A federal judge has vacated a permit granted by the U.S. Fish and Wildlife Service to allow a Nebraska power district to “incidentally” kill or significantly disturb an endangered species along a power line construction path.
The 116-page ruling by U.S. District Court Judge William Martinez was met with optimism by both the Nebraska Public Power District and some Sandhills residents who want to stop what’s known as the R-Project.
It will at least delay the project, leaving the question of what would happen next with the 200-mile NPPD transmission line unanswered at this time.
Two nonprofits and two landowners that will be adversely affected by the R-Project as planned sued U.S. Fish and Wildlife officials last summer over its issuance of an incidental take permit for the American burying beetle and claimed violations of the endangered species act.
The plaintiffs – Oregon-California Trails Association, Western Nebraska Resources Council, Hanging H East and Whitetail Farms East – claim agency officials are failing to properly account for the project’s implications on the beetles, endangered whooping cranes and other species along the route.
The U.S. Fish and Wildlife Service did not return calls for comment on whether it would redo the permit request.
NPPD was not a party in the lawsuit but had filed to intervene in it. Tom Kent, NPPD president and CEO, said the decision affirmed the wildlife service’s process in analyzing the impact of the project on the beetles, whooping crane and other endangered species.
Kent interpreted the ruling on vacating the burying beetle take permit as being decided on two narrow issues – the impact of the Thunderhead Wind project interconnecting at an NPPD project substation and the route alternatives in the O’Fallons Bluff area near Sutherland.
The Oregon and California trails run up and over the bluffs, and pioneer wagon ruts remain as historic landmarks.
“We’re very confident in the work we’ve done. And we’re looking forward to working with the Fish and Wildlife Service to do whatever needs to happen to resolve those narrow issues identified by the court,” Kent said.
Bob Bernt of Clear Creek Organic Farms near Spalding, an opponent of the R-Project, said he wasn’t surprised by the vacation of the take permit.
But he is dismayed that NPPD has continued with its preparatory work on the project with stockpiles of equipment and paths laid across wet meadows and the Dismal River.
“I mean, a lot of money has been spent on this whole 200-mile route by Nebraska Public Power,” he said.
And that money was spent prematurely, he said.
Bernt said NPPD and the Fish and Wildlife Service have also ignored assessment of the native species to the Sandhills on the route. Those include greater prairie chickens, antelope, the endangered blowout penstemon plant, sand lizards, box and sand turtles.
The court was blunt in its assessment of the lawsuit, saying the case was unusually complicated and the record of the eight-year project correspondingly enormous, oddly organized and difficult to navigate.
The arguments on both sides, the judge said in his order, were underdeveloped and inexcusably belated, and there were a surprising number of relevant arguments not made.
“Having bushwhacked for weeks through the thicket,” the court said, it found a large number of the challenges made by the farmers, ranchers and nonprofits without merit.
What the court did agree with was the Fish and Wildlife Service inadequately considered the effects of the R-Project on a segment of the Oregon and California Trail. It also unlawfully excluded potential wind turbine development in Antelope County from its analysis. That error then affected other analyses of the endangered species, environmental and historic preservation acts.
Kent said lawyers are analyzing the ruling and next steps to take. And NPPD will take a pause now on the work until the issues get resolved, he said.
NPPD reported to its board that 84% of landowners have signed land easements for the project, and 77% of right-of-way has been acquired. No imminent domain filings have been made.
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