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 ON , 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 ON 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 MA2 P R O T E C T O U R C O M MU N I T I E S F O U

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. J E W E L L

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 ON , 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 ON 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, Presiding3

P R O T E C T O U R C O M MU N I T I E S F O U

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. J E W E L L
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 district c ourt’s summary judg ment in favor o f federal ag encies and officials and intervenor Tule W ind, L L C in a

n a c t i o n challeng 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 n o t l i able under the National Environme n t a l Policy Act, the Mig ratory B ird Treaty Act, the B ald and 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.4 P R O T E C T O U R C O M MU N I T I E S F O U

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

project.

Specifically
, c oncerning plaintiffs’ alleg ations that the B L M fa i led to comply w ith the National Environmental Policy Act in preparing the environmental impact statement, the panel held that: the district court properly determined that the environmenta l impact statement’s purpose-and-needs tatement 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 the ag ency to evaluate the overall environmental im p act of the p roject; and the environmental impact stateme n t t o ok a “hard look” at the environmental impact of the project.

Concerning plaintiffs’ a lleg ations of B L M’s v iolations 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 d o not directly or prox imately cause the “ take” o f mig ratory b irds, within the m e a n i n g of 16 U.S.C. § 703(a). The pa n e l c o n c luded that the B L M did not a ct to “take” mig ratory b irds without a p e r mit within the meaning of the Act.

The panel held that the B L M’s regu latory r ole in this case

was too fa r removed 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 Ac t , t he panel h eld that the B L M was not liable under the B ald and G o l den Eag le Protection Act, and w as n o t r esponsible for viol a t i o ns that5

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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

. Volker, Marcus Eichenberg
, and Stephanie Clark, L aw O f fi ces o f Stephan C. V o l ker, Oakland, California, for PlaintiffsAppellants/Plaintiffs-Appellees B a c k c o u n t r y Ag ainst Dumps and Donna Tisdale.

Allen M. B r abender (arg ued), J oh n H. Martin, a

nd Stacey B osshardt, Attorney s; J ohn C. Cruden
, Assistant Attorney General; United States Department of J ustice, Environmental & Natural Resources Division, W ashin g ton, D.C.; for Defendants-Appellees.

Daniel P. B runton (arg

ued), L atham & W a t k i ns L L P, San Dieg o, California, for I n tervenor-Defendant / Appellee Tule W ind, L L C.6 P R O T E C T O U R C O M MU N I T I E S F O U

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OP INION

M. SMI TH, Circuit J udg e :

Prot e c t Our Communities F oundation (Protect), B ackcountry A g ainst Dumps ( B ackcou n t ry ), and Donna Tisdale (c o l l ectively
, Plaintiffs) a ppeal the decision of the B ureau of L and Manag ement to g rant Defendant-I ntervenor Tule Wind, L L C, (Tul e ) a rig ht-of-way on federal lands in southeast San Dieg o County

. Plaintiffs n amed several federal defendants in this action, including the B ureau o f L a nd Manag ement ( B L M), the Department of t h e I nterior, a nd various officials o f those ag encies (collectively
, Defendants).

The B L M’s rig h t-of-way

g r ant permits Tule to construct and operate a wind e nerg y project, w hich Plaintiffs claim will harm birds in violation o f t h e M ig ratory B ird Treaty A ct (MB T A), 16 U.S.C. §§ 703–12, and the B ald an d G olden Eag le Protection Act (Eag le Act), 1 6 U.S.C. § § 668–668d. I n addition, Plaintiffs challeng e the a d e quacy of 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

– 7 0h. The district court rejected Plain t i f

f s ’ c h a l l e ng es and 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 wit h i n t h e Department o f the I nterior, is c harg ed with the manag emen t o f federally owned land. See 4 3 U .S.C. §§ 1732(a), 1702(c). Among the B L M’s r esponsibilities is the determination o f whether to7

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g rant r ig hts-of-way f

o r the use of such lands. See id

. § 1761(a). Plaintiffs, which are a collection of environmental advocacy org aniz ations and a local resi d e n t , challeng e a rig ht-of-way gr a n t b y the B L M that would permit T u le to construct and operate a wind energy 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 ht-of-way proposal envisioned the construction of 128 w ind turbines an d s upporting 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 comment. 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 mo d es t wind-energy facility
, which eliminated thirty

- three o f the orig 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 tu r bines that were orig inally proposed to be l o c a t e d on top of ridg e lines. A s modified, the Project w as e x pected to g enerate u p t o 186
meg awatts of electricity
, thereby meeting the electrical
energy needs of approx imately 65,000 homes and businesses.

On October 3, 2011, the B L M released a fin a l E I S

r eflecting these modifications. The ag ency published a Record of D ecision (ROD) on December 1 9
, 2011, 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 w o u ld be issued for a thirty -y ear term, with an option to renew. I t f urther provided that the g rant of the rig ht-of-way w a s e x pressly8 P R O T E C T O U R C O M MU N I T I E S F O U

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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 Federal approvals, authoriz ations, and permits.”

I ncluded among the mitig ation measures required for the Project w as the Pr oject-Specific Avian and B at Protection Plan (the Protection Plan). Tu l e d eveloped the Protection Plan in conjunction with the B L M a nd the U.S. F ish and W ildlife Service (F W S), which is the federal ag e n c y r esponsible for enforcing the MB TA and the Eag le Act. The Protection Plan

was based on scientific 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 ontin uous monitoring 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 Pro t e c t i o n Plan, stating that it was “appropriate in its adaptive manag ement approach to avoid and m i n i m i ze take o f mig r atory b irds, bats and eag les.” Althoug h the F W S advised that the Pr o t ection Plan was not

a “take permi t ,” it acknowledg e d that it could serve as the basis for a future permit application with the F WS. The B L M incorporated the Protection Plan by reference into the final EI S a nd c o n d i t ioned its rig ht-of-way g r ant on Tule’s adherence to the mitig ation measures described therein.9

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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 Admi n i strative Procedure Act (APA), 5 U .S.C. §§ 701–06, to address Defendants’ a lleg ed u n l a wful actions under NEPA, the MB TA, a nd the Eag 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 Defen d a n ts’ motion for
summary judg ment on all claims. Speci f i cally
, the district

cour t h el d that the final EI S had sufficiently articulated a proposed g o al and need for the Project, proper l y r e v iewed a number of a lternatives, and proposed reasonable mitig ation

measures. The district court a l s o held that the final E I S 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 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 cluded that the B L M was not responsible for ensuring that it or T ule ob t ai n M BTA a nd Eag le Act p ermits from the F W S prior to issuing its rig ht-ofway g rant.

P laintiffs filed two separate notices of appeal from th e 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.10 P R O T E C T O U R C O M MU N I T I E S F O U

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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 summa r y j udg ment de

novo. United States v. City of Tacoma
, 332 F .3d 5 74, 578 (9th Cir. 2003). Under the APA, we revie w ag ency action to determine w h e t h er it is “arbitrary
, capricious, an abuse o f discretion, or otherwise not in a ccordance 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 whic h Cong ress has not intende d it to consider, entirely fail[ s] to consider an important aspe c t o f the p roblem, offer[ s] an ex planation for its decision that runs c o u n t e r to the e vidence before the
ag ency , or is so implausible that it c [ an ] n ot be a scribed to a difference in view or the p roduct of a g ency ex pertise.” Motor Vehicle Mfrs. Ass’ n v

. State Farm Mut. Auto. Ins. Co
., 463 U.S. 2 9, 43 (1983). I n g eneral, a court will “ uphold
ag ency decisions so long as the ag encies have ‘considered the relevant f a ctors and articulated 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 Conservation Alliance v. Forsgren
, 3 36 F .3d 944, 9 5 3

– 54 (9th Cir. 2003)). T his deference is particularly appropriate when a court is reviewing “issues of f act,” “where analy sis o f the relevant d ocuments requires a hi g h level of technical

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

D ISCUSSION

I. The Environm ental Im pact Statem e n t’s Com pliance

w ith NEP A

NEPA, w hich provides the statutory framework for federal ag encies reviewing the environmental e ff e c ts of a11

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proposed action, requires the preparation of an EI S for “major F ederal actions sig nificantly affecting the qual i t y o f the human e nvironment.” 42 U.S.C. § 4332(2)(C). The EI S must contain, among other thing s, a detailed discus s i o n of “the environmental impact of the proposed action,” “ad verse

e n v i r o n m e n t a l e f

f e c t s w h i c h c a n n o t b e a v o i d e d
, ” “alterna t i v e s to the proposed action,” and a statement of the
p u r p ose 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 p articular substantive result on an ag ency

. Hells Canyon Alliance v. U.S. F orest Serv.
, 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 Californi a v. Block
, 690 F .2d 753, 761 (9th Cir. 1982)). Specifically
, a reviewing court will take

a “hard look” at the EI S to d et e rm i n e whether it “contains a reasonably thoroug h disc ussion of the sig nificant aspects o f the probable environmental consequences.” I d. at 1071–72 (quota t i o n marks 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 la t e to correct.” I d. at 1072–73 (quotation marks omitted).

Plaintiffs alleg e that D efendants f a iled to comply with NEPA in a number of respects in preparing t h e EI S. F irst
, Plaintiffs maintain that the scope of the Project’s purpose a nd need statement was too narrow. S econd
, Plaintiffs argue that the EI S failed to adequately ex amine viable a l t e r n atives,12 P R O T E C T O U R C O M MU N I T I E S F O U

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including a “distributed g eneration” alternative involving the

use of rooftop solar p anels. Third
, Plainti ffs claim that the Project’s proposed mitig ation strateg ies are to o vag ue a nd speculative to satisfy N EPA. Finally
, Plaintiffs maintain that the EI S fails to take a “hard look” at the e n v i r o n mental impact o f the P r o

ject in several d istinct way s. Specifically
, they note that the EI S omits a comprehensiv e d i s c ussion o f the impa c t s o f noise on bird species and fails to conduct a survey of nig h ttime mig ratory b irds. I n addition, Plaintiffs claim that the EI S do e s n o t f airly address the impacts o f inaudible noise, electromagn etic fields, and stray voltag e on humans, or the proposed consequences of the p roject on g lobal w arming

. W e address each o f these arguments in turn.

A. Statem ent of P urpose and Need

An ag ency tasked w ith prepar i n g an EI S must p repare a statement that “briefly specif[ ies] the underlying purpose a nd need to which the ag ency is r es ponding

. ” 40 C.F .R. § 1502.13. This statement should inform the ag ency ’s r eview of alternatives to the propos e d a c t i on and g uide its final selection. W e accord the ag ency “considerable discretion to define a project’s purpose and need” and review s u ch
statements for reasonableness. A las k a Survival v. Surface Transp. B d.
, 7 05 F .3d 1 073, 1084 (9th Cir. 2013). However,

a statement of purpose and need “will f ail if it un reasona

b l y

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 en cy is tasked with d eciding whether to issue a p ermit o r license, t h e s tatement of purpose and need may include “private g oals” along si de statutory policy objectives. Id. at 1085. H owever, it is the statutory g o al that “serve[ s] a s a g uide by whic h t o determine the r easonableness of the objectives outlined.” Id. at 1084–85.13

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

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

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

• Ex ec u t i v e Order 13212

. . . which mandates that ag encies act ex p ediently and in a manner consistent w ith applicable laws to increase the pro d u c tion a nd transmi s sion of energy 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 a p p rove at least 10,000
meg awatts of nonhy dropower renewable
energy power on public lands by 2015.

• Secretarial Order 3285A1, [ which] establishes the development of renewable
energy as a pr i o r i ty f

or the DOI [ and] announced a pol i c y g oal of identify ing and prioritiz ing specific locations (s t udy

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

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The EI S’s purpose-and

- n e e d statement reflects both the
ag ency ’s imme d i ate objective, “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 d e c iding among 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 r ig ht-of-way application, a nd constitutes a reaso n a ble formulat i o n of project g oals. See id

. at 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 reduc e t h e impact of the Project on the surroundingenvironment.

Althoug h Plaintiffs also challeng e the B L M’s purported “need” for the action, the statemen t of need is adequately supported by the f

ederal objectives outlined in the EI S. I n particular, Section 2 11 of the Energ y Policy A ct of 2005 sets forth an a g ency g oal of appro v i n g up to 10,000 w atts o f renewable energy d evelopment on public l a nds by 2015—a time f rame which, the ag e n c y d etermined, would b e most readily met throug h the d e v elopment of a utility

- scale energy project.

B. P roject Alternatives

Plai n t i ffs contend that the B L M dismissed viable alternative p rojects ou t of hand. Specifically
, Plaintiffs challeng e the B L M’s d ecision to reject a “distributed
g eneration” alternative, whic h would involve the use o f rooftop solar panels. Having found the ag ency ’s statement o f
purpose a nd need to b e reasonable, we also conclude that the B L M a cted within its discretion in dismissi n g a lternative proposals.15

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F irst, the rang e of alternatives c o nsidered in the EI S was

n o t impermissibly narrow, as the ag ency evaluated al l “reasonable [ and] feasible” alternative s i n lig h t of the ultimate purposes of t h e project. City of Carmel-by-the-Sea

v. U.S. Dep’t of 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
, 3 7 6 F. 3d 853, 868 (9th Cir. 2004) (quoting Vt. Y a nkee Nuclear Power Corp. v. Natural Res. Def

. C ouncil, Inc
., 435 U.S. 519, 551 (1978)). I n stead, its review is guided by a “rule o f re a son.” City of Carmel-by-the-Sea
, 123 F .3d at 1155. A ccording ly
, the EI S need only “ b r i efly discuss” 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 T u le, as w ell as two no-action alternatives. T he ag e ncy also br i e f ly considered seven project-design a lternatives a nd th r ee energy -g eneration al t e r n a t i v e s , i n c l u d i n g d i s t

r ibuted g e n eration. The distributedg eneration a lternative involved the use of rooftop solar panel
sy stems on building s in San Dieg o County and the development of other renewable-energ y sy stems.

T h e B L M dismissed the d istributed-g eneration alte r n a t i v e b e c ause it failed to satisfy the ag ency ’s g oals a nd presen t e d

a number of feasibility ch alleng es. F irst, the distributed
g eneration a lternative d id not provide for utility

- scale energy g eneration on public lands, and therefor e 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 within its jurisdiction, the a g ency is n ot required to gi v e

ex h austive consideration to a n alternative that it appropriately deems remote and speculative. City o f A ngoon v. Hodel
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803 F .2d 1016, 1021–22 (9th Cir. 1986) (alternatives “must be ascertainable and reasonably within r eac h ”). I n this c ase, the private in s tallation and use of rooftop solar sy stems presented sig nific a

n t feasibility issues that the ag ency decided
to ta k e into account w hen choosing among a lternative proposals.

Specifically
, th e B L M found the implementation o f this altern at i v e to be “speculative” g iven the current status o f solar technolog y and the regulatory and comm e r c i al 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 energy g eneration from the orig inal w indenergy proposa l

. E ven if such an outcome w ere feasible, however, the B L M co n cl u d ed that a project of such scale mig ht require “ex tensive upg rading ” o f infrastructure a nd
g enerate uncertain environmen t al impacts. These technical determinations of the ag e ncy , r eflecting the application of its specializ ed e x pertise, merit parti c u lar deference on review. See Lands Council v. McNair
, 537 F .3d 9 8 1
, 988 ( 9th Cir. 2008) ( en banc), overruled on other grou nds by W inter v

. Natural Res. Def. Council, In c. , 5 55 U .S. 7, 20 (2008). W e thus f ind that the B L M reasonably concluded that the overall effe c t i v e n e s s o f a d i s t

r i buted-g eneration a lternative, r eliant on private installation and technical upg rading
, remained speculative in practice. 1 Similarly
, Plaintiffs’ final contention that the distributed-g eneration sy stems would present 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

um ber

o f in dep en d en tly

su f f icien t reaso n s d iscu ssed

inth e EIS.17

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. J E W E L L

effective alternative must b e weig hed a g ainst the f easibility of the overall approach and its consistency with ag ency g o als. Consider e d a s a whole, therefore, the B L M did n ot act unreasonably in d i smissing the distributed-g eneration alternative.

C. Mitigation Measures

Pursuant to N EPA, an ag ency must also consider appropriate mitig at i o n measures that would reduce the environmental impact of the proposed a c t i on. 42 U .S.C. § 4332(2)(C)(ii). As noted, our review is g uided by whe t her the ag ency ’s analy sis is reasonable a n d offers “ sufficient detail to ensure that environmental consequences have been fairly e valuated.” S

. Fork B a n d Council 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 a

t i o n m e asures are insufficient.” Alaska Survival
, 70 5 F

. 3d at 1088. Rather, the ag ency must provide “an
assessment of whether the p roposed mitig ation measures can be effective

. . . [ and] whe t h e r a nticipated 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 all eviate “impact a fter construction,” the E I S
may not use them “as a prox y for [ collecting ] baseline data” before construction tha t w ould enable the ag ency to “first understand[ ] the e x tent o f 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 EI S’s proposed mitig ation measures “need not be leg ally enforceable, funded

or even in final form t o c o mply 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 P R O T E C T O U R C O M MU N I T I E S F O U

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. J E W E L L

I n t h i s c ase, the ag ency drafted a comprehensive set o f mitig ation measures relying
, i n part, on field studies conducted by Tule over several y ears in the p roposed Project

area. T hese studies, in combi n ation with scientific research, informed the B L M’s development of a number of mitig ation
measures, including the creation of the lengt h y P rotection Plan. The Protection Plan o utlined additional metho d s o f achieving environmental mitig ation a t each stag e of the Project. The B L M incorporated the Protect i o n P lan into the final EI S by

reference.

Plaintiffs c laim that t h e m itig ation measures o utlined in the E I S d o not provide “ sufficient detail,” and that the E I S improperl y defers the 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 ation measures, inc luding the 85-pag e Protection Plan, provide ample detail and adequate baseline d ata for the
ag ency to e valuate the overall e n v ironmental impact o f the Project. Plaintiffs merely “fl y speck” the EI S r ather than identify consequential flaws t h a t would prevent the ag ency f r o m s u f f i c i e n t l y gr 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. Envtl. 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 o t h e r mitig ation measures, provides flex ibility in responding to environmental impacts throug h a reg ime of continued monitoring and inspection. That an ag ency decides
to incorporate an a d a ptive manag ement plan as o ne component of a comprehensive set o f m itig ation measures does not mean that the ag ency lacked a sufficient foundation of current b aseline data from which to evaluate the Project’s environmental effects. Rather, the use of such a c o n t i n u ous monito r ing sy stem may complement other mitig ation19

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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 environme n t a l impacts o f the Project. As the district c ourt correctly determined, each o f these challeng es is unavailing and, in some cases, would improperly compel a r e v iewing court to substitute its judg ment for that of the ag ency

. See Lands Council
, 537 F .3d at 988.

1. Avian Im pacts

Plaintiffs assert t w o primary challeng es to the E I S’s analy sis of the Project’s avian impacts. Plainti f f s c ontend that the EI S f

ails to c o mprehensively r e view the effects o f Pro j e c t-related 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 r atory -bird survey s in the Project area to better estimate the numbe r s of such birds that mig ht be struck by wind turbines. W e c o nclude that the EI S’s analy sis of the likelihood of v arious bird s p e c i e s frequenting the Project area, as well as the p otential impacts o f the Project on bird populations, is r ea s o n able and satisfies NEPA’s “hard look” requirement.

F irst
, t he ag ency outlined over a doz en noise-mitig ating

measures that it det er mined w ould sig nificantly r educe the environmental impacts of n oise on birds to “low” or minimal levels. B ecause th e B L M concluded that the Project’s noise effects could be effectively reduced, it provided less analy sis of noise effects in th e E I S a s compared to other more20 P R O T E C T O U R C O M MU N I T I E S F O U

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sig nificant or unmitig able environmental im p a cts. See 4 0 C.F .R. § 1502.2(b) (“Impacts shall b e discussed i n proportion to their sign i f i cance. 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

make rs to speculate concerning projected environmental effects. See Found. for N. Am. W ild Sheep v. U.S. Dep’t of Agr.
, 681 F .2d 11 7 2
, 1 179 ( 9 th Cir. 1 9 82). I n addition, while the mitig ation measures discusse d in the EI S focus on the n esting and fledg ling phases, the B L M reasonably deemed these life stag es to b e the most critical in bird development, and a cc o r d ing ly f ocused its analy sis on those stag es. 2

Second, the ag ency ’s failure to conduct a n ig httime mig ratory -bird survey w as a discretionary judg ment made b y the ag ency on the b asis of available scientific data. W hen the
ag ency ’s determination is f oun d e d on reasonable inferences from scientific data, a r e v iewing court will not “substitute its judg ment f

or that of the ag e n cy .” Motor Vehicle Mfrs. Ass’n

v. State Farm Mut. Auto. I n s

. C o

. , 4 6 3 U.S. 29, 43 (1983). Here, the B L M relied upon ex isting s urvey s and scientific literature, whic h indicated that use of the Project area b y nocturnal species would b e low and t h a t most nocturnal species would fly a t a l t itudes hig 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.21

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proposed turbines. This d etermination, too, was a reasonable

ex e r cise of the ag ency ’ s dis cretion. Moreover, the B L M chose to reposition turbines in valley s rather than on top o f ridg elines, which would lessen 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
, including infrasound and low-fre q uency noise, on humans. I n support of their contentions, Plaintiffs rely on a 2011 scientific study
, which concludes that inaudible noise may have ad v e rse effects on human h ealth. T h e B L M considered this study in conjunction with an array of other scientific research literature, and ultimately concluded that inaudible noise
g enerated by the Project would not cause d i s c e rnable health 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 d efer to the ag e ncy ’s discretionary judg ment with respec t to the “evaluation o f complex scientific data within the ag e n c y ’s technical

ex p ertise.” Envt l

. De

f ense Ctr., Inc. v. EPA
, 3 44 F

. 3d 832, 869 (9th Cir. 2003). Plaintiffs have p r e s ented us 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 t h a t the EI S fails to

a d e q u a t ely ex amine the adverse health eff e c t s o f electromagn e t i c fields and stray voltag e that may be22 P R O T E C T O U R C O M MU N I T I E S F O U

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ge n erated b y the Project. However, Plaintiffs’ argumen t derives f rom 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 available literature on electromagnetic fields a n d
, 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 o f stray v oltag e and discussed appropriate mitig ation ef forts. Althoug h the EI S acknowledg es the risk of stray voltag e on human health and safety
, it reasonably discounted t h i s risk in 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 conform s with NEPA’s requirement that the ag ency e ng ag e in reasoned analy sis 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

The EI S a lso takes a “ hard look” at the impact o f t he Project on g re e n h ouse-g as e missions a nd g lobal warming

. The EI S analy

z es p rojected emissions f r o m t h e Project 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 energy , thereby potentially

decreasing overall emissions attributable
to electrical g eneration in California.” Contrary to Plaintiffs’ contention, this passing projection of potential emissions23

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

source of ren e w able energy , is r easonable enoug h and does
not mand at e t he provision o f conclusive proof throug h additional evidence and analy sis bey ond that a l ready provided in the EI S.

F inally
, Plaintiffs contend that the B L M failed to take into
account the emis s i o ns g enerated by the manufacture a nd transportation of equipment to the Project area. I nstea d
, the B L M reasoned that t h e s e emissions 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

mere act of g ranting Tule’s rig ht-of-way r e q u est—is complicit in future conduct by Tule that m i g ht result in violations of the MB TA and the Eag le Act (collectively
, the Acts). Plaintiffs’ theory o f liability is two-fold. F irst, Plaintiffs assert that the B L M, acting in its r egulatory capacity
, is directly liable for the unlawful “take” of bi rds under the A c t s , absent a permit from the F W S. Second, Plaintiffs assert that the ag e ncy ’s regulatory 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

r i g ht-of-way g rant on Tule securing the appropriate permi t s from the F W S. W e address each of these arg uments in turn.24 P R O T E C T O U R C O M MU N I T I E S F O U

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. J E W E L L

A. The Migratory Bird Treaty Act

T h e M B TA is a c riminal statute that prohibits a n individual, en t i ty

—or, in some cases, an ag ency

— “at any time, by any mean s o r i n a ny manner, to pursue, hunt, take, capture [ or] kill

. . . a

n y m i gr at o r y b ird,

. . . nest, or eg g o f
any such b ird” in the absence of a permit or other e x emption. 1 6 U .S.C. § 7 03(a). The F W S is the federal ag ency task e d with ensuring compliance with the MB T A, including issuing permits and prosecuting o ffenders. See id

. §§ 706, 707(a), (d). Throug h the APA’s prohibiti o n ag ainst unlawful ag ency

a c t i o n, a plaintiff may bring a civil suit to compel age n c y compliance with the MB TA. See City of Sausalito
, 386 F .3d at 1203.

1. Liability under the MBTA

As more fully discussed, infra S e c t ion 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 d oes not contemplate attenuated secondary liability on ag encies like the B L M that act in a p u rely
regulatory capacity
, and whose regulatory acts do not directly

or prox imately cause the “take” o f mig r atory birds, within the meaning of 16 U.S.C. § 703(a). Here, the B L M only authoriz ed Tule to c o nstruct and o p e r ate a wind energy facility on public lands, and therefore did not act t o “ t ake” mig rato r y b irds without a p ermit, within the meaning of the MB TA.

The authorities Pla i n t i f

fs c ite in support of its argument are disting uishable. I n Humane S oc’y of the United States v. Glickman
, 217 F .3d 882 ( D.C. Cir. 2000 )
, t h e U.S. Department o f Ag r iculture, in conjunction with state25

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ag encies, was responsible for i n s tituting a plan that would intentionally capture a n d k ill mig r atory g eese. I d. at 8 84. I n that case, the ag ency itself was imp l i cated in the killing o f mig ratory birds without a permit, in violation of the MB T A

. Similarly
, Plaintiffs point to special leg is lation ex empting the Department of Defense from the MB TA’s pr o h i bition
ag ainst the incidental take of mig ratory b irds in the course o f its military readiness e x e r cises. See National Defense Authorization Act for F

i s cal Y ear 2003
, P.L

. 107-314, 116 S t a t

. 2458 § 315 (2002). Such leg islation merely proves th e point, established in G l i ckman
, that ag encies may be h eld l i able for violations of the MB T A when they themsel v e s eng a g e in the taking o f protected birds. However, such actions are f

ar removed from purely r eg ulatory action that does not c onstitute, o r even prox imately ca u s e , an unlawful “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 w as many steps r emoved in the causal chain from the potentia l c o mmission of an unlawful “take” caused by

wind-turbine collisions.

F inally
, Plaintiffs refer us to t h e recent actions of the National Marine F isher i e s S e r v i c e ( N MF S), which applied for

a permit from the F W S to cover the inc i d e n t a l take o f mig ratory seabirds by a H a w a ii long line fishery

. Under o ne interpretation of that s c e n a ri o , the N MF S could be said to f u nction in a manag erial capacity over the activities of th e 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 t h a n t h at of a ty pical
ag en cy , a n d certainly that o f the B L M vis-à-vis Tule. Moreover, loo k i n g at the NMF S permit a pplication from another a ng le, the fact that one ag ency may choo s e t o a pply26 P R O T E C T O U R C O M MU N I T I E S F O U

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. J E W E L L

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 the same. Rather, as the F W S has concluded, “the ag e ncies themselves are not subject to the prohibitions of the MB TA when acting in their regulatory capacities,” and thus are g enerally not requ i red to seek 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
, P l aintiffs 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 T u le to eng 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, e ven if the B L M is not directly liable under the MB TA, the ag ency is compelled to d eny the rig h t-of-way request unless Tule first obtain s a permit for the incidental take of mig ratory birds. To do otherwise, Plaintiffs contend, would render the B L M complicit in the unlawful actions o f a third party , and in v iolation of the APA. However, the B L M’s
regulatory role in this case is too far removed f r o m the ultimate leg a l violation to be independently unlawful under the APA.

Plaintiffs’ c l aim, w hich verg es on argument for

u n b ounded ag ency vicarious liability
, relies o n a selective characteriz ation of the ag ency a ction a t i s s u e and fails for

reasons similar to those discussed above. T h e BL M, by the mere act of g

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

an unlawful manner und e r the APA. Rather, Plaintiffs’27

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argument hing es on the assumption that a third-party g rantee like Tule, in its operation of the wind turbines, w ill behave in

a n u n lawful manner under the MB TA. B ased o n thi s assumption, Plaintiffs would impose an affirma t i v e duty on the B L M to g uarantee Tule’s future compliance w it h the MB TA by e nsuring t h a t T u l e first secure a permit. To what

ex tent does the B L M have a duty under the AP A t o t ake affirmative measures to prevent potential unlawful action b y Tule? Ou r concerns of ag ency complicity in the instant case are substantially

allay e d by

several considerations.

F irst, a s discussed abov e , t h e APA does not targ et regu l a t o r y action 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 eng ag ing in routine regulatory action. Here, the B L M’s r ig ht-of-way did n ot s a n ct ion or authoriz e the taking of mig ratory birds without a p er m i t ; it authoriz ed the d e v elopment of a wind-energy facility

. W ithout furthe r indication of its involve m e n t i n the putative violation, we cannot h old the B L M complic it in future unlawful a ctivity
, separately committed by 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 act i o n b y Tule. Rather, it has done the opposite. The B L M’s ROD indicates that its approval of the Project is ex press l y conting 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 securing of “ all
necessary local, state, and Fe d eral permits, authoriz ations, and approvals.” The terms of the ROD further permit th e28 P R O T E C T O U R C O M MU N I T I E S F O U

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B L M to, at any time, withdraw its rig ht-of-way approval if it determines that Tule has f a i l e d to comply with these provisions.

I n contrast, in several c a s es implicating other environmental-p r o t ection laws, the ag encies in question acted unlawful l y b e c a

u s e t hey improperly ex ercised their regulatory authority to sanction conduct b y t h ird parties that w as itself unlawful. I n Anderson 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 t r i b e as a result 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 environme ntal assessment unlawfully authoriz ed “a quota for the ‘land[ ing ]’ of five g ray whales”).

Similarly
, in W

ilderness S

o c i e t y v. U.S. Fish & W

ildlife Service
, 353 F .3d 1051 (9th C i r

. 2 003) (en banc), the F W S issued a permit a l l o w ing a third party to operate a “commercial enterprise” in a national wilderness area, based

on a leg ally mistaken construction of the g overning federal statute, w hich prohibite d such commercial activities. Id

. at 1055. Here, in contrast, the B L M h a s n o t misconstrued 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

.

P l a i n tiffs’ reliance on Ctr. for Biological Diversity v. Bureau of

Land Mgmt.
, 698 F .3d 1101 (9th Cir. 2012) is also inapp o s i te. T hat case involved the B L M’s compliance with the Endang ered Speci es Act, a federal 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 au t h oriz e d
, funded, or carried o u t by such
ag ency . . . is not likely to jeopardiz e the continued ex istence29

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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 cr e a te an analog ous affirmative duty on the part of the B L M to gu a r a n tee 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 u r c h a se or b arter, transport, e x port or import, at any time or in any manner, any bald eag le, c ommon 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 administers the Eag le Act, including o verseeing the is s u ance o f permits and ensuring compliance with the statute. U nlike the MB TA, the E ag le A ct

ex p licitly provides for both criminal and ci v i l enforcement. Id . § 668(a)–(b).

Despite some substantive differences between the MB TA and the Eag le Act, the sa m e r e a s o ning applies to defeat the imposition of liability on t he B L M here. See supra Section I I .A. F urther support for t h i s conclusion is provided by a F W S regulation t h a t p e r

tains to permits for the “incidental take” of eag l es. 50 C.F .R. § 22.26; see Eag le Permits; Take N e cessary To Protect I nterests in Particular L o calities
, 74 F ed. Reg

. 46,836 (Sep. 11, 2 0 0 9). There, the F W S

ex p lained that “ [ p] e r sons and org aniz ations that obtain licenses
, p ermits, g rants, or other such services from
g ove rnment ag e ncies are responsible for their o wn compliance with the Eag le Act and should individually seek permits.” 74 F ed. Reg

. 44,843 (Sep. 1 1, 2009 )

. I t f urther

ex p lained, howev e r , that “ag encies must obtain permits for30 P R O T E C T O U R C O M MU N I T I E S F O U

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take that would result from ag e n cy a c tions that a re i mplemented by the ag e ncy itself ( including staff a n d
contractors responsible for carry ing out those actions on beha l f of the ag 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 en c y a c t i ons

. . . 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 b e fo re issuing a r ig h t-of-way g rant, would impose an attenuated form of secondary liabili t y on the B L M, an ag ency that is neither statutorily tasked with policing third- p a r t y c o m p l i a n ce with the Eag le Act nor responsible for violations that m i ght be independently

committed by g rantees, such as Tule. 3

CONCLUSION

W e hold t h a t the B L M is n ot liable under NEPA, the MB T A, the Eag le Act, n or the APA for its regulatory decision to g rant Tule a r ig ht-of-way to develop and operate

a renewable wind energy project. The judg ment of 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 idth e tak e.” 5 0 C.F.R. § 2 2.2 6 (e)(1 ).