NEPA Statute of Limitations. FHWA issued a 180-day statute of limitations notice after issuing the ROD, and the plaintiffs filed their lawsuit after that period had expired. The court found that the plaintiffs were barred by the statute of limitations from challenging the original EIS and ROD, but were able to bring a claim regarding the need for a supplemental EIS based on new circumstances that arose after the ROD, such as the bird deaths. Supplemental EIS. The plaintiffs claimed that the bird deaths were a significant new impact that required preparation of a supplemental EIS. The court found that the bird deaths were not the type of “significant” impact that requires preparation of a supplemental EIS: “The capture and death of swallows in 2013 are, by definition, facts not considered in the original EIS. The relevant consideration is whether the possibility of such events was not known to the agency at the time and whether it might have changed the agency’s impact conclusion if it had been. Plaintiffs have not demonstrated that the possibility that netting could, if installed poorly, kill swallows, would change the agencies’ conclusion that the construction would not significantly impact nesting birds if appropriate mitigation were employed.” MBTA Private Right of Action. The plaintiffs sued FHWA and Caltrans for violating the Migratory Bird Treaty Act (MBTA), which makes it unlawful to “pursue, hunt, take, capture [or] kill” any migratory bird unless permitted by the Department of the Interior. The court found that private parties, such as the plaintiffs in this case, do not have a “private right of action” under the MBTA, which means they cannot bring a lawsuit against Caltrans or its contractors for violations of that statute. The court noted that plaintiffs could sue FHWA under the federal Administrative Procedure Act (APA), challenging a final agency action, such as a ROD approving a project, based on a claim that the ROD authorized actions that would violate the MBTA. But in this case, the court found that the 180-day time period for challenging the ROD had expired, and found that FHWA had not taken any post-ROD actions that were challengeable under the APA. For these reasons, the court found the plaintiffs were not likely to prevail on their MBTA claims against any of the defendants. Litigation Procedure Preliminary Injunction. The court denied the plaintiffs’ request for a preliminary injunction for several reasons. First, as noted above, the court found that the plaintiffs were not likely to prevail on the merits. In addition, the court considered the potential for irreparable harm to the plaintiffs if an injunction was not issued, as well as the potential harm to the defendants and the public interest if an injunction was issued. The court noted that, in this case, the plaintiffs were seeking not just an injunction halting construction, but also an order directing Caltrans to remove the netting from the bridge. Caltrans submitted evidence showing that netting was the generally accepted method for preventing harm to nesting birds during construction. The court concluded that plaintiffs had not shown evidence that “properly installed, well-maintained netting” would cause irreparable harm. The court also found that removing and re-installing the netting would itself pose risks to workers, and would also cause delays and increased costs. Based on these considerations, the court declined to issue a preliminary injunction ordering removal of the netting.