November 29, 2013

Bird killings at wind farm lead to first criminal convictions under Migratory Bird Treaty Act

The unlawful taking (killing) of approximately 163 golden eagles, other raptors, and smaller birds including larks, buntings, and sparrows, at Duke Energy Renewables, Inc.’s wind power facilities in Wyoming has resulted in criminal convictions under the Migratory Bird Treaty Act (“MBTA”), 16 U.S.C. § 701. The MBTA provides that, unless and except as permitted by regulation, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, or attempt to take, capture, or kill any “migratory bird.” 16 U.S.C. § 703. A migratory bird is any of the approximately 800 MBTA-listed species. Birds protected include all common songbirds, waterfowl, shorebirds, hawks, owls, eagles, ravens, crows, native doves and pigeons, swifts, martins, swallows and others, including their body parts (feathers, plumes, etc), nests, and eggs. Enacted in 1918, the federal law still came too late for species like the Great Auk and Passenger Pigeon, which were driven to extinction largely by hunting.

The defendant was sentenced to pay $1 million in restitution and fines split between the North American Wetlands Conservation Fund, the state of Wyoming, the National Fish and Wildlife Foundation, and a conservation fund for the purchase of land in Wyoming for golden eagle habitat. It also was placed on probation for five years, during which it must implement a plan aimed at preventing bird deaths at the company’s four wind projects in the state.

Prosecutors alleged failure to make all reasonable efforts to build the defendant’s wind power projects in a way that would avoid the risk of avian deaths by collision with turbine blades, despite U.S. Fish and Wildlife Service warnings that company surveys might not be sufficient to determine how best to site turbines to avoid or minimize take of migratory birds, particularly eagles. Golden eagle carcasses found near the turbines had sustained injuries consistent with wind turbine blade impacts.

Wind turbine projects present birds with four primary hazards: collision with wind turbines, collision with associated meteorological towers, collision with, or electrocution by, associated electrical power facilities, and nest abandonment or behavior avoidance from habitat modification. Due diligence during the pre-construction stage of a wind project in surveying the wildlife present in the proposed project area, determining whether the risk to wildlife is too high to justify proceeding and, if not, carefully siting turbines to avoid and minimize the risk as much as possible, is critically important for wind projects. This is especially so since there are no post-construction remedies, except shut down that can “render safe” a wind turbine placed in a location of high avian collision risk.

The convictions contrast with the dismissal of a similar recent case involving MBTA violations. In United States v. Brigham Oil & Gas, L.P., 840 F. Supp. 2d 1202 (D.N.D. 2012), the United States District Court for the District of North Dakota dismissed misdemeanor criminal charges against three oil and gas companies after migratory birds were killed through contact with unprotected oil reserve pits operated by the defendants. Despite the opinion in Brigham that the MBTA does not apply to “indirect, unintentional commercial activity,” however, courts have broadly upheld convictions under the MBTA for “take” that is incidental to industrial or agricultural activities.

The defendants in the Duke case appear to have recognized as much. The convictions indicate that wind farm owners and operators would be well advised to consider—and comply with—best management practices before operation begins.

Related Migratory Bird Treaty Act Resources
Soumya Karlamangla, Energy Company to Pay $1 million in Wind Turbine Eagle Deaths, L.A. Times, Nov. 24, 2013.
Letter from Elliot Williams, Deputy Assistant Attorney Gen., to Senator David Vitter & Senator Lamar Alexander (Nov. 22, 2013).

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