For the First Time, U.S. Extends MBTA Enforcement to Renewables

by Davis Wright Tremaine LLP

On November 22, 2013, the Department of Justice announced its first prosecution of a wind farm operation for violations of the Migratory Bird Treaty Act (MBTA), a criminal statute governing take of over 1000 species of birds. The oil and gas industry has been increasingly critical of the US for its failure to prosecute wind farm operations, which kills thousands of birds annually, many of them raptors such as golden eagles and hawks, while pursuing oil and gas operations for a relative handful of bird fatalities usually associated with waste oil pits. Last week’s prosecution and plea agreement, addressing several Wyoming wind farm operations of Duke Energy Renewables, Inc. (“Duke Energy”), included a guilty plea by Duke Energy to two misdemeanor violations of the MTBA.

Duke Energy is subject to a five year probation period, and will pay $1,000,000 for penalties, land purchases, and restitution to a variety of organizations, and within two years seek programmatic take permits under the Bald and Golden Eagle Protection Act (Eagle Act) for the Wyoming facilities at which golden eagles had been taken. Duke Energy is further obligated to expend up to $600,000 annually on development and implementation of a migratory bird compliance plan in connection with those permits.  

Although Duke Energy acknowledged in the settlement that golden eagles were among the birds killed, it was not required to also plead to violations of the Eagle Act, under which the US could have imposed additional civil or criminal penalties. The factual recitations accompanying the settlement agreement include Duke Energy’s knowledge of the presence and potential hazard to golden eagles prior to commencement of operation, but also include extensive recitations regarding Duke Energy’s efforts to avoid and mitigate for any takings of migratory birds. The US stated that it could have taken action under both the MBTA and the Eagle Act, but that it allowed Duke Energy to plead to two misdemeanor MBTA violations because of Duke Energy’s cooperation and voluntary reporting of mortalities, and its significant efforts to minimize and mitigate for bird losses.

 While there is no equivalent programmatic permitting plan available under the MBTA, the settlement agreement provides that if the company complies with the agreement, the US will not prosecute it under either the Eagle Act or the MBTA for future unpermitted takings of migratory birds or other avian wildlife at any of the named projects. Recognizing the complexity of the recently established Programmatic Eagle Take Permit program, the US agreed that so long as Duke Energy is diligently and in good faith pursuing issuance of the permits, the non-prosecution agreement under the Eagle Act and the MBTA could continue as long as ten years. The US also informed Duke Energy that, absent the acquisition of new and material incriminating information, it did not intend to pursue claims against any individuals for the conduct described in the settlement agreement.

This prosecution sends a signal to wind farm operators (and to other renewable energy companies, such as solar farms), that they cannot rely simply on the “good feelings” associated with renewable energy production to dissuade government prosecution of migratory bird fatalities. The US has put forward increasingly detailed guidance on best management practices for such operations. The prudent course is for wind farm owners and operators to take compliance with that guidance seriously, and to do so before commencing operation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Davis Wright Tremaine LLP | Attorney Advertising

Written by:

Davis Wright Tremaine LLP

Davis Wright Tremaine LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.