Kauai's Electric Utility Faces Civil Suit and Criminal Charges For Bird Fatalities
From our colleagues Greg Corbin and Barbara Craig:
On March 24, 2010, four conservation groups filed a complaint against Kauai’s electric utility, Kauai Island Utility Co-op (“KIUC”), alleging that KIUC’s power lines, utility facilities, and street lights “take” threatened Newell’s Townsend’s shearwaters (Puffinus Auricularis Newelli) (“Newell’s shearwaters”) and/or endangered Hawaiian petrels in violation of the Endangered Species Act (“ESA”). The civil complaint, filed in the U.S. District Court for the District of Hawaii, alleges that KIUC has failed to secure the necessary ESA incidental take permits and, despite years of promises, has failed to implement protective measures that are needed to prevent the “take” of the listed birds.
On May 19, 2010, a federal grand jury indicted KIUC for allegedly taking Newell’s shearwater in violation of the ESA, and for allegedly taking both Newell’s shearwater and Laysan albatross (Diomedea immutabilis) in violation of the Migratory Bird Treaty Act (“MBTA”). According to the indictment, which alleged criminal violations of the ESA and MBTA, KIUC failed to secure the necessary incidental take coverage and to fully mitigate for anticipated takings despite years of negotiations with the U.S. Fish and Wildlife Service to obtain an incidental take permit. The indictment was filed in the U.S. District Court for the District of Hawaii.
These cases illustrate two points relevant to any industry dealing with potential impacts to species protected by the ESA or MBTA. First is that the filing of a citizen suit under the ESA, as occurred here, often raises the profile of a situation and can lead to pressure on the U.S. Fish and Wildlife Service to exercise its independent authorities under the ESA and MBTA. The MBTA does not allow citizen suits, but the filing of a civil ESA citizen suit can lead to criminal charges being brought by the United States under both the ESA and the MBTA. Second, these cases demonstrate that there is a threshold beyond which the United States will invoke its authority to seek criminal indictments under these laws. The allegations in both cases acknowledge that KIUC had engaged in discussions and agreements with the U.S. Fish and Wildlife Service about obtaining permits, but when progress was not made on the agreed to timelines, the United States invoked its most severe authority. This should serve to remind everyone that ignoring risks and liability under the ESA and MBTA can have serious consequences.
186 More Species to be Protected by the Migratory Bird Treaty Act (MBTA)
My colleagues Greg Corbin and Eric Martin report on an important development under the Migratory Bird Treaty Act that may affect the siting and permitting of wind projects
Yesterday the U.S. Fish and Wildlife Service (FWS) announced the addition of 186 migratory birds to its list of species protected by the MBTA. Effective at the end of this month, this is the first update to the MBTA list in 25 years and will bring the total number of species receiving federal protection under the MBTA to over 1,000. Because the MBTA protects the vast majority of birds in the country, it covers many species not covered by the Endangered Species Act (ESA) or other laws.
Similar in some respects to the ESA, the MBTA prohibits the “take” (e.g., wounding or killing) of migratory birds. However, unlike the ESA, the MBTA does not have a routine mechanism for permitting incidental take of migratory birds. Accordingly, there is no way to be completely free of legal liability if a wind project results in the take of a migratory bird. Project developers, though, can seek assurances from the FWS that it will exercise its enforcement discretion if the project developer implements measures to protect migratory birds, such those that might be contained in an Avian & Bat Protection Plan. The measures necessary to avoid or mitigate impacts to migratory birds are project specific and always result in some additional cost, whether through changes to project layout and operation, or supplying mitigation funds.
In light of this newly expanded list of species protected by the MBTA, developers and operators of wind project would be well advised to review their strategy for minimizing the risk of prosecution under the MBTA.
The complete list of birds that will be protected by the MBTA is available at http://www.fws.gov/migratorybirds/.
