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Union Neighbors United, Inc. v. Jewell

United States District Court, D. Columbia.

March 18, 2015

UNION NEIGHBORS UNITED, INC., Plaintiff,
v.
S.M.R. JEWELL, et al., Defendants

Decided March 17, 2015.

For Union Neighbors United, Inc., Plaintiff: W. William Weeks, LEAD ATTORNEY, CONSERVATION LAW CENTER, Bloomington, IN; Jeffrey B. Hyman, PRO HAC VICE, CONSERVATION LAW CENTER, Bloomington, IN.

For Sally Jewell, in her official capacity as Secretary of the United States Department of the Interior, Daniel M. Ashe, in his official capacity as Director, United States Fish and Wildlife Service, Tom Mellius, in his official capacity as Regional Director for the Midwest Region, United States Fish and Wildlife Service, Defendants: Bridget Kennedy McNeil, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Environment & Natural Resources Division, Wildlife & Marine, Denver, CO; Kenneth Dean Rooney, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Land & Natural Resources Division, Washington, DC.

For Buckeye Wind LLC, Intervenor Defendant: Steven P. Quarles, LEAD ATTORNEY, SEDGWICK, LLP, Washington, DC; Alan M. Glen, PRO HAC VICE, SEDGWICK, LLP, Austin, TX.

MEMORANDUM OPINION

RICHARD J. LEON, United States District Judge.

[Dkt. ## 35, 37, 38]

Plaintiff Union Neighbors United, Inc. (" plaintiff" or " Union Neighbors" ),[1] brought this action against Sally Jewell in her official capacity as the Secretary of the United States Department of the Interior (" DOI" ), Daniel A she in his official capacity as Director of the United States Fish and Wildlife Service (" FWS" or " Service" ), and Tom Melius, in his official capacity as Regional Director for the Midwest Region of the FWS (together " defendants" ) on September 20, 2013, challenging defendants' final approval and issuance of an incidental take permit for the killing of endangered Indiana bats at the Buckeye Wind Power Project in Ohio. See Complaint at ¶ ¶ 1-3 (" Compl." ) [Dkt. # 1]. Plaintiff claims that defendants' issuance of an incidental take perm it violated the Administrative Procedure Act, 5 U.S.C. § § 701-706, the National Environmental Policy Act (" NEPA" ), 42 U.S.C. § § 4321 et seq., and the Endangered Species Act (" ESA" ), 16 U.S.C. § § 1531 et seq., as arbitrary and capricious, an abuse of discretion, and not in accordance with the ESA's requirement that an applicant will, to the maximum extent practicable, minimize and mitigate the impacts of a taking. See Pl.'s Mem. of Law in Support of Pl.'s Mot. for Summary Judgment (" Pl.'s Mem." ) [Dkt. # 35-1] at 1-3. Now before the Court are plaintiff's Motion for Summary Judgment (" Pl.'s Mot." ) [Dkt. # 35], defendants Jewell, Ashe, and Mellius (the " federal defendants" ) Cross Motion for Summary Judgment [Dkt. # 38], and defendant-intervenor Buckeye Wind, LLC's Cross Motion for Summary Judgment [Dkt. # 37].[2] After due consideration of the parties' pleadings, the relevant law, and the entire record in this case, the Court agrees with defendants that the incidental take perm it was issued in accordance with the law. Accordingly, the defendants' motions for summary judgment are GRANTED, the plaintiff's motion for summary judgment is DENIED, and the case is DISMISSED.

FACTUAL BACKGROUND

The Indiana bat is a medium-sized migratory bat found in much of the eastern half of the United States with major populations hibernating in Indiana, Kentucky, and Missouri, as well as smaller populations hibernating in other states such as Ohio. AR 49774.[3] The Indiana bat was listed as an endangered species in 1967 due to large decreases in population size and an apparent lack of winter habitat. 32 Fed.Reg. 4,001 (M ar. 11, 1967); AR 49775. There are many ongoing threats to the Indiana bat, including diseases such as white nose syndrome as well as the relatively new threat of windturbines. AR 49781-82.

Under development since 2006, the Buckeye Wind Project (the " Project" ) is planned to be a 100-turbine wind generation facility in west-central Champaign County, Ohio, that will generate 657,000 megawatt hours of electricity annually. AR 47741-42, 47749. Although there are no Indiana bat hibernacula in the immediate area, summer resident bats occur within the vicinity of the Project in June and July, and Indiana bats travel through the area during the spring (April and May) and fall (August through October) as part of their migration to and from hibernacula. AR 47737.[4] Because the operation of the turbines has the potential to injure or kill individual bats, Buckeye Wind applied for an ESA Section 10 Incidental Take Perm it (" ITP" ) and the Project was subjected to a NEPA analysis, which resulted in an environmental impact statement (" EIS" ).

In the habitat conservation plan (" HCP" ) submitted by Buckeye Wind as part of its ITP application, an operational scheme was proposed to minimize injury or death to individual bats through the use of higher cut-in speeds that are " feathered." The cut-in speed is the wind speed at which the turbines begin rotating and producing power. When turbines are " feathered," they do not rotate below the increased cut-in speed. AR 47738. While the general risk of bat species collision with turbine blades is well-documented, there is little specific data on the risk of Indiana bat collision or what operational speeds would reduce that risk. AR 47855. Accordingly, Buckeye Wind developed a collision risk model based on the available literature, expert opinion, and site-specific empirical data. Id.[5] Using studies on the effectiveness of feathering and cut-in speeds, the Project proposal resulted in a take estimate of about 5.2 bats per year using feathered cut-in speeds ranging between 3 m/s and 6 m/s depending on habitat sensitivity and season. AR 47860.[6] The Project proposal also included measures to mitigate the impacts of the takes, such as the acquisition and protection of 217 acres of habitat within seven miles of a " Priority 2" [7] hibernaculum in Ohio. AR 47911.

The Service considered three action alternatives in addition to a no-action alternative in its EIS analysis. First, the Service considered Buckeye Wind's proposal of feathered cut-in speeds, as described above, that vary based on habitat sensitivity and season. See AR 45818-37. Second, the Service evaluated the maximally restrictive alternative that required full turbine curtailment at night for a seven month period, thereby eliminating altogether the take of Indiana bats. See AR 45837-38. Third, the Service considered a minimally restrictive alternative that required a 5.0 m /s cut-in speed from August through October, the timeframe when most bats of all species are killed. See AR 45838.

On July 17, 2013, the Service issued its findings with respect to the Section 10 ITP application based on the analyses from the habitat conservation plan, biological opinion,[8] and environmental impact statement. The Service explained that the statutory standard requires minimization of impacts of the proposed taking to the maximum extent practicable and then mitigation of any remaining impacts to the maximum extent practicable. AR 49964. The Service further explained that these standards are based on a biological determination of the impacts of the project, what would further minimize those impacts, and what would biologically compensate for the remaining impacts. Id. The Service's interpretation of the standard is that it is

the Service's obligation to provide or approve a biologically based suite of avoidance, minimization, and mitigation options that allow the applicant to fully neutralize and/or compensate for the impacts of the taking. If the applicant provides these minimization measures and mitigation measures that are fully commensurate with the level of impacts, then it ...

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