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540 675 FEDERAL SUPPLEMENT, 2d SERIES
nor 2002 PCPEs apply to Westvaco’schanges because these
exemptions werenot in effect during the period whenchanges were
made to the Luke Mill.
B. Count II (MWEP Modifications)
It appears that the physical changes toPower Boilers 25 and 26
occurred duringthe DEP, and were not part of the MWEP.Therefore,
the Court cannot base a BACTrequirement on the Power Boilers 25
and26 by virtue of the MWEP. (SJ Stip. FactNos. 20, 25.)
IV. CONCLUSION
For the foregoing reasons:
1. The Court finds that the digestersand power boilers are parts
of amulti-part emissions unit that wasphysically changed and had
itsmethod of operation changed duringthe DEP.
2. The Court finds that Power Boilers25 and 26 were physically
changedduring the DEP.
3. The Court finds that it cannot im-pose BACT requirements with
re-gard to Power Boilers 25 and 26 byvirtue of the MWEP.
4. The Government shall arrange atelephone conference to discuss
fur-ther proceedings herein as promptlyas feasible.
,
ANIMAL WELFARE INSTITUTE,et al., Plaintiffs
v.
BEECH RIDGE ENERGY LLC,et al., Defendants.
Case No. RWT 09cv1519.
United States District Court,D. Maryland.
Dec. 8, 2009.
Background: Nonprofit organizationsbrought an action against
developers ofwind energy project, alleging that defen-dants’
construction and future operation ofthe wind energy project would
‘‘take’’ en-dangered Indiana bats in violation of theEndangered
Species Act (ESA). Plaintiffsfiled a motion for a preliminary
injunction.
Holdings: In resolving an issue of firstimpression, the District
Court, Roger W.Titus, J., held that:
(1) ESA’s citizen-suit provision allows ac-tions alleging
wholly-future violationsof the statute;
(2) in an action brought under ‘‘take’’ pro-vision of ESA, a
plaintiff must estab-lish, by a preponderance of the evi-dence,
that the challenged activity isreasonably certain to imminently
harm,kill, or wound the listed species; and
(3) injunctive relief was appropriate.
Injunctive relief granted.
1. Federal Courts O30Federal courts are under an indepen-
dent obligation to examine their own juris-diction.
2. Environmental Law O651‘‘Prudential standing doctrine’’ that
a
plaintiffs’ grievance must fall within thezone of interests
protected by the statutedoes not apply to the Endangered SpeciesAct
(ESA) due to the Act’s citizen-suit
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541ANIMAL WELFARE INSTITUTE v. BEECH RIDGE ENERGY LLCCite as 675
F.Supp.2d 540 (D.Md. 2009)
provision. Endangered Species Act of1973, § 11(g), 16 U.S.C.A. §
1540(g).
See publication Words and Phras-es for other judicial
constructionsand definitions.
3. Environmental Law O652
Nonprofit animal protection organiza-tion and nonprofit
community organizationhad constitutional standing to bring
actionunder Endangered Species Act (ESA)against developers of wind
energy projectbased on claim that defendants’ construc-tion and
future operation of wind energyproject would ‘‘take’’ endangered
Indianabats. U.S.C.A. Const. Art. 3, § 2, cl. 1;Endangered Species
Act of 1973, § 11(g),16 U.S.C.A. § 1540(g).
4. Environmental Law O547
Nonprofit animal protection organiza-tion and nonprofit
community organizationqualified as ‘‘persons’’ under
citizen-suitprovision of the Endangered Species Act(ESA).
Endangered Species Act of 1973,§§ 3(13), 11(g), 16 U.S.C.A. §§
1532(13),1540(g).
See publication Words and Phras-es for other judicial
constructionsand definitions.
5. Environmental Law O547
Endangered Species Act’s (ESA) citi-zen suit provision allows
actions allegingwholly-future violations of the statute,where no
past violation has occurred. En-dangered Species Act of 1973,§§
9(a)(1)(B), 11(g)(1), 16 U.S.C.A.§§ 1538(a)(1)(B), 1540(g)(1).
6. Environmental Law O529, 551
In an action brought under the ‘‘take’’provision of the
Endangered Species Act(ESA), a plaintiff must establish, by a
pre-
ponderance of the evidence, that the chal-lenged activity is
reasonably certain to im-minently harm, kill, or wound the
listedspecies. Endangered Species Act of 1973,§ 9(a)(1)(B), 16
U.S.C.A. § 1538(a)(1)(B).
7. Environmental Law O700
Given the virtual certainty thatIndiana bats were present at
wind energyproject site during the spring, summer,and fall, that
Indiana bats would beharmed, wounded, or killed imminently bythe
project, in violation of ‘‘take’’ provisionof Endangered Species
Act (ESA), duringthe spring, summer, and fall, and thatentirely
discretionary adaptive manage-ment would not eliminate the risk
toIndiana bats, injunctive relief prohibitingall operation of wind
turbines under con-struction except during the winter periodwas
appropriate. Endangered Species Actof 1973, § 9(a)(1)(B), 16
U.S.C.A.§ 1538(a)(1)(B).
William K. Meyer, Zuckerman SpaederLLP, Baltimore, MD, Eric R.
Glitzenstein,Meyer Glitzenstein and Crystal, Washing-ton, DC, for
Plaintiffs.
William Stewart Eubanks, Meyer Glit-zenstein and Crystal,
Washington, DC.
Kirsten L. Nathanson, Clifford Zatz,Jessica Anne Hall, Joseph
Michael Klise,Steven P. Quarles, Thomas R. Lundquist,Crowell and
Moring LLP, Eugene Grace,American Wind Energy
Association,Washington, DC, for Defendants.
MEMORANDUM OPINION
ROGER W. TITUS, District Judge.
TABLE OF CONTENTS
I. The Endangered Species Act
TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT543
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542 675 FEDERAL SUPPLEMENT, 2d SERIES
II. The Indiana Bat
TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT545
III. Wind Turbines and Bat Mortality
TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT547
IV. The Beech Ridge Project
TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT548
V. The Beech Ridge Project Development History and
Environmental
Studies
TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT549
VI. Evidence Developed During Discovery
TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT557
VII. Jurisdiction
TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT559
VIII. Wholly–Future Violations Under the ESA
TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT560
IX. Requisite Degree of Certainty Under the ESA
TTTTTTTTTTTTTTTTTTTTTTTTTTTTTT561
X. Factual Questions and Credibility of Trial Witnesses
TTTTTTTTTTTTTTTTTTTTTTT564
XI. Presence of Indiana Bats at the Beech Ridge Project Site
TTTTTTTTTTTTTTTTTTT567A. Hibernacula
TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT567B.
Physical Characteristics of the Beech Ridge Project Site
TTTTTTTTTTTTTTT568C. Mist–Net
SurveysTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT570D.
Acoustic
DataTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT570E.
Indiana Bats are Present at the Beech Ridge Project
SiteTTTTTTTTTTTTTTT575
XII. Likelihood of a Take of Indiana Bats at the Beech Ridge
Project SiteTTTTT576
XIII. Effectiveness of Discretionary Post–Construction Adaptive
Management
TechniquesTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT579
XIV. Injunctive
ReliefTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT580
XV. Conclusion
TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT581
CALVIN: My report is on batsTTTT Ahem TTT‘‘Dusk! With a creepy,
tingling sensa-tion, you hear the fluttering of leath-ery wings!
Bats! With glowing redeyes and glistening fangs, these un-speakable
giant bugs drop onto TTT’’
Bill Watterson, Scientific Progress Goes ‘‘Boink’’:A Calvin and
Hobbes Collection 26 (Andrews andMcMeel 1991) (explaining that
‘‘Bats aren’tbugs!’’).
This is a case about bats, wind turbines,and two federal
polices, one favoring pro-tection of endangered species and the
oth-er encouraging development of renewableenergy resources. It
began on June 10,2009, when Plaintiffs Animal Welfare Insti-tute
(‘‘AWI’’), Mountain Communities forResponsible Energy (‘‘MCRE’’),
and DavidG. Cowan (collectively, ‘‘Plaintiffs’’)brought an action
seeking declaratory and
injunctive relief against Defendants BeechRidge Energy LLC
(‘‘Beech Ridge Ener-gy’’) and Invenergy Wind LLC (‘‘Invener-gy’’)
(collectively, ‘‘Defendants’’). Plain-tiffs allege that Defendants’
constructionand future operation of the Beech Ridgewind energy
project (‘‘Beech Ridge Pro-ject’’), located in Greenbrier County,
WestVirginia, will ‘‘take’’ endangered Indianabats, in violation of
§ 9 of the EndangeredSpecies Act (‘‘ESA’’), 16 U.S.C.§
1538(a)(1)(B).
One month after this action was initi-ated, Defendants filed an
answer andbrought a counterclaim for costs. Thenext day, Plaintiffs
filed a motion for apreliminary injunction and Defendantsthereafter
filed an opposition. On July 14,
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543ANIMAL WELFARE INSTITUTE v. BEECH RIDGE ENERGY LLCCite as 675
F.Supp.2d 540 (D.Md. 2009)
2009, the Court conducted a telephone sta-tus conference with
the parties and set ahearing on the preliminary injunction mo-tion
for August 11, 2009, but requestedthat the parties advise the Court
by Au-gust 4, 2009 whether they would consent totreat the hearing
as one on the merits,pursuant to Federal Rule of Civil Proce-dure
65(a)(2). On July 30, 2009, with con-sent of the parties, the Court
consolidatedthe preliminary injunction hearing with atrial on the
merits, rescheduled the hear-ing for October 21, 2009 and set an
accel-erated discovery and briefing schedule.1
Defendants agreed to continue construc-tion on only 40 of the
124 planned turbines,pending a disposition of the merits. TheCourt
held a four-day trial on October 21–23, and 29, 2009.
I. The Endangered Species Act
Congress enacted the ESA in 1973 inresponse to growing concern
over the ex-tinction of animal and plant species. SeeGibbs v.
Babbitt, 214 F.3d 483, 487 (4thCir.2000). The text of the Act as
well asits legislative history unequivocally demon-strate that
Congress intended that protec-tion of endangered species be
afforded thehighest level of importance. Congressconcluded that
threatened and endangeredspecies ‘‘are of esthetic, ecological,
edu-cational, historical, recreational, and scien-tific value to
the Nation and its people.’’16 U.S.C. § 1531(a)(3). Accordingly,
Con-gress passed the ESA ‘‘to provide a meanswhereby the ecosystems
upon which en-dangered species and threatened speciesdepend may be
conserved, to provide aprogram for the conservation of such
en-dangered species and threatened species,and to take such steps
as may be appropri-ate to achieve the purposes of
[certainenumerated] treaties and conventions’’
signed by the United States. 16 U.S.C.§ 1531(b).
Not long after the passage of the Act,the Supreme Court in
Tennessee ValleyAuthority v. Hill proclaimed that the
ESArepresented ‘‘the most comprehensive leg-islation for the
preservation of endangeredspecies ever enacted by any nation.’’
437U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d117 (1978) (enjoining
the Tennessee ValleyAuthority from completing the TellicoDam
because creation of the reservoirwould destroy the critical habitat
of thesnail darter, a three-inch long endangeredfish). Chief
Justice Burger, writing forthe majority, observed that
‘‘examinationof the language, history, and structure ofthe
legislation under review here indicatesbeyond doubt that Congress
intended en-dangered species to be afforded the high-est of
priorities,’’ id. at 174, 98 S.Ct. 2279,and that Congress’ purpose
‘‘was to haltand reverse the trend toward species ex-tinction,
whatever the cost,’’ id. at 184, 98S.Ct. 2279. More recently, the
FourthCircuit has similarly opined that the ‘‘over-all federal
scheme [of the ESA is] to pro-tect, preserve, and rehabilitate
endangeredspecies, thereby conserving valuable wild-life resources
important to the welfare ofour country.’’ Gibbs, 214 F.3d at 492
(up-holding the constitutionality of a regulationthat limited the
taking of red wolves onprivate land).
Section 9 of the ESA, the cornerstone ofthe Act, makes it
unlawful for any personto ‘‘take any [endangered] species withinthe
United States.’’ 16 U.S.C.§ 1538(a)(1)(B). The ESA defines theterm
‘‘take’’ as ‘‘to harass, harm, pursue,hunt, shoot, wound, kill,
trap, capture, orcollect, or to attempt to engage in any
suchconduct.’’ 16 U.S.C. § 1532(19).
1. The Court commends counsel for both par-ties for their
professionalism and cooperation,comprehensive pretrial briefs,
helpful joint
pretrial factual stipulations, and their compel-ling
presentations at trial, particularly in lightof the expedited
nature of these proceedings.
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544 675 FEDERAL SUPPLEMENT, 2d SERIES
The U.S. Fish and Wildlife Service(‘‘FWS’’ or the ‘‘Service’’)
has passed regu-lations implementing the ESA that furtherrefine
what activities constitute an imper-missible ‘‘take.’’ The
regulations definethe term ‘‘harass’’ as:
an intentional or negligent act or omis-sion which creates the
likelihood of inju-ry to wildlife by annoying it to such anextent
as to significantly disrupt normalbehavioral patterns which
include, butare not limited to, breeding, feeding,
orsheltering.
50 C.F.R. § 17.3. The regulations also de-fine the term ‘‘harm’’
as:
an act which actually kills or injureswildlife. Such act may
include signifi-cant habitat modification or degradationwhere it
actually kills or injures wildlifeby significantly impairing
essential be-havioral patterns, including breeding,feeding or
sheltering.
Id. In 1981, the FWS added to its defini-tion of the term
‘‘harm’’ the ‘‘word ‘actual-ly’ before the words ‘kills or injures’
TTT toclarify that a standard of actual, adverseeffects applies to
section 9 takings.’’ 46Fed.Reg. 54,748, 54,750 (Nov. 4, 1981).See
also Babbitt v. Sweet Home Chapter ofCommunities for a Great Or.,
515 U.S.687, 703, 115 S.Ct. 2407, 132 L.Ed.2d 597(1995) (rejecting
a facial challenge to inval-idate the regulation and concluding
thatthe Secretary’s definition of harm to in-clude habitat
modification was consistentwith ‘‘Congress’ clear expression of
theESA’s broad purpose to protect endan-gered and threatened
wildlife’’).
Anyone who knowingly ‘‘takes’’ an en-dangered species in
violation of § 9 is sub-ject to significant civil and criminal
penal-ties. 16 U.S.C. § 1540(a) (authorizing civil
fines of up to $25,000 per violation);§ 1540(b) (authorizing
criminal fines of upto $50,000 and imprisonment for one year).In
order to provide a safe harbor fromthese penalties, Congress
amended theESA in 1982 to establish an incidental takepermit
(‘‘ITP’’) process that allows a per-son or other entity to obtain a
permit tolawfully take an endangered species, with-out fear of
incurring civil and criminalpenalties, ‘‘if such taking is
incidental to,and not the purpose of, the carrying out ofan
otherwise lawful activity.’’§ 1539(a)(1)(B). Congress established
thisprocess to reduce conflicts between speciesthreatened with
extinction and economicdevelopment activities, and to
encourage‘‘creative partnerships’’ between public andprivate
sectors. H.R.Rep. No. 97–835, at30–31 (1982), reprinted in
1982U.S.C.C.A.N. 2807, 2871–72. Some windenergy companies have
obtained or are inthe process of pursuing ITPs. Joint Pre-trial
Factual Stipulations ¶ 24.
A person may seek an ITP from theFWS by filing an application
that includesa Habitat Conservation Plan (‘‘HCP’’).See 16 U.S.C.
1539(a)(2)(A)(i)-(iv); see alsogenerally 50 C.F.R. § 17.22. A HCP
isdesigned to minimize and mitigate harmfuleffects of the proposed
activity on endan-gered species.2 Applicants must include ina HCP a
description of the impacts thatwill likely result from the taking,
proposedsteps to minimize and mitigate such im-pacts, and
alternatives considered by theapplicant including reasons why these
al-ternatives are not being pursued. 16U.S.C. §
1539(a)(2)(A)(i)-(iv); see also 50C.F.R. § 17.22(b). If an ITP is
issued, theFWS will monitor a project for compliancewith the terms
and conditions of a HCP, as
2. A HCP also provides regulatory certainty topermit holders.
Under its ‘‘No Surprises’’policy, the FWS assures private
landownersthat it will not impose additional restrictionson the use
of natural resources or the imple-
mentation of mitigation measures beyondwhat is provided for
under a properly func-tioning HCP. See, e.g., 65 Fed.Reg.
35,242.35,242–43 (June 1, 2000).
-
545ANIMAL WELFARE INSTITUTE v. BEECH RIDGE ENERGY LLCCite as 675
F.Supp.2d 540 (D.Md. 2009)
well as the effects of the permitted actionand the effectiveness
of the conservationprogram. 65 Fed.Reg. 35,242, 35,253–56(June 1,
2000) (emphasizing the impor-tance of periodic reports and field
visits).The FWS may suspend or revoke all orpart of an ITP if the
permit holder fails tocomply with the conditions of the permit
orthe laws and regulations governing theactivity. 50 C.F.R. §§
13.27, 13.28.
Congress also provided under Section 11of the ESA that ‘‘any
person’’ may bring acitizen suit in federal district court to
en-join anyone who is alleged to be in viola-tion of the ESA or its
implementing regu-lations. 16 U.S.C. § 1540(g).3 Congressincluded
this provision to encourage pri-vate citizens to force compliance
with theAct for the benefit of the public interest.Bennett v.
Spear, 520 U.S. 154, 165, 117S.Ct. 1154, 137 L.Ed.2d 281 (1997)
(‘‘[T]heobvious purpose of the particular provisionin question is
to encourage enforcement byso-called ‘private attorneys
general’—evi-denced by its elimination of the
usualamount-in-controversy and diversity-of-cit-izenship
requirements, its provision for re-covery of the costs of
litigation (includingeven expert witness fees), and its
reserva-tion to the Government of a right of firstrefusal to pursue
the action initially and aright to intervene later.’’).
The ESA’s plain language, citizen-suitprovision, legislative
history, and imple-menting regulations, as well as case
lawinterpreting the Act, require that thisCourt carefully
scrutinize any activity thatallegedly may take endangered
specieswhere no ITP has been obtained.
II. The Indiana Bat
The FWS originally designated theIndiana bat (Myotis sodalis )
as in dangerof extinction in 1967 under the Endan-gered Species
Preservation Act of 1966,the predecessor to the ESA. 32
Fed.Reg.4,001 (Mar. 11, 1967). The species hasbeen listed as
endangered since that time.Joint Pretrial Factual Stipulations ¶ 8.
TheIndiana bat is in the genus Myotis andshares some morphological
similaritieswith other Myotis species. Id. ¶ 9. Itclosely resembles
the little brown bat(Myotis lucifugus ) and the northern long-eared
bat (Myotis septenrionalis ). U.S.Fish and Wildlife Serv., Indiana
Bat (Myo-tis sodalis ) Draft Recovery Plan: FirstRevision 15
(Apr.2007) (Pls.’ Ex. 52). AnIndiana bat weighs approximately
onequarter of an ounce (approximately sevengrams), see Joint
Pretrial Factual Stipula-tions ¶ 9, its forearm length is 1 3/8
inchesto 1 5/8 inches (35–41 millimeters), U.S.Fish and Wildlife
Serv., Indiana Bat (Myo-tis sodalis ) Draft Recovery Plan:
FirstRevision 15 (Apr.2007) (Pls.’ Ex. 52), andits head and body
length is 1 5/8 inches to1 7/8 inches (41–49 millimeters), id.
The current range of the Indiana batincludes approximately
twenty states inthe mid-western and eastern UnitedStates, including
West Virginia. JointPretrial Factual Stipulations ¶ 10. The
fol-lowing map, last updated November 1,2006 and included in the
current FWSIndiana Bat Draft Recovery Plan, illus-trates the
distribution of counties withknown summer and winter records of
theIndiana bat:
3. The ESA defines the term ‘‘person’’ as, interalia, ‘‘an
individual, corporation, partnership,trust, association, or any
other private entity
TTTT’’ 16 U.S.C. § 1532(13).
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546 675 FEDERAL SUPPLEMENT, 2d SERIES
U.S. Fish and Wildlife Serv., Indiana Bat(Myotis sodalis ) Draft
Recovery Plan:First Revision 19 (Apr.2007) (Pls.’ Ex. 52).4
The Indiana bat population has declinedsince it was listed as an
endangered spe-cies in 1967, and was estimated by theFWS in 2007 at
approximately 468,184.
4. The Court added to the map a label identify-ing Greenbrier
County, West Virginia, the lo-
cation of the Beech Ridge Project.
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547ANIMAL WELFARE INSTITUTE v. BEECH RIDGE ENERGY LLCCite as 675
F.Supp.2d 540 (D.Md. 2009)
Id. ¶ 11. However, research suggests thatthe West Virginia
population of hibernat-ing Indiana bats has increased since
1990,with an estimated current population ofabout 17,000. Id. ¶ 12.
Approximatelythree percent of Indiana bats are locatedin West
Virginia. U.S. Fish and WildlifeServ., Revised 2007 Rangewide
PopulationEstimate for the Indiana Bat, Myotis so-dalist, at *1
(Oct. 15, 2008) (Defs.’ Ex. 16).
The Indiana bat is an insectivorous, mi-gratory bat whose
behavior varies depend-ing on the season. In the fall, Indianabats
migrate to caves, called hibernacula.The bats engage in a
‘‘swarming’’ behaviorin the vicinity of the hibernacula,
whichculminates in mating. Joint Pretrial Fac-tual Stipulations ¶
19. Indiana bats ordi-narily engage in swarming within fivemiles of
hibernacula, but may also engagein swarming beyond the five mile
radius.Id. During swarming, the bats forage forinsects in order to
replenish their fat sup-plies. U.S. Fish and Wildlife Serv.,Indiana
Bat (Myotis sodalis ) Draft Recov-ery Plan: First Revision 40
(Apr.2007)(Pls.’ Ex. 52). In mid-November, Indianabats typically
enter hibernation and re-main in hibernacula for the duration
ofwinter. Joint Pretrial Factual Stipulations¶ 20.
In April and May, Indiana bats emergefrom hibernation. Id. ¶ 13.
After engag-ing in ‘‘staging,’’ typically within five milesof the
hibernacula, they fly to summerroosting and foraging habitat. Id. ¶
13. Inthe summer, female Indiana bats form ma-ternity colonies in
roost trees, where theygive birth to ‘‘pups,’’ and raise their
young.Id. ¶ 14. Studies suggest that reproduc-tive female Indiana
bats give birth to onepup each year. Id. ¶ 15. Male Indianabats
spend their summers alone or in smalltemporary groups in roost
trees, changingroost trees and locations throughout thesummer. Id.
¶ 17. Roost trees generallyconsist of snags, which are dead or
dying
trees with exfoliating bark, or living treeswith peeling bark.
Id. ¶ 17.
Like other bats, Indiana bats navigateby using echolocation.
Trial Tr. 134:2–14,Oct. 21, 2009 (Gannon). Specifically, batsemit
ultrasonic calls and determine fromthe echo the objects that are
within theirenvironment. See, e.g., Donald R. Griffin,Echoes of
Bats and Men 84–95 (AnchorBooks 1959). Call sequences are
typicallycomposed of multiple pulses. Id. at 85–87.
The FWS published the original recov-ery plan for the Indiana
bat in 1983 and adraft revised plan in 1999. In April 2007,the FWS
published the current Draft Re-covery Plan. See U.S. Fish and
WildlifeServ., Indiana Bat (Myotis sodalis ) DraftRecovery Plan:
First Revision (Apr.2007)(Pls.’ Ex. 52). The current plan
providessubstantial background information re-garding the behavior
of the Indiana batand the many threats that endanger thespecies.
See id. at 7–8. The plan also setsforth a recovery program designed
to pro-tect the Indiana bat and ultimately removeit from the
Federal List of Endangeredand Threatened Wildlife. See id. at
8.
III. Wind Turbines and Bat Mortality
Research shows, and the parties agree,that wind energy
facilities cause bat mor-tality and injuries through both
turbinecollisions and barotrauma. Joint PretrialFactual
Stipulations ¶ 21; see also U.S.Fish and Wildlife Serv., Indiana
Bat (Myo-tis sodalis ) Draft Recovery Plan: FirstRevision 101
(Apr.2007) (Pls.’ Ex. 52); Ed-ward B. Arnett et al., Patterns of
BatFatalities at Wind Energy Facilities inNorth America, 72 J. of
Wildlife Mgmt. 61,61–78 (2008) (Pls.’ Ex. 31). Barotrauma isdamage
caused to enclosed air-containingcavities (e.g., the lungs,
eardrums, etc.) asa result of a rapid change in externalpressure,
usually from high to low. JointPretrial Factual Stipulations ¶ 21.
The ma-jority of bat mortalities from wind energy
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548 675 FEDERAL SUPPLEMENT, 2d SERIES
facilities has occurred during fall dispersaland migration, but
bat mortalities havealso occurred in the spring and summer.Joint
Pretrial Factual Stipulations ¶ 23.At the Mountaineer wind energy
facility inWest Virginia, which is located approxi-mately 75 miles
from the Beech RidgeProject, a post-construction mortalitystudy
resulted in an estimated annual mor-tality rate of 47.53 bats per
turbine. Id.¶ 22.
The construction of wind energy pro-jects may also kill, injure,
or disrupt batbehavior. For example, the cutting oftrees may kill
or injure roosting bats anddestroy potential roosting sites.5 See,
e.g.,BHE Envtl., Inc., Chiropteran Risk As-sessment 31–32 (June 19,
2006) (Pls.’ Ex.126); House v. U.S. Forest Serv., 974F.Supp. 1022,
1032 (E.D.Ky.1997) (findingthat the cutting of trees will
destroyIndiana bat roosting habitat).
IV. The Beech Ridge Project
Defendant Invenergy is the fifth largestwind developer in the
United States, withan aggregate wind-energy generating ca-pacity of
nearly 2,000 megawatts. PretrialFactual Stipulations ¶ 2. Beech
Ridge En-ergy, a wholly-owned subsidiary of Defen-dant Invenergy,
intends to construct andoperate 122 6 wind turbines 7 along 23miles
of Appalachian mountain ridgelines,in Greenbrier County, West
Virginia.Joint Pretrial Factual Stipulations ¶ 26;see also Beech
Ridge Energy LLC, No. 05–1590–E–CS, 2006 W. Va. PUC LEXIS
2624, at *2 (W. Va. Pub. Serv. Comm’nAug. 28, 2006). The first
phase of theproject currently consists of 67 turbinesand the second
phase consists of 55 tur-bines. Joint Pretrial Factual
Stipulations¶ 48.
The footprint for the transmission linewill be approximately 100
acres and thefootprint for the wind turbines will be ap-proximately
300 acres. See Beech RidgeEnergy LLC, No. 05–1590–E–CS, 2006 W.Va.
PUC LEXIS 2624, at *2 (W. Va. Pub.Serv. Comm’n Aug. 28, 2006); see
alsoTrial Tr. 125:15–23, Oct. 22, 2009 (Gro-berg) (stating that the
total footprint isapproximately 400 acres). The lowest tur-bines
are located at an elevation of approx-imately 3,650 feet above sea
level and thehighest are at approximately 4,350 feet.Beech Ridge
Turbine Elevations (Defs.’Ex. 116); see also Trial Tr. 139:8–13,
Oct.22, 2009 (Groberg). The towers are 263feet tall and the rotors
have a diameter of253 feet. Id. at 139:15–17 (Groberg).When the
blade is pointing straight up attwelve o’clock, the turbine is 389
feet tall,id. at 139:18–19 (Groberg), and when theblade is pointing
straight down at sixo’clock, the bottom point of the blade is137
feet off the ground, id. at 139:20–21(Groberg).
The Beech Ridge Project will cost over$300 million to build and
will produce 186megawatts of electricity, equivalent to theamount
of electricity consumed by approxi-mately 50,000 West Virginia
households ina typical year.8 Id. at 146:11–20 (Gro-
5. Construction may also create new habitat,specifically
foraging areas and travel corri-dors, that will attract Indiana
bats. See infraPart XI.B.
6. Defendants originally proposed to construct124 turbines. The
current plan is for 122turbines.
7. Each turbine has an anemometer (to meas-ure wind speed) and a
wind vein (to measurewind direction). Trial Tr. 140:3–15, Oct.
22,
2009 (Groberg). The yaw motor turns therotor into the wind. Id.
When the wind speedreaches the predetermined cut-in speed,
theblades feather (pitch) into the wind, causingthe blades to turn
and produce electricity. Id.
8. These estimates were derived based on theassumption that the
project would consist of124 turbines, as set forth in the original
plan.Trial Tr. 146:11–20, Oct. 22, 2009 (Groberg).The amount of
electricity produced by theBeech Ridge Project will be slightly
lower
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549ANIMAL WELFARE INSTITUTE v. BEECH RIDGE ENERGY LLCCite as 675
F.Supp.2d 540 (D.Md. 2009)
berg). The project is projected to operatefor a minimum of
twenty years. JointPretrial Factual Stipulations ¶ 28. Inven-ergy
has signed a twenty-year contractwith Appalachian Power Company to
sellall output from the first 105 megawatts ofpower. Trial Tr.
144:25–145:6, Oct. 22,2009 (Groberg). Sixty-seven turbines,
thenumber of turbines in the first phase ofthe project, are
required to produce thisamount of electricity. Id. at
144:25–145:23(Groberg).
V. The Beech Ridge Project Develop-ment History and
EnvironmentalStudies
In 2005, David Groberg, Vice Presidentof Business Development
for Invenergyand the lead developer of the Beech RidgeProject,
hired BHE Environmental, Inc.(‘‘BHE’’) as environmental consultant
tothe Beech Ridge Project. BHE provides avariety of services to its
clients, includingagency coordination, study design and
im-plementation, biological assessment andHCP preparation, as well
as expert wit-ness services. Letter from Russ Rommé,Director, BHE
Envtl., Inc., to David Gro-berg, Invenergy LLC (Apr. 14, 2005)
(Pls.’Ex. 88). Russ Rommé, then Director ofthe Natural Resources
Group at BHE, be-came the BHE project manager and wasresponsible
for, among other things, as-sessing potential risks to bat species
at theBeech Ridge Project site and consultingwith state and federal
regulatory agencies.
In July 2005, Rommé contacted FrankPendleton, an employee at
the FWS FieldOffice in Elkins, West Virginia (‘‘FWSWest Virginia
Field Office’’). Rommé thenwrote an e-mail to Pendleton to
‘‘create arecord of our phone conversation,’’ inwhich Pendleton
told Rommé that BHE’sproposal to conduct a preconstruction
batpresence survey consisting of fifteen mist-net 9 sites ‘‘was a
reasonable level of ef-fort’’ but with the specific caution that
theproposed mist-netting survey would onlyreflect the presence of
bats in the areaduring the summer.10 E-mail from FrankPendleton,
U.S. Fish and Wildlife Serv., toRuss Rommé, Director, BHE Envtl.,
Inc.(July 19, 2005, 8:25 AM) (Defs.’ Ex. 68).Pendleton also stated
that Thomas Chap-man, Field Supervisor at the FWS WestVirginia
Field Office, would have the leadon any further discussions with
the FWSregarding the Beech Ridge Project. Id.
From July 22–26, 2005, BHE conducteda mist-net survey at fifteen
sites near pro-posed turbine locations. Joint PretrialFactual
Stipulations ¶ 34. The summersurvey consisted of sixty-two net
nights,BHE Envtl., Inc., Chiropteran Risk As-sessment 11 (June 19,
2006) (Pls.’ Ex. 126),and was conducted during full moon ornear
full moon conditions, Joint PretrialFactual Stipulations ¶ 35. At
the time, theFWS recommended a minimum of threenet nights per site,
a minimum of two netlocations at each site, and a minimum of
than 186 megawatts if only 122 turbines areoperational, as under
the current plan. Id.
9. Mist nets are made of fine material, havesmall sized mesh,
and are typically 2.6 metershigh and 3 to 15 meters long. Trial
Tr.158:21–24, Oct. 21, 2009 (Robbins) (explain-ing that nets can be
stacked on top of eachother to fit the habitat); see also Trial
Tr.170:24–171:9, Oct. 22, 2009 (Slack) (‘‘It’s al-most like a giant
hair net. It’s a really finematerial, and these are hooked to
pulleyropes, typically, and are put up on ropes, or
put up on poles 20 to 30 [feet] high, anywherebetween 20 and 60
[feet] wide in corridors tocatch bats as they’re traveling or
foraging inthe corridor.’’). Bats fly into mist nets andbecome
entangled, allowing researches tocapture bats, identify their
species, and re-lease them.
10. Although the majority of bat mortalities atwind farms occur
during fall dispersal andmigration, Joint Pretrial Factual
Stipulations¶ 23, no surveys were ever conducted by BHEduring the
fall.
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550 675 FEDERAL SUPPLEMENT, 2d SERIES
two nights of netting. U.S. Fish and Wild-life Serv., Agency
Draft, Indiana Bat(Myotis sodalis ) Revised Recovery Plan52–53
(Mar.1999) (Defs.’ Ex. 18).
During the July survey, BHE captureda total of seventy-eight
bats, representingsix species. BHE Envtl., Inc., Chiropter-an Risk
Assessment 11 (June 19, 2006)(Pls.’ Ex. 126); see also BHE Envtl.,
Inc.,Mist–Net Surveys at the Proposed BeechRidge Wind Farm 5–10
(Aug.2005) (Defs.’Ex. 113). Among those bats capturedwere
post-lactating females and juvenilesof Myotis species. Joint
Pretrial FactualStipulations ¶ 40. Several bats escapedprior to
being identified, including at leastone Myotis species. Id. BHE
captured noIndiana bats in the mist nets. Id. ¶ 34.
On November 1, 2005, Beech Ridge En-ergy applied to the West
Virginia PublicService Commission (‘‘WV PSC’’ or the‘‘Commission’’)
for a siting certificate toconstruct a wind-powered generating
facil-ity at the Beech Ridge Project site. BeechRidge Energy LLC,
No. 05–1590–E–CS,2006 W. Va. PUC LEXIS 2624, at *1 (W.Va. Pub.
Serv. Comm’n Aug. 28, 2006).Shortly thereafter, BHE provided theFWS
and the West Virginia Department ofNatural Resources (‘‘WV DNR’’) a
draftChiropteran 11 Risk Assessment. JointPretrial Factual
Stipulations ¶ 41.
Based on post-construction mortalitystudies conducted at the
Mountaineer windenergy facility, the draft Chiropteran
RiskAssessment estimated that the BeechRidge Project will cause
approximately6,746 annual bat deaths as the result ofturbine
collisions.12 BHE Envtl., Inc. Chi-
ropteran Risk Assessment, 22 (Nov. 9,2005) (Pls.’ Ex. 125). The
draft Chiropter-an Risk Assessment also raised the possi-bility
that Indiana bats are present at theProject site and that they may
be injuredor killed by the turbines once they are inoperation:
The proposed Beech Ridge site presentspotential concerns in that
it is proximateto Indiana bat hibernacula, sites whereIndiana bats
have been identified in thesummer, and caves used in winter
andsummer by Virginia big-eared bats.Proximity of these species
occurrencesincreases the likelihood the species willbe present in
the project area and havepotential to collide with turbine
bladesduring spring, summer, or fallTTTTWith Indiana bat
hibernacula in Green-brier County, and in other nearby coun-ties[,]
it is likely male Indiana bats arepresent in the county during
summer,but are as of yet undetected. Consider-ing known proximate
locations of sum-mer and winter occurrences of Indianabats, it is
reasonable to presume individ-uals of this species move through
Green-brier County in spring and fall. It isunlikely female and
juvenile Indianabats will occupy the project area duringsummer.
Thermal conditions in the pro-ject are less than ideal, and may
beentirely unsuitable for use by femalesand young.
Id. at 22, 25 (internal citations omitted).
On November 10, 2005, BHE and Inven-ergy participated in a
conference call withBarbara Douglas, from the FWS, andCraig
Stihler, from the WV DNR. Meeting
11. Bats are mammals in the order Chiropt-era.
12. If BHE’s estimate is correct, the BeechRidge Project will
have a higher annual batmortality rate than any other wind
powerproject in the United States. Trial Tr. 135:1–9, Oct. 23, 2009
(Rommé); see also Trial Tr.
46:4–22, Oct. 22, 2009 (Kunz) (opining thatBHE’s prediction
might be a gross underesti-mate and that based on a paper that he
isreviewing for publication, the number of batdeaths may be twice
as many—equal to 270,-000 killed over the minimum twenty-year
lifeof the Beech Ridge Project).
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551ANIMAL WELFARE INSTITUTE v. BEECH RIDGE ENERGY LLCCite as 675
F.Supp.2d 540 (D.Md. 2009)
Minutes, Conference Call RegardingBeech Ridge Windpower Project
(Nov. 10,2005) (Pls.’ Ex. 101). The meeting min-utes indicate that
after a preliminary re-view of the mist-net report, the
regulatorsbelieved that BHE properly conducted thesummer mist-net
survey and that theclearing of land is unlikely to adverselyaffect
Indiana bat maternity colonies. Id.at *2.
However, the meeting minutes also re-veal that the regulators
believed that po-tential impact on ‘‘migrating and swarmingIbats
[Indiana bats] will still need to beaddressed,’’ id., and that they
remainedconcerned about the risks posed by theBeech Ridge Project
to Indiana bats:
Service/WVDNR both indicated thatbased on the proximity of this
project toa large number of caves, includingknown Ibat hibernacula,
there is an in-creased risk of high bat/Ibat mortalitywhen compared
to other projects. Werecommended pre-construction site spe-cific
studies to evaluate potential im-pacts. The company seemed
unwillingto do this, citing their proposed con-struction schedule
and lack [of] alterna-tive sites given the amount of invest-ment at
this site that has already beenexpended. We discussed the
potentialthat pre-siting surveys could indicatethat the turbines on
a particular ridge orarea could have increased potential
formortality and these areas could bedropped or modifiedTTTT WV DNR
indi-cated that they were unwilling to accepta project that had
unquantified (but like-ly high) resource impacts without a
com-mitment to minimize. Service explainedthat if post-construction
monitoring doc-umented take of endangered species,company would be
liable under ESA,project could be shut down, etc.
Id. at *2–3 (emphasis added).From March 2–7, 2006, BHE
conducted
a cave survey, examining data on 140 caves
and visiting 24 caves within five miles ofthe Beech Ridge
Project. Joint PretrialFactual Stipulations ¶ 43. Of these 24caves,
12 were not surveyed by BHE be-cause of flooding or blocked
entrances.Trial Tr. 99:13–18, Oct. 23, 2009 (Rommé).BHE did not
identify any Indiana bats inthe 12 caves that it actually
surveyed.Joint Pretrial Factual Stipulations ¶ 43.
On March 7, 2006, Chapman, the FieldSupervisor of the FWS West
VirginiaField Office and lead contact regarding theBeech Ridge
Project, sent the first ofthree formal letters to Rommé.
Letterfrom Thomas R. Chapman, Field Supervi-sor, U.S. Fish and
Wildlife Serv., W. Va.Field Office, to Russ Rommé, Director,BHE
Envtl., Inc. (Mar. 7, 2006) (Pls.’ Ex.97). The letter begins by
summarizing theNovember 10, 2005 conference call, statingthat
during the teleconference the FWSand the WV DNR recommended
precon-struction surveys as well as post construc-tion minimization
measures. Id. at 1 (sug-gesting feathering turbines and
shuttingdown operations during migration peri-ods). The Service
remained concernedthat Indiana bats may be adversely affect-ed by
construction and operation of theproject, id. at 2–3, and
‘‘strongly encour-aged [BHE] to continue to determine thetemporal
and spatial use of the projectarea by bats so that such use by bats
canbe reported to us and others prior to con-struction.’’ Id. at 5.
The FWS recom-mended ‘‘conducting multi-year studies(usually for
three years)’’ as well as spring-time emergence studies. Id. The
Servicealso stated that BHE should employ ‘‘[r]a-dar, thermal
imaging, acoustical studies,mist-netting and other appropriate
sam-pling techniques TTTT’’ Id.; see also id.(‘‘Additional
acoustical, radar, and springemergence studies should still be
conduct-ed.’’).
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552 675 FEDERAL SUPPLEMENT, 2d SERIES
In the wake of this letter, Rommé had aseries of communications
in March andApril, 2006 with Christy Johnson–Hughes,a Senior
Biologist in the FWS West Virgi-nia Field Office.13 Rommé claimed
at trialthat during a March 14, 2006 telephonecall, Johnson–Hughes
was ‘‘apologetic’’ forthe contents of the March 7, 2006 letterfrom
the FWS, explaining that much of theletter contained
‘‘boilerplate’’ languagethat had been inserted by the FWS Re-gional
Office. Trial Tr. 111:16–112:9, Oct.23, 2009; see also BHE Contact
Report,Telephone Call Between Russ Rommé, Di-rector, BHE Envtl.,
Inc., and ChristyJohnson–Hughes, Senior Biologist, U.S.Fish and
Wildlife Serv. (Mar. 14, 2006)(Defs.’ Ex. 76).
Rommé also alleged that during a subse-quent telephone call on
April 6, 2006,Johnson–Hughes stated that the FWS con-sidered Beech
Ridge as a ‘‘lower risk’’project, and that the developers should
notbe concerned about receiving negative in-put from the FWS if the
project remainedon track. Trial Tr. 113:2–14, Oct. 23, 2009;see
also BHE Contact Report, TelephoneCall Between Russ Rommé,
Director,BHE Envtl., Inc., and Christy Johnson–Hughes, Senior
Biologist, U.S. Fish andWildlife Serv. (Apr. 6, 2006) (Defs.’
Ex.82). During this conversation, Johnson–Hughes also purportedly
indicated that af-ter the FWS reviewed the cave report andrevised
risk assessment, it would write aletter to the WV PSC indicating
that it hadno significant concerns regarding the pro-ject’s impact
on threatened and endan-gered species. Id. Johnson–Hughes didnot
testify at trial and no written commu-nications from her were
received in evi-dence indicating that she was ‘‘apologetic’’for the
letters from her supervisor, Chap-
man, or that BHE should not be concernedabout the negative input
from the FWS.
Because Frank Pendleton had advisedRommé that Chapman would
have the‘‘lead’’ on further discussions with theFWS, the Court
asked Rommé at trialwhether he had spoken with Chapman.Rommé
testified that he did not recallraising his concerns regarding any
of theformal FWS letters directly with Chap-man, their author, even
though Chapmanhad signed the letters and was Johnson–Hughes’
superior. Trial Tr. 159:11–161:14,Oct. 23, 2009 (‘‘[T]he input I
got fromChristy [Johnson–Hughes] was that Tom[Chapman] was sort of
stuck in the middle,and that he generally approved of the let-ters
that Christy wrote. And then by thetime those letters went up to
the regionaloffice and came back down, Tom did nothave authority to
change the letters.’’).
The WV PSC held two public hearingsin Lewisburg, West Virginia,
in April 2006.Beech Ridge Energy LLC, No. 05–1590–E–CS, 2006 W. Va.
PUC LEXIS 2624, at *10(W. Va. Pub. Serv. Comm’n Aug. 28,
2006).Several hundred people attended eachhearing. Id. In May 2006,
the Commissionheld six days of evidentiary hearings at itsoffice in
Charleston, West Virginia. Id.Beech Ridge Energy presented
numerouswitnesses, including Groberg and Rommé.Id. at *12–13.
From June 12–22, 2006, BHE conducteda second mist-net survey at
twelve sitesalong the transmission line. Joint PretrialFactual
Stipulations ¶ 45 (stating thatsome of the mist-net sites on the
westernside of the project overlapped planned tur-bine locations);
see also BHE Envtl., Inc.,Mist–Net Surveys at the Proposed
BeechRidge Wind Energy Transmission LineCorridor 1–7 (Sept. 27,
2006) (Defs.’ Ex.
13. Rommé testified at trial that during thefirst two years of
his involvement with theBeech Ridge Project, he regularly
communi-
cated with the FWS, ‘‘like, several times aweek.’’ Trial Tr.
143:17–22, Oct. 23, 2009.
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553ANIMAL WELFARE INSTITUTE v. BEECH RIDGE ENERGY LLCCite as 675
F.Supp.2d 540 (D.Md. 2009)
114). The survey consisted of 48 mist-netnights. Rommé Decl. ¶
9 (Defs.’ Ex. 5).Johnson–Hughes approved the number ofmist-net
sites and indicated that acousticdata collection would not be
required forthe transmission line survey. E-mail fromChristy
Johnson–Hughes, Senior Biologist,U.S. Fish and Wildlife Serv., to
KelyMertz, BHE Envtl., Inc. (May 10, 200610:06 AM) (Defs.’ Ex. 85).
As in 2005,BHE captured no Indiana bats during the2006 mist-net
survey, Joint Pretrial Factu-al Stipulations ¶ 45, and did not
conductany surveying, as recommended by theFWS, during fall
dispersal and migrationwhen a majority of bat mortalities
occur.
On June 19, 2006, while the second mist-net survey was being
conducted, BHE pro-vided the FWS and the WV DNR a finalChiropteran
Risk Assessment. Id. ¶ 46.The final Chiropteran Risk
Assessmentconcluded that the Beech Ridge Projectposes a low risk of
harm to Indiana batsbecause the species is unlikely to be pres-ent
at the site:
Based upon the best available informa-tion, including almost
exclusively nega-tive results of summer mist net surveysfor Indiana
bats in West Virginia, andthe elevation of the Beech Ridge site,the
likelihood of an Indiana bat materni-ty colony in the project area
is very low.However, considering the proximity ofthe project area
to known and potentialhibernacula, there is perhaps potentialfor
presence of male Indiana bats roost-ing and or foraging within the
projectarea during the summer, and migrat-ing/staging/swarming
individuals utiliz-ing the project area during spring andfall.
There is one historic hibernaculumwithin 5 miles (8 km) (Bob Gee
Cave),three active hibernacula (McFerrinCave, Martha’s Cave, and
SnedegarsCave) between 5 and 10 miles (8 and 16km) of the site. The
site generally lieswithin a band of counties in whichIndiana bats
occur in the winter (or
winter and summer), and is just to theeast of two, and northeast
of two WestVirginia counties in which Indiana batsoccur in the
summer. These summeroccurrences are limited to a single maleIndiana
bat in each county.
BHE Envtl., Inc., Chiropteran Risk As-sessment 32 (June 19,
2006) (Pls.’ Ex. 126)(internal citation omitted). The Chiropter-an
Risk Assessment assumed that noIndiana bats would be found during
thesecond mist-net survey conducted alongthe transmission line. Id.
at 32.
On July 27, 2006, Johnson–Hughes sentan e-mail to John Auville,
Staff Attorneyfor the WV PSC assigned to the BeechRidge Project,
stating that the FWS want-ed to provide recommendations to the
WVPSC even though the submission deadlinehad expired. E-mail from
Christy John-son–Hughes, Senior Biologist, U.S. Fishand Wildlife
Serv., to John Auville, StaffAttorney, West Virginia Public
ServiceCommission (July 27, 2006, 8:46 AM)(Defs.’ Ex. 87)
(explaining that the FWSwas unable to comment before the June14,
2006 deadline because it did not receiveBHE’s final Chiropteran
Risk Assessmentuntil June 21, 2006). Johnson–Hughes in-dicated that
although ‘‘Beech Ridge maybe a lower risk site, it is not without
risksto bats and birds,’’ and that it was there-fore important that
the Service respond tothese issues before the WV PSC made itsfinal
decision. Id. Auville replied that theStaff’s role in the case was
‘‘finished,’’ thatthe matter was before the WV PSC fordecision, and
that the Commission wouldlikely treat any comments submitted bythe
FWS as public comment. E-mail fromJohn Auville, Staff Attorney,
West VirginiaPublic Service Commission, to ChristyJohnson–Hughes,
Senior Biologist, U.S.Fish and Wildlife Serv. (July 31, 2006,
2:13PM) (Defs.’ Ex. 87).
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554 675 FEDERAL SUPPLEMENT, 2d SERIES
In response to BHE’s final ChiropteranRisk Assessment, Chapman
sent the sec-ond of three formal letters from the FWSWest Virginia
Field Office to Rommé onAugust 10, 2006. Letter from Thomas
R.Chapman, Field Supervisor, U.S. Fish andWildlife Serv., W. Va.
Field Office, to RussRommé, Director, BHE Envtl., Inc. (Aug.10,
2006) (Pls.’ Ex. 98). The letter statesthat the FWS remained
‘‘concerned thatthe proposed Breech Ridge wind powerproject may
harm or kill federally-listedIndiana bats (Myotis sodalis ) TTT.’’
14 Id.at 1. The FWS again recommended thatBHE conduct a minimum of
three years ofpre-construction surveys and studies, asdescribed in
the Service’s 2003 interimguidance, and conduct mist-net
surveysduring fall and spring migration. Id. at 1,3. The Service
also encouraged the devel-opers to formulate and implement
anadaptive management 15 plan to minimizethe risk of harm to
federally-listed species.Id. at 3 (describing possible
mitigationtechniques and post-construction mortalitystudies).
On August 28, 2006, the WV PSC issuedan Order granting a siting
certificate toBeech Ridge Energy for the constructionand operation
of 124 turbines at the BeechRidge Project site. Beech Ridge
EnergyLLC, No. 05–1590–E–CS, 2006 W. Va.PUC LEXIS 2624, at *178–187
(W. Va.Pub. Serv. Comm’n Aug. 28, 2006). TheWV PSC concluded that
the evidence be-
fore it did not support a conclusion thatIndiana bats live near
the project site. Id.at *166–67 (reasoning that BHE capturedno
Indiana bats during its 2005 mist-netsurvey, that ‘‘Beech Ridge’s
witness’’ testi-fied that Indiana bats do not typicallyswarm more
than five miles from hiberna-cula, and that no Indiana bats were
foundin a historic hibernaculum located six milesfrom the closest
turbine during surveysconducted in 2002 and 2006). Further-more,
the WV PSC declined to requirethree years of preconstruction
studies be-cause (i) the FWS’s recommendation ofthree years of
preconstruction studies wasnot mandatory and was articulated in
in-terim guidance subject to revision; (ii)there was evidence that
the recommenda-tion was not being implemented across thenation; and
(iii) the recommendation wasmade as public comment and not as
evi-dence provided ‘‘under oath, testedthrough cross-examination,
or TTT subjectto rebuttal testimony.’’ Id. at *176–77;see also id.
at *165 (‘‘The Commissionagrees with Mr. Romm[é] that the
pre-construction data is not particularly helpfulin studying bat
mortality.’’). Although theWV PSC quoted extensively the August10,
2006 letter from the FWS to Rommé,see id. at *27–30 (‘‘[M]ist net
surveysshould be conducted during fall and springmigration to
understand the number anddiversity of bats in the area, the
Servicewrote.’’), the Commission did not address
14. The letter also indicates that the FWS wasconcerned ‘‘about
the cumulative impact ofmultiple wind power facilities on common
batspecies,’’ especially given that BHE estimatedthat 6,746 bats
will be killed by turbines dur-ing each year of operation of the
Beech RidgeProject. Letter from Thomas R. Chapman,Field Supervisor,
U.S. Fish and WildlifeServ., W. Va. Field Office, to Russ
Rommé,Director of Natural Resource Group, BHEEnvtl., Inc., at 2
(Aug. 10, 2006) (Pls.’ Ex. 98).
15. Adaptive management is a process of itera-tive
decision-making, with the aim to reduce
uncertainty over time through monitoring.See, e.g., 65 Fed.Reg.
35,242, 35,245 (June 1,2000) (‘‘For the purposes of the HCP
pro-gram, we are defining adaptive managementas a method for
examining alternative strate-gies for meeting measurable biological
goalsand objectives, and then, if necessary, adjust-ing future
conservation management actionsaccording to what is learned.’’). In
the con-text of wind turbines, adaptive managementtechniques may
include, for example, chang-ing the cut-in speed and feathering the
bladesto prevent the turbines from operating whenIndiana bats are
most likely to be present.
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555ANIMAL WELFARE INSTITUTE v. BEECH RIDGE ENERGY LLCCite as 675
F.Supp.2d 540 (D.Md. 2009)
in its findings of fact or conclusions of lawthe absence of any
surveying during falldispersal and migration as the FWS
hadrecommended, see generally id. at *141–78. Cf. id. at *164–65
(concluding thatmulti-year preconstruction studies werenot required
despite the FWS recommen-dations, but failing to discuss seasonal
dis-parities).
The WV PSC’s Order granting the sit-ing certificate contains
numerous precon-struction and post-construction conditions,some of
which address endangered speciesgenerally and bat mortality
specifically.For example, in the event that a regulato-ry agency or
court finds that the BeechRidge Project has violated the ESA,
theOrder requires that Beech Ridge Energynotify the WV PSC within
ten days of sucha finding. Id. at *181–82. The Orderstates that the
‘‘Commission may seek anylegal remedies it has authority to
seek,including injunctive relief, to address anysuch findings.’’
Id. at *182. Moreover,the Order mandates that Beech Ridge En-ergy
file with the Commission evidence ofany required permits or
certifications, in-cluding letters from the FWS and WVDNR
indicating what actions, if any, itmust undertake to be in
compliance withrelevant rules and regulations. Id. at*180–81. In
addition, the Order statesthat Beech Ridge Energy must file
evi-dence of approval of the ‘‘final endangeredspecies study and
any required mitigationplans TTTT’’ Id. at *181.
The Order also states in largely precato-ry language that Beech
Ridge Energy‘‘will consult’’ with a Technical AdvisoryCommittee
(‘‘TAC’’) whose membership‘‘shall be open’’ to the WV PSC, FWS,
WVDNR, Bat and Wind Energy Cooperative,a statewide environmental
organization, astatewide bird group, and a private oracademic
institution with experience in avi-an issues. Id. at *184. The
Order statesthat Beech Ridge Energy ‘‘shall consult’’
with the TAC regarding, among otherthings, ‘‘[t]hree years of
post-constructionbat mortality and adaptive managementstudies,
after operations commence, to as-sess 1) the project’s impact, if
any, uponbat life, 2) the potential for adaptive man-agement
techniques to mitigate such im-pacts, and 3) the expected costs
over arange of mitigation effectiveness levels.’’Id. at
*184–85(emphasis added); see alsoid. at *185–86 (‘‘Beech Ridge’s
agreementto test adaptive management strategiesshall be in effect
immediately upon opera-tion of the project. Beech Ridge mayrequest
modifications of its strategies infilings with the Commission.’’
(emphasisadded)). Furthermore, ‘‘[i]f the projectcauses significant
levels of bat or birdmortality and adaptive management tech-niques
are proven effective and economi-cally feasible, Beech Ridge and
its succes-sors will make a good faith effort to workwith the
Commission to apply parametersto implement facility-wide adaptive
man-agement strategies on an on-going basis.’’Id. at *185 (emphasis
added). BeechRidge Energy must also submit semi-an-nual reports to
the Commission and theTAC on any post-construction studies thatit
conducts. Id.
On January 11, 2007, the WV PSC de-clined to reconsider its
August 28, 2006Order granting a siting certificate for theBeech
Ridge Project. Beech Ridge Ener-gy LLC, No. 05–1590–E–CS, 2007
WL4944729, at *1, 2007 W. Va. PUC LEXIS97, at *1 (W. Va. Pub. Serv.
Comm’n Jan.11, 2007). The Commission rejectedMCRE’s argument that
it is highly likelythat an Indiana bat will be taken by theproject,
observing that ‘‘[t]here is no ex-pert testimony consistent with
this MCREallegation’’ and that MCRE ‘‘creates thisargument by
combining several outermostpossibilities from information contained
inpublic comment.’’ Id. at *26, 2007 W. Va.PUC LEXIS 97 at *73. The
West Virgi-
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556 675 FEDERAL SUPPLEMENT, 2d SERIES
nia Supreme Court of Appeals later af-firmed the Commission’s
decision. Moun-tain Communities For Responsible Energyv. W. Va.
Pub. Serv. Comm’n, 222 W.Va.481, 665 S.E.2d 315, 485 (2008).
On June 5, 2007, Rommé sent a letter toJohnson–Hughes
requesting that the FWSprovide written confirmation that BeechRidge
Energy had complied with certainpreconstruction conditions
contained in theAugust 28, 2006 Order. Letter from RussRommé,
Director, BHE Envtl., Inc., toChristy Johnson–Hughes, Senior
Biologist,U.S. Fish and Wildlife Serv. (June 5, 2007)(Defs.’ Ex.
95). One month later, John-son–Hughes advised Rommé that her
su-pervisor, Chapman, sent a draft letter tothe FWS Regional Office
for review. E–Mail from Christy Johnson–Hughes, Sen-ior Biologist,
U.S. Fish and Wildlife Serv.,to Russ Rommé, Director, BHE
Envtl.,Inc. (July 11, 2007, 8:37 AM) (Defs.’ Ex.97). Johnson–Hughes
told Rommé thatshe could not predict how the RegionalOffice would
modify the letter, but notedthat the Service’s ‘‘solicitor is
concernedabout the Service being ‘co-opted’ into thePSC’s process
TTTT’’ E–Mail from ChristyJohnson–Hughes, Senior Biologist,
U.S.Fish and Wildlife Serv., to Russ Rommé,Director, BHE Envtl.,
Inc. (July 11, 2007,9:57 AM) (Defs.’ Ex. 97) (noting that ‘‘I amnot
sure if [the solicitor] understandswhere we are with Beech
Ridge’’). Rom-mé replied that ‘‘this is really alarming
anddisappointing, given our previous and re-peated coordination on
this.’’ 16 E–Mailfrom Russ Rommé, Director, BHE Envtl.,Inc., to
Christy Johnson–Hughes, Senior
Biologist, U.S. Fish and Wildlife Serv.(July 11, 2007, 11:15 AM)
(Defs.’ Ex. 97).
On July 31, 2007, Chapman sent thethird and final formal letter
from the FWSWest Virginia Field Office to Rommé re-garding the
Beech Ridge Project. Letterfrom Thomas R. Chapman, Field
Supervi-sor, U.S. Fish and Wildlife Serv., W. Va.Field Office, to
Russ Rommé, Director,BHE Envtl., Inc. (July 31, 2007) (Pls.’
Ex.99). The letter reiterates that the Serviceremained ‘‘concerned
about annual and cu-mulative mortality of migratory bats TTTT’’Id.
at 2. Furthermore, the letter againstates that one summer season of
mist-netting surveys is likely insufficient to de-termine species
presence:
The Service has consistently recom-mended use of several survey
methodssuch as acoustical detectors, thermal im-agery, and radar.
Mist-netting, for ex-ample, by itself, and during one sum-mer, is
not robust in the case of windenergy projects in the opinion of
theService. While Beech Ridge was withinthe PSC requirement for one
year ofpreconstruction surveys, and the PSCaccepted the surveys,
the method [i.e.,mist-netting] and time frame [summerseason only]
limited the baseline avail-able for detecting species presence
anduse of the project air space over time.
Id. (emphasis added). While expressingthese reservations, the
FWS noted thatthe decision to obtain an ITP under § 10of the ESA
‘‘lies with the prospective ap-plicant.’’ Id. at 1. The Service
indicatedthat it would like to participate in the TACbut that the
agency will maintain its inde-
16. Rommé expressed his frustration in anemail to Erik Duncan,
an Invenergy LLC offi-cial, in which he wrote ‘‘[i]f you are in
themood, how about walking in the Elkins FWSoffice and giving
Christy a big ole’ smackacross the back of her head?’’ E–Mail
fromRuss Rommé, Director, BHE Envtl., Inc., toErik Duncan,
Invenergy LLC (July 11, 2007,
4:34 PM) (Pls.’ Ex. 69). Duncan replied, ‘‘Ithink I’m always in
the mood to smack a fewFWS and USACE [United States Army Corpsof
Engineers] employees, can never get any-thing due to their
bureaucratic hierarchy.’’E-mail from Erik Duncan, Invenergy LLC
toRuss Rommé, Director, BHE Envtl., Inc. (July11, 2007, 9:44 PM)
(Pls.’ Ex. 69).
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557ANIMAL WELFARE INSTITUTE v. BEECH RIDGE ENERGY LLCCite as 675
F.Supp.2d 540 (D.Md. 2009)
pendence and ability to take remedial ac-tion if appropriate.
Id. at 3 (explainingthat such remedies may include enforce-ment of
the ESA as well as recommenda-tions that Beech Ridge Energy apply
foran ITP).
On February 13, 2009, the WV PSCauthorized construction at the
BeechRidge Project site, concluding that BeechRidge Energy had
satisfied the precon-struction conditions set forth in the
Com-mission’s August 28, 2006 Order.17 BeechRidge Energy LLC, No.
05–1590–E–CS,2009 WL 3517730, *1, 2009 W. Va. PUCLEXIS 304, at *1
(W. Va. Pub. Serv.Comm’n Feb. 13, 2009). At the time oftrial,
foundations for 67 turbines had beenpoured, turbine deliveries had
commenced,and transmission lines were being strungin agreed upon
areas. Trial Tr. 175:6–13,Oct. 22, 2009 (Groberg). Beech Ridge
En-ergy has not applied for an ITP whichwould allow it to
incidentally take an en-dangered species. Joint Pretrial
FactualStipulations ¶ 54.
VI. Evidence Developed During Discov-ery
During discovery, significant new infor-mation came to light
regarding the surveysconducted by BHE in the summer of 2005.Gary
Libby, an employee of EcoTech, oneof BHE’s subcontractors,
collected acous-
tic data using an AnaBat 18 detector at twoof the three mist-net
sites for which hewas responsible,19 on July 24 and 26, 2005.Joint
Pretrial Factual Stipulations ¶ 36.On July 24, over the course of
approxi-mately three hours, Libby recorded 68files. Libby Dep.
101:13–102:4, Sept. 29,2009 (Pls.’ Ex. 130); id. at 111:6–112:10.On
July 26, over the course of approxi-mately one hour, Libby recorded
104 files.Id. at 108:13–19 (‘‘I would have to considerthat [a]
large [number of files]. You know,often I don’t get that many in an
entirefive hours.’’); id. at 112:11–114:16. Libbygave the
electronic files containing theAnaBat data as well as his mist-net
surveysheets to his employer, EcoTech. JointPretrial Factual
Stipulations ¶ 37.
No one instructed Libby to use AnaBatdetectors during the summer
2005 sur-vey.20 Libby testified at a deposition thathe deployed the
detector to supplementthe mist nets because ‘‘it’s just
routine.’’Libby Dep. 97:24 (Pls.’ Ex. 130). Libbylearned how to use
AnaBat by reading themanufacturer’s instruction manual as wellas a
manual written by Eric Britzke, anexpert on AnaBat technology. Id.
at37:14–25. Prior to 2005, Libby had fiveseasons of experience
using AnaBat, id. at124:16–17, and had worked on 15–20 pro-jects
where the technology was used, id. at47:17–20. See also id. at
57:14–25 (ex-
17. On April 3, 2009, the WV PSC declined toreconsider its
February 13, 2009 Order.Beech Ridge Energy LLC, No.
05–1590–E–CS,2009 W. Va. PUC LEXIS 762, at *1 (W. Va.Pub. Serv.
Comm’n Apr. 3, 2009). On Sep-tember 2, 2009, the Supreme Court of
Ap-peals of West Virginia refused MCRE’s peti-tion for appeal of
the Commission’s April 3,2009 Order. Mountain Communities for
Re-sponsible Energy v. W. Va. Pub. Serv. Comm’n,No. 090674 (W.Va.
Sept. 2, 2009).
18. AnaBat detectors record ultrasonic soundsfrom approximately
200 kilohertz to 20 kilo-hertz within a 30 to 40 meter range. Trial
Tr.157:10–158:19, Oct. 21, 2009 (Robbins).
These data files can be transferred to a com-puter for analysis.
The ultrasonic pulses pro-duced by bats for echolocation can be
detect-ed by AnaBat devices.
19. Libby conducted mist net surveys over athree-day period, but
did not deploy AnaBatdetectors on one of these days. Libby
Dep.96:7–97:11 (Pls.’ Ex. 130).
20. Groberg testified at trial that he did notprohibit BHE from
performing acoustic de-tection, but that acoustic studies would
beoutside the scope of the work that BHE washired to conduct. Trial
Tr. 150:21–25, Oct.22, 2009.
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558 675 FEDERAL SUPPLEMENT, 2d SERIES
plaining that some of these projects hadinvolved the federal
government).
BHE was aware that Libby had collect-ed the acoustic data prior
to this litigationbut neither analyzed it nor provided it tothe FWS
or the V DNR.21 Joint PretrialFactual Stipulations ¶ 39. Rommé
wroteby hand on a draft report prepared byBHE in August 2005, that
‘‘BHE needs topossess the AnaBat files recorded @ thesite. Can you
imagine a call from Eco-Tech a yr from now saying ‘we just
go[t]around to analyzing the AnaBat calls andwe think we recorded a
sodalis [Indianabat] TTTT’ ’’ BHE Envtl., Inc., Mist–NetSurveys at
the Proposed Beech RidgeWind Farm, at Bates No.BRINV000002771
(Aug.2005) (Pls.’ Ex.122). Rommé explained at trial that hewanted
to ‘‘be in control of that data’’because he was the project
manager, TrialTr. 91:19–23, Oct. 23, 2009, and ‘‘one of
myobligations as a consultant is I never wantto surprise my
client,’’ id. at 146:3–5. Seealso id. at 146:24–147:4 (‘‘[I]f that
technol-ogy actually proved at some point in timeto be reliable and
produce data that couldbe relied upon, I surely didn’t want
myclient getting a call out of the blue fromanother company saying,
hey, we think wemight have Indiana bats.’’). Rommé testi-fied that
BHE did not analyze the AnaBatdata in 2005 because at the time
there wasno accepted process to analyze such dataand BHE was not
familiar with Libby’s
qualifications or how he calibrated and de-ployed the equipment.
Trial Tr. 92:2–20,Oct. 23, 2009; see also id. at 146:8–13
(‘‘So,when that data came in, recall that there isno technique to
analyze it that’s acceptedby the regulatory agencies; that had
beena topic of discussion in the bat communityfor years, and the
anticipation was that atsome time maybe that could be done.’’).
Libby not only collected acoustic dataduring the 2005 survey,
but also he testi-fied that the three mist-net sites for whichhe
was responsible were not ideal for cap-turing bats.22 Libby
testified at his depo-sition that they were poor capture
sitesbecause ‘‘there was no way to really get abat to go in your
net.’’ Libby Dep. 74:11–13 (Pls.’ Ex. 130). Libby explained
that‘‘you could literally, on a clear night, watchbats come up and
fly over your net.’’ Id.at 75:4–5; see also id. at 88:15–18
(‘‘Butwhen you have a net kind of sitting outthere in the middle of
nowhere, you’re—you’re really only going to get a veryunlucky bat
or a very stupid bat.’’); id. at90:16–20 (‘‘We know that a full
moon orthree-quarter moon isn’t the best in termsof visibility, and
that, coupled with a—anot so great site, is going to make it
reallyhard to catch bats.’’). On Libby’s originalsurvey sheets for
sites 9 and 13, he indicat-ed that the sites were ‘‘too open.’’
GaryLibby, Net Site Description, Site 9 (July24, 2005) (Pls.’ Ex.
119, Bates No. P–3084);Gary Libby, Net Site Description, Site
13
21. Although the WV DNR has never receivedthe acoustic data or
BHE’s analysis of it,BHE did provide to the regulator one of
Lib-by’s mist-net survey sheets from the 2005survey that indicates
that he recorded batcalls using AnaBat detectors at the BeechRidge
Project site. Gary Libby, WV Bat Sur-vey Data Form, Site No. 13
(July 26, 2005)(Pls.’ Ex. 119, Bates No. P–3108); see alsoJoint
Pretrial Factual Stipulations ¶ 38 (ex-plaining that BHE provided
the survey sheetsto the WV DNR as part of its 2005
year-endreporting requirements).
22. Several of Plaintiffs’ experts also opinedthat some of the
mist-net survey sites werepoor locations because, for example,
theylacked the requisite canopy cover to funnelthe bats towards the
net and block moonlight.See, e.g., Gannon Rebuttal Decl. ¶ 13
(Pls.’ Ex.2). In addition, several of Plaintiffs’ expertsstated
that they would not have deployed mistnets on the days that BHE
chose to conducttheir surveys because moonlight reduces
thelikelihood of capturing bats. See, e.g., id.;Trial Tr.
74:10–75:15, Oct. 21, 2009 (Gannon)(same).
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559ANIMAL WELFARE INSTITUTE v. BEECH RIDGE ENERGY LLCCite as 675
F.Supp.2d 540 (D.Md. 2009)
(July 25, 2005) (Pls.’ Ex. 119, Bates No. P–3111). At BHE’s
request, Libby revisedone of the sheets to provide more
informa-tion.23 Joint Pretrial Factual Stipulations¶ 37. The
original sheet, not the revisedsheet, was provided to the WV DNR.
JointPretrial Factual Stipulations ¶ 38.
VII. Jurisdiction
[1] Although Defendants concede thatthe Court has jurisdiction
over this case,‘‘[t]he federal courts are under an indepen-dent
obligation to examine their own juris-diction.’’ United States v.
Hays, 515 U.S.737, 742, 115 S.Ct. 2431, 132 L.Ed.2d 635(U.S.1995)
(internal quotation marks,brackets, and citation omitted).
Plaintiffsmust satisfy the standing requirement un-der Article III
of the Constitution as wellas the statutory jurisdictional
prerequi-sites set out in the ESA.
[2] The Supreme Court has held thatthe ‘‘irreducible
constitutional minimum ofstanding’’ has three requirements: (1)
ac-tual or imminent injury that is concreteand particularized; (2)
a causal connectionbetween the injury and the conduct com-plained
of; and (3) likelihood that a favor-able decision will redress the
injury. Lu-jan v. Defenders of Wildlife, 504 U.S. 555,560–61, 112
S.Ct. 2130, 119 L.Ed.2d 351
(1992). However, the prudential standingdoctrine that a
plaintiffs’ grievance mustfall within the zone of interests
protectedby the statute does not apply to the ESAdue to the Act’s
citizen-suit provision.Bennett v. Spear, 520 U.S. 154, 162–66,
117S.Ct. 1154, 137 L.Ed.2d 281 (1997).
Plaintiffs here are: (i) AWI, a nonprofitanimal protection
organization that has25,000 members and supporters, some ofwhom
enjoy observing Indiana bats andrecreating in Indiana bat habitat
near theBeech Ridge Project site, Compl. ¶ 8; (ii)MCRE, a nonprofit
community organiza-tion formed in 2005 with the publicly stat-ed
goal to ‘‘assess and disclose the impactsof a proposed wind energy
facility inGreenbrier County,’’ Joint Pretrial FactualStipulations
¶ 5, and whose members livein and recreate in areas near the
BeechRidge Project site where Indiana bats arefound, Compl. ¶ 14;
and (iii) David G. Co-wan, who lives approximately five milesfrom
the Beech Ridge Project site andderives scientific, educational,
aesthetic,and recreational enjoyment from observingIndiana bats,
Joint Pretrial Factual Stipu-lations ¶ 6, Compl. ¶ 16–17.
[3] Plaintiffs have constitutional stand-ing to bring this
action under the ESA.
23. The Joint Pretrial Factual Stipulationsstate that ‘‘[a]fter
turning in both his mist-netsurvey sheets TTT an employee of BHE
re-quested that Mr. Libby revise one of his mist-net survey
sheets’’ and ‘‘Mr. Libby revised thesurvey sheet as requested.’’
Joint PretrialFactual Stipulations ¶ 37 (emphasis added).However,
an e-mail dated August 10, 2005from Kely Mertz, an employee at BHE,
toRyan Slack, an employee at EcoTech, re-quests that the
subcontractor provide revisedcomments on two of Libby’s survey
sheetsdated July 24, 2005 and July 25, 2005. E-mail from Kely
Mertz, BHE Envtl., Inc., toRyan Slack, EcoTech (Aug. 10, 2005,
2:57PM) (Pls.’ Ex. 121). Furthermore, Plaintiffs’Exhibit 120, which
Plaintiffs describe as‘‘Gary Libby’s Revised Mist Net Survey
Sheets(BRINV 2667 & 2695),’’ contains two sheets,
one dated July 24, 2005 for Site 9 and anoth-er dated July 25,
2005 for Site 13. Both ofthese sheets contain text not found in
Plain-tiffs’ Exhibit 119, ‘‘Mist Net Survey SheetsSent to WV DNR
(P–2013–3125).’’ CompareGary Libby, Net Site Description, Site 9
(July24, 2005) (Pls.’ Ex. 119, Bates No. P–3084),with Gary Libby,
Net Site Description, Site 9(July 24, 2005) (Pls.’ Ex. 120, Bates
No.BRINV000002667); compare Gary Libby, NetSite Description, Site
13 (July 24, 2005) (Pls.’Ex. 119, Bates No. P–3111), with Gary
Libby,Net Site Description, Site 13 (July 25, 2005)(Pls.’ Ex. 120,
Bates No. BRINV000002695).The record is therefore unclear whether
BHEasked Libby to revise one or two sheets andwhether Libby revised
one or two sheets.However, resolution of this question is
notessential to the outcome of this case.
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560 675 FEDERAL SUPPLEMENT, 2d SERIES
First, Plaintiffs have injury in fact becausethe decline of the
Indiana bat will nega-tively impact their use of Indiana bat
cavesand other Indiana bat habitat in the vicini-ty of the project
site. Second, their injuryis fairly traceable to Defendants’
construc-tion and operation of the wind turbines,which allegedly
will kill and injure Indianabats. Third, a favorable decision
awardinginjunctive relief will redress the injury bystopping
construction or operation of theturbines, or both, thereby
eliminating therisk posed to Indiana bats by the BeechRidge
Project.
[4] Plaintiffs have also met the juris-dictional prerequisites
set out in the citi-zen-suit provision of the ESA. 16 U.S.C.§
1540(g). Specifically, Plaintiffs qualifyas ‘‘persons’’ as that
term is defined under§ 1532(13), and they gave at least sixtydays
written notice to the Secretary andDefendants, pursuant to §
1540(g)(2)(A)(i).See Letter from William S. Eubanks II etal., Meyer
Glitzenstein & Crystal, to In-venergy et al. (Oct. 6, 2008)
(Pls.’ Ex. 10);Letter from William S. Eubanks II & EricR.
Glitzenstein, Meyer Glitzenstein &Crystal, to Invenergy LLC et
al. (Mar. 5,2009) (Pls.’ Ex. 11). Moreover, under theESA this Court
retains jurisdiction ‘‘with-out regard to the amount in controversy
orthe citizenship of the parties.’’ 16 U.S.C.§ 1540(g)(1).
Accordingly, the Court has jurisdictionbecause Plaintiffs have
standing to bringthis action under the ESA and have metthe
jurisdictional prerequisites set out inthe statute.
VIII. Wholly–Future Violations Underthe ESA
[5] Defendants argue that the ESA’scitizen-suit provision bars
actions alleging‘‘wholly-future’’ violations of § 9 of thestatute,
where there is no past, current, orcontinuing ‘‘take.’’ This is an
issue of firstimpression in the Fourth Circuit.
At first glance, a superficial reading ofthe text of the ESA
would appear to lendsome support to Defendants’ position.The
citizen-suit provision employs thepresent tense, allowing a private
party tocommence a civil action against anyone‘‘who is alleged to
be in violation of anyprovision of this Act TTTT’’ 16 U.S.C.§
1540(g)(1)(A) (emphasis added). Defen-dants note that the Supreme
Court andthe Fourth Circuit have interpreted identi-cal language in
the citizen-suit provision ofthe Clean Water Act (‘‘CWA’’), 33
U.S.C.§ 1365, and argue that these cases standfor the proposition
that ‘‘there is no juris-diction over claims of wholly future
viola-tions.’’ Defs.’ Surreply and Pre–Trial Br.at 2–3 (emphasis in
original) (citing Gwalt-ney of Smithfield, Ltd. v. Chesapeake
BayFound., Inc., 484 U.S. 49, 108 S.Ct. 376, 98L.Ed.2d 306 (1987)
and Am. Canoe Ass’nv. Murphy Farms, 412 F.3d 536 (4th
Cir.2005)).
Defendants’ reliance on the CWA casesis misplaced. In Gwaltney
of Smithfield,Ltd. v. Chesapeake Bay Found., Inc., theissue before
the Supreme Court waswhether the CWA confers jurisdiction
overcitizen suits for wholly-past violations. 484U.S. at 54–56, 108
S.Ct. 376. Correlative-ly, in American Canoe Association v.Murphy
Farms, the Fourth Circuit heldthat to establish jurisdiction under
theCWA, a plaintiff must either prove viola-tions that continue on
or after the date thecomplaint is filed or show a likelihood
offuture recurrence of violations. 412 F.3dat 539. These CWA cases
clearly do notaddress claims of wholly-future violations.
Moreover, the ESA’s citizen-suit provi-sion provides for
injunctive relief which bydesign prevents future actions that
willtake listed species. Congress explainedthat citizen-suit
actions allow any person‘‘to seek remedies involving injunctive
re-lief for violations or potential violations of
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561ANIMAL WELFARE INSTITUTE v. BEECH RIDGE ENERGY LLCCite as 675
F.Supp.2d 540 (D.Md. 2009)
the Act,’’ H.R. Rep. 93–412 (1973) (empha-sis added), suggesting
that a historic viola-tion is not necessary. The Court
thereforeconcludes that the citizen-suit provision in-cludes within
its scope wholly-future viola-tions of the statute.
The text of § 9 and its legislative historyalso indicate that
Congress intended thatthe ‘‘take’’ provision be expansive in
scope.By prohibiting any ‘‘attempt’’ to harm,wound, kill, or harass
a listed species, 16U.S.C. § 1532(19), Congress clearly mani-fested
an intent that § 9 was designed toinclude claims of future injury.
Further-more, the Senate confirmed that the term‘‘take’’ is defined
‘‘in the broadest possiblemanner to include every conceivable wayin
which a person can ‘take’ or attempt to‘take’ any fish or
wildlife.’’ S.Rep. No. 93–307, at 7 (1973), reprinted in
1973U.S.C.C.A.N. 2989, 2995. Protectingagainst the threat of
imminent futureharm is clearly consistent with Congress’broad
definition of the term ‘‘take.’’
In addition, the Court finds that Defen-dants’ interpretation of
the ESA’s citizen-suit provision as precluding claims
forwholly-future violations is inconsistent withthe very purpose of
the Act. As discussedin supra Part I, Congress’ intent whenenacting
the ESA was to protect and con-serve threatened and endangered
species,whatever the cost. Tenn. Valley Auth. v.Hill, 437 U.S. 153,
184, 98 S.Ct. 2279, 57L.Ed.2d 117 (1978). Requiring that a list-ed
species be harmed, wounded, killed, orharassed before conferring
jurisdictionwould thwart this central goal of the Act.24
Accordingly, the Court holds that theESA’s citizen-suit
provision allows actionsalleging wholly-future violations of
thestatute, where no past violation has oc-curred. The Court’s
holding is consistentwith the text of the citizen-suit
provision,the legislative history, the purpose of theESA, as well
as decisions from the NinthCircuit squarely addressing the issue.
SeeForest Conservation Council v. RosboroLumber Co., 50 F.3d 781,
783 (9th Cir.1995) (‘‘The language and legislative histo-ry of the
ESA, as well as applicable caselaw support our holding today that a
show-ing of a future injury to an endangered orthreatened species
is actionable under theESA.’’); Marbled Murrelet v. PacificLumber
Co., 83 F.3d 1060, 1064–65 (9thCir.1996) (concluding that Sweet
Home didnot overrule Rosboro and that ‘‘an immi-nent threat of
future harm is sufficient forthe issuance of an injunction under
theESA’’).
IX. Requisite Degree of Certainty Un-der the ESA
[6] Neither the Supreme Court nor theFourth Circuit has yet had
the opportunityto decide whether under § 9 of the ESA, aplaintiff
must establish by a preponder-ance of the evidence 25 that the
possibilityof a take is likely or certain, or somethingin between.
Plaintiffs urge the Court toapply ordinary principles of tort
causation,which would require that they demonstratethat a take is
merely more likely than not.Defendants contend that Plaintiffs
mustprove by a preponderance of the evidencethat the challenged
activity is certain toharm, kill, or wound Indiana bats.26
24. Taking Defendants’ argument to its logical(but absurd)
conclusion, if there were onlyone mating pair of Indiana bats
remaining inexistence, the Court could only award injunc-tive
relief under the ESA after one of the twobats had actually been
killed—at which pointthe species would be doomed to extinction.
25. The parties agree that the preponderanceof the evidence
standard, the usual burden of
proof in civil cases, applies here. The ques-tion before the
Court is what degree of cer-tainty of harm is required under the
ESA.
26. Defendants acknowledge that pursuant toFWS regulations,
claims of harassment under§ 9 require only ‘‘likelihood of
injury.’’ 50CFR § 17.3 (emphasis added). However, De-fendants argue
that the concept of harassmentis inapplicable in this case because
(i) habitat
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562 675 FEDERAL SUPPLEMENT, 2d SERIES
Although the Act is silent as to therequisite degree of
certainty for establish-ing a take under § 9, the FWS
regulationsimplementing the ESA suggest that thestandard for
‘‘harm’’ is higher than for‘‘harassment.’’ The regulations define
theterm ‘‘harass’’ as ‘‘an intentional or negli-gent act or
omission which creates thelikelihood of injury to wildlife by
annoyingit TTTT’’ 50 CFR § 17.3 (emphasis added).However, the term
‘‘harm’’ means ‘‘an actwhich actually kills or injures wildlife.’’
Id.(emphasis added). The omission of theword ‘‘likelihood’’ and the
insertion of theword ‘‘actually’’ in the latter definition sug-gest
that a plaintiff must prove that harmis more than merely ‘‘likely’’
to occur.
The explanatory commentary to thisregulation indicates that harm
cannot bespeculative. The FWS stated that it in-serted the term
‘‘actually’’ before ‘‘kills orinjures’’ because ‘‘existing language
couldbe construed as prohibiting the modifica-tion of habitat even
where there was noinjury.’’ 46 Fed.Reg. 54,748, 54,748 (Nov.4,
1981). See also Babbitt v. Sweet HomeChapter of Communities for a
Great Or.,515 U.S. 687, 708–9, 115 S.Ct. 2407, 132L.Ed.2d 597
(1995) (O’Connor, J., concur-ring) (‘‘[T]he challenged regulation
is limit-ed to significant habitat modification thatcauses actual,
as opposed to hypotheticalor speculative, death or injury to
identifi-able protected animals.’’). The FWS fur-ther opined that
the ‘‘redefinition suffi-ciently clarifies the restraints of
section 9so as to avoid injury to protected wildlife
due to significant habitat modification,while at the same time
precluding a takingwhere no actual injury is shown.’’ 46 Fed.Reg.
54,748, 54,749 (Nov. 4, 1981).
Similarly, Sweet Home appears to sug-gest that mere likelihood
of harm is insuf-ficient under § 9. In Sweet Home, theCourt held
that the Secretary of the Inte-rior did not exceed his authority
whenincluding habitat modification and degra-dation in the
aforementioned regulationdefining the term ‘‘harm.’’ 515 U.S.
at707–8, 115 S.Ct. 2407. Throughout themajority opinion, the Court,
quoting theregulation, repeatedly stated that ‘‘actual’’injury is
required. See, e.g., id. at 691 n. 2,115 S.Ct. 2407 (explaining
that the FWSamended the regulation ‘‘to emphasize thatactual death
or injury of a protected ani-mal is necessary for a violation’’);
id. at700 n. 13, 115 S.Ct. 2407 (‘‘[E]very term inthe regulation’s
definition of ‘harm’ is sub-servient to the phrase ‘an act which
actual-ly kills or injures wildlife.’ ’’). By under-scoring the
need for actual injury, theCourt implied that harm cannot be
hypo-thetical.27
Courts outside of the Fourth Circuit ad-dressing the issue of
the requisite degreeof certainty of harm have articulated vary-ing
standards, and have not always distin-guished between harm, kill,
wound, andharass. See, e.g., House v. U.S. ForestServ., 974 F.Supp.
1022, 1031–32 (E.D.Ky.1997) (‘‘[T]he Indiana bat’s foraging
habi-tat may be adversely affected by the
modification is covered under ‘‘harm’’ and (ii)injury from
barotrauma or turbine collisionsare covered under ‘‘wound’’ or
‘‘kill.’’ Defen-dants also assert that Plaintiffs’
allegationsregarding harassment are cursory and thatthey have
failed to demonstrate that Defen-dants have acted intentionally or
negligentlyas required by the relevant regulation. Be-cause the
Court concludes that Plaintiffs haveestablished a § 9 take by
satisfying the higherstandard required for harm, wound, or
kill,
the Court need not reach Plaintiffs’ argu-ments concerning
harassment.
27. Sweet Home involved a facial challenge toa regulation. The
thrust of the opinion wasthat habitat modification or
degradationalone, without injury, is insufficient. The is-sue
presented here—the requisite degree ofcertainty required to
establish a take—wasnot before the Court. Relevant language inthe
Sweet Home opinion is therefore helpful inresolving this question,
but is not conclusive.
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563ANIMAL WELFARE INSTITUTE v. BEECH RIDGE ENERGY LLCCite as 675
F.Supp.2d 540 (D.Md. 2009)
Leatherwood Fork timber sale and thusmay constitute a ‘taking’
of the Indianabat, as the timber sale may harass and/orharm the
Indiana bat in violation of theESA.’’).
The First Circuit, for example, held inAmerican Bald Eagle v.
Bhatti that ‘‘[t]heproper standard for establishing a takingunder
the ESA, far from being a numericalprobability of harm, has been
unequivocal-ly defined as a showing of ‘actual harm.’ ’’9 F.3d 163,
165 (1st Cir.1993) (rejectingthe notion that ‘‘a one in a million
risk ofharm is sufficient to trigger the protec-tions of the
ESA’’). The case involved aclaim that American Bald Eagles would
beharmed by a controlled deer hunt in apublic forest because some
of the woundeddeer would not be recovered (‘‘cripple-lossdeer’’),
that they would die within the feed-ing area of the birds, and that
bald eaglesmight be harmed by consuming lead in thedeer carcasses.
Id. at 164. Both the dis-trict court and the First Circuit found
thatthe speculative risk of harm was insuffi-cient to assert a
claim under § 9 of theESA.28 Id. at 166; see also id. at 166 n.
4(‘‘Appellants have not shown that bald ea-gles have ingested lead
slugs nor frag-ments thereof during past hunts or willingest lead
slugs or fragments thereof dur-ing future hunts TTTT’’).
Because the risk of harm was highlyspeculative in American Bald
Eagle, theFirst Circuit’s observations regarding thedegree of
certainty of harm required bythe ESA were not necessary to the
deci-sion. However, the Ninth Circuit, wheremost § 9 actions
involving land-use activi-
ties have been brought, has squarely ad-dressed the issue.
In Marbled Murrelet v. Pacific LumberCo., the Ninth Circuit
required that aplaintiff establish a ‘‘reasonable certaintyof
imminent harm.’’ 83 F.3d 1060, 1068(9th Cir.1996) (‘‘The district
court did notclearly err in finding marbled murreletswere nesting
in Owl Creek and that therewas a reasonable certainty of
imminentharm to them from Pacific Lumber’s in-tended logging
operation.’’). Two yearslater, in Defenders of Wildlife v.
Bernal,the court appeared to raise the standard,holding that
plaintiffs ‘‘had the burden ofproving by a preponderance of the
evi-dence that the proposed constructionwould harm a pygmy-owl by
killing orinjuring it, or would more likely than notharass a
pygmy-owl by annoying it to suchan extent as to disrupt its normal
behav-ioral patterns.’’ 204 F.3d 920, 925 (9thCir.2000) (emphasis
added). However, theNinth Circuit did not state that it
wasdeparting from Marbled Murrelet, but in-stead clarified that in
its previous decisionit had held that ‘‘a reasonably certainthreat
of imminent harm to a protectedspecies is sufficient for issuance
of an in-junction under section 9 of the ESA.’’ Id.at 925 (emphasis
added).
The Court agrees with the standardadopted in Marbled Murrelet,
and holdsthat in an action brought under § 9 of theESA, a plaintiff
must establish, by a pre-ponderance of the evidence, that the
chal-lenged activity is reasonably certain to im-minently harm,
kill, or wound the listedspecies.29 To require absolute
certainty,
28. The parties had stipulated, in the districtcourt, that in
order to prevail, they must showthat the ‘‘deer hunt poses a
significant risk ofharm,’’ but in dictum contained in a
footnote,the First Circuit noted that ‘‘[b]y requiring
theplaintiffs to show only ‘a significant risk ofharm’ instead of
‘actual harm,’ the districtcourt required a lower degree of
certainty of
harm than we interpret the ESA to require.’’Id. at 167 n. 5.
29. Again, the Court need not decide the de-gree of certainty
required to establish harass-ment under § 9 because the Court finds
thatPlaintiffs have met their burden as to harm,kill, or wound.
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564 675 FEDERAL SUPPLEMENT, 2d SERIES
as proposed by Defendants, would frus-trate the purpose of the
ESA to protectendangered species before they are in-jured and would
effectively raise the evi-dentiary standard above a preponderanceof
the evidence.30 The reasonable certain-ty standard, in combination
with the tem-poral component, is consistent with thepurpose of the
Act, its legislative history,the implementing regulations, and
Su-preme Court precedent.31
X. Factual Questions and Credibilityof Trial Witnesses
The crucial issues in this case arewhether Plaintiffs have
proven by a pre-ponderance of the evidence that (i) Indianabats are
present at the Beech Ridge Pro-ject site and (ii) the project is
reasonablycertain to imminently harm, kill, or woundIndiana bats,
in violation of § 9 of theESA. During the course of this
litigation,the parties called as witnesses leading ex-perts in
their respective fields.
Plaintiffs called the following expert wit-nesses: 32
Lynn Robbins, Ph.D.
Dr. Lynn Robbins received his doctoratein 1983 and has worked as
a biologist,ecologist, and researcher for nearly threedecades. He
is currently a Profess