Court invalidates 30-year ‘eagle take’ rule

Bald Eagle at Maryland's Conowingo Dam. Photo by Brian Kushner
Bald Eagle at Maryland’s Conowingo Dam. Photo by Brian Kushner

The U.S. District Court in San Jose, California, today ruled that the Department of the Interior violated federal laws when it created a final regulation allowing wind energy and some other companies to obtain 30-year permits to kill protected Bald and Golden Eagles without prosecution by the federal government. The court decision invalidates the rule.

American Bird Conservancy (ABC), a plaintiff in the lawsuit, hailed the decision. “We are pleased that the courts agreed with us that improper shortcuts were taken in the development of this rule,” said Michael Hutchins, director of ABC’s Bird Smart Wind Energy Program. “The court found that important laws meant to protect our nation’s wildlife were not properly followed by the U.S. Fish and Wildlife Service, putting Bald and Golden Eagles at greater risk.”

The court wrote: “… substantial questions are raised as to whether the Final 30-Year Rule may have a significant adverse effect on bald and golden eagle populations.”

In particular, the court cited a lack of compliance with the National Environmental Protection Act (NEPA). “We’re ready to work with the U.S. Fish and Wildlife Service to conduct the required NEPA analysis and formulate a better system to protect eagles from poorly-sited wind energy projects,” said Hutchins. “We must come up with a better system to assess the potential risks to birds and bats prior to a project’s siting and construction and to track and mitigate project impacts post-construction.”

The previous “eagle take” rule, adopted in 2009, provided for a maximum duration of five years for each permit to kill eagles. A key part of the court’s ruling held that:  “… FWS has failed to show an adequate basis in the record for deciding not to prepare an EIS (Environmental Impact Statement) — much less an EA (Environmental Assessment) — prior to increasing the maximum duration for programmatic eagle take permits by sixfold.”

“ … While promoting renewable energy projects may well be a worthy goal,” the ruling continued, “it is no substitute for the [agency’s] obligations to comply with NEPA and to conduct a studied review and response to concerns about the environmental implications of major agency action. … Accordingly, the Court holds that FWS violated NEPA’s procedural requirements and that the Final 30-Year Rule must therefore be set aside and remanded to FWS for further consideration.”

The court cited concerns that had been raised by FWS staff during development of the 30-year eagle rule, stating: “The record [in the case] bolsters the Court’s conclusion, as FWS’s failure to adequately ‘address concerns raised by its own experts’ is cause for the Court to find a NEPA violation.”

ABC filed the lawsuit on June 19, 2014, in federal court against the Department of the Interior, alleging multiple violations of federal law in connection with the December 9, 2013, rulemaking. ABC contended that DOI violated the National Environmental Policy Act (NEPA), the Bald and Golden Eagle Protection Act, and other statutes.

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