Federal Court Dismisses Suit to Force BIA to do More to Protect Eagles affected by Wind Energy

Here are the materials in Protect Our Communities Foundation v. Black (S.D. Cal.):

33 Tule Wind Motion

34-1 Ewiiaapaayp Band of Kumeyaay Indians Motion

35-1 US Motion38 Opposition

43 Ewiiaapaayp Band of Kumeyaay Indians Reply

44 Tule Wind Reply

45 US Reply

EWI Protect Our Communities Order Granting Motion for Judgment on Pleadings_3-29-16

An excerpt:

This case concerns the construction of the second phase of an industrial-scale wind farm and the well-being of eagles who nest in or pass through the same general area. More particularly, Plaintiffs, with the noble goal of protecting these eagles, challenge a federal agency’s approval of the project despite its potential to harm eagles. The issue in this case and for these Motions is not whether the agency and those involved in building the wind farm may simply disregard the eagles’ well-being. Harming or killing eagles is a serious offense that subjects offenders to civil fines, criminal fines, and even imprisonment. That is not in dispute. Rather, the question in this case and for these Motions is whether the agency that Plaintiffs sued—BIA—was obligated to take further steps to protect these birds under federal law. Because BIA did not have a legal obligation to proactively ensure that Tule would not violate other federal laws and because, after BIA issued its decision, there was no remaining major federal administrative agency action that would require supplemental environmental analysis, the Court GRANTS Tule’s, the Tribe’s, and BIA’s Motions.

Duke Energy Renewables Reaches Settlement with DOJ over Eagle Deaths

Duke Energy Renewables, a commercial business unit of Duke Energy, today announced it has reached a settlement agreement with the U.S. Department of Justice (DOJ) regarding the deaths of golden eagles and other migratory birds at two of Duke Energy’s wind generation sites in Wyoming.

The DOJ brought misdemeanor charges under the Migratory Bird Treaty Act (MBTA) for 14 golden eagle mortalities within the past three years at Duke Energy’s Top of the World Windpower Project and Campbell Hill Windpower Project near Casper, Wyo.

Press Release here.

Wind Energy Fatality Study Published

K. Shawn Smallwood has published “Comparing bird and bat fatality-rate estimates among North American wind-energy projects” in the Wildlife Society Bulletin. Here is the abstract:

Estimates of bird and bat fatalities are often made at wind-energy projects to assess impacts by comparing them with other fatality estimates. Many fatality estimates have been made across North America, but they have varied greatly in field and analytical methods, monitoring duration, and in the size and height of the wind turbines monitored for fatalities, and few benefited from scientific peer review. To improve comparability among estimates, I reviewed available reports of fatality monitoring at wind-energy projects throughout North America, and I applied a common estimator and 3 adjustment factors to data collected from these reports. To adjust fatality estimates for proportions of carcasses not found during routine monitoring, I used national averages from hundreds of carcass placement trials intended to characterize scavenger removal and searcher detection rates, and I relied on patterns of carcass distance from wind turbines to develop an adjustment for variation in maximum search radius around wind turbines mounted on various tower heights. Adjusted fatality rates correlated inversely with wind-turbine size for all raptors as a group across the United States, and for all birds as a group within the Altamont Pass Wind Resource Area, California. I estimated 888,000 bat and 573,000 bird fatalities/year (including 83,000 raptor fatalities) at 51,630 megawatt (MW) of installed wind-energy capacity in the United States in 2012. As wind energy continues to expand, there is urgent need to improve fatality monitoring methods, especially in the implementation of detection trials, which should be more realistically incorporated into routine monitoring.

And two news articles on the killing of condors and eagles and the decision by USFWS not to prosecute….

Email me if you want a pdf of the study.

Eagle Repository Case: United States v. Friday (CA10)

In December, the Tenth Circuit will hear oral argument in the United States’ appeal of the dismissal of the prosecution of Winslow Friday for the taking of eagle parts. The district court found that the difficulty for American Indians in obtaining eagle parts using the national eagle repository permit system violated the Religious Freedom Restoration Act. Specifically, the court held that the eagle repository permit system was not the least restrictive means to protect eagles and therefore infringed on the religious freedom of Winslow Friday.

One element of the case that might make it difficult for Winslow Friday is the apparent fact that he never applied for a permit. The lower court found that the application of a permit was futile. However, some American Indians did seek and receive permits to fatally take eagles, perhaps only 1 but perhaps as many as 5.

The lower court order is here: District Court’s Order of Dismissal

The Government’s opening brief is here: US Opening Brief

Friday’s response brief is here: Friday’s Response Brief

The Government’s reply brief is here: US Reply Brief