Ninth Circuit Decides Protect Our Communities v. LaCounte [Wind Energy and Eagle Protection]

Here is the opinion.

Briefs here.

Ninth Circuit Briefs in Protect Our Communities Foundation v. Loudermilk


Protect Our Communities Opening Brief

Federal Answer Brief

Tribe Answer Brief


Oral argument video here.

Lower court materials here.

NEPA Challenge to Tule Wind Project Fails

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

59-1 POCF Motion for Summary J

61-1 Tule Wind Cross Motion

64 Federal Motion

66 POCF Response

74 Federal Reply

75 Tule Wind Reply

80EWI Order Granting Defendants MSJ_3-6-17

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.

Federal Suit against Osage Wind LLC Fails

Here are the materials in United States v. Osage Wind LLC (N.D. Okla.):

24 US Motion for Partial Summary J

26 Osage Wind Motion for Summary J

30 US Reply

44 DCT Order

Complaint here.

The previous tribal suit against Osage Wind is here.

Federal Govt. Sues Osage Wind over Wind Energy Turbine Excavations

Here is the complaint in United States v. Osage Wind LLC (N.D. Okla.):

2 Complaint

An excerpt:

In this civil action, the United States seeks a preliminary and a permanent injunction and a declaratory judgment that the ongoing excavation activities of Osage Wind, LLC, Enel Kansas, LLC, and Enel Green Power North America, Inc. (collectively “Defendants”) in Osage County, Oklahoma, are unlawful and must be suspended until Defendants have obtained all requisite federal regulatory approvals and have entered into appropriate leases approved by the Secretary of the Interior (“the Secretary”).

New Study on Eagle Mortalities at Wind Energy Facilities

This study, collected by United States Fish and Wildlife Service employees, was published in the Journal of Raptor Research.




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.