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Golden Eagle Mortality at Wind Energy Projects – Implications of Duke and PacifiCorp Plea Agreements

January 21, 2015

In December 2014, PacifiCorp Energy entered into a criminal plea agreement under the Migratory Bird Treaty Act (MBTA),[1] for deaths of golden eagles and other migratory birds at wind energy projects in Wyoming.[2] This settlement comes just more than a year after the first-ever MBTA criminal plea agreement for a wind facility by Duke Energy Renewables, also for projects in Wyoming.[3] While it has taken a year to appear, this second settlement confirms that the Duke settlement was not an anomaly and that the U.S. Fish and Wildlife Service’s (FWS) enforcement initiative is likely to produce additional cases focused on the deaths of golden eagles at wind energy projects. Strong similarities between the two plea agreements also may have implications for future settlements. It remains to be seen, however, whether FWS and the Department of Justice will be open to different settlement approaches, including alternatives to criminal charges.

I. Common Framework for the Duke and PacifiCorp Plea Agreements

The basic framework of the two plea agreements is the same; indeed, they follow the same format and in many sections use the same language. This is not too surprising, since the same government lawyers negotiated both settlements. In each of the plea agreements, the company admitted to two class B misdemeanor violations of the MBTA for the unlawful take of migratory birds,[4] agreed to pay a fine of $200,000 for each violation ($400,000 total), and agreed to be sentenced to probation for five years.

The companies also agreed, as specific conditions of their probation, to:

  • Pay restitution to the state;
  • Make “community service” payments for eagle conservation;
  • Comply with a Migratory Bird Compliance Plan negotiated with FWS and attached to the plea agreement (Compliance Plan);
  • Apply for Eagle Take Permits (ETP); and
  • Pay compensatory mitigation for future eagle mortalities.

In return, the federal government agreed that it would not pursue criminal prosecution for any take of migratory birds, including eagles, by the covered wind projects for up to ten years (or until an ETP authorizing eagle take is in place), so long as the company implements its Compliance Plan and diligently pursues its ETP applications. The government also agreed that each company would not be required to spend more than $600,000 a year on implementing their Migratory Bird Compliance Plan.

II. Differences in the Details

A. Fines, Restitution, and Community Service Fees

The PacifiCorp plea agreement resolved the company’s liability for the deaths of more golden eagles and other migratory birds than the Duke agreement, with a total price tag more than twice that of the Duke settlement.

The Duke plea agreement was based on the mortality of 163 migratory birds, including 14 golden eagles, at two projects – Campbell Hill and Top of the World – between 2010 and 2013. The Duke settlement also included commitments, but no criminal charges, concerning two other wind projects where some migratory bird deaths but no eagle deaths had been reported.

The PacifiCorp plea agreement was based on the mortality of 336 migratory birds, including 38 golden eagles, at two projects – Seven Mile Hill and Glenrock/Rolling Hills – between 2009 and 2014. Like Duke, PacifiCorp’s plea agreement also included commitments, but no criminal charges, for two other wind projects. But unlike Duke, PacifiCorp’s other two projects also experienced some eagle mortality (six at each, a mix of golden and bald eagles).

Duke, in addition to a $400,000 fine paid to a wetlands conservation fund, agreed to pay $100,000 in restitution to the Wyoming Game and Fish Department and $500,000 as a form of community service, divided between two National Fish and Wildlife Foundation (NFWF) programs and a conservation fund for purchase of land or conservation easements for high-use golden eagle habitat. Thus, the settlement cost Duke $1 million up front, plus implementation costs and the cost of any compensatory mitigation during the life of the plea agreement.

PacifiCorp’s fine was the same for its two violations ($400,000), but it agreed to pay $200,000 in restitution to the Wyoming Game and Fish Department and to make $1.9 million in community service payments to NFWF for eagle conservation programs. Accordingly, the initial cost to PacifiCorp will be $2.5 million.

B. Compliance Plans

The plea agreements commit each company to implement a Migratory Bird Compliance Plan tailored to their individual wind projects. These Compliance Plans spell out the ongoing commitments made by the companies (and in some instances FWS) under the plea agreements, such as implementing experimental advanced conservation practices (ACPs), developing eagle conservation plans (ECPs) and applying for ETPs, revising bird and bat conservation strategies (BBCSs) for individual projects, conducting avian use and mortality monitoring, and paying compensatory mitigation for future eagle mortalities. The Compliance Plans remain in effect until the end of the 10-year non-prosecution period, unless supplanted earlier for a particular project by issuance of an ETP.

III. Comparing Migratory Bird Compliance Plans

The two Compliance Plans cover the same subjects, but with variations that probably reflect company preferences, as well as pre-existing efforts to monitor and mitigate for bird impacts at the covered wind projects:

Experimental ACPs. Duke’s Compliance Plan calls for the company to implement experimental ACPs incrementally over the plea agreement’s 5-year probation period, with their effectiveness compared to a modeled eagle mortality baseline. Starting at one wind project (Top of the World), the Compliance Plan requires Duke to implement visual and sound deterrents, reporting on their efficacy within 12 months. If those measures do not reduce mortality or are cost prohibitive, Duke must implement “informed curtailment,” putting biological monitors in the field and authorizing the monitors to direct curtailment of one or more turbines if eagles are at risk of collision. Duke also agreed to complete proof-of-concept testing of a radar detection system – the system apparently was installed prior to the plea agreement – and to evaluate the potential for automating curtailment using the radar. Any experimental ACPs that are demonstrated effective at Top of the World must then be implemented at Duke’s Campbell Hill project, subject to the collective cost cap of $600,000 per year. Duke also agreed to remove two guyed meteorological towers at Top of the World, and to modify night-time operations at that project so that turbines would have minimal rotation when wind speeds are below design cut-in speed.

PacifiCorp’s Compliance Plan requires the company to complete an ongoing evaluation of sound and light deterrents at its Glenrock/Rolling Hills project, and to use “informed curtailment” at that project and at the Seven Mile Hill project. The Plan provides fairly specific parameters for when one or more turbines will be curtailed, based on observed eagle behavior, and for when normal operations can resume. The Plan also provides that alternative curtailment approaches may be used if the parties agree they are likely to be effective, and that PacifiCorp’s experience with informed curtailment, apparently in use in some form at both projects since 2012, can influence that decision. Like Duke, PacifiCorp agreed to implement carrion removal at all four wind projects referenced in its Compliance Plan. PacifiCorp also agreed to remove guyed met towers, if the guy wires are causing eagle injury or mortality.

For both companies, the value of power generation foregone due to turbine curtailment does not count toward the annual $600,000 cost cap.

Eagle Take Permits (ETPs). Duke’s Compliance Plan requires the company to develop ECPs and apply for ETPs for the Top of the World and Campbell Hill projects. Duke also agreed to conduct an analysis of golden eagle site usage and risk factors at both projects using existing pre- and post-construction data, and to update the analysis with the first 24 months of data collected under the Compliance Plan. The plea agreement leaves it up to Duke whether to apply for ETPs for other projects.

PacifiCorp agreed to submit or resubmit ECPs for all four wind projects covered by the Compliance Plan, and to apply for ETPs for those projects.

Bird and Bat Conservation Strategies (BBCSs). Duke agreed to revise its BBCSs for the four covered wind projects within four months, conforming them to FWS’s 2012 Land-Based Wind Energy Guidelines. The Compliance Plan acknowledged that, since the Duke projects predate those Guidelines, some of the data called for under the Guidelines may be incomplete.

PacifiCorp’s Compliance Plan recognized that the company already had developed and was implementing draft BBCSs for its four covered wind projects. PacifiCorp is required to revise those documents in consultation with FWS, but the Compliance Plan provides no further direction regarding those revisions.

Monitoring. Duke agreed to implement a monitoring plan focused on detecting raptor and golden eagle mortality at the sites covered by the plea agreement, to be developed in coordination with FWS. As part of that plan, Duke is to conduct searcher-efficiency and carcass-persistence trials and to develop searcher bias corrections specifically for golden eagles and for raptors. Duke agreed to continue monitoring golden eagle and other migratory bird fatalities through the probation period (five years), or until an ETP is issued, at which point ETP monitoring would supersede this requirement.

PacifiCorp’s Compliance Plan notes that it has conducted pre-and post-construction avian use and mortality monitoring at all four of the covered wind projects. PacifiCorp agreed to provide FWS with avian use data from existing studies, as requested by the agency, and to coordinate with FWS regarding the need for any additional studies to understand eagle use of the sites and, if agreed to by the parties, site use by other migratory birds. PacifiCorp also agreed to provide to FWS its existing mortality monitoring protocols and the mortality data it has collected, with the parties to confer on whether there should be any changes to PacifiCorp’s mortality monitoring protocols. PacifiCorp also agreed to conduct eagle nest searches around all four covered wind project sites.

Compensatory Mitigation. Duke’s Compliance Plan requires compensatory mitigation for any golden eagles that are killed at the covered wind projects during the probation period (five years) and until an ETP is issued. The amount of any compensatory mitigation is to be determined using FWS’s Resource Equivalency Analysis (REA), as outlined in the agency’s 2013 Eagle Conservation Plan Guidance, or other analysis agreed to by the parties. The parties are to discuss the method and type of mitigation required (such as power pole retrofits) at their annual meetings during the probationary period, but the Compliance Plan also calls for a reckoning six months before the end of probation, with a payment to be made into a NFWF golden eagle conservation account based on the REA-calculated monetary value of each eagle killed during the probationary period.

The PacifiCorp Compliance Plan calls for a longer period of compensatory mitigation, through termination of the Compliance Plan at the end of the ten-year non-prosecution period. The requirement would be superseded for an individual project by issuance of an ETP for that project. PacifiCorp’s Plan also specifies the required form of compensatory mitigation: retrofitting 9.26 power poles operated by PacifiCorp, within the same Bird Conservation Region, for each eagle killed at a covered wind project. PacifiCorp’s Compliance Plan also allows the parties to agree to some other form of compensatory mitigation.

For both companies, the cost of any compensatory mitigation does not count toward the $600,000 annual cost cap for implementing their Compliance Plans.

IV. Implications for Future Settlements

How closely future MBTA settlements will track the Duke and PacifiCorp plea agreements remains to be seen. The two agreements are quite similar in structure and terms, suggesting they will likely shape future settlements, but two examples rarely define the range of possible alternatives for negotiated settlements. But even within the framework they present, the differences in the two Compliance Plans suggest that companies should be allowed to build on existing bird conservation strategies and practices at their wind projects. This flexibility will likely be important in future settlement discussions, even if the government shows less flexibility on certain other settlement terms.

FWS and the Department of Justice clearly have a preference for taking their enforcement actions under the MBTA, even if those actions are motivated by eagle mortality. In some regions of the country, however, the MBTA may prove to be a flawed vehicle for enforcement against eagle or other migratory bird mortality. Both plea agreements point to decisions in the 10th Circuit upholding criminal liability of corporations for MBTA violations (Wyoming is within the 10th Circuit).[5] But courts in the 8th and 9th Circuits have held that MBTA applies to actions directed against migratory birds (like hunting), and not to the unintended effects of commercial activities, like wind projects.[6] Thus, FWS may find it more difficult to convince companies to admit to MBTA violations for projects located outside the 10th Circuit.

This may encourage FWS to consider alternatives to MBTA actions. The Bald and Golden Eagle Protection Act (BGEPA),[7] as evident from the name of the statute, is specifically directed toward the protection of golden eagles, and it is readily apparent that these plea agreements are motivated by golden eagle strikes. Nevertheless, FWS and the Department of Justice may be reluctant to bring actions under BGEPA because proving a criminal charge under that statute would require the agencies to demonstrate that an eagle was knowingly taken,[8] which is not required for a misdemeanor charge under MBTA.[9]

But unlike MBTA, BGEPA also provides for civil penalties.[10] The maximum civil penalty per violation is fairly low ($5,000), but as both plea agreements demonstrate, fines can be a small component of the overall value of a settlement. FWS also could use BGEPA’s civil penalty provisions to create an administrative consent order, which could include conditions much like the probation conditions that are the central feature of the Duke and PacifiCorp plea agreements, without the moral baggage of criminal charges and probation. This might allow an evolution of the FWS enforcement program into something more like those carried out under other, more recent environmental statutes, where regulated parties and agencies routinely enter into civil consent decrees or administrative orders – issued with no court involvement – to resolve compliance issues. Perhaps, as FWS has more experience with enforcement actions for eagle mortality, it will be more open to this approach.

For now, however, it appears that FWS prefers to seek criminal plea agreements under the MBTA. Presumably some wind projects that have drawn agency scrutiny for eagle mortalities have convinced FWS to take no action due to the good faith efforts the companies have made to avoid and minimize mortality. But it also seems that more settlements are likely to emerge in coming months. As they do, we will see how closely they hew to the models provided by the Duke and PacifiCorp plea agreements.

For more information concerning agency responses to wind energy impacts on eagles and other migratory birds, please contact any other member of Marten Law’s Energy or Permitting practices.

[1]16 U.S.C. §§ 703, et seq.

[2] United States of America v. PacifiCorp Energy, Case No. 14-CR-301, Plea Agreement, ECF No. 2 (D. Wyoming Dec. 19, 2014).

[3] United States of America v. Duke Energy Renewables, Inc., Case No. 13-CR-268, Plea Agreement, ECF No 2 (D. Wyoming Nov. 7, 2013).

[4] The first section of the MBTA, 16 U.S.C. § 703, makes it unlawful to take or kill a migratory bird protected by the Migratory Bird Treaty. 16 U.S.C. § 707(a) makes any violation of the MBTA a Class B misdemeanor.

[5] In support of this proposition, the plea agreements cite United States v. Apollo Energies, 611 F.3d 679, 683 (10th Cir. 2010) and United States v. Moon Lake Electric Ass’n, Inc., 45 F.Supp. 2d 1070 (D. Colo. 1999).

[6] U.S. v. Brigham Oil and Gas, 840 F.Supp.2d 1202 (D. ND 2012); Seattle Audubon Soc’y v. Evans, 952 F.2d 297, 303 (9th Cir. 1991); Protect Our Communities Foundation v. Salazar, 2013 WL 5947137, *17-*18 (S.D. Cal. 2013); Protect Our Communities Foundation v. Jewell, 2014 WL 1364453, *21 (S.D. Cal. 2014).

[7] 16 U.S.C. §§ 668, et seq.

[8] 16 U.S.C. § 668(a).

[9] 16 U.S.C. § 707(a).

[10] 16 U.S.C. § 668(b).

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