The U.S. Fish and Wildlife Service (“USFWS”) was recently delayed in proposing a new rule increasing the maximum duration of permits for take of bald and golden eagles from five years to thirty years due to concerns raised by Tribal communities and environmental groups. The groups challenged the new rule for failing to consider the environmental consequences of this rule, as required by the National Environmental Policy Act (“NEPA”) and the Northern District Court of California agreed.
Bald and Golden Eagles are highly revered by Native American communities, including their status as a sacred bird and using eagle feathers on ceremonial headdresses, prayer sticks, doctor’s rattles, and medicine pipes. The Bald and Golden Eagle Protection Act (“BGEPA”) makes it unlawful for anyone to “take” (wound, kill, capture, trap, collect, or disturb the species) without a permit. Such permits are provided for a maximum duration of five years (“5-Year Rule”), after which the permit applicant must afford the USFWS the opportunity to re-evaluate permit conditions and determine if an extension is appropriate or if more “take” is occurring than was anticipated. The applicant must establish that an extended permit would be compatible with the preservation of the bald eagle or golden eagle.
Because the permit renewal decisions are discretionary agency actions, NEPA review occurred with each renewal. As a result, the 5-Year Rule allowed for public access to, and involvement in, agency decision-making at least every five years. Shortly after the 5-Year Rule was implemented, there was an increase in the development of wind power for renewable energy purposes. The wind industry complained that the 5-Year Rule created uncertainty regarding renewal of the eagle take permits (needed because wind turbines can kill eagles), and the Rule complicated financing for wind energy projects that last up to thirty years.
To address these concerns, in 2013, the USFWS issued a new rule extending the maximum tenure of programmatic take permits to 30 years. However, it found that the extended duration of the permits was categorically exempt from NEPA requirements. Environmental groups and Indian Tribes challenged the USFWS’s decision to not conduct any further NEPA analysis before extending the eagle take permits and the District Court agreed. The District Court noted that the 30-Year Rule was a substantive decision that changed the review process, as it reduced public participation in the permitting decision.
The Court also reasoned that the USFWS failed to explain why the environmental and cultural effects of the 30-Year Rule do not lend themselves to meaningful analysis to support a categorical exemption from NEPA. Finally, the Court concluded, that because the 30-Year Rule may have highly controversial environmental and cultural impacts on the bald and golden eagles, extraordinary circumstances prevented application of the categorical exemption to NEPA. Tribes will now have the opportunity to provide input on the cultural and environmental impact that may arise from this proposed permit extension.
Hazel is an Associate in the Native American and Environmental Practice Groups at Procopio. Her practice focuses on environmental law, including clean technology and sustainability. Hazel regularly represents businesses and individuals on project permitting, compliance and litigation matters under the Clean Air Act, the Clean Water Act, Superfund and the Endangered Species Act.
Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.
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