United States District Court, D. Colorado
ORDER AFFIRMING IN PART AND VACATING IN PART AGENCY
ACTION
William J. Martinez United States District Judge
This is
a challenge to a permit issued by the United States Fish and
Wildlife Service (“the Service”) authorizing a
construction company to engage in activities that may
significantly disturb a pair of bald eagles that maintain a
nest in the City and County of Broomfield, Colorado
(“Broomfield”). Plaintiff sues under the
Administrative Procedure Act (“APA”), 5 U.S.C.
§§ 701 et seq., to have the Service's
actions declared unlawful under the National Environmental
Policy Act (“NEPA”), 42 U.S.C. §§ 4231
et seq.; and also under the Bald and Golden Eagle
Protection Act (“Eagle Act” or
“Act”), 16 U.S.C. §§ 668 et
seq.
For the
reasons explained below, the Court finds that the
Service's action withstands scrutiny except in two
respects: the failure to perform a cumulative impacts
analysis, and a related failure, under the circumstances, to
explain the length of a relatively short public comment
period. The Court therefore vacates the permit and associated
environmental analysis and remands to the Service for further
consideration.
I.
NEPA & APA STANDARDS
NEPA
“require[s] agencies to consider environmentally
significant aspects of a proposed action.” Utahns
for Better Transp. v. U.S. Dep't of Transp., 305
F.3d 1152, 1162 (10th Cir. 2002). “NEPA does not,
however, require agencies to elevate environmental concerns
over other appropriate considerations; it requires only that
the agency take a ‘hard look' at the environmental
consequences before taking a major action.”
Citizens' Comm. to Save Our Canyons v. Krueger,
513 F.3d 1169, 1178 (10th Cir. 2008) (citation and internal
quotation marks omitted). Also, “NEPA dictates the
process by which federal agencies must examine environmental
impacts, but does not impose substantive limits on agency
conduct.” Utah Envtl. Cong. v. Russell, 518
F.3d 817, 821 (10th Cir. 2008). NEPA merely guards against
“uninformed-rather than unwise-agency action.”
Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 351 (1989).
In conducting this analysis [under NEPA], the [agency] must
prepare one of the following: (1) an environmental impact
statement [‘EIS'], (2) an environmental assessment
[‘EA'], or (3) a categorical exclusion. An
environmental impact statement involves the most rigorous
analysis, and is required if a proposed action will
“significantly affect[] the quality of the human
environment.” 42 U.S.C. § 4332(2)(C); 40 C.F.R.
§ 1502.4.
If an agency is uncertain whether the proposed action will
significantly affect the environment, it may prepare a
considerably less detailed environmental assessment. 40
C.F.R. § 1508.9. An environmental assessment provides
“sufficient evidence and analysis” to determine
whether a proposed project will create a significant effect
on the environment. Id. If so, the agency must then
develop an environmental impact statement; if not, the
environmental assessment results in a “Finding of No.
Significant Impact, ” and no further agency action is
required. Id.
Utah Envtl. Cong. v. Bosworth, 443 F.3d 732, 736
(10th Cir. 2006).
NEPA
contains no private right of action, but is enforceable
through the APA, which empowers a reviewing court to set
aside agency action if it is, inter alia,
“arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. §
706(2)(A). Generally, an agency decision will be considered
arbitrary and capricious
if the agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for
its decision that runs counter to the evidence before the
agency, or is so implausible that it could 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). A reviewing court
should engage in a “thorough, probing, in-depth review,
” Wyoming v. United States, 279 F.3d 1214,
1238 (10th Cir. 2002) (citation omitted), with its review of
the merits “generally limited to . . . the
administrative record, ” Custer Cnty. Action Assoc.
v. Garvey, 256 F.3d 1024, 1027 n.1 (10th Cir. 2001).
However,
“[t]he scope of review under the ‘arbitrary and
capricious' standard is narrow and a court is not to
substitute its judgment for that of the agency.”
Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43;
see also Davis v. Mineta, 302 F.3d 1104, 1111 (10th
Cir. 2002) (stating that the court's review is
“highly deferential”), abrogated on other
grounds by Diné Citizens Against Ruining Our Env't
v. Jewell, 839 F.3d 1276 (10th Cir. 2016). The Court
confines its review “to ascertaining whether the agency
examined the relevant data and articulated a satisfactory
explanation for its decision, including a rational connection
between the facts found and the decision made.”
Colo. Wild v. U.S. Forest Serv., 435 F.3d 1204, 1213
(10th Cir. 2006).
II.
STATUTORY BACKGROUND
The
parties do not dispute that the Service's actions under
the Eagle Act may be reviewed under the APA. The Eagle Act
prohibits any “take” of a bald eagle without a
permit. 16 U.S.C. § 668(a)-(b).[1] “‘[T]ake'
includes . . . disturb[ing eagles].” Id.
§ 668c. “Disturb” is further defined by
regulation as follows:
to agitate or bother a [bald eagle] to a degree that causes,
or is likely to cause, based on the best scientific
information available, (1) injury to an eagle, (2) a decrease
in its productivity, by substantially interfering with normal
breeding, feeding, or sheltering behavior, or (3) nest
abandonment, by substantially interfering with normal
breeding, feeding, or sheltering behavior.
50 C.F.R. § 22.3.
The
Eagle Act gives the Secretary of Interior power to grant
permits under regulations the secretary prescribes when a
taking “is necessary . . . for the protection of
wildlife or of agricultural or other interests in any
particular locality.” 16 U.S.C.§ 668a. The
Secretary of the Interior delegated this authority to the
Service, which has promulgated additional regulations for
permit applications. See 50 C.F.R. §§ 22.1
et seq. The relevant regulation directs the Service
to issue what is often known as an “incidental
take” permit if the following seven criteria are met:
(1) The direct and indirect effects of the take and required
mitigation, together with the cumulative effects of other
permitted take and additional factors affecting the eagle
populations within the eagle management unit and the local
area population, are compatible with the preservation of bald
eagles . . . .
(2) The taking is necessary to protect an interest in a
particular locality.
(3) The taking is associated with, but not the purpose of,
the activity.
(4) The applicant has applied all appropriate and practicable
avoidance and minimization measures to reduce impacts to
eagles.
(5) The applicant has applied all appropriate and practicable
compensatory mitigation measures, when required, pursuant to
paragraph (c) of this section, to compensate for remaining
unavoidable impacts after all appropriate and practicable
avoidance and minimization measures have been applied.
(6) Issuance of the permit will not preclude issuance of
another permit necessary to protect an interest of higher
priority as set forth in paragraph (e)(7) of this section.
(7) Issuance of the permit will not interfere with an ongoing
civil or criminal action concerning unpermitted past eagle
take at the project.
50 C.F.R. § 22.26(f); see also id. §
13.21(b) (stating that the Service “shall issue the
appropriate permit” if regulatory criteria are
satisfied).
For
permits to engage in construction activities that will be
visible from a bald eagle nest, the Service's
National Bald Eagle Management Guidelines recommend
a 660-foot setback from the nest location. (R. at 1266.)
III.
BACKGROUND
A.
The Garrett Application
On
December 5, 2017, the Service received a completed
application for incidental eagle take from an entity known as
the Garrett Construction Company, LLC
(“Garrett”). (Administrative Record [ECF No. 37]
(“R.”) at 827-28.) Garrett proposed to build a
288-unit apartment complex known as the “Caliber at
Flatirons” on most of an irregularly shaped parcel in
Broomfield, Colorado, bounded by the Northwest Parkway, Via
Varra, Del Corso Way, the property line of an existing city
park, and a BNSF rail line. (R. at 831-32.)
On the
other side of the rail line is open space under a
conservation easement jointly administered by Broomfield and
Boulder County. (R. at 833.) Within that open space, and
about 530 feet from the boundary of the proposed Caliber
development, is a mature cottonwood tree where a pair of bald
eagles have constructed a nest about 40 feet off the ground.
(R. at 833-35, 847.) The eagles first laid eggs in the nest
in 2012 and have successfully fledged at least one eaglet
every year since, except in 2014 and 2017. (R. at 1200,
3321-22.)
As
required by 16 U.S.C. § 668a and 50 C.F.R. §
22.26(f)(2), Garrett explained that the local interests to be
protected by an incidental take permit were: its ability to
build a housing complex on what it characterized as a
“tight site”; the needs of future residents; and
Broomfield's need for housing while experiencing rapid
population growth. (R. at 832-33.) Thus, Garrett intended to
undertake “construction activities which may disturb or
cause take of a bald eagles, ” including
heavy equipment and light duty traffic, excavation, building
foundation and two and four-story vertical construction of
multi-family residences (288 units), a clubhouse and swimming
pool along with all associated parking and infrastructure
including but not limited to concrete and asphalt
installation, garages, domestic water distribution, sanitary
sewer, storm sewer, landscaping, park construction, regional
trail and other miscellaneous construction and field
activities, foot traffic, and environmental safety
monitoring.
(R. at 831.) These activities would be visible from the
eagles' nest because there are no line-of-sight
obstructions between the nest and project site. (R. at 836.)
Garrett expected these activities to last through the end of
2019. (R. at 829.)
Concerning
existing activities in the vicinity that might similarly
disturb the eagles, Garrett reported:
• an existing apartment complex (the “Retreat at
Flatirons”), which was constructed beginning in 2012,
completed in 2014, comprises 374 units, and is located just
south of the proposed Caliber development, about the same
distance from the nest;
• the BNSF rail line, through which “at least 12
trains” pass per day;
• oil and gas activity about 1/2 mile northwest, which
has been in place since 2008;
• horse grazing immediately around the nest site; and
• traffic on Northwest Parkway about 1/4 mile north of
the nest.
(R. at 836-38.)
To
avoid or minimize disturbance of the eagles, Garrett proposed
numerous measures, including:
• prohibiting vertical construction within 660 feet of
the nest;
• scheduling non-vertical construction within 660 feet-a
hay bale wall (discussed below), a sliver of a parking lot,
and a community garden-to occur outside of the most sensitive
months for eagle breeding (January through July) except when
a qualified biologist determines that “the nesting
attempt failed or the eaglets successfully fledged”;
• monitoring of the nest by a qualified biologist at
least weekly;
• fencing the project area to prevent workers from
approaching the eagles, and educating workers about their
duty not to disturb the eagles;
• erecting a “a hay bale sound/visual
barrier” measuring twelve feet high and 400 feet long
“where the 660' buffer and the Project intersect .
. . to minimize construction sounds reaching the eagle
nest”;
• placing the access road and the laydown yard on the
western edge of the project site, as far away from the nest
as possible;
• implementing waste management best practices to avoid
attracting eagles (presumably meaning to avoid attracting
animals that the eagles might hunt); and
• requiring construction vehicles to drive slowly,
including around nearby but non-adjacent prairie dog colonies
...