Court sends 30-year eagle kill permits back to drawing board 

A federal judge has spiked a U.S. Fish and Wildlife Service plan to issue 30-year-long permits to industry that would allow companies to kill bald and golden eagles.

Judge Lucy Koh of the U.S. District Court in San Jose ruled Monday that USFWS acted illegally when it approved the permits without analyzing the policy’s likely environmental impact as required by federal law. Koh ordered the agency to conduct a full environmental assessment of the policy. The permits, which would have allowed accidental “take” of bald and golden eagles at wind power sites and other industrial facilities, were created after wind power companies objected that a previously proposed system of five-year permits wouldn’t allow them to obtain business loans.

According to this week’s court ruling USFWS Director Dan Ashe implemented the 30-year take permits over the strenuous objections of USFWS scientists and other staff, who said the 30-year rule was scientifically unjustifiable and legally flawed. Now, Judge Koh has backed up those Fish and Wildlife staffers.

The ruling comes as the result of a lawsuit filed by Northern California naturalist Debra Shearwater and four other individual plaintiffs, along with the American Bird Conservancy, against the Interior Department and the USFWS in 2014. The American Wind Energy Association later intervened in the case as an additional defendant.

In September 2009, USFWS established the first-ever procedure by which it would issue take permits for eagles under the Bald and Golden Eagle Protection Act (BGEPA). That law prohibits a wide range of harm to both bald and golden eagles, ranging from intentional killing to harassment, capture, disturbance, and trapping. The take permits would provide a means for companies to avoid prosecution for violating BGEPA if their otherwise legal activities ended up injuring or killing eagles.

But wind power development started growing dramatically after September 2009, and wind companies – which pose an increasing threat to eagles and other raptors as they spread across the landscape – complained that five-year permits would make them financially unstable. Lenders would be less likely to write loans longer than five years for wind companies whose ability to operate might change if they killed too many eagles and didn’t have their permits renewed.

In April 2012, in a nod to the concerns of wind power companies, USFWS proposed extending the term of those five-year take permits to 30 years, citing among its reasons for the change that the agency wanted to “provide more certainty to project proponents and their funding sources.” After a public comment period marked by vociferous opposition to the idea, USFWS issued its final rule establishing 30-year eagle take permits in December 2013. Environmental groups were outraged, while the wind industry said the new rule didn’t go far enough to protect wind company interests.

And critically for purposes of this week’s court ruling, USFWS made that final rule without conducting an environmental assessment of the 30-year permit extension, despite USFWS staff urging the agency consider drafting an Environmental Impact Statement on the policy. Plaintiffs argued that USFWS was legally obligated to review the policy under the terms of the National Environmental Policy Act, the federal law that mandates Environmental Impact Statements for potentially destructive projects and policies.

That decision prompted the lawsuit from Shearwater et al.

When USFWS Director Dan Ashe gave the final order to extend the tenure of eagle take permits from five to 30 years it was an about-face for USFWS, which had previously held that there was no solid scientific justification for take permits lasting more than five years. As we reported in 2012 when the 30-year rule was first proposed, USFWS staff had previously said they couldn’t extend take permits’ tenure past five years, saying:

“[T]he rule limits permit tenure to five years or less because factors may change over a longer period of time such that a take authorized much earlier would later be incompatible with the preservation of the bald eagle or the golden eagle. Accordingly, we believe that five years is a long enough period within which a project proponent can identify when the proposed activity will result in take.”

In other words, over a span of more than five years the degree of threat an individual facility poses to eagles might become more dire, as migration patterns shift or eagle populations dwindle. Technological advances that would allow companies to better protect eagles might also arise in a five-year period, and USFWS would have the option of requiring those measures during a permit renewal process.

Judge Koh’s ruling confirmed suspicions voiced by many outside observers that USFWS staff hadn’t changed their minds when agency policy shifted. The shift from 5-year to 30-year eagle take permits didn’t reflect new thinking on the part of the federal scientists charged with safeguarding our nation’s wildlife: it came as Director Ashe sought to address industry concerns about access to loans.

The ruling includes some rather scathing comments by USFWS staff on the top-down imposition of the new rule without environmental analysis. Eliza Savage, USFWS’ Eagle Program Manager for the agency’s Division of Migratory Bird Management, was largely responsible for drafting the language of the 30-year rule. Judge Koh’s ruling cites Savage’s analysis of the task with which she was charged:

Calling the process a “train wreck” that “no one could be proud of,” Ms. Savage warned: “Once again, we find ourselves having taken sloppy action that we will have to do over instead of doing things the way they should have been done to begin with.”

In a telling passage Savage gives a glimpse at turmoil over the rule within USFWS, citing as steadfast opponents of the rule “the wind industry, the enviros, Native American tribes, general public, and the biologists and other staff within [USFWS] who will have to implement it.” Savage added that it was a “no-brainer” that USFWS should conduct an assessment of the new rule under the National Environmental Policy Act.

“Real, significant, and cumulative biological impacts will result,” wrote Savage in a USFWS memo, “if the proposed regulatory changes are implemented.”

USFWS staff met with Ashe in October 2012, according to the ruling, to urge him to conduct a full Environmental Impact Statement analysis of the effects of longer take permits. Dismissing the chances that anyone would challenge the legality of the rule in court, Ashe ordered his staff to prepare the 30-year permit rule.

Three years later, a federal judge has echoed those USFWS staff, except that her recommendation can’t be blithely disregarded, as it has the force of law. Lesson for Dan Ashe: listen to your staff. You just wasted three years.