Protect Our Communities v. Darryl Lacounte

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PROTECT OUR COMMUNITIES No. 17-55647
FOUNDATION; DAVID HOGAN; NICA
KNITE, D.C. No.
Plaintiffs-Appellants, 3:14-cv-02261-
JLS-JMA
v.

DARRYL LACOUNTE, Acting OPINION
Director, Bureau of Indian Affairs;
DAVID L. BERNHARDT, Secretary,
Department of the Interior; TARA
KATUK MACLEAN SWEENEY,
Assistant Secretary for Indian
Affairs; AMY DUTSCHKE, Regional
Director, Bureau of Indian Affairs
Pacific Region; JOHN RYDZIK, Chief,
Bureau of Indian Affairs Pacific
Region Division of Environmental
Cultural Resources Management &
Safety,
Defendants-Appellees,

TULE WIND, LLC; EWIIAAPAAYP
BAND OF KUMEYAAY INDIANS,
Intervenor-Defendants-
Appellees.
2 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE

Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding

Argued and Submitted November 14, 2018
Pasadena, California

Filed September 23, 2019

Before: Ronald M. Gould and Mary H. Murguia, Circuit
Judges, and Carol Bagley Amon, * District Judge.

Opinion by Judge Gould

SUMMARY **

Environmental Policy

The panel affirmed the district court’s summary
judgment in favor of Bureau of Indian Affairs (“BIA”)
officials, Tule Wind, LLC and Ewiiaapaayp Band of
Kumeyaay Indians in an action challenging the BIA’s
approval of an industrial-scale wind facility in Southern
California.

Tule plans to construct eighty-five wind turbines, and the
project was split into two phases. Phase I concerned sixty-

*
The Honorable Carol Bagley Amon, United States District Judge
for the Eastern District of New York, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 3

five turbines constructed on federal land, requiring approval
from the Bureau of Land Management (“BLM”). Phase II
concerned twenty turbines on the Tribe’s reservation,
requiring approval from the BIA, which serves as a trustee
for the Tribe. BLM prepared an environmental impact
statement (“EIS”) under the National Environmental Policy
Act (“NEPA”) that covered both phases. BIA approved
Phase II in a Record of Decision that relied on BLM’s EIS
and Tule’s Supplemental Protection Plan.

The panel considered plaintiffs’ contention that BLM’s
reliance on the EIS was improper because BIA did not
explain its decision not to implement one of the EIS’s listed
mitigation measures. The panel agreed with the defendants
that the BIA did follow the command of this mitigation
measure, and for that reason, did not need to explain its
decision not to implement it.

The panel next considered plaintiffs’ contention that the
EIS’s consideration of five action alternatives was deficient
because it did not consider an alternative where only some
of the Phase II turbines were authorized. The panel held that
the issue was properly preserved, and not waived. The panel
further held that viewing the project as a whole, the
alternatives analysis was sufficient.

Plaintiffs argued that BIA should have prepared a
supplemental EIS to analyze information that arose after the
EIS was published. The panel considered five grounds
asserted by plaintiffs in support of their argument, and
concluded that additional environmental review was not
required.

The panel rejected plaintiffs’ challenges to BIA’s
decision not to require Tule to obtain an eagle take permit
4 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE

under the Bald and Golden Eagle Protection Act (“BGEPA”)
from the U.S. Fish and Wildlife Service. BIA did not require
Tule to obtain a permit before Tule began construction as the
Service had urged, and only required Tule to apply for a
permit before it began operation of the turbines. The panel
rejected plaintiffs’ false contention that BIA intimated that
Tule could comply with BGEPA merely by applying for a
permit. The panel held that BIA’s authorization was not in
any way a violation of the law because the BIA, like the
BLM, required Tule to apply for a permit and required Tule
to comply with all applicable laws. In addition, the panel
held that the BIA did not act arbitrarily and capriciously by
not conditioning its approval of Phase II on Tule obtaining a
permit.

The panel concluded that in the total circumstances of
this case, the EIS analysis was sufficient to satisfy NEPA,
and so far as the demands of NEPA and the Administrative
Procedure Act were concerned, this project could proceed.

COUNSEL

William S. Eubanks II (argued), Meyer Glitzenstein &
Eubanks LLP, Fort Collins, Colorado; William N. Lawton,
Meyer Glitzenstein & Eubanks LLP ,Washington, D.C.; for
Plaintiffs-Appellants.

Allen M. Brabender (argued), Brian Collins, and John H.
Martin, Attorneys; Eric Grant, Deputy Assistant Attorney
General; Jeffrey H. Wood, Acting Assistant Attorney
General; Environment & Natural Resources Division,
United States Department of Justice, Washington, D.C.; for
Defendants-Appellees.
 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 5

Jeffrey Durocher, Portland, Oregon; for Intervenor-
Defendant-Appellee Tule Wind, LLC.

Bradley G. Bledsoe Downes, Bledsoe Downes PC,
Chandler, Arizona, for Intervenor-Defendant-Appellee
Ewiiaapaayp Band of Kumeyaay Indians.

OPINION

GOULD, Circuit Judge:

Plaintiffs Protect Our Communities Foundation, David
Hogan, and Nica Knite (“Plaintiffs”) challenge the decision
of the Bureau of Indian Affairs (“BIA”) to approve an
industrial-scale wind facility in Southern California. The
district court granted summary judgment to Defendant BIA
officials, Defendant-Intervenor Tule Wind, LLC (“Tule”),
and Defendant-Intervenor Ewiiaapaayp Band of Kumeyaay
Indians (“the Tribe”) (collectively, “Defendants”). We
affirm.

I

Tule plans to construct eighty-five wind turbines about
sixty miles east of San Diego, California. During the
planning and approval process, the project was split into two
phases. Phase I concerned sixty-five turbines constructed on
federal land in a valley and required approval from the
Bureau of Land Management (“BLM”), which is responsible
for granting rights-of-way for use of federal lands. Phase II
concerned twenty turbines on the Tribe’s reservation on
ridgelines above the valley. Phase II required approval from
BIA, which serves as a trustee for federally recognized
Indian tribes.
6 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE

Before BLM and BIA approved the respective phases,
the agencies were required to analyze environmental impacts
under the National Environmental Protection Act (“NEPA”),
42 U.S.C. §§ 4321 et seq. BLM prepared an environmental
impact statement (“EIS”) that covered both phases.

Among other environmental impacts, the EIS expressly
identified an “unavoidable adverse impact” to golden eagles
from collisions with the turbines and loss of breeding
territory, impacts that were especially acute for the Phase II
turbines. The EIS considered five project alternatives for the
Tule project, including one that would eliminate 63 turbines,
including all of the Phase II turbines, from the 128 that were
originally proposed.

For Phase I, Tule drafted a Project-Specific Avian and
Bat Protection Plan (“Protection Plan”) that described
possible means of mitigating bird and bat impacts in detail.
Relying on that plan and the EIS, BLM approved Phase I.
Importantly, that approval survived review in this court. See
Protect Our Communities Found. v. Jewell, 825 F.3d 571,
577 (9th Cir. 2016) [hereinafter “Protect Our Communities
I”].

For Phase II, Tule drafted a Supplemental Project-
Specific Avian and Bat Protection Plan (“Supplemental
Protection Plan”) that included updated eagle surveys and
described measures to document and avoid bird impacts.
The Supplemental Protection Plan concluded that, with
mitigation measures, Phase II could “meet the current no-net
loss standard for local breeding eagle populations.” BIA
made the Supplemental Protection Plan available for public
comment. The United States Fish and Wildlife Service
(“FWS”), among other entities, criticized the Supplemental
Protection Plan’s methodologies and conclusion.
 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 7

BIA approved Phase II in a Record of Decision (“ROD”)
that relied on BLM’s EIS and Tule’s Supplemental
Protection Plan. The ROD adopted several mitigation
measures designed to avoid impacts to golden eagles. These
mitigation measures included a requirement that before
operating, Tule had to apply for an eagle take permit under
the Bald and Golden Eagle Protection Act (“BGEPA”),
16 U.S.C. § 668.

Plaintiffs challenged BIA’s approval in the district court,
asserting three alleged errors. The district court granted
Defendants’ motion for judgment on the pleadings on two of
the claimed errors and granted Defendants’ motions for
summary judgment on the third. Plaintiffs timely appealed.

II

A district court’s grant of summary judgment is reviewed
de novo. United States v. City of Tacoma, 332 F.3d 574, 578
(9th Cir. 2003). Dismissal on the pleadings pursuant to Rule
12(c) is also reviewed de novo. See Daewoo Elecs. Am. Inc.
v. Opta Corp., 875 F.3d 1241, 1246 (9th Cir. 2017).

Under the Administrative Procedure Act (“APA”), we
review agency action to determine whether it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). An agency
acts in an “arbitrary and capricious” manner when it “relie[s]
on factors which Congress has not intended it to consider,
entirely fail[s] to consider an important aspect of the
problem, offer[s] an explanation for its decision that runs
counter to the evidence before the agency, or is so
implausible that it c[an]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).
8 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE

As a general rule, we will “uphold agency decisions so
long as the agencies have ‘considered the relevant factors
and articulated a rational connection between the factors
found and the choices made.’” City of Sausalito v. O’Neill,
386 F.3d 1186, 1206 (9th Cir. 2004) (quoting Selkirk
Conservation All. v. Forsgren, 336 F.3d 944, 953–54 (9th
Cir. 2003)).

In addition to APA challenges, Plaintiffs raise challenges
under NEPA. NEPA requires agencies to prepare an EIS for
“major Federal actions significantly affecting the quality of
the human environment.” 42 U.S.C. § 4332(2)(C). The EIS
must contain, among other things, a detailed discussion of
“the environmental impact of the proposed action,” “adverse
environmental effects which cannot be avoided,”
“alternatives to the proposed action,” and possible
mitigation measures. Id.; 40 C.F.R. § 1502.16. If multiple
federal agencies are “involved in the same action” or
“involved in a group of actions directly related to each
other,” then “[a] lead agency shall supervise” the EIS
preparation, or the agencies may act as joint lead agencies.
40 C.F.R. § 1501.5.

After finalizing the EIS, the agency must select a course
of action within the range of alternatives analyzed and issue
an ROD. Id. § 1505.1. The ROD explains why the agency
chose a particular alternative, whether all practical means for
avoiding or minimizing environmental harm have been
adopted, and, if not, why not. See id. § 1505.2.

NEPA requires these procedural steps but does not
require an agency to reach any particular result. Hells
Canyon All. v. U.S. Forest Serv., 227 F.3d 1170, 1177 (9th
Cir. 2000). Rather, compliance with NEPA involves the
application of a “rule of reason,” which involves “a
pragmatic judgment whether the EIS’s form, content, and
 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 9

preparation foster both informed decision-making and
informed public participation.” Churchill Cty. v. Norton,
276 F.3d 1060, 1071 (9th Cir. 2001) (quoting California v.
Block, 690 F.2d 753, 761 (9th Cir. 1982)).

Nevertheless, a reviewing court will ensure that the
agency took a “hard look” at the EIS to determine whether it
“contains a reasonably thorough discussion of the significant
aspects of the probable environmental consequences.” Id. at
1071–72 (quotation marks omitted). NEPA favors
“coherent and comprehensive up-front environmental
analysis to ensure . . . that the agency will not act on
incomplete information, only to regret its decision after it is
too late to correct.” Id. at 1072–73 (quotation marks
omitted).

III

A

BIA relied on BLM’s EIS, which addressed both Phase
I and Phase II, to satisfy its NEPA review requirement. See
42 U.S.C. § 4332(2)(C). Plaintiffs contend that that reliance
was improper because BIA did not explain its decision to not
implement one of the EIS’s listed mitigation measures, MM
BIO-10f. That measure provides:

Authorize construction of portions of the
project based on the results of behavioral and
population studies of local golden eagles:
Construction of [Phase II] would occur at
those turbine locations that show reduced risk
to the eagle population following analysis of
detailed behavior studies of known eagles in
the vicinity of the Tule Wind project.
Pending the outcome of eagle behavior
10 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE

studies, all, none, or part of the second
portion of the project would be
authorized. . . . The final criteria determining
the risk each location presents to eagles will
be determined [by BIA] in consultation with
the required resource agencies, tribes, and
other relevant permitting agencies . . . .
Turbine locations exceeding the acceptable
risk levels to golden eagles based on these
final criteria will not be authorized for
construction.

Defendants respond that in fact BIA did follow the
command of this mitigation measure and, for that reason, did
not need to explain its decision not to implement it. We
agree. First, BIA considered whether to “authorize
construction of portions of the project,” by considering each
turbine and finding that all twenty satisfied the criteria for
authorization. Second, BIA considered “the risk each
location presents to eagles” in the Supplemental Protection
Plan; in particular, the Supplemental Protection Plan
discussed whether to cease daytime operation for certain
turbines close to specific nests.

Third, BIA satisfied the requirement to establish “final
criteria determining the risk each location presents to eagles”
and evaluate “acceptable risk levels to golden eagles based
on these final criteria.” The Supplemental Protection Plan
outlined how Phase II was expected to meet FWS’s “no-net
loss standard” for local breeding eagles. BIA determined
that all ridgeline turbines could, with certain mitigation
measures, be constructed in a way that met that criteria. And
it further determined that the “primary period of risk” occurs
at certain turbines and decided to limit daytime operations of
those turbines. Finally, BIA meaningfully consulted with
 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 11

FWS by hearing comments from FWS throughout the
process and relying on FWS protocols for BIA’s study of the
risk to eagles. BIA was not required to explain why it did
not adopt a mitigation measure that it did in fact follow.

Similarly, we reject Plaintiffs’ related argument that BIA
should have explained why its ROD found no significant
impacts to eagles, even though the EIS had concluded that
the entire project would impact the eagles. There is no
discrepancy: the EIS considered whether the entire project
would have any impact on eagles, whereas the Supplemental
Protection Plan considered whether Phase II would have
significant impacts, taking into account the Supplemental
Protection Plan’s mitigation measures and analysis.

B

An EIS must evaluate “all ‘reasonable [and] feasible’
alternatives in light of the ultimate purposes of the project.”
Protect Our Communities I, 825 F.3d at 580 (quoting City of
Carmel-by-the-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142,
1155 (9th Cir. 1997)). Here, the EIS considered five action
alternatives in light of the purpose to “facilitate the timely
development of [the Tribe’s] wind and solar energy
resources through tribal renewable energy projects.” Four
alternatives contemplated construction of all turbines, with
other changes to the transmission facilities. The fifth
alternative eliminated about half of the turbines, including
all of the Phase II turbines. Plaintiffs contend that this
analysis was deficient because it did not consider an
alternative where only some of the Phase II turbines were
authorized. BIA responds that Plaintiffs failed to exhaust
this argument, and that, in any event, BIA satisfied the
requirement to consider reasonable alternatives.
12 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE

1

Plaintiffs “must structure their participation” in the
agency’s decisionmaking process so as to “alert[] the agency
to the parties’ position and contentions, in order to allow the
agency to give the issue meaningful consideration.” Barnes
v. U.S. Dep’t of Transp., 655 F.3d 1124, 1132 (9th Cir. 2011)
(quoting Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 764
(2004)). Otherwise, the issue is waived. Id. 1

To determine whether this requirement is met, we are
guided by its purpose, which is “to permit administrative
agencies to utilize their expertise, correct any mistakes, and
avoid unnecessary judicial intervention in the process.”
Lands Council v. McNair, 629 F.3d 1070, 1076 (9th Cir.
2010). The issue need not have been raised “using precise
legal formulations, as long as enough clarity is provided that
the decision maker understands the issue raised.” Id. The
agency simply must have “sufficient notice . . . to afford it
the opportunity to rectify the violations that the plaintiffs
alleged.” Native Ecosystems Council v. Dombeck, 304 F.3d
886, 899 (9th Cir. 2002).

Generally, “[w]e will not invoke the waiver rule . . . if an
agency has had an opportunity to consider the issue . . . even
if the issue was considered sua sponte by the agency or was
raised by someone other than the petitioning party.”
Portland Gen. Elec. Co., 501 F.3d at 1024; see also
‘Ilio‘ulaokalani Coal. v. Rumsfeld, 464 F.3d 1083, 1092 (9th

1
“While the principle has sometimes been phrased in terms of
standing or exhaustion, see Marathon Oil Co. v. United States, 807 F.2d
759, 767–68 (9th Cir. 1986); Kunaknana v. Clark, 742 F.2d 1145, 1148
(9th Cir. 1984), we have made clear that it is best characterized as
waiver.” Portland Gen. Elec. Co. v. Bonneville Power Admin., 501 F.3d
1009, 1023 (9th Cir. 2007).
 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 13

Cir. 2006) (issue exhausted where the record was “replete
with evidence that the [agency] recognized the specific
shortfall” raised). In the context of an agency’s analysis of
alternatives, the Supreme Court has suggested that where no
one has “identified in their comments any rulemaking
alternatives beyond those evaluated” by the agency or
“urged [the agency] to consider alternatives,” the issue is
waived. Pub. Citizen, 541 U.S. at 765.

Plaintiffs point to several BIA and third-party statements
to argue that BIA had an opportunity to rectify any
deficiency in its alternative analysis. Some comments
Plaintiffs cite merely highlight the ridgeline turbines’ threat
to eagles or urge that the entire project should be abandoned.
But other comments make clear that BIA was aware that a
different number of turbines and different siting decisions
were possible and potentially desirable. For example, the
mitigation measure discussed above noted the possibility
that “all, none, or part” of Phase II could be authorized. BIA
itself acknowledged in a comment on the EIS that “specific
turbines could be eliminated if it is determined that risks
outweigh benefits.” In an email, an FWS official
“recommend[ed] that BLM include an alternative in the
NEPA document that allows for flexibility in regards to
phasing the project as eagle monitoring information is
collected.”

The United States Environmental Protection Agency
(“EPA”) encouraged BLM and Tule to “relocate, reduce, or
eliminate portions of the project footprint that . . . would
adversely affect threated, endangered, or sensitive species.”
In a letter addressing BLM’s ROD, the Tribe’s Chairman
14 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE

requested that Tule remove one of the turbines that posed a
particular threat to eagles in the area. 2

None of these comments precisely alerted BIA that
NEPA might require it to consider an alternative that
included only some of the ridgeline turbines. But we do not
require “precise legal formulations.” Lands Council,
629 F.3d at 1076. Public Citizen indicates that to preserve
an argument that an alternatives analysis is deficient,
comments must merely identify “any rulemaking alternative
beyond those evaluated” or urge the agency “to consider
alternatives.” 541 U.S. at 764. Public Citizen did not require
comments that explained the precise legal challenge, that is,
the agency’s “failure to properly consider possible
alternatives to the proposed action.” See id. Here,
comments did identify alternatives: for example, EPA
suggested that BLM “eliminate portions of the project
footprint”; the Tribe’s Chairman asked Tule to remove one
of the turbines from the project; and BIA itself suggested that
specific turbines could be eliminated. We conclude that the
issue is preserved.

2

“In order to be adequate, an environmental impact
statement must consider not every possible alternative, but
every reasonable alternative.” Citizens for a Better

2
Plaintiffs also highlight comments that arose after the EIS was
finalized. Some precedent suggests that issues must be preserved before
the EIS is finalized. See Cachil Dehe Band of Wintun Indians of Colusa
Indian Cmty. v. Zinke, 889 F.3d 584, 604–05 (9th Cir. 2018); N. Idaho
Cmty. Action Network v. U.S. Dep’t of Transp., 545 F.3d 1147, 1156 &
n.2 (9th Cir. 2008); Exxon Mobil Corp. v. EPA, 217 F.3d 1246, 1249 (9th
Cir. 2000). Because we do not rely on those comments, we do not reach
this issue.
 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 15

Henderson v. Hodel, 768 F.2d 1051, 1057 (9th Cir. 1985).
“The stated goal of a project necessarily dictates the range of
‘reasonable’ alternatives . . . .” City of Carmel-by-the-Sea,
123 F.3d at 1155. An agency need not consider alternatives
that are “unlikely to be implemented or those inconsistent
with its basic policy objectives.” Seattle Audubon Soc’y v.
Moseley, 80 F.3d 1401, 1404 (9th Cir. 1996).

We reject Defendants’ argument that Protect Our
Communities I controls this case. There, we held that “the
range of alternatives considered in the EIS was not
impermissibly narrow, as the agency evaluated all
‘reasonable and feasible’ alternatives in light of the ultimate
purpose of the project.” 825 F.3d at 580. But that holding
cannot control this case: that lawsuit was filed before BIA
issued its ROD, and we did not address whether BIA’s
approval violated NEPA.

Nevertheless, we hold that the alternatives analysis was
also sufficient as to BIA’s approval. If we were viewing
Phase II as an isolated project, and not as part of a larger
wind energy development, we might agree with Plaintiffs
that the alternatives analysis was insufficient. In
Muckleshoot Indian Tribe v. United States Forest Service,
177 F.3d 800, 813 (9th Cir. 1999) (per curiam), we held that
an alternatives analysis was deficient because it “considered
only a no action alternative along with two virtually identical
alternatives.” Here, as to the Phase II turbines alone, the EIS
effectively considered one no action alternative (alternative
five) and four identical alternatives. No mid-range
alternative, such as an alternative contemplating only ten of
the turbines, was considered. If Phase II constituted the
entire project, then, Muckleshoot would require us to
conclude that the alternatives analysis was deficient.
16 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE

We do not think it appropriate, however, to view Phase
II as an isolated project. It is not: instead, the twenty Phase
II turbines are part of a wind turbine development that
originally included over one hundred turbines, to be built by
the same developer in the same general area but split along
a jurisdictional line. Although the project was split along a
jurisdictional line, Phase I and Phase II make up one and the
same project.

Indeed, we require agencies to issue a single EIS for
“connected, cumulative, and similar actions” like this
project. Dombeck, 304 F.3d at 894 (quoting Wetlands Action
Network v. U.S. Army Corps of Eng’rs, 222 F.3d 1105, 1118
(9th Cir. 2000)). This requirement “prevent[s] an agency
from ‘dividing a project into multiple “actions,” each of
which individually has an insignificant environmental
impact, but which collectively have a substantial impact.’”
Id. We cannot at the same time require agencies to combine
actions in order to produce an EIS but turn around and divide
the actions when we evaluate the sufficiency of the
alternatives analysis.

Viewing the project as a whole, then, the alternatives
analysis was sufficient. Although no mid-range alternative
was considered as to the twenty Phase II turbines, the EIS’s
fifth alternative did consider a mid-range alternative for the
project as a whole: construction of 63 out of 128 turbines.
Indeed, BLM ultimately approved a configuration with
fewer turbines than had been initially proposed.

Of course, an analysis of a larger project may not always
be sufficient to satisfy NEPA for a smaller portion of it. In
Western Watersheds Project v. Abbey, 719 F.3d 1035, 1050
(9th Cir. 2013), we held that an alternatives analysis was
sufficient as to the programmatic EIS, but insufficient as to
 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 17

the site-specific environmental assessment. 3 “Site-specific
impacts,” we reasoned, must be evaluated once the “critical
decision has been made to act on site development.” Id.
at 1049 (quoting Friends of Yosemite Valley v. Norton,
348 F.3d 789, 800 (9th Cir. 2003), opinion clarified, 366
F.3d 731 (9th Cir. 2004)). Because neither document fully
considered a mid-range alternative, the agency was deprived
of “information on the environmental impacts of the
unconsidered alternatives.” Id. at 1050.

Similarly, in Muckleshoot, we held that the agency’s
prior consideration of an issue could not save a deficient EIS
because the earlier discussion did not “account for the
specific impacts” of the project at issue. 177 F.3d at 810;
see also Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land
Mgmt., 387 F.3d 989, 998 (9th Cir. 2004). We likewise held
that where an agency failed to consider alternatives to a
project in a programmatic EIS, it “had an obligation to
consider such alternatives in the [site-specific] EIS.”
‘Ilio‘ulaokalani Coal., 464 F.3d at 1092.

This line of precedent makes sense: a site-specific
project demands site-specific analysis. Agencies cannot rely
on a general discussion in a programmatic EIS or other
document to satisfy its NEPA obligations for a site-specific
action. But here, the EIS did address the site-specific action.
The details of the project were known, and the EIS
specifically addressed its environmental impacts and
considered a mid-range alternative. Unlike the Forest
Service in Muckleshoot and the BLM in Klamath-Siskiyou,
the BIA is not “attempt[ing] to save” a deficient analysis by

3
A programmatic EIS “is used to assess the environmental impacts
of a proposed action that is broad in reach, such as a program, plan, or
policy . . . .” 45 C.F.R. § 900.207.
18 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE

reference to a more general document. Klamath-Siskiyou,
387 F.3d at 998.

Plaintiffs point out that the EIS appeared to contemplate
further analysis of the environmental impacts of the Phase II
turbines in particular. But an agency’s desire for even more
information about the environmental impacts of a project
does not mean that the alternatives were not adequately
analyzed. Here, they were.

Finally, we note that we do not confront circumstances
where Defendants were entirely unaware of the possibility
of alternatives to the twenty-turbine configuration. Our
precedent suggests that a non-NEPA document cannot cure
the deficiencies of an EIS. See Muckleshoot, 177 F.3d at
811. But Plaintiffs’ suggestion that BIA failed to consider
any alternatives “that entailed building some but not all of
the proposed ridgeline turbines,” either in the EIS or in “any
subsequent document” is inaccurate. The EIS specifically
contemplated that “all, none or part of the second portion of
the project would be authorized.” Subsequent to the
promulgation of the EIS, the Supplemental Protection Plan
considered seven plans in which the turbines most
threatening to the eagle population would be curtailed during
times of high eagle activity. These plans were similar to
consideration of a less-than-full build. In addition, in
response to a comment to the Supplemental Protection Plan
raised by FWS asking BIA to consider a build of only the six
southernmost turbines, BIA explained why this mid-range
alternative would not have been practical, noting that
“development of only 6 turbines would not be sufficient to
justify the investment in infrastructure to access the
6 turbines which would result in no revenue source for the
[Tribe].” Although we do not suggest that post-EIS analysis
can serve as a substitute for EIS reasonable alternative
 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 19

analysis, these documents make it plain that BIA did not
simply ignore the issue.

C

Next, Plaintiffs argue that BIA should have prepared a
supplemental EIS (“SEIS”) to analyze information that arose
after the EIS was published.

In general, NEPA requires agencies to prepare an SEIS
when “[t]here are significant new circumstances or
information relevant to environmental concerns and bearing
on the proposed action or its impacts.” 40 C.F.R.
§ 1502.9(c)(ii). We have held that NEPA does not require
agencies to prepare an SEIS “every time new information
comes to light” but instead requires agencies to “maintain a
‘hard look’ at the impact of agency action when the ‘new
information is sufficient to show that the remaining action
will affect the quality of the human environment in a
significant manner or to a significant extent not already
considered.’” League of Wilderness Defs./Blue Mountains
Biodiversity Project v. Connaughton, 752 F.3d 755, 760 (9th
Cir. 2014) (quoting Marsh v. Or. Nat. Res. Council, 490 U.S.
360, 373–74 (1989)).

Plaintiffs assert five grounds in support of their
argument, but we are not persuaded that additional
environmental review was required. First, Plaintiffs contend
that information in the Supplemental Protection Plan, along
with third-party comments on that plan, met the “new and
significant” threshold requiring an SEIS. Whether new
information is sufficiently significant to necessitate an SEIS
“turns on the value of the new information to the still
pending decisionmaking process.” Marsh, 490 U.S. at 374.
20 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE

Plaintiffs specify several new pieces of information that
they say triggered BIA’s duty to prepare an SEIS. New
surveys described in the Supplemental Protection Plan
revealed at least eight occupied golden eagle territories
within ten miles of Phase II, two at which young had been
successfully produced, and two at which eaglets failed to
fledge. The Plan also indicated that the nests nearest Phase
II continued to be active, and that the flight path of its
fledglings overlapped with all of the turbine sites. It further
revealed that no eagle territory produced young in every
year. In addition, new flight surveys showed that 73 of 123
documented eagle flight paths traversed Phase II. Finally,
comments from FWS raised concerns about BIA’s lack of
expertise on potential impacts to eagles, as well as the
importance of the nearby nest to eagle populations in the
areas and to FWS’s plans.

Although some details are more specific than
information discussed in the EIS, the facts identified by
Plaintiffs are not both new and significant. The EIS
recognizes the presence of eagle territories in the area, the
movement of those eagles from different territories in
different years with varying levels of reproductive success,
and the existence of the territory nearest Phase II. The EIS
also discloses that eagles traverse the Phase II ridgeline.
Throughout, the EIS acknowledges that the project poses a
threat to eagles. Although aspects of FWS’s opposition
could be characterized as “new,” it does not suggest the
project will impact the environment “to a significant extent
not already considered.” Marsh, 490 U.S. at 374. We agree
with the district court that the new information is not
significant because “it merely confirmed concerns that the
2011 EIS already articulated and considered.” Protect Our
Communities Found. v. Black, 240 F. Supp. 3d 1055, 1067
(S.D. Cal. 2017).
 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 21

Second, Plaintiffs argue that BIA cannot rely on the EIS
(without supplemental review) because the EIS “rejected”
the Phase II turbines.

In Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d
549, 559 (9th Cir. 2006), we held that an agency could not
rely on an EIS to take an action where the EIS
“unequivocal[ly] reject[ed]” that action. We reasoned that
an EIS cannot supply the requisite environmental analysis to
support a decision directly contrary to its conclusions. Id.
In that case, we required the agency to conduct supplemental
environmental review. Id.

But here, the EIS did not “reject” the Phase II turbines.
Instead, it determined that the ridgeline turbines posed
particular risks to the eagles and that further study was
required to understand and potentially mitigate those risks.
The EIS fully contemplated and considered potential
environmental impacts of the Phase II turbines, and the BIA
took steps to mitigate risks.

Third, Plaintiffs argue that the new information required
an SEIS because it met the criteria for “significance” under
NEPA regulations. See 40 C.F.R. § 1508.27(b).
Specifically, Plaintiffs contend that new information showed
that Phase II is (1) close to cultural resources and
ecologically critical areas; (2) highly controversial;
(3) related to other actions with individually insignificant
but cumulatively significant impacts, i.e., other energy
projects in the area that threaten eagles; and (4) in violation
of federal law. But the EIS had already addressed (1) the
impact to eagles, and the cultural importance of the eagles;
(2) FWS’s comments critical of BIA’s conclusions and
analysis; (3) additional impacts to eagles from other
developments; and (4) FWS’s concern that Phase II will not
qualify for a take permit under the BGEPA. In short, any
22 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE

additional information did not raise new issues that were
“not already considered” in the EIS. Marsh, 490 U.S. at 374.

Fourth, Plaintiffs argue that BIA’s failure to prepare
additional environmental analysis violated the APA’s “hard
look” requirement because it did not adequately respond to
the comments of FWS and CDFW. In Friends of the
Clearwater v. Dombeck, we said that “[a]n agency that has
prepared an EIS cannot simply rest on the original
document”; instead, it “must be alert to new information that
may alter the results of its original environmental analysis,
and continue to take a ‘hard look at the environmental effects
of [its] planned action.’” 222 F.3d 552, 557 (9th Cir. 2000)
(quoting Marsh, 490 U.S. at 371). 4 We conclude that BIA
did, in fact, continue to maintain a hard look at the
environmental impacts, as is shown by the extensive
discussion on the impacts to golden eagles in the ROD and
Supplemental Protection Plan. We hold that BIA satisfied
the “hard look” requirement.

Fifth and finally, Plaintiffs contend that Defendants were
required to, but did not, assess the significance of the new
information. Agencies must evaluate new information’s
significance and make a reasoned determination of whether
4
Plaintiffs cite League of Wilderness Defenders, 309 F.3d at 1192,
for the proposition that “the apparently unanswered concerns of a sister
agency simply do not measure up to the requirements in this Circuit for
a ‘hard look.’” But Plaintiffs take that quote out of context; what the
court says is that “the lack of any analysis” whatsoever of an
environmental impact, “coupled with contradictory statements in the
Project Guidelines, EIS, Record of Decisions, and the apparently
unanswered concerns of a sister agency” do not measure up to our hard
look requirements. Id. (emphases added). Here, even if BIA left some
of FWS’s concerns unanswered, it did so in a context where, in contrast
to Forsgren, its EIS, ROD, and Supplemental Protection Plan had
thoroughly considered the key issues that the other agency raised.
 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 23

it is of such significance as to require a supplemental EIS.
See id. at 558. In Dombeck, we held that an agency erred
where there was “no evidence in the record” that the agency
even “considered whether [the interim designation of seven
new sensitive species was] sufficiently significant to require
preparation of [a supplemental EIS].” Id. But in Great Old
Broads for Wilderness v. Kimbell, 709 F.3d 836, 855 (9th
Cir. 2013), we held that, at least where a change in project
design is at issue, an ROD that states that the EIS “fully
analyzed” the relevant questions satisfied the requirement to
assess the need for supplemental analysis.

Here, the ROD states that the EIS “included an analysis
of all environmental issues associated with construction and
operation” of Phase II turbines. As discussed above, no new
environmental issues, such as a new sensitive species
designation, arose in the interim. Moreover, BIA addressed
almost all of the purportedly new information in the ROD,
the Supplemental Protection Plan, and its response to
comments, even if it never stated that the information was
not “significant” and therefore did not require more analysis.

D

Plaintiffs’ final two challenges to BIA’s decision
concern the agency’s decision not to require Tule to obtain a
BGEPA permit from FWS. FWS recommended that BIA
condition its approval on Tule obtaining a BGEPA permit
from FWS. FWS pointed out that requiring a permit before
approval would allow Tule to consider different turbine
siting designs in response to BGEPA permit requirements
before construction began on the turbines—before it was too
late to make necessary modifications to comply. FWS also
suggested that the design BIA approved would “not likely
meet the conservation standard” for golden eagles and would
not likely receive a BGEPA permit.
24 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE

Despite FWS’s concerns, BIA only required Tule to
apply for a permit before it began operation of the turbines.
BIA did not require Tule to obtain a permit before Tule
began construction, as the FWS had urged BIA to do.
Nevertheless, the ROD explicitly noted that Tule “must
comply with all applicable Federal laws, including any
requirements for an eagle take permit under the BGEPA.”
And BIA warned that “any take of eagles caused by the
Project, prior to the issuance of an eagle take permit,
constitutes a violation of the [Eagle Act] that the FWS may
refer to the Department of Justice for enforcement.”

We firmly reject Plaintiffs’ false contention, pressed at
oral argument, that BIA intimated that Tule could comply
with BGEPA merely by applying for a permit. To the
contrary, the ROD said that Tule would comply with BIA’s
requirements for approval by applying for a permit. No
person could seriously suggest that Tule would comply with
BGEPA’s requirement merely by applying for a permit. To
the contrary, the ROD confirms that Tule must comply with
“any requirements for an eagle take permit under the
BGEPA” and spells out the consequences of noncompliance.
If Tule were to violate the BGEPA, it would do so at the risk
of civil and criminal penalties.

1

We next address Plaintiffs’ argument that BIA’s decision
was not in accordance with the law. Under the APA, federal
agency action is invalid if it is “not in accordance with the
law.” 5 U.S.C. § 706(2)(A). Applying this rule, we have
invalidated agency action that sanctioned unlawful conduct
by third parties. See, e.g., Anderson v. Evans, 371 F.3d 475,
480 (9th Cir. 2004) (holding agency erred by permitting
unlawful hunting of whale in reliance on an incorrect legal
interpretation); Wilderness Soc’y v. U.S. Fish & Wildlife
 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 25

Serv., 353 F.3d 1051, 1067 (9th Cir. 2003) (en banc)
(holding agency erred by permitting “commercial
enterprise” in area where commercial activities were
prohibited by statute).

But we explained in Protect Our Communities I that “the
APA does not target regulatory action by [an agency] that
permits a third-party grantee like Tule to engage in otherwise
lawful behavior, and only incidentally leads to subsequent
unlawful action by that third party.” 825 F.3d at 586. We
noted that “BLM’s right-of-way did not sanction or
authorize the taking of migratory birds without a permit; it
authorized the development of a wind-energy facility.” Id.
at 587. We reasoned that “[w]ithout further indication of its
involvement in the putative violation, we cannot hold the
BLM complicit in future unlawful activity, separately
committed by a grantee, through a mere failure to intervene
at the permitting stage.” Id.

That prior holding controls this case. Plaintiffs attempt
to distinguish Protect Our Communities I on the basis that
the Phase II turbines pose a far greater threat to golden eagles
than the Phase I turbines. But our reasoning in Protect Our
Communities I did not depend on the degree of risk to eagles.
Instead, we emphasized that BLM had not authorized the
take of eagles without securing permission from FWS. Id.
at 587 (noting that BLM “has not sanctioned or encouraged
an unlawful course of action by Tule,” and instead it “has
done the opposite” by requiring compliance with “all
applicable laws and regulations”). Protect Our
Communities I forecloses Plaintiffs’ challenge to BIA’s
decision: because BIA, like BLM, required Tule to apply for
a permit, and required Tule to comply with all applicable
laws, BIA’s authorization was not in any way in violation of
the law.
26 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE

2

Plaintiffs further contend that BIA acted arbitrarily and
capriciously by not conditioning its approval of Phase II on
Tule obtaining a permit, especially where FWS had urged
BIA to do so.

Under the arbitrary and capricious standard, “we are not
to substitute [our] judgment for that of the agency.” State
Farm, 463 U.S. at 43. A decision is arbitrary and capricious
only if it “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.” Id.

We agree that for practical reasons it will be best for Tule
to seek a permit early in the construction process before it is
too late to make modifications that the BGEPA may require.
But as we emphasized in Protect Our Communities I, Tule’s
compliance with the BGEPA is between Tule and FWS.
825 F.3d at 588 (“BLM . . . is neither statutorily tasked with
policing third-party compliance with the Eagle Act nor
responsible for violations that might be independently
committed by grantees, such as Tule.”); see also 74 Fed.
Reg. 44,843 (Sep. 11, 2009) (FWS regulation explaining that
“[p]ersons and organizations that obtain licenses, permits,
grants, or other such services from government agencies are
responsible for their own compliance with the Eagle Act and
should individually seek permits”).

Because compliance is Tule’s responsibility, BIA’s
decision not to require the grant of the permit was not
irrational. Indeed, BIA had a sensible reason not to
condition its approval on Defendants’ obtaining a permit. As
BIA explained in its ROD, FWS’s guidelines for BGEPA
 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 27

permits were “not yet final” at the time BIA intended to
finalize its approval. Rather than wait for FWS to finalize
its guidelines and issue (or deny) a permit, BIA decided to
get its own approval out of the way—without interfering
with FWS’s administration of the BGEPA, and ensuring that
Tule was well aware of its obligations under BGEPA and
other federal laws. BIA’s decision not to condition its
approval on prior acquisition of a permit from another
agency was not arbitrary or capricious.

IV

What is troubling about this case is that it appears that, if
and when the project proceeds, some eagles may die or have
their nests impaired diminishing reproduction. But the
protections given by our environmental laws are not
absolute. NEPA doesn’t control any substantive result but
rather requires procedural protections to ensure that a “hard
look” was given to reasonable alternatives. The Endangered
Species Act doesn’t absolutely prohibit all deaths of
endangered species caused by development but rather
prohibits the incidental taking of endangered creatures’ lives
if done without a permit that specifically allows the
incidental take. The Bald and Golden Eagle Protection Act
doesn’t outlaw every killing of the eagle, just take without a
permit.

Of course, Tule must comply with BGEPA at all times
during the construction and operation of the project. While
we recognize the legitimate concerns about the well-being of
protected eagles raised by Plaintiffs and FWS, we are
persuaded that those concerns can be addressed through the
BGEPA permitting process.

At the same time, there are benefits to the Tribe and to
the United States that will come from the project, and BIA
28 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE

has a special concern to advance the interests of the Indian
nations under its jurisdiction. While that would not justify
disregarding environmental laws when clearly applicable,
see, e.g., Anderson, 371 F.3d at 494–502 (holding that Indian
nation should be enjoined from hunting whales absent a
permit under the MMPA), the interests of the Ewiiaapaayp
Band of Kumeyaay Indians weigh in favor of the Tribe in
this close case involving potentially competing values.

We therefore conclude that in the total circumstances of
this case the EIS analysis was sufficient to satisfy NEPA. So
far as the demands of NEPA and the APA are concerned,
this project can proceed.

AFFIRMED.