The new Eagle Conservation Plan Guidance issued by the U.S. Fish & Wildlife Service (“FWS”) presents an interesting question for wind project developers and operators – does it really provide greater certainty and reduce liability exposure?

The Problem -

The Migratory Bird Treaty Act (“Bird Act”) and the Bald and Golden Eagle Protection Act (“Eagle Act”) prohibit the “taking” of migratory birds and eagles, and impose criminal and civil (Eagle Act only) liability for violations. Over twenty years ago, the FWS and the Department of Justice began applying the Bird Act and Eagle Act to industrial settings when avian deaths or injuries were caused by other illegal activities, such as unpermitted oil spills. More recently, the government has threatened or brought criminal enforcement action against owners and operators of industrial facilities for incidental mortalities – i.e., in those cases where a facility is operating in compliance with the law and without environmental incident, but where protected avian species fly into industrial equipment and operations (e.g., waste retention ponds, air emission control equipment, power wires). Several cases have litigated whether these types of incidental mortalities constitute “take” within the meaning of the Bird Act and Eagle Act. These situations would seem to be indistinguishable from one where the owner of a building into which a bird flies is prosecuted for an illegal “take.” However, the few courts that have considered these questions are split on the issue. While the Eagle Act provides some protection because it only imposes liability for “knowing” takes, the Bird Act contains no “scienter” requirement. One U.S. Circuit Court was sufficiently troubled by this that it grafted a “proximate cause” or notice requirement as essential elements of a Bird Act prosecution, even though it is a strict liability statute.