On January 19, 2016, the U.S. Department of Justice (DOJ) dropped its Ninth Circuit appeal of U.S. District Judge Lucy Koh’s ruling that set aside the U.S. Fish and Wildlife Service’s (“Service”) rule to extend the maximum term for programmatic “take” permits under the Bald and Golden Eagle Protection Act (“Eagle Act”) to 30 years for failure to comply with the National Environmental Policy Act (“NEPA”).
As we discussed in our previous post, in August 2015 the court set aside the 30-year rule on NEPA grounds, concluding that the Service had “failed to show an adequate basis in the record for deciding not to prepare an EIS–much less an EA–prior to increasing the maximum duration for programmatic eagle take permits by sixfold.” The Court found the Service’s reliance on certain U.S. Department of Interior categorical exclusions misplaced. According to the Court, the Service failed to establish that the decision was “administrative” or “procedural” in nature and failed to address concerns by its own experts that the rule revisions might have highly controversial environmental effects. Importantly, however, the court’s decision to set aside the 30-year rule only applied to the 30-year permit tenure provision of the 2013 rule amendments. Other components of the 2013 rule amendments were left intact, including the 5 year permit renewal and assignment provisions.
Meanwhile, the Service’s Advanced Notice of Proposed Rulemaking (described in this post) is ongoing. While this process, which began in April 2012, is focused on eagle population management objectives, compensatory mitigation, and programmatic permit issuance criteria, the NEPA analysis associated with this process will likely tackle the 30-year tenure provision set aside in Judge Koh’s decision. Work on this analysis is ongoing and we anticipate that the Service will issue a draft NEPA document for public review this spring or early summer.
The Service has only issued one eagle take permit but remains committed to fully implementing the eagle permitting program. Now that the Service has dropped the appeal of Judge Koh’s decision, Service staff can now exclusively focus on the eagle permitting program. Although the court set aside the 30-year term eagle take permit, eagle take permits for terms up to 5 years remain available. Additionally, if there are commitments in the ECP for the life of the project then there is also the possibility of permit renewal. Moreover, in support of the eagle permitting program, the Service has recently issued internal guidance and a framework for resolving legacy eagle take in the form of a Chief’s Directive. This directive is intended to provide consistent guidance and an approach for civil settlement for legacy and interim take but not prospective take. This guidance is important in moving the eagle permitting program forward because legacy takes will need to be resolved for existing projects before the Service is able to issue eagle permits.