By Christopher Garrett, Daniel Brunton, and Taiga Takahashi
On November 6, 2013, in The Protect Our Communities Foundation v. Salazar, the U.S. District Court for the Southern District of California rejected a challenge to the Ocotillo wind-energy project based on the National Environmental Policy Act and the Migratory Bird Treaty Act.
The Court’s holding on the MBTA is particularly important for project developers. The Ninth Circuit has previously held that the definition of ‘take’ in the MBTA—a criminal statute—is limited to the sort of conduct engaged in by hunters and poachers. Nonetheless, anti-development and anti-renewable-energy groups have increasingly challenged projects under the MBTA, claiming that projects with even the mere potential to kill migratory birds unintentionally need a permit to take birds before they can receive federal approvals.
In the Ocotillo decision, the District Court rejected this argument and the plaintiffs’ invitation to adopt a more expansive interpretation of “take.” The Court noted that “the Project’s purpose and goal is not to intentionally kill or take birds but is to provide an alternative source of energy” and held that the project was not required to obtain an MBTA permit.
The Court also noted that the federal agencies, the Bureau of Land Management and the U.S. Fish and Wildlife Service, working with the applicant, had analyzed and mitigated the risk to birds. BLM had “analyzed numerous pre-site-selection monitoring data and bird/nest surveys,” chose “a project site with minimal risks to migratory birds,” and “developed numerous measures to avoid and minimize those risks and imposed enforceable monitoring requirements on the Applicant.” The applicant developed a comprehensive avian and bat protection plan, pursuant to the direction of the Fish and Wildlife Service, and obtained the Service’s concurrence that the protection plan was adequate.
The decision’s practical implications are significant: as courts in other circuits have noted, lawful activity that can incidentally kill bird includes driving, construction, airplane flights, farming, electrical generation and transmission, among other things. In fact, the leading cause of bird deaths in the United States is thought to be from domestic cats, which, at 1.4 to 3.7 billion bird deaths per year, dwarfs by a factor in the thousands even the highest estimates of bird deaths caused by highway and energy projects, which are often the subject of MBTA challenges.
While the opinion does not bind other District Courts, it is part of a welcome trend of cases that follow Ninth Circuit precedent and limit the MBTA’s prohibition on taking migratory birds to activities that are directed at birds.
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