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Front Range Nesting Bald Eagle Studies v. United States Fish And Wildlife Service

United States District Court, D. Colorado

December 13, 2018

FRONT RANGE NESTING BALD EAGLE STUDIES, Plaintiff,
v.
UNITED STATES FISH AND WILDLIFE SERVICE; GREG SHEEHAN, in his official capacity as Acting Director of the United States Fish and Wildlife Service; and RYAN ZINKE, in his official capacity as Secretary of the Interior, Defendants.

          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 ...

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