’ s p o t e n t i a l environmental consequences. Or. Env tl. Council v. Kunzman
, 817 F .2d 484, 4 92 ( 9th Cir. 1987) (quotation marks omitted). Moreover, the EI S’s inclusion o f a n adaptive-manag ement plan, among other mit i gation measures, provides flex ibility in responding to environmental impacts throug h a reg ime of continued monitoring and inspection. That a n a g ency decides
to incorporate an adaptive m anag ement plan as o ne component of a comprehensive set of mitig a t i o n measures does not mean that the ag ency lacked a sufficient foundation of current baseline d ata from which to evaluate the Project’s

e n v i ronmental effects. Rather, the use of such a continuous monitoring sy s t em may complement other mitig ationB A C K C O U N T R Y A G A I N S T D U M P S V

. J E W

E L L 19

measures, a

nd help to r efine and improve the implementation of those measures as the Project prog resses.

D. “Hard Look” at Environm ental Im pacts

Plaintiffs also raise a series of four substantive c halleng e s to the B L M’s investig ation of the environmental imp ac t s o f the Project. As the district court correctly determined, each o f these challeng es is unavailing and, in some cases, would improperly compel a review i n g c ourt to substitute its judg ment for that of the ag e ncy

. S ee Lands Council
, 537 F .3d at 988.

1. Avian Im pacts

Plaintiffs assert two p rima ry challeng es to the E I S’s

a n a ly sis of the Project’s avian impacts. Plaintiffs cont e n d that the EI S f

ails to c o mprehensively review t h e effects o f Project-rel a t e d noise on birds at a ll life stag es, not just the nesting stag e. Moreover, they claim that the ag ency failed to conduct nig httime mig ratory -bird survey s in the Project area to better estimate the numbers of su c h birds that mig ht be struck by wind turbines. We conclude that the EI S’s analy sis of the likelihood of v arious bird species f r e q u e nting the Project area, as well as the potential impacts of the Project on bird populations, is r easonable a n d satisfies NEPA’s “hard look” requirement.

F irst, the age n c y outlined over a doz en noise-mitig ating

measures that it determined w o uld sig nificantly r educe the environmental impacts of n oise on birds to “low” or minimal levels. B ecause the B L M co n c luded that the Project’s noise effects could be effectively reduced, it provided less analy sis of noise effects in the EI S as c o m p a r e d to other moreB A C K C O U N T R Y A G A I N S T D U M P S V

. J E W

E L L 20

s ig nificant o r unmitig able e nvironmental impacts. S e e 40 C.F

. R

. § 1502.2(b) (“Impacts shall be discussed in proportion to their sig nificanc e

. T h ere shall only be brief discussion of other than sig n ificant issues.”). Even thoug h the
ag ency could have included more detailed discussion of noise impacts o r collected further information, its ex isting analy sis did not impermissibly misconstrue the ex isting data or force the public and policy

makers to sp e culate concerning projected environmental effects. See Found. for N. Am. W ild Sheep v. U.S. Dep’t of Agr.
, 681 F .2d 1172, 1179 ( 9 t h Cir. 1982). I n addition, while the mitig a tion measures d iscussed in the EI S focus on the n esting and fledg ling phases, the B L M reasonably deemed these life stag es to be the most critical in bird development, and a ccording ly f o cused its analy sis on those stag es. 2

Second, the ag ency ’s failure to conduct a n ig httime mig ratory -bird survey was a discretionary judg ment made b y the ag ency on the basis of available scientific d ata. When the
ag ency ’s determination is f ounded o n r e a s onable inferences from scientific data, a reviewing court will not “substitute its judg ment for that of the ag e n cy .” Motor Vehicle Mfrs. Ass’n

v. State Farm Mut. Auto. I ns. Co
., 4 6 3 U

. S

. 29, 43 (1983). Here, the B L M relied upon ex isting survey s a nd scientific literature, which indica t e d that use of the Project area b y nocturnal species would b e low and that mo s t n o c turnal species would fly at altitu d es h ig h e r than those of the

2 P lain tif f s also co n ten d th at th e n o ise lev els f ro m th e P ro

j ect w o u ld b e in co m p atib l e w ith th e u s e o f th e s ite b y certain m i g rato ry so n g b ird s, citin g

sev eral scien tif

ic stu d ies. Ho w ev er, t

h e ag en cy ex ercised its d iscretio n in d i s c o unt in g th e resu l t s o f th o se scien tif i c stu d ies d u e, in p art , t o d if f eren ces in th e n oise g en erated b y th e w in d turb in es an d th o se at issu e in th e stu d i es.B A C K C O U N T R Y A G A I N S T D U M P S V

. J E W

E L L 21

proposed turbines. This determination, too, was a reasonable

ex e r cise of the ag ency ’ s discretion. Moreover, the B L M chose to reposition turbines in valley s rather than on top o f ridg elines, which would l e ssen any risk to low-flying nocturnal mig r ants.

2. Inaudible Noise

Plaintiffs contend that the E I S f ails to adequately address the environmental e f

fects of inaudible noise, includ i ng infrasound and low-frequency n o ise, on humans. I n support of their contentions, Plaintiffs rely on a 2011 scientific study
, w h i c h concludes that inaudible noise may have adverse effects on human h ealth. The B L M c o n sidered this study in conjunction with an array of other scientific research literature, and ultimately conclude d that inaudible noise
g enerated by the Project would not cause discern a b l e h ealth impacts, based on a “consensus among acoustic ex p erts.” I n particular, the B L M ex plicitly disting uished the results of the 2011 study in its responses to public comments on the EI S. See Save the Peaks Coal. v. U.S. Forest Serv
., 669 F

. 3d 1025, 1037 n.5 (9th Cir. 2012). W e def e r t o the ag e ncy ’s discretionary judg ment with respect to the “evaluation o f complex scientific data within the ag ency ’s te c h nical

ex p ertise.” Envtl. Defen s e C t r ., Inc. v. EPA
, 3 44 F

. 3d 832, 869 (9th Cir. 2003). Plaintiffs have presente d u s with no

reason to deviate from this rule or question the ag ency ’ s wellconsidered conclusions here.

3. Electrom agnetic F ields and Stray Voltage

Similarly
, Plaintiffs contend that the E I S fails to

a d e q u a t e l y e x a mine the adverse health e ffects o f electromagn etic fiel d s and stray voltag e that may beB A C K C O U N T R Y A G A I N S T D U M P S V

. J E W

E L L 22

g enerat e d b y the Project. H owever, Plaintiffs’ argument derives from an underlying substantive disag reement with the EI S’s conclusions rather than a claim that the ag e ncy ’s methods of arriving at those conclusions are unreasonable. I n reaching its conclusion, the B L M properly canvassed the

a v a ilable literature on electromagnetic fields and, in a reasonable ex ercise of its technical ex pertise, determined that
any fields created by the Project d id not p resent public health risks that would cause concern.

I n a ddition, the B L M analy z ed the risk of stray voltag e and discussed appropriate mitig ation e fforts. A lthoug h the EI S acknowledg es the risk of stray voltag e on human health and safety
, it reasonably discounted this ri s k i n lig h t o f mitig ation plans that would g round the turbines and provide for r eg ular inspections to ensure their continued safety

. Therefore, the EI S conforms with N E P A’s requirement that the ag ency e ng ag e in reasoned a naly si s of environmental haz a rds, in proportion to their sig nificance, to ensure that the public is adequately informed of a project’s potential impacts. See Churchill Cty.
, 276 F .3d at 1071.

4. G reenhouse-G as Em issions

Th e E I S also takes a “ h ard look” at the impact of the Project on g reenhouse- ga s e missions a nd g lobal warming

. The EI S analy

z es p rojected emissions from the P r o j e ct a nd concludes that these emissions, at 646 metric tons of carbon diox ide per y e ar, fall below the level of sig nificance r equired for further analy sis un der NEPA. I n addition, the EI S states that “ the project would create a r enewable source of energ y , thereby potentially decreasing overall emissions attributable
to electrical g eneration in California.” Contrary to Plaintiffs’ contention, this passing projection of potential emissionsB A C K C O U N T R Y A G A I N S T D U M P S V

. J E W

E L L 23

reductions, simply by virtue of the Project’s creation of a new

source of renewable e n e r g y , is r easonable enoug h and does
not mandate the p r o v i sion o f conclusive proof throug h ad d itional evidence and analy sis bey ond that already provided in the EI S.

F inally
, Plaintiffs contend that the B L M failed to take into
account the emissions g e n e r a ted by the manufacture a nd
tr a nsportation of equipment to the Project area. I nstead, the B L M reasoned that these em i s s i ons levels w e re larg ely outside the control o f Tule and that attempts to e stimate these
amounts would be overly speculative. The B L M was entitled
to choose among various reasonable methodolog ies, as it did here, when e stimating the emissions g enerated by the Project. See Native Ecosystems Council v. W e ldon
, 697 F .3d 1043, 1053 (9th Cir. 2012).

II. Liability under the MBTA and Eagle Act

Plaintiffs raise the novel argument that the B L M—by the

m e r e act o f g ranting Tule’s rig h t-of-way r equest— i s complicit in future conduct by Tule that mig ht r e s u lt in violations of the MB TA and the Eag le Act (collectively
, the Acts). Plaintiffs’ theory of liabi l ity is two-fold. F irst, P laintiffs assert that the B L M, acting in its regulatory
capac ity
, is directly liable f or the unlawful “take” of birds under the A cts, abse n t a permit from the F W S. Second, Plaintiffs assert that the ag ency ’s r e g ulatory authoriz ation is “not in accordance with law” within the meaning of the APA, 5 U.S.C. § 706(2)(A), because the B L M did not condition its rig ht- o f

- way g rant on Tule securing the appropriate permits from the F W S. W e address each of these arg uments in turn.B A C K C O U N T R Y A G A I N S T D U M P S V

. J E W

E L L 24

A. The Migratory Bird Treaty Act

The MB TA i s a criminal statute that prohibits an individual, entity

—or, i n some cases, an ag ency

— “at any time, by any means or in a n y m anner, to pursue, hunt, take, capture [ or] kill

. . . a

n y mig ratory b i r d
, . . . nest, or eg g o f
any such b ird” in the absence of a permit or other e x emption. 16 U.S

. C

. § 703(a). The F W S is the federal ag ency tasked with ensuring compliance with the MB T A, including issuing permits and prosecuting offenders. See id

. §§ 706, 707(a), (d). Throug h the APA’s prohibition ag ain s t unlawful ag ency acti o n , a p l aintiff may b ring a c ivil suit to compel ag ency compliance with the MB TA. See City of Sausalito
, 386 F .3d at 1203.

1. Liability under the MBTA

As more fully discussed, infra Section I I

. A .2, we hold that Plaintiffs’ argument that the Project will inevitably result in mig r atory -bird fatalities, even if true, is unavailing because the MB TA does not contemplate attenuated secondary li ab ility on a g encies like the B L M that a ct in a purely
regulatory capacity
, and whose regulatory acts do not directly

or p rox imately cause the “take” of mig ratory birds, w ithin the meaning of 16 U.S.C. § 703(a). Here, the B L M only authoriz ed Tule to c o nstruct and operate a w ind energ y f a c i l ity on public lands, and therefore did not act to “tak e ” mig ratory birds wi t hout a p ermit, within the meaning of the MB TA.

The authorities Plaintiffs c i t e in support of its argument are disting uishable. I n H

umane Soc’y of the United States v. G l i ckman
, 217 F .3d 8 82 (D.C. Cir. 2000), the U

. S

. Department of Ag ricu lture, in conjunction with stateB A C K C O U N T R Y A G A I N S T D U M P S V

. J E W

E L L 25

ag encies, was responsible for institu t i n g a plan that would intentionally capture and kill m ig r atory g eese. I d. at 8 84. I n that case, the ag ency itself was implicated i n the killing o f mig ratory birds without a permit, in violation of the MB T A

. Similarly
, Plaintiffs point to special leg islation e x empting
t h e Department of Defense from the MB TA’s prohibitio n ag ainst the incidental take of mig ratory b irds in the course o f its military readiness ex ercise s

. S ee National Defense Authorization Act for Fiscal Y e a r 2003
, P.L

. 107-314, 116 Stat. 2 4 5 8 § 315 (2002). Such leg islation merely proves the point, established in Glickman
, t hat ag encies may be h eld liabl e f o r violations of the MB TA when they themselves
eng ag e in th e taking o f protected birds. However, such actions are f

ar removed from purely regulat o r y action that does not c onstitute, o r even prox imately cause, an u n l awful “take” under the MB T A. I n stead, the B L M’s decision to g rant Tule’s rig ht-of-way request was many s teps r emoved in the causal chain from the potential commis s i o n of an unlawful “take” caused by

wind-turbine collisions.

F inally
, Plaintiffs refer us to the recen t actions of the National Marine F isheries Serv i c e ( N M F S )
, w

h ich applied for

a permit f

rom the F W S to cover the incidental t a k e o f mig ratory seabirds by a Hawaii lo n g line fishery

. Under o ne interpretation of that scenario, t h e N M F S could be said to functio n in a manag erial capacity over the activities of the fishery

. See Turtle Island Restoration Network v. U.S. Dep’t of Commerce
, 2013 W L 4511314, at * 6 ( D. Haw. 2013). I f
so, then NMF S would occupy a more d irectly supervisorial position over a regulated third party than that o f a ty pical
ag ency , and c e r t ainly that o f the B L M vis-à-vis Tule. Moreover, looking at t h e NMF S permit a pplication from

a n other ang le, the fact that one ag ency may choose to ap p l yB A C K C O U N T R Y A G A I N S T D U M P S V

. J E W

E L L 26

for a permit f

rom the F WS to further shield itself from the risk of potential liability does not compel all ag encies acting in a regu latory capacity to do t h e same. Rather, as the F W S has concluded, “the ag encies themselves are not subject to the prohibitions of the MB TA when acting in their r eg ulat ory capacities,” and thus are g enerally not required to s eek a permit to c over the separate actions of “third parties r eg ulated by those ag encies.” Mig ratory B ird Permits; Prog rammatic Environmental I mpact Statement, 80 F ed. Reg

. 30,035 (May 26, 2015).

2. Liability under the AP A

Alternatively
, Plaintiff

s argue that the B L M’s rig ht-ofway g rant is “ contrary to law” within the meaning of the APA because it permits Tule to e n g ag e in otherwise lawful activities that would incidentally lead to mig ratory -bird deaths—a final result that is contrary to the MB TA. Plaintiffs maintain that, even if the B L M is not d irectly liable under the MB TA, the ag ency is compelled to d eny the rig ht-of-way request unless Tule first obtains a p erm i t for the incidental take of mig ratory birds. To do otherwise, Plaintiffs contend, would render the B L M complicit in the unlawful actions of a third party , and in violation of the APA. However, the B L M’s

r e gu l atory role in this case is too f ar removed from the ultimate leg al violat i o n to be independently unlawful under the APA.

Plaintiffs’ c laim, w h i c h verg es on argument for unbounded a g ency vicarious liability
, relies o n a selective characteriz ation of the ag ency a ction at issue a n d f a i ls for

reasons similar to those discussed above. The B L M, b y t he mere act of g

r anting Tule a rig ht-of-way
, has not behaved in

an unlawful manner under the A P A. Rather, Plaintiffs’B A C K C O U N T R Y A G A I N S T D U M P S V

. J E W

E L L 27

argument hing es on the assumption that a third-party g rantee like T ule, in its operation of the wind turbines, will behave in

an unla w f

u l manner un der the MB TA. B ased on this

a ssumption, Plaintiffs would impose an affirmative dut y o n the BL M to g uarantee Tule’s future compliance with the MB TA by e nsuring that T u l e f i r s t secure a permit. To what

e x t e n t does the B L M have a duty under the APA to tak e affirmative measures to prevent potential unlawful action b y Tule? Our con c e r ns of ag ency complicity in the instant case are substantially

allay e d by

several considerations.

F irst, a s discussed above, the AP A d o es not targ et regulatory a c t i o n by the B L M that permits a third-party
g rantee like T ule to eng ag e in otherwise lawful behavior, a nd only incidentally leads to subsequent unlawful action b y that third party

. See supra Section I I

. A.1. The causal mechanism in question is too speculative and indirect to impose liability on the B L M for e ng ag ing in routine regulatory action. Here, the B L M’s r ig ht-of-way did n ot sanction o r a uthoriz e the taking of mig ratory birds without a p ermit; it a u t h oriz ed the develop m e n t of a w ind-energy facility

. Without f urther indication of its involvement in t h e p u tative violation, we cannot h old the B L M complicit in fu ture unlawful a ctivity
, separately committed b y a g rantee, through a mere failure to intervene at the permitting stag e.

Moreover, the B L M h as not sanctioned or encourag e d an unlawful course of action by T u l e

. R ather, it has done the opposite. The B L M’s ROD indicates that its approval of the Project is ex pressly conti n g ent o n Tule’s compliance with “ all applicable laws and regulations,” w hich in this case includes the MB TA and the Eag le Act, as well as the securingof “all
necessary local, state, and F ederal p ermits, authoriz ations, and app rovals.” The terms of the ROD further permit theB A C K C O U N T R Y A G A I N S T D U M P S V

. J E W

E L L 28

B L M to, at any time, withdraw its r ig ht-of-way approval if it determines that Tule has failed t o c o m ply with these provisions.

I n contrast, in several cases im p l i cating other environmental-protectio n l a ws, the ag encies in question acted unlawfully becau s e t

h e y i m p r operly ex ercised their regulatory authority to sanction conduct by third p a r t ies that w as itself unlawful. I n A nderson v. Evans
, 371 F

. 3d 475 (9th Cir. 2004), for ex ample, the ag ency permitted the unlawful hunting o f whales by an Indian tribe a s a r e sult of a leg ally erroneous interpretation of a tribal treaty and in v iolation of the Marine Mammal Protection Act. Id . at 480, 486 (ex plaining that the
ag ency environmental ass essment unlawfully authoriz ed “a quota for the ‘land[ ing ]’ of five g ray whales”).

Similarly
, in W

ilderness Society v

. U. S

. Fish & W ildlife Service
, 353 F .3d 1051 (9th Cir. 2003 ) ( en banc), the F W S issued a permit allowin g a t h ird party to operate a “commercial enterprise” in a national wilderness area, based

on a leg ally mistaken construction o f the g overning federal statute, w hich prohibited such c ommercial activities. Id

. at 1055. Here, in contrast, the B L M has not m i s c o n s trued the requirements of the MB TA; nor h as it encourag ed or ratified unlawful a cts taken by third parties in violation of the MB T A

.

Plainti ff s ’ reliance o n Ctr. for Biological Diversity v

. Bureau of

Land Mgmt.
, 698 F .3d 1101 (9th Cir. 2012) is also inapposite. T h a t case involved the B L M’s compliance with the Endang ered Species Act, a f ederal statute that r eaches farther than the MB TA in that it e x plicitly requires an ag ency to eng ag e in interag ency c o n sultations that will “[ e] nsure that
any action authoriz ed
, funded, or carried o u t by such
ag ency

. . . is n ot likely to jeopardiz e the continued ex istenceB A C K C O U N T R Y A G A I N S T D U M P S V

. J E W

E L L 29

of any endang e red species or threatened species.” 16 U.S.C. § 1536(a)(2). No such p rovision is included in the MB TA, o r the Eag le Act, which mig ht otherwise create an a n alog ous

a f f i r mative duty on the p art of the B L M to g uarant ee a g rantee’s compliance with the Acts.

B. The Bald and G olden Eagle P rotection Act

Similar to the MB TA, the Eag le Act provides that, absent a permit or other ex emption, it is unlawful to “take, possess, sell, p urchase, b a

r ter, offer to sell, p urchase o r b a rter, transport, e x port or import, at any time or in any manner, any bald eag le, common known as the American eag le, or any g olden eag le, alive o r dead, or any part, nest, or eg g thereof.” 16 U.S.C. § 668(b). The F W S also a dministers the Eag le Act, including o verseeing the issuance o f permits and ensuring compliance with the statute. Unlike the MB TA, the E ag le A ct

ex p licitly provides for both criminal and civil enfo r c em ent. Id . § 668(a)–(b).

Despite some substantive d ifferences between the MB TA and the Eag le Act, the same reaso n i n g a p p lies to defeat the imposition of liability on the B L M h ere. See supra Section I I .A. F urther support for this con c l u s i on is provided by a F W S regulation that pert ai n s to permits for the “incidental take” of eag les. 50 C .F .R. § 22.26; see Eag le Permits; Take Necessa r y To Protect I nterests in Particular L ocalities, 74 F ed. Reg

. 46,836 (Sep. 11, 2009). T h e r e, the F W S

ex p lained that “ [ p] e r sons and org aniz a tions that obtain licenses, permit s , g rants, or other such services from
g overnment a g e ncies are responsible for their o wn compliance with the Eag le Act and should individually seek
p e rmits.” 74 F ed. Reg

. 44,843 (Sep. 1 1, 2009). I t fu r t h e r

ex p lained, however, that “a g encies must obtain permits forB A C K C O U N T R Y A G A I N S T D U M P S V

. J E W

E L L 30

take that would result from ag e n cy actions t h at a re impleme n ted by the ag ency itself (including staff a nd
contractors responsible for carry ing out those actions on behalf of th e a g ency

).” Id

. W e hold, in the narrow circumstances of this case, that the B L M did not, by g ranting Tule the referenced rig ht-of-way
, take “ag ency actio n s

. . . implemented by the ag ency itself” that would directly o r prox imately result in the incidental take of e ag les by it o r Tule.

As a r esult, a requirement that the B L M independently seek a permit, or confirm that g rantees seek permits before issuing a r ig h t-of-way g rant, would impose an attenuated form of secondary liability on th e B L M, an ag ency that is

n e i t h e r statutorily tasked with policing third-party co m p l i a n c e wi t h t he Eag le Act nor responsible for violations that mig ht be independently

committed by g rantees, such as Tule. 3

CONCLUSION

W e hold that the BL M is n ot liable under NEPA, the MB TA, the Ea g le Act, n or the APA for its regulatory decision to g rant Tule a rig ht-of-way to develop and operate

a renewable w ind energ y project. The judg ment o f the district court is AF F IRMED.

3 W e n o t e th at ev en if th e B L M w ere resp o n sib l e f o r p o licin g th ird

- p arty

co m plian ce w ith t

h e Eag le A ct, th e P ro tectio n P lan
, d ev ised in co n j un ctio n

w ith th e FW S, reaso n ab ly d eterm in ed th at th e P ro j ect co u ld “ practicab ly b e m o d if i ed to av o id th e tak e.” 5 0 C.F.R. § 2 2.2 6 (e)(1 ).