Tag:Bald and Golden Eagle Protection Act

Eagle Take Permit Program Revamped – Longer Permits and Clearer Mitigation Requirements
Eagles Back in the Nest: FWS 30-Year Eagle “Take” Rule Vacated Less than Two Years After Implementation
U.S. Fish & Wildlife’s Double Take on Eagle Take Permits
DOJ’s Bird in the Hand: MBTA and BGEPA enforcement

Eagle Take Permit Program Revamped – Longer Permits and Clearer Mitigation Requirements

The United States Fish and Wildlife Service recently proposed revisions to its regulations authorizing take of bald and golden eagles.

The Bald and Golden Eagle Protection Act (“BGEPA”) imposes criminal and civil penalties against “whoever . . . shall take . . . any bald . . . or any golden eagle, alive or dead, or any part, nest, or egg thereof . . . .” “Take” is broadly defined to mean “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb.” The United States has expressed its intent to pursue companies that violate BGEPA.

Read the full alert on K&L Gates HUB.

Eagles Back in the Nest: FWS 30-Year Eagle “Take” Rule Vacated Less than Two Years After Implementation

On August 11, 2015, the United States District Court for the Northern District of California struck down a U.S. Fish and Wildlife Service (the “Service”) regulation that increased the maximum duration of programmatic permits for the incidental “take” of bald and golden eagles from five to thirty years (“the 30-Year Rule”)1. The decision sets aside the 30-Year Rule and leaves its fate in the hands of the Service, with potentially negative consequences for those entities that interact with avian resources. Without the 30-Year Rule, entities like wind farms—where avian interaction is effectively unavoidable—face serious questions related to securing permit coverage for their operations and prosecution for incidental take of eagles.

Moreover, until the 30-Year Rule is either reshaped through the administrative process or challenged on appeal, the previous rule—with its five year permit term and need for reapplication/NEPA review every five years—remains in place. Reapplication will trigger administrative burdens for both the permittee and the Service, with respect to both meeting the requirements of NEPA and the potential for appeals.

Read the full alert here on K&L Gates Hub

U.S. Fish & Wildlife’s Double Take on Eagle Take Permits

If there wasn’t enough uncertainty about the process and standards for obtaining a programmatic eagle take permit, the U.S. Fish and Wildlife Service just made it more difficult.  Since 2009, energy developers and operators – from oil & gas to wind & solar – have been able to apply for a permit for the incidental take of eagles.  That permit program, which has evolved over the past several years through regulatory revisions and agency guidance, may be poised to change in dramatic fashion. 

On June 19, 2014, the American Bird Conservancy and other individual plaintiffs (the “ABC Plaintiffs”) filed a lawsuit against the U.S. Fish and Wildlife Service (“USFWS”).[1]  The ABC Plaintiffs are challenging the USFWS’ revision to its eagle take rule.  Specifically, the ABC Plaintiffs are challenging the agency’s determination to extend the maximum term for an incidental eagle take permit (“ETP”) to 30 years on two ground: first, USFWS revised the eagle take rule without analyzing environmental impacts under the National Environmental Policy Act (“NEPA”); and second, the rule violates the Bald and Golden Eagle Protection Act (“BGEPA”) by subverting basic eagle protections and safeguards without adequate explanation. Read More

DOJ’s Bird in the Hand: MBTA and BGEPA enforcement

The American Bar Association recently held its 28th annual conference for the White Collar Crime Institute in Miami, Florida.  http://www.americanbar.org/calendar/2014/03/white_collar_crime2014.html?sc_cid=CEN4WCC-CRS.

The Institute prides itself for showcasing the most significant white collar crime issues across the country.  At this year’s meeting, Stacey Mitchell – Chief of the Environmental Crimes Section at U.S. Department of Justice (DOJ) – discussed new areas and developments during a panel discussion on “The Expanding Net of Environmental Crimes Prosecutions.”

During the Q&A, Ms. Mitchell was asked about new areas of environmental criminal enforcement for DOJ.  She responded that enforcement actions against the wind energy industry would be new this year, and specifically, enforcement actions under the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act (BGEPA).

While there is a lengthy history of MBTA and BGEPA enforcement, the focus thus far has been largely on individuals and the oil/gas industry – think poachers, farmers, and oil spills.  DOJ’s enforcement record has been mixed as it relates to prosecuting companies that are operating legally but where migratory birds are injured.  This year, however, Ms. Mitchell announced that DOJ would be taking a closer look at how wind companies comply with these laws.  Ms. Mitchell pointed to a recent plea deal with Duke Energy Renewables, and alluded to more cases on the horizon.  Just a few months ago the House Committee questioned the U.S. Fish & Wildlife Service about why it was prosecuting oil and gas companies under the MBTA and BGEPA, but not wind companies (see http://1.usa.gov/1fqL5Yt).

The Duke Energy Renewables (DER) plea was the first of its kind against involving a wind energy company.  In late 2013, DER plead guilty to two counts of MBTA violations for killing approximately 163 migratory birds, including 14 golden eagles at two wind farms in Wyoming.  Under the terms of the plea agreement, DER will pay nearly $1 million in fines and restitution, commit to taking up to $600,000 in operational adjustments per year for the life of the wind projects, and agree to file for an eagle take permit.

Other companies are being investigated under the MBTA and BGEPA, which establish criminal liability for unintentional take of migratory birds and eagles.  The MBTA is a “strict liability statute,” and the BGEPA is enforced under a general intent criminal standard.  The stakes are high for the wind industry given the low legal standards to sustain a conviction, the steep costs of operational adjustments, and the uncertain risks underlying bird/turbine interaction.  These risks are compounded by the fact that there is no MBTA permit for incidental take of migratory birds from industrial activities, and that an eagle take permit has never (to date) been issued to a wind farm.

It remains to be seen how DOJ will exercise its enforcement discretion to target wind companies.  But what is clear is that the wind industry may be DOJ’s bird-in-the-hand for high-profile environmental cases in the years to come.

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