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After nearly 20 years of threatening to prosecute wind energy companies for killing birds, the U.S. Fish and Wildlife Service (FWS) moved forward with the first prosecution of a wind company under the Migratory Bird Treaty Act (MBTA). However, there was no trial; Duke Energy Renewables, a commercial business unit of Duke Energy, simply pleaded guilty last year to killing about 160 birds since 2009 at its Wyoming projects, including 14 golden eagles. Thus, it is not clear if a trial would have resulted in a guilty verdict, and there remain uncertainties for both the prosecutors and the wind industry.

Because there was no trial in the Duke case, there are two issues facing the wind industry. First, can the MBTA be used successfully to prosecute people, companies or government agencies that kill birds unintentionally while acting in an otherwise-legal fashion? Because the MBTA is considered a strict liability statute, the FWS maintains that any activity that results in the taking of a bird is a violation and could be subject to prosecution.

Not all judges, however, agree with the FWS’ or the U.S. Department of Justice’s (DOJ) interpretation that the MBTA applies in all cases in which avian fatalities occur. For example, in January 2012, U.S. District Court Judge Daniel L. Hovland in United States v. Brigham Oil and Gas L.P., 840 F. Supp. 2d 1202 (D.N.D. 2012) cited an earlier Eighth Circuit Court of Appeals ruling when he granted a motion to dismiss an attempted prosecution under the MBTA of several oil companies for birds that died when they accidentally landed in oil pits. Hovland cited the Eighth Circuit decision that such a broad interpretation “would stretch this 1918 statute far beyond the bounds of reason.”

Specifically, his decision was that the MBTA does not define the term “take” and that the intent of the 1918 law was to prosecute deliberate or intentional killing of birds as opposed to “accidental activity or the unintended results of other conduct.” Hovland concluded by saying that, as a matter of law, “commercial activity which may indirectly cause the death of migratory birds does not constitute a federal crime.”

Nonetheless, some other judges have not shared Hovland’s interpretation. In recent years, the Tenth Circuit ruled that the MBTA is a strict liability statute and intentionality is not relevant. The division of case law on this issue needs to be resolved.

The second issue facing the wind industry is whether the MBTA can be used selectively against industries, persons or government agencies that are otherwise engaged in legal activities. In other words, would FWS enforcement actions against wind energy be an example of selective enforcement whereby some entities are exempt or immune from prosecution, while others, like the wind industry, are targets for prosecution?

The selective-prosecution issue was also addressed by Judge Hovland when he said, “Given the bird-mortality figures compiled by the U.S. Fish and Wildlife Service, it would not be feasible to prosecute all or even most of those persons or entities who technically violate the Migratory Bird Treaty Act… Nevertheless, the criminalization of lawful, commercial activity which may indirectly injure or kill migratory birds is not warranted under the Migratory Bird Treaty Act as it is currently written.”

This opinion suggests that the recent Duke enforcement action was selective rather than part of general enforcement that would include activities that the FWS knows kill far more birds.

Annually, nearly 7 million birds are killed by communication towers, 500+ million by buildings and 100 million by vehicles on public highways. Millions of others are killed by hay mowing, house cats that are allowed to roam and commercial fishing. However, the FWS has attempted few, if any, MBTA enforcement actions for any of these activities. Why does the FWS spend money and time to selectively investigate wind energy impacts that kill fewer birds than do those other activities? From a conservation/cost-effective perspective, the agency’s actions appear to make little sense.

More closely related to the Duke enforcement action is the unintentional poisoning of hundreds of eagles per year via lead ammunition distributed by state-licensed hunters. This issue is well known to the FWS, yet the agency continues to fund state government hunting programs across the country, providing more than $100 million in excise taxes per year that help to support those programs. In Michigan alone, lead ammunition has resulted in the deaths of perhaps 100 bald eagles during the past two decades, and hundreds more have died of collisions on Michigan highways. Similar numbers of bald and golden eagles are likely to be killed in many other states, but there has been little effort by the FWS to determine how many or to reduce these takes. The simplest explanation is that the state hunting agencies and highways are considered exempt from the MBTA.

Going forward, it is clear that the wind industry must continue to use science-based decisions to minimize impacts on wildlife. What is not clear is how the industry will be treated by regulatory agencies or the courts in light of the vigorous efforts being made by the industry to minimize adverse impacts. Selective enforcement is not a defense in the court of law, but it is an issue that should be tried in the court of public opinion. How are scarce agency resources spent in carrying out their responsibility to protect wildlife and other natural resources? To what extent are the guardians being held accountable for mitigating impacts from the most significant sources of avian impacts and from demonstrated adverse impacts of their own actions or failures to take action? When future enforcement actions are taken by the FWS, it will be interesting to see if these questions are addressed. w


Paul Kerlinger, Ph.D., and Richard Curry, Ph.D., are senior scientists and principals at Curry & Kerlinger LLC, a consulting firm specializing in bird and bat issues. They can be reached at (609) 884-2842.

Viewpoint: Eagle Mitigation

What Does The Duke Guilty Plea Mean For The Wind Industry?

By Paul Kerlinger & Richard Curry

Duke Energy recently pleaded guilty to charges of killing federally protected birds at company-owned wind farms. Did its legal move help or hurt the industry?





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