FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PROTECT OUR COMMUNITIES

FOUNDATION,

Plaintiff,

and

BACKCOUNTRY AGAINST DUMPS;

DONNA TISDALE,

Plaintiffs-Appellants,

v.

SALLY JEWELL, in her official

capacity as Secretary of the United

States Department of the Interior;

MIKE POOL, in his capacity as

Acting Director of the United States

Bureau of Land Management;

THOMAS ZALE, in his official

capacity as El Centro Field Office

Manager for the United States

Bureau of Land Management;

BUREAU OF LAND MANAGEMENT;

U.S. DEPARTMENT OF THE INTERIOR,

Defendants-Appellees,

TULE WIND, LLC,

Intervenor-Defendant-Appellee.

No. 14-55666

D.C. No.

3:13-cv-00575-

JLS-JMA
2 BACKCOUNTRY AGAINST DUMPS V. JEWELL

PROTECT OUR COMMUNITIES

FOUNDATION,

Plaintiff-Appellant,

and

BACKCOUNTRY AGAINST DUMPS;

DONNA TISDALE,

Plaintiffs,

v.

SALLY JEWELL, in her official

capacity as Secretary of the United

States Department of the Interior;

MIKE POOL, in his capacity as

Acting Director of the United States

Bureau of Land Management;

THOMAS ZALE, in his official

capacity as El Centro Field Office

Manager for the United States

Bureau of Land Management;

BUREAU OF LAND MANAGEMENT;

U.S. DEPARTMENT OF THE INTERIOR,

Defendants-Appellees,

TULE WIND, LLC,

Intervenor-Defendant-Appellee.

No. 14-55842

D.C. No.

3:13-cv-00575-

JLS-JMA

OPINION

Appeal from the United States District Court

for the Southern District of California

Janis L. Sammartino, District Judge, Presiding
BACKCOUNTRY AGAINST DUMPS V. JEWELL 3

Argued and Submitted April 6, 2016

Pasadena, California

Filed June 7, 2016

Before: JEROME FARRIS, TIMOTHY M.

TYMKOVICH,*

 and MILAN D. SMITH, JR., CIRCUIT

JUDGES.

Opinion by Judge Milan D. Smith, Jr.

SUMMARY**

Environmental Law

The panel affirmed the district court’s summary judgment

in favor of federal agencies and officials and intervenor Tule

Wind, LLC in an action challenging the Bureau of Land

Management’s decision to grant a right-of-way on federal

lands in southeast San Diego County, permitting Tule Wind

to construct and operate a wind energy project.

The panel held that the BLM was not liable under the

National Environmental Policy Act, the Migratory Bird

Treaty Act, the Bald and Golden Eagle Protection Act, or the

Administrative Procedure Act for its regulatory decision to

* The Honorable Timothy M. Tymkovich, ChiefJudge of the U.S. Court

of Appeals for the Tenth Circuit, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
4 BACKCOUNTRY AGAINST DUMPS V. JEWELL

grant Tule a right-of-way to develop and operate a renewable

wind energy project.

Specifically, concerning plaintiffs’ allegations that the

BLM failed to comply with the National Environmental

Policy Act in preparing the environmental impact statement,

the panel held that: the district court properly determined that

the environmental impact statement’s purpose-and-needstatement was adequately broad; the 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 environmental impact statement took

a “hard look” at the environmental impact of the project.

Concerning plaintiffs’ allegations of BLM’s violations of

the MigratoryBird Treaty Act, the panel held that the Act did

not contemplate attenuated secondary liability on agencies

like the BLM that act in a purely regulatory capacity, and

whose acts do not directly or proximately cause the “take” of

migratory birds, within the meaning of 16 U.S.C. § 703(a).

The panel concluded that the BLM did not act to “take”

migratory birds without a permit within the meaning of the

Act.

The panel held that the BLM’s regulatory role in this case

was too far removed from the ultimate legal violation to be

independently unlawful under the Administrative Procedure

Act.

Finally, for similar reasons that applied to defeat liability

under the Migratory Bird Treaty Act, the panel held that the

BLM was not liable under the Bald and Golden Eagle

Protection Act, and was not responsible for violations that
BACKCOUNTRY AGAINST DUMPS V. JEWELL 5

might be independently committed by right-of-way grantees,

such as Tule Wind.

COUNSEL

Eric R. Glitzenstein (argued) and William S. Eubanks, II,

Meyer Glitzenstein & Crystal LLP, Washington, D.C., for

Plaintiff-Appellee Protect Our Communities Foundation.

Stephen C. Volker (argued), Jamey M.B. Volker, Marcus

Eichenberg, and Stephanie Clark, Law Offices of

Stephan C. Volker, Oakland, California, for PlaintiffsAppellants/Plaintiffs-Appellees BackcountryAgainst Dumps

and Donna Tisdale.

Allen M. Brabender (argued), John H. Martin, and Stacey

Bosshardt, Attorneys; John C. Cruden, Assistant Attorney

General; United States Department of Justice, Environmental

& Natural Resources Division, Washington, D.C.; for

Defendants-Appellees.

Daniel P. Brunton (argued), Latham & Watkins LLP, San

Diego, California, for Intervenor-Defendant/Appellee Tule

Wind, LLC.
6 BACKCOUNTRY AGAINST DUMPS V. JEWELL

OPINION

M. SMITH, Circuit Judge:

Protect Our Communities Foundation (Protect),

Backcountry Against Dumps (Backcountry), and Donna

Tisdale (collectively, Plaintiffs) appeal the decision of the

Bureau of Land Management to grant Defendant-Intervenor

Tule Wind, LLC, (Tule) a right-of-way on federal lands in

southeast San Diego County. Plaintiffs named several federal

defendants in this action, including the Bureau of Land

Management (BLM), the Department of the Interior, and

various officials of those agencies (collectively, Defendants).

The BLM’s right-of-way grant permits Tule to construct

and operate a wind energy project, which Plaintiffs claim will

harm birds in violation of the Migratory Bird Treaty Act

(MBTA), 16 U.S.C. §§ 703–12, and the Bald and Golden

Eagle Protection Act (Eagle Act), 16 U.S.C. §§ 668–668d. In

addition, Plaintiffs challenge the adequacy of the BLM’s

Environmental Impact Statement (EIS) for the project, which

was prepared pursuant to the National Environmental Policy

Act (NEPA), 42 U.S.C. §§ 4321–70h. The district court

rejected Plaintiffs’ challenges and granted summaryjudgment

to Defendants. We affirm.

FACTS AND PRIOR PROCEEDINGS

A. The Right-of-Way Grant

The BLM, which is an agency within the Department of

the Interior, is charged with the management of federally

owned land. See 43 U.S.C. §§ 1732(a), 1702(c). Among the

BLM’s responsibilities is the determination of whether to
BACKCOUNTRY AGAINST DUMPS V. JEWELL 7

grant rights-of-way for the use of such lands. See id.

§ 1761(a). Plaintiffs, which are a collection of environmental

advocacy organizations and a local resident, challenge a

right-of-way grant by the BLM that would permit Tule to

construct and operate a wind energy facility on 12,360 acres

of land in the McCain Valley, 70 miles east of San Diego (the

Project).

Tule’s original right-of-way proposal envisioned the

construction of 128 wind turbines and supporting

infrastructure, which could generate up to 200 megawatts of

electricity. On December 23, 2010, the BLM released a

lengthy draft EIS for public comment. The EIS discussed the

environmental impacts of the Project and considered a range

of alternative approaches.

Ultimately, the BLM decided to grant Tule a right-of-way

for the development of a more modest wind-energy facility,

which eliminated thirty-three of the originally 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 that were

originally proposed to be located on top of ridgelines. As

modified, the Project was expected to generate up to 186

megawatts of electricity, thereby meeting the electrical

energy needs of approximately 65,000 homes and businesses.

On October 3, 2011, the BLM released a final EIS

reflecting these modifications. The agency published a

Record of Decision (ROD) on December 19, 2011,

memorializing its grant of a right-of-way for the Project. The

ROD specified that the right-of-way grant would be issued

for a thirty-year term, with an option to renew. It further

provided that the grant of the right-of-way was expressly
8 BACKCOUNTRY AGAINST DUMPS V. JEWELL

conditioned on the “implementation of mitigation measures

and monitoring programs,” as well as “the issuance of all

other necessary local, state, and Federal approvals,

authorizations, and permits.”

Included among the mitigation measures required for the

Project was the Project-Specific Avian and Bat Protection

Plan (the Protection Plan). Tule developed the Protection Plan

in conjunction with the BLM and the U.S. Fish and Wildlife

Service (FWS), which is the federal agency responsible for

enforcing the MBTA and the Eagle Act. The Protection Plan

was based on scientific literature and research studies,

including field surveys conducted by Tule over several years

in the Project area. Based on this information, the Protection

Plan outlines a number of measures that would, if

implemented, mitigate the impacts of the Project on bird and

bat species.

The Protection Plan provides for continuous monitoring

and inspection of the Project’s environmental impacts on bird

and bat species as part of an adaptive-management plan. The

FWS endorsed the Protection Plan, stating that it was

“appropriate in its adaptive management approach to avoid

and minimize take of migratory birds, bats and eagles.”

Although the FWS advised that the Protection Plan was not

a “take permit,” it acknowledged that it could serve as the

basis for a future permit application with the FWS. The BLM

incorporated the Protection Plan by reference into the final

EIS and conditioned its right-of-way grant on Tule’s

adherence to the mitigation measures described therein.
BACKCOUNTRY AGAINST DUMPS V. JEWELL 9

B. Procedural History

Plaintiffs jointly brought an action in federal district

court, challenging the BLM’s issuance of a right-of-waygrant

to Tule, and seeking injunctive and declaratory relief under

the Administrative Procedure Act (APA), 5 U.S.C.

§§ 701–06, to address Defendants’ alleged unlawful actions

under NEPA, the MBTA, and the Eagle Act. Tule intervened

as a defendant in the lawsuit.

The parties filed cross-motions for summary judgment,

and the district court granted Defendants’ motion for

summary judgment on all claims. Specifically, the district

court held that the final EIS had sufficiently articulated a

proposed goal and need for the Project, properly reviewed a

number of alternatives, and proposed reasonable mitigation

measures. The district court also held that the final EIS

complied with NEPA by taking a “hard look” at the

environmental impacts of the Project, including impacts such

as noise and electromagnetic energy or stray voltage, as well

as effects on avian species and greenhouse-gas emissions.

Finally, the district court concluded that the BLM was not

responsible for ensuring that it or Tule obtain MBTA and

Eagle Act permits from the FWS prior to issuing its right-ofway grant.

Plaintiffs filed two separate notices of appeal from the

district court’s judgment, with Plaintiff Protect addressing the

MBTA issue, and Plaintiffs Backcountry and Tisdale

addressing all issues appealed. We consolidated these appeals

from the district court’s judgment.
10 BACKCOUNTRY AGAINST DUMPS V. JEWELL

STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review the district court’s grant of summary judgment de

novo. United States v. City of Tacoma, 332 F.3d 574, 578 (9th

Cir. 2003). Under the APA, we review agency action to

determine whether it is “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A). An agency acts in an “arbitrary and capricious”

manner when it “relie[s] on factors which Congress has not

intended it to consider, entirely fail[s] to consider an

important aspect of the problem, offer[s] an explanation for

its decision that runs counter to the evidence before the

agency, or is so implausible that it c[an]not be ascribed to a

difference in view or the product of agency expertise.” Motor

Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 43 (1983). In general, a court will “uphold

agency decisions so long as the agencies have ‘considered the

relevant factors and articulated a rational connection between

the factors found and the choices made.’” City of Sausalito v.

O’Neill, 386 F.3d 1186, 1206 (9th Cir. 2004) (quoting Selkirk

Conservation Alliance v. Forsgren, 336 F.3d 944, 953–54

(9th Cir. 2003)). This deference is particularly appropriate

when a court is reviewing “issues of fact,” “where analysis of

the relevant documents requires a high level of technical

expertise.” City of Sausalito, 386 F.3d at 1206.

DISCUSSION

I. The Environmental Impact Statement’s Compliance

with NEPA

NEPA, which provides the statutory framework for

federal agencies reviewing the environmental effects of a
BACKCOUNTRY AGAINST DUMPS V. JEWELL 11

proposed action, requires the preparation of an EIS for “major

Federal actions significantly affecting the quality of the

human environment.” 42 U.S.C. § 4332(2)(C). The EIS must

contain, among other things, a detailed discussion of “the

environmental impact of the proposed action,” “adverse

environmental effects which cannot be avoided,”

“alternatives to the proposed action,” and a statement of the

purpose and 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 particular substantive result on an agency. Hells

Canyon Alliance v. U.S. Forest Serv., 227 F.3d 1170, 1177

(9th Cir. 2000). Rather, compliance with NEPA involves the

application of a “rule of reason,” which involves “a pragmatic

judgment whether the EIS’s form, content, 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. Block, 690 F.2d 753,

761 (9th Cir. 1982)). Specifically, a reviewing court will take

a “hard look” at the EIS to determine whether it “contains a

reasonably thorough discussion of the significant aspects of

the probable environmental consequences.” Id. at 1071–72

(quotation marks omitted). NEPA favors “coherent and

comprehensive up-front environmental analysis to ensure . . .

that the agency will not act on incomplete information, only

to regret its decision after it is too late to correct.” Id. at

1072–73 (quotation marks omitted).

Plaintiffs allege that Defendants failed to comply with

NEPA in a number of respects in preparing the EIS. First,

Plaintiffs maintain that the scope of the Project’s purpose and

need statement was too narrow. Second, Plaintiffs argue that

the EIS failed to adequately examine viable alternatives,
12 BACKCOUNTRY AGAINST DUMPS V. JEWELL

including a “distributed generation” alternative involving the

use of rooftop solar panels. Third, Plaintiffs claim that the

Project’s proposed mitigation strategies are too vague and

speculative to satisfyNEPA. Finally, Plaintiffs maintain that

the EIS fails to take a “hard look” at the environmental

impact of the Project in several distinct ways. Specifically,

they note that the EIS omits a comprehensive discussion of

the impacts of noise on bird species and fails to conduct a

survey of nighttime migratory birds. In addition, Plaintiffs

claim that the EIS does not fairly address the impacts of

inaudible noise, electromagnetic fields, and stray voltage on

humans, or the proposed consequences of the project on

global warming. We address each of these arguments in turn.

A. Statement of Purpose and Need

An agency tasked with preparing an EIS must prepare a

statement that “briefly specif[ies] the underlying purpose and

need to which the agency is responding.” 40 C.F.R.

§ 1502.13. This statement should inform the agency’s review

of alternatives to the proposed action and guide its final

selection. We accord the agency “considerable discretion to

define a project’s purpose and need” and review such

statements for reasonableness. Alaska Survival v. Surface

Transp. Bd., 705 F.3d 1073, 1084 (9th Cir. 2013). However,

a statement of purpose and need “will fail if it unreasonably

narrows the agency’s consideration of alternatives so that the

outcome is preordained.” Id. In a context, as here, where the

agency is tasked with deciding whether to issue a permit or

license, the statement of purpose and need may include

“private goals” alongside statutory policy objectives. Id. at

1085. However, it is the statutory goal that “serve[s] as a

guide by which to determine the reasonableness of the

objectives outlined.” Id. at 1084–85.
BACKCOUNTRY AGAINST DUMPS V. JEWELL 13

In this case, the district court properly determined that the

EIS’s purpose-and need-statement was adequately broad,

such that the agency’s decision was not foreordained. The

statement specified that:

[T]he purpose and need for the proposed

action is to respond to a [Federal Land Policy

and Management Act (FLPMA)]right-of-way

application submitted by Tule Wind, LLC

. . . . In conjunction with FLPMA, the BLM’s

applicable authorities include the following:

• Executive Order 13212 . . . which

mandates that agencies act expediently

and in a manner consistent with applicable

laws to increase the production and

transmission of energy in a safe and

environmentally sound manner.

• Section 211 of the Energy Policy Act of

2005 . . . which established a goal for the

[DOI] to approve at least 10,000

megawatts of nonhydropower renewable

energy power on public lands by 2015.

• Secretarial Order 3285A1, [which]

establishes the development of renewable

energy as a priority for the DOI [and]

announced a policy goal of identifying

and prioritizing specific locations (study

areas) best suited for large-scale

production of solar energy.
14 BACKCOUNTRY AGAINST DUMPS V. JEWELL

The EIS’s purpose-and-need statement reflects both the

agency’s immediate objective, “to respond” to Tule Wind’s

right-of-way request, as well as the broader policy goals that

the agency considered in deciding among alternative

proposals. This statement is fully consistent with the agency’s

duty to consider federal policies in fashioning its response to

a right-of-way application, and constitutes a reasonable

formulation of project goals. See id. at 1084. The purposeand-need statement also permitted the agency to consider a

range of alternatives to Tule’s proposal, including one which

it ultimately adopted in order to reduce the impact of the

Project on the surrounding environment.

Although Plaintiffs also challenge the BLM’s purported

“need” for the action, the statement of need is adequately

supported by the federal objectives outlined in the EIS. In

particular, Section 211 of the Energy Policy Act of 2005 sets

forth an agency goal of approving up to 10,000 watts of

renewable energy development on public lands by 2015—a

time frame which, the agency determined, would be most

readily met through the development of a utility-scale energy

project.

B. Project Alternatives

Plaintiffs contend that the BLM dismissed viable

alternative projects out of hand. Specifically, Plaintiffs

challenge the BLM’s decision to reject a “distributed

generation” alternative, which would involve the use of

rooftop solar panels. Since we find the agency’s statement of

purpose and need to be reasonable, the BLM acted within its

discretion in dismissing alternative proposals.
BACKCOUNTRY AGAINST DUMPS V. JEWELL 15

First, the range of alternatives considered in the EIS was

not impermissibly narrow, as the agency evaluated all

“reasonable [and] feasible” alternatives in light of the

ultimate purposes of the project. City of Carmel-by-the-Sea

v. U.S. Dep’t of Transp., 123 F.3d 1142, 1155 (9th Cir. 1997).

An agency need not review “remote and speculative”

alternatives. Westlands Water Dist. v. U.S. Dep’t of Interior,

376 F.3d 853, 868 (9th Cir. 2004) (quoting Vt. Yankee

Nuclear Power Corp. v. Natural Res. Def. Council, Inc.,

435 U.S. 519, 551 (1978). Instead, its review is guided by a

“rule of reason.” City of Carmel-by-the-Sea, 123 F.3d at

1155. Accordingly, the EIS need only “briefly discuss” the

reasons for eliminating an alterative not selected for detailed

examination. 40 C.F.R. § 1502.14(a).

Here, the agency reviewed five action alternatives to the

project originally proposed by Tule, as well as two no-action

alternatives. The agency also briefly considered seven

project-design alternatives and three energy-generation

alternatives, including distributed generation. The distributedgeneration alternative involved the use of rooftop solar panel

systems on buildings in San Diego County and the

development of other renewable-energy systems.

TheBLMdismissed the distributed-generation alternative

because it failed to satisfy the agency’s goals and presented

a number of feasibility challenges. First, the distributed

generation alternative did not provide for utility-scale energy

generation on public lands, and therefore would have been

less effective at meeting the goals articulated by the agency.

Although an agency is not limited to considering alternatives

within its jurisdiction, the agency is not required to give

exhaustive consideration to an alternative that it appropriately

deems remote and speculative. City of Angoon v. Hodel,
16 BACKCOUNTRY AGAINST DUMPS V. JEWELL

803 F.2d 1016, 1021–22 (9th Cir. 1986) (alternatives “must

be ascertainable and reasonably within reach”). In this case,

the private installation and use of rooftop solar systems

presented significant feasibility issues that the agencydecided

to take into account when choosing among alternative

proposals.

Specifically, the BLM found the implementation of this

alternative to be “speculative” given the current status of

solar technology and the regulatory and commercial

landscape. According to the BLM, 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 energy generation from the original windenergy proposal. Even if such an outcome were feasible,

however, the BLM concluded that a project of such scale

might require “extensive upgrading” of infrastructure and

generate uncertain environmental impacts. These technical

determinations of the agency, reflecting the application of its

specialized expertise, merit particular deference on review.

See Lands Council v. McNair, 537 F.3d 981, 988 (9th Cir.

2008) (en banc), overruled on other grounds by Winter v.

Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). We

thus find that the BLM reasonably concluded that the overall

effectiveness of a distributed-generation alternative, reliant on

private installation and technical upgrading, remained

speculative in practice.1 Similarly, Plaintiffs’ final contention

that the distributed-generation systems would present a cost1 Plaintiffs highlight the fact that state legislation creating a system of

renewable-energy trading credits was passed two months after the final

EIS was issued. Notwithstanding this new development, the BLM acted

reasonably because it based its determination of feasibility on a number

of independently sufficient reasons discussed in the EIS.
BACKCOUNTRY AGAINST DUMPS V. JEWELL 17

effective alternative must be weighed against the feasibility

of the overall approach and its consistencywith agency goals.

Considered as a whole, therefore, the BLM did not act

unreasonably in dismissing the distributed-generation

alternative.

C. Mitigation Measures

Pursuant to NEPA, an agency must also consider

appropriate mitigation measures that would reduce the

environmental impact of the proposed action. 42 U.S.C.

§ 4332(2)(C)(ii). As noted, our review is guided by whether

the agency’s analysis is reasonable and offers “sufficient

detail to ensure that environmental consequences have been

fairly evaluated.” S. Fork Band Council of W. Shoshone of

Nevada v. U.S. Dep’t of Interior, 588 F.3d 718, 727 (9th Cir.

2009) (quotingRobertson v. Methow Valley Citizens Council,

490 U.S. 332, 352 (1989)). “Perfunctory descriptions or mere

lists of mitigation measures are insufficient.” Alaska Survival,

705 F.3d at 1088. Rather, the agency must provide “an

assessment of whether the proposed mitigation measures can

be effective . . . [and] whether anticipated environmental

impacts can be avoided.” S. Fork Band Council, 588 F.3d at

727. Because mitigation measures are projections that allow

an agency to alleviate “impact after construction,” the EIS

may not use them “as a proxy for [collecting] baseline data”

before construction that would enable the agency to “first

understand[] the extent of the problem.” N. Plains Res.

Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1084–86

(9th Cir. 2011). On the other hand, the EIS’s proposed

mitigation measures “need not be legally enforceable, funded

or even in final form to comply with NEPA’s procedural

requirements.” Nat’l Parks & Conservation Ass’n v. U.S.

Dep’t of Transp., 222 F.3d 677, 681 n.4 (9th Cir. 2000).
18 BACKCOUNTRY AGAINST DUMPS V. JEWELL

In this case, the agency drafted a comprehensive set of

mitigation measures relying, in part, on field studies

conducted by Tule over several years in the proposed Project

area. These studies, in combination with scientific research,

informed the BLM’s development of a number of mitigation

measures, including the creation of the lengthy Protection

Plan. The Protection Plan outlined additional methods of

achieving environmental mitigation at each stage of the

Project. The BLM incorporated the Protection Plan into the

final EIS by reference.

Plaintiffs claim that the mitigation measures outlined in

the EIS do not provide “sufficient detail,” and that the EIS

improperly defers the formulation of certain mitigation

measures until post-development monitoring and inspection,

notably through the use of an adaptive-management plan. Yet

the mitigation measures, including the 85-page Protection

Plan, provide ample detail and adequate baseline data for the

agency to evaluate the overall environmental impact of the

Project. Plaintiffs merely “fly speck” the EIS rather than

identify consequential flaws that would prevent the agency

from sufficiently grasping the Project’s potential

environmental consequences. Or. Envtl. Council v. Kunzman,

817 F.2d 484, 492 (9th Cir. 1987) (quotation marks omitted).

Moreover, the EIS’s inclusion of an adaptive-management

plan, among other mitigation measures, provides flexibility

in responding to environmental impacts through a regime of

continued monitoring and inspection. That an agency decides

to incorporate an adaptive management plan as one

component of a comprehensive set of mitigation measures

does not mean that the agency lacked a sufficient foundation

of current baseline data from which to evaluate the Project’s

environmental effects. Rather, the use of such a continuous

monitoring system may complement other mitigation
BACKCOUNTRY AGAINST DUMPS V. JEWELL 19

measures, and help to refine and improve the implementation

of those measures as the Project progresses.

D. “Hard Look” at Environmental Impacts

Plaintiffs also raise a series of four substantive challenges

to the BLM’s investigation of the environmental impacts of

the Project. As the district court correctly determined, each of

these challenges is unavailing and, in some cases, would

improperly compel a reviewing court to substitute its

judgment for that of the agency. See Lands Council, 537 F.3d

at 988.

1. Avian Impacts

Plaintiffs assert two primary challenges to the EIS’s

analysis of the Project’s avian impacts. Plaintiffs contend

that the EIS fails to comprehensively review the effects of

Project-related noise on birds at all life stages, not just the

nesting stage. Moreover, they claim that the agency failed to

conduct nighttime migratory-bird surveys in the Project area

to better estimate the numbers of such birds that might be

struck by wind turbines. We conclude that the EIS’s analysis

of the likelihood of various bird species frequenting the

Project area, as well as the potential impacts of the Project on

bird populations, is reasonable and satisfies NEPA’s “hard

look” requirement.

First, the agency outlined over a dozen noise-mitigating

measures that it determined would significantly reduce the

environmental impacts of noise on birds to “low” or minimal

levels. Because the BLM concluded that the Project’s noise

effects could be effectively reduced, it provided less analysis

of noise effects in the EIS as compared to other more
20 BACKCOUNTRY AGAINST DUMPS V. JEWELL

significant or unmitigable environmental impacts. See

40 C.F.R. § 1502.2(b) (“Impacts shall be discussed in

proportion to their significance. There shall only be brief

discussion of other than significant issues.”). Even though the

agency could have included more detailed discussion of noise

impacts or collected further information, its existing analysis

did not impermissibly misconstrue the existing data or force

the public and policymakers to speculate concerning

projected environmental effects. See Found. for N. Am. Wild

Sheep v. U.S. Dep’t of Agr., 681 F.2d 1172, 1179 (9th Cir.

1982). In addition, while the mitigation measures discussed

in the EIS focus on the nesting and fledgling phases, the BLM

reasonably deemed these life stages to be the most critical in

bird development, and accordingly focused its analysis on

those stages.2

Second, the agency’s failure to conduct a nighttime

migratory-bird survey was a discretionary judgment made by

the agency on the basis of available scientific data. When the

agency’s determination is founded on reasonable inferences

from scientific data, a reviewing court will not “substitute its

judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n

v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

Here, the BLM relied upon existing surveys and scientific

literature, which indicated that use of the Project area by

nocturnal species would be low and that most nocturnal

species would fly at altitudes higher than those of the

2 Plaintiffs also contend that the noise levels from the Project would be

incompatible with the use ofthe site by certain migratory songbirds, citing

several scientific studies. However, the agency exercised its discretion in

discounting the results of those scientific studies due, in part, to

differences in the noise generated by the wind turbines and those at issue

in the studies.
BACKCOUNTRY AGAINST DUMPS V. JEWELL 21

proposed turbines. This determination, too, was a reasonable

exercise of the agency’s discretion. Moreover, the BLM

chose to reposition turbines in valleys rather than on top of

ridgelines, which would lessen any risk to low-flying

nocturnal migrants.

2. Inaudible Noise

Plaintiffs contend that the EIS fails to adequately address

the environmental effects of inaudible noise, including

infrasound and low-frequency noise, on humans. In support

of their contentions, Plaintiffs rely on a 2011 scientific study,

which concludes that inaudible noise may have adverse

effects on human health. The BLM considered this study in

conjunction with an array of other scientific research

literature, and ultimately concluded that inaudible noise

generated by the Project would not cause discernable health

impacts, based on a “consensus among acoustic experts.” In

particular, the BLM explicitly distinguished the results of the

2011 study in its responses to public comments on the EIS.

See Save the Peaks Coal. v. U.S. Forest Serv., 669 F.3d 1025,

1037 n.5 (9th Cir. 2012). We defer to the agency’s

discretionary judgment with respect to the “evaluation of

complex scientific data within the agency’s technical

expertise.” Envtl. Defense Ctr., Inc. v. EPA, 344 F.3d 832,

869 (9th Cir. 2003). Plaintiffs have presented us with no

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

3. Electromagnetic Fields and Stray Voltage

Similarly, Plaintiffs contend that the EIS fails to

adequately examine the adverse health effects of

electromagnetic fields and stray voltage that may be
22 BACKCOUNTRY AGAINST DUMPS V. JEWELL

generated by the Project. However, Plaintiffs’ argument

derives from an underlying substantive disagreement with the

EIS’s conclusions rather than a claim that the agency’s

methods of arriving at those conclusions are unreasonable. In

reaching its conclusion, the BLM properly canvassed the

available literature on electromagnetic fields and, in a

reasonable exercise of its technical expertise, determined that

any fields created by the Project did not present public health

risks that would cause concern.

In addition, the BLM analyzed the risk of stray voltage

and discussed appropriate mitigation efforts. Although the

EIS acknowledges the risk of stray voltage on human health

and safety, it reasonably discounted this risk in light of

mitigation plans that would ground the turbines and provide

for regular inspections to ensure their continued safety.

Therefore, the EIS conforms with NEPA’s requirement that

the agency engage in reasoned analysis of environmental

hazards, in proportion to their significance, to ensure that the

public is adequatelyinformed of a project’s potential impacts.

See Churchill Cty., 276 F.3d at 1071.

4. Greenhouse-Gas Emissions

The EIS also takes a “hard look” at the impact of the

Project on greenhouse-gas emissions and global warming.

The EIS analyzes projected emissions from the Project and

concludes that these emissions, at 646 metric tons of carbon

dioxide per year, fall below the level of significance required

for further analysis under NEPA. In addition, the EIS states

that “the project would create a renewable source of energy,

thereby potentially decreasing overall emissions attributable

to electrical generation in California.” Contrary to Plaintiffs’

contention, this passing projection of potential emissions
BACKCOUNTRY AGAINST DUMPS V. JEWELL 23

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

source of renewable energy, is reasonable enough and does

not mandate the provision of conclusive proof through

additional evidence and analysis beyond that already

provided in the EIS.

Finally, Plaintiffs contend that the BLM failed to take into

account the emissions generated by the manufacture and

transportation of equipment to the Project area. Instead, the

BLM reasoned that these emissions levels were largely

outside the control of Tule and that attempts to estimate these

amounts would be overly speculative. The BLM was entitled

to choose among various reasonable methodologies, as it did

here, when estimating the emissions generated by the Project.

See Native Ecosystems Council v. Weldon, 697 F.3d 1043,

1053 (9th Cir. 2012).

II. Liability under the MBTA and Eagle Act

Plaintiffs raise the novel argument that the BLM—by the

mere act of granting Tule’s right-of-way request—is

complicit in future conduct by Tule that might result in

violations of the MBTA and the Eagle Act (collectively, the

Acts). Plaintiffs’ theory of liability is two-fold. First,

Plaintiffs assert that the BLM, acting in its regulatory

capacity, is directly liable for the unlawful “take” of birds

under the Acts, absent a permit from the FWS. Second,

Plaintiffs assert that the agency’s regulatory authorization is

“not in accordance with law” within the meaning of the APA,

5 U.S.C. § 706(2)(A), because the BLM did not condition its

right-of-way grant on Tule securing the appropriate permits

from the FWS. We address each of these arguments in turn.
24 BACKCOUNTRY AGAINST DUMPS V. JEWELL

A. The Migratory Bird Treaty Act

The MBTA is a criminal statute that prohibits an

individual, entity—or, in some cases, an agency—“at any

time, by any means or in any manner, to pursue, hunt, take,

capture [or] kill . . . any migratory bird, . . . nest, or egg of

any such bird” in the absence of a permit or other exemption.

16 U.S.C. § 703(a). The FWS is the federal agency tasked

with ensuring compliance with the MBTA, including issuing

permits and prosecuting offenders. See id. §§ 706, 707(a), (d).

Through the APA’s prohibition against unlawful agency

action, a plaintiff may bring a civil suit to compel agency

compliance with the MBTA. See City of Sausalito, 386 F.3d

at 1203.

1. Liability under the MBTA

As more fully discussed, infra Section II.A.2, we hold

that Plaintiffs’ argument that the Project will inevitably result

in migratory-bird fatalities, even if true, is unavailing because

the MBTA does not contemplate attenuated secondary

liability on agencies like the BLM that act in a purely

regulatory capacity, and whose regulatory acts do not directly

or proximately cause the “take” of migratory birds, within the

meaning of 16 U.S.C. § 703(a). Here, the BLM only

authorized Tule to construct and operate a wind energy

facility on public lands, and therefore did not act to “take”

migratory birds without a permit, within the meaning of the

MBTA.

The authorities Plaintiffs cite in support of its argument

are distinguishable. In Humane Soc’y of the United States v.

Glickman, 217 F.3d 882 (D.C. Cir. 2000), the U.S.

Department of Agriculture, in conjunction with state
BACKCOUNTRY AGAINST DUMPS V. JEWELL 25

agencies, was responsible for instituting a plan that would

intentionally capture and kill migratory geese. Id. at 884. In

that case, the agency itself was implicated in the killing of

migratory birds without a permit, in violation of the MBTA.

Similarly, Plaintiffs point to special legislation exempting

the Department of Defense from the MBTA’s prohibition

against the incidental take of migratory birds in the course of

its military readiness exercises. See National Defense

Authorization Act for Fiscal Year 2003, P.L. 107-314, 116

Stat. 2458 § 315 (2002). Such legislation merely proves the

point, established in Glickman, that agencies may be held

liable for violations of the MBTA when they themselves

engage in the taking of protected birds. However, such

actions are far removed from purely regulatory action that

does not constitute, or even proximately cause, an unlawful

“take” under the MBTA. Instead, the BLM’s decision to grant

Tule’s right-of-way request was many steps removed in the

causal chain from the potential commission of an unlawful

“take” caused by wind-turbine collisions.

Finally, Plaintiffs refer us to the recent actions of the

National Marine Fisheries Service (NMFS),which applied for

a permit from the FWS to cover the incidental take of

migratory seabirds by a Hawaii longline fishery. Under one

interpretation of that scenario, the NMFS could be said to

function in a managerial capacity over the activities of the

fishery. See Turtle Island Restoration Network v. U.S. Dep’t

of Commerce, 2013 WL 4511314, at * 6 (D. Haw. 2013). If

so, then NMFS would occupy a more directly supervisorial

position over a regulated third party than that of a typical

agency, and certainly that of the BLM vis-à-vis Tule.

Moreover, looking at the NMFS permit application from

another angle, the fact that one agency may choose to apply
26 BACKCOUNTRY AGAINST DUMPS V. JEWELL

for a permit from the FWS to further shield itself from the

risk of potential liability does not compel all agencies acting

in a regulatory capacity to do the same. Rather, as the FWS

has concluded, “the agencies themselves are not subject to the

prohibitions of the MBTA when acting in their regulatory

capacities,” and thus are generally not required to seek a

permit to cover the separate actions of “third parties regulated

by those agencies.” Migratory Bird Permits; Programmatic

Environmental Impact Statement, 80 Fed. Reg. 30,035 (May

26, 2015).

2. Liability under the APA

Alternatively, Plaintiffs argue that the BLM’s right-ofway grant is “contrary to law” within the meaning of the APA

because it permits Tule to engage in otherwise lawful

activities that would incidentally lead to migratory-bird

deaths—a final result that is contrary to the MBTA. Plaintiffs

maintain that, even if the BLM is not directly liable under the

MBTA, the agency is compelled to deny the right-of-way

request unless Tule first obtains a permit for the incidental

take of migratory birds. To do otherwise, Plaintiffs contend,

would render the BLM complicit in the unlawful actions of a

third party, and in violation of the APA. However, the BLM’s

regulatory role in this case is too far removed from the

ultimate legal violation to be independently unlawful under

the APA.

Plaintiffs’ claim, which verges on argument for

unbounded agency vicarious liability, relies on a selective

characterization of the agency action at issue and fails for

reasons similar to those discussed above. The BLM, by the

mere act of granting Tule a right-of-way, has not behaved in

an unlawful manner under the APA. Rather, Plaintiffs’
BACKCOUNTRY AGAINST DUMPS V. JEWELL 27

argument hinges on the assumption that a third-party grantee

like Tule, in its operation of the wind turbines, will behave in

an unlawful manner under the MBTA. Based on this

assumption, Plaintiffs would impose an affirmative duty on

the BLM to guarantee Tule’s future compliance with the

MBTA by ensuring that Tule first secure a permit. To what

extent does the BLM have a duty under the APA to take

affirmative measures to prevent potential unlawful action by

Tule? Our concerns of agency complicity in the instant case

are substantially allayed by several considerations.

First, as discussed above, the APA does not target

regulatory action by the BLM that permits a third-party

grantee like Tule to engage in otherwise lawful behavior, and

only incidentally leads to subsequent unlawful action by that

third party. See supra Section II.A.1. The causal mechanism

in question is too speculative and indirect to impose liability

on the BLM for engaging in routine regulatory action. Here,

the BLM’s right-of-way did not sanction or authorize the

taking of migratory birds without a permit; it authorized the

development of a wind-energy facility. Without further

indication of its involvement in the putative violation, we

cannot hold the BLM complicit in future unlawful activity,

separately committed by a grantee, through a mere failure to

intervene at the permitting stage.

Moreover, the BLM has not sanctioned or encouraged an

unlawful course of action by Tule. Rather, it has done the

opposite. The BLM’s ROD indicates that its approval of the

Project is expresslycontingent on Tule’s compliance with “all

applicable laws and regulations,” which in this case includes

the MBTA and the Eagle Act, as well as the securing of “all

necessary local, state, and Federal permits, authorizations,

and approvals.” The terms of the ROD further permit the
28 BACKCOUNTRY AGAINST DUMPS V. JEWELL

BLM to, at any time, withdraw its right-of-way approval if it

determines that Tule has failed to comply with these

provisions.

In contrast, in several cases implicating other

environmental-protection laws, the agencies in question acted

unlawfullybecause theyimproperlyexercised their regulatory

authority to sanction conduct by third parties that was itself

unlawful. In Anderson v. Evans, 371 F.3d 475 (9th Cir. 2004),

for example, the agency permitted the unlawful hunting of

whales by an Indian tribe as a result of a legally erroneous

interpretation of a tribal treaty and in violation of the Marine

Mammal Protection Act. Id. at 480, 486 (explaining that the

agency environmental assessment unlawfully authorized “a

quota for the ‘land[ing]’ of five gray whales”).

Similarly, in Wilderness Society v. U.S. Fish & Wildlife

Service, 353 F.3d 1051 (9th Cir. 2003) (en banc), the FWS

issued a permit allowing a third party to operate a

“commercial enterprise” in a national wilderness area, based

on a legally mistaken construction of the governing federal

statute, which prohibited such commercial activities. Id. at

1055. Here, in contrast, the BLM has not misconstrued the

requirements of the MBTA; nor has it encouraged or ratified

unlawful acts taken by third parties in violation of the MBTA.

Plaintiffs’ reliance on Ctr. for Biological Diversity v.

Bureau of Land Mgmt., 698 F.3d 1101 (9th Cir. 2012) is also

inapposite. That case involved the BLM’s compliance with

the Endangered Species Act, a federal statute that reaches

farther than the MBTA in that it explicitly requires an agency

to engage in interagency consultations that will “[e]nsure that

any action authorized, funded, or carried out by such

agency. . . is not likely to jeopardize the continued existence
BACKCOUNTRY AGAINST DUMPS V. JEWELL 29

of any endangered species or threatened species.” 16 U.S.C.

§ 1536(a)(2). No such provision is included in the MBTA, or

the Eagle Act, which might otherwise create an analogous

affirmative duty on the part of the BLM to guarantee a

grantee’s compliance with the Acts.

B. The Bald and Golden Eagle Protection Act

Similar to the MBTA, the Eagle Act provides that, absent

a permit or other exemption, it is unlawful to “take, possess,

sell, purchase, barter, offer to sell, purchase or barter,

transport, export or import, at any time or in any manner, any

bald eagle, common known as the American eagle, or any

golden eagle, alive or dead, or any part, nest, or egg thereof.”

16 U.S.C. § 668(b). The FWS also administers the Eagle Act,

including overseeing the issuance of permits and ensuring

compliance with the statute. Unlike the MBTA, the Eagle Act

explicitly provides for both criminal and civil enforcement.

Id. § 668(a)–(b).

Despite some substantive differences between the MBTA

and the Eagle Act, the same reasoning applies to defeat the

imposition of liability on the BLM here. See supra Section

II.A. Further support for this conclusion is provided by a

FWS regulation that pertains to permits for the “incidental

take” of eagles. 50 C.F.R. § 22.26; see Eagle Permits; Take

Necessary To Protect Interests in Particular Localities,

74 Fed. Reg. 46,836 (Sep. 11, 2009). There, the FWS

explained that “[p]ersons and organizations that obtain

licenses, permits, grants, or other such services from

government agencies are responsible for their own

compliance with the Eagle Act and should individually seek

permits.” 74 Fed. Reg. 44,843 (Sep. 11, 2009). It further

explained, however, that “agencies must obtain permits for
30 BACKCOUNTRY AGAINST DUMPS V. JEWELL

take that would result from agency actions that are

implemented by the agency itself (including staff and

contractors responsible for carrying out those actions on

behalf of the agency).” Id. We hold, in the narrow

circumstances of this case, that the BLM did not, by granting

Tule the referenced right-of-way, take “agency actions . . .

implemented by the agency itself” that would directly or

proximately result in the incidental take of eagles by it or

Tule.

As a result, a requirement that the BLM independently

seek a permit, or confirm that grantees seek permits before

issuing a right-of-way grant, would impose an attenuated

form of secondary liability on the BLM, an agency that is

neither statutorilytasked with policing third-partycompliance

with the Eagle Act nor responsible for violations that might

be independently committed by grantees, such as Tule.3

CONCLUSION

We hold that the BLM is not liable under NEPA, the

MBTA, the Eagle Act, nor the APA for its regulatory

decision to grant Tule a right-of-way to develop and operate

a renewable wind energy project. The judgment of the district

court is AFFIRMED.

3 We note that even if the BLM were responsible for policing third-party

compliance with the Eagle Act, the ProtectionPlan, devised in conjunction

with the FWS, reasonably determined that the Project could “practicably

be modified to avoid the take.” 50 C.F.R. § 22.26 (e)(1).