APEX received approvals from the U.S. Bureau of Land Management and Fish and Wildlife Service to construct a 370 megawatt (MW) wind energy facility consisting of up to 140 wind turbine. The project would be sited on 24,383 acres of public land near Searchlight, Nevada. The approvals were challenged and the Court, in a first decision concluded that analytical gaps existed throughout the wildlife analyses underlying the ROD, the FEIS, and the BiOp. (Dkt. no.90 at 9-11.) In a Remand Order, the Court found the FWS and BLM should, at a minimum, address gaps in the FEIS’s and BiOp’s analyses, including (1) the density of desert tortoises, the adverse effects on desert tortoise habitat due to noise, and the remuneration fees and blasting mitigation measures for desert tortoises; (2) the status of FWS’s recommendations regarding eagle take permitting and an Eagle Conservation Plan; and (3) BLM’s conclusions about risks to bald eagles, protocols for golden eagle surveys, and risks to and mitigation measures for bat species. (Id at 15.)
The Plaintiffs in the case sought clarification and reconsideration of the Remand Order, insisting that the Court relied on faulty dicta in making the “unprecedented” decision that a remand for further explanation was appropriate. They argued that the gaps in the data necessitated vacating the the ROD, the FEIS, and the BiOp and not giving the Defendants a second "bite at the apple". The Court agreed.