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Why Isn't the U.S. Fish and Wildlife Service Protecting Eagles?

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Say's phoebe | Photo: Wolfgang Wander/Wikimedia Commons/Creative Commons License

The cute little bird in the photo here is a Say's phoebe. It's a small songbird in the flycatcher family that's very common in the western United States. Common enough, in fact, that it's rated as a species of "Least Concern" by the International Union for the Conservation of Nature.

That doesn't mean the Say's phoebe isn't important. The birds help control insect populations. They provide a source of food for larger animals, and they sing nicely. And it would seem they're of extreme importance to the U.S. Fish and Wildlife Service (FWS). At least compared to eagles.

In May 2011, a single Say's phoebe came to an unpleasant end near a oil waste lagoon in North Dakota's Bakken Shale region, where oil development was and is proceeding at a fever pitch. Say's phoebes are protected under the Migratory Bird Treaty Act of 1918; within weeks, FWS had charged lagoon operator Continental Resources with violation of that act over the single dead Say's phoebe.

FWS took a lot of heat for that act of law enforcement, but it was the right thing to do. Oil waste lagoons are serious hazards to wildlife. If a single death of a very common bird gave the agency legal leverage to force a company to make things safer for wildlife, then pressing charges over the death of that one tiny songbird could end up protecting a lot of other wildlife. That's why we pay Federal wildlife protection agencies to enforce the law: to protect wildlife.

Now that second photo? Not a Say's phoebe. It's a golden eagle, also a resident of a broad range of North America. Being a top-level predator, golden eagles are far less common than many tiny songbirds such as the Say's phoebe.

As I've mentioned here on numerous occasions at KCET, golden eagles are legally protected from harm under the Bald and Golden Eagle Protection Act (BGEPA). FWS points out that the legal penalties for those who harm golden eagles are severe:

Violations of the law, which includes possession, sale, purchase or transport of eagles, eagle parts, eggs or nests, carry a maximum $100,000 criminal fine and one year imprisonment for individuals and $200,000 for organizations.

One of the biggest new threats to golden eagles in California is the burgeoning growth in wind turbine installations. Again, we've covered this here for some time. FWS is working to craft its policy for regulating the impact wind development has on eagles, and some have criticized that policy and the process leading to it, very strongly. FWS has authority under BGEPA to issue "take permits" to allow companies to engage in projects that may cause accidental harm to eagles. The agency has had that authority since 2009. The current argument is over the length of the permits: FWS originally said 5 years was as long a permit as the science could justify, then reversed itself after pressure from industry and now advocates 30-year permits.

But at least that process is something. As FWS points out in its own press release a couple weeks ago spurred by the death of an eagle at the North Sky River Wind facility, eagles are dying at facilities whose operators haven't even bothered to seek take permits. In addition to the recent death of an eagle at North Sky River, at least eight eagles have died at the Los Angeles Department of Water and Power's Pine Tree Wind Farm in the last few years. Another eagle was killed in mid-February at Pattern Energy's Spring Valley wind facility near Ely, NV; Pattern had no take permit. No charges have been filed.

In a recent article in the Elko Daily Free Press, U.S. Fish & Wildlife Service biologist Brian Novosak was reported as telling a Las Vegas audience that

"The Fish & Wildlife Service is getting more aggressive with the Bald and Golden Eagle Protection Act... We are requiring projects to complete an eagle conservation plan and an avian and bat protection plan."

Here's what FWS law enforcement staffer Jill Burchell said in that North Sky River press release:

"We want power companies or any company involved in planning to build wind generation facilities in the Tehachapi range, where a significant golden eagle population exists, to contact the Service well in advance of construction and work with our biologists to develop conservation plans that will avoid take of eagles to the extent practical and serve as the basis for an application to lawfully take eagles for companies who proceed with wind development in this area."

I don't wish to pick on Novosak or Burchell. People find themselves working for FWS not because they're attracted to the agency by the generous pay and amazing perks, but because they care about wildlife. They then find themselves implanted in a massive bureaucracy and spend their careers being frustrated.

But wheedling at companies that have already violated the law to come to meetings to discuss management plans doesn't seem particularly "aggressive" to me.

If FWS really wanted to get "aggressive" in enforcing the provisions of the Bald and Golden Eagle Protection Act that protect eagles, it would do what it did in the case of that poor little Say's phoebe in North Dakota. It would send a message not by way of a press release, but by way of the local U.S. Attorney.

It's not that FWS doesn't want to protect eagles. Oregon utility PacificCorp was forced in 2009 to pay hefty fines for killing more than 200 eagles in Wyoming. But those weren't wind turbine deaths: the eagles in question were electrocuted on the company's power lines.

Here's what a FWS staff person had to say in 2009 about that case, according to ENN:

"When companies refuse to be proactive, and don't undertake readily available measures to prevent the deaths of eagles and other migratory birds, we'll seek criminal charges," said [FWS] Resident Agent in Charge Dominic Domenici, who oversees the Service's enforcement operations in Wyoming and Montana.
"With mounting pressures on these species and their habitat, we simply cannot allow industry to kill birds when proven measures exist that can greatly reduce powerline electrocutions."

It's long been rumored that Interior Secretary Ken Salazar has put huge pressure on Interior agencies -- of which FWS is one -- to bend or break the rules to allow aggressive development of wind and solar power on public lands. Understandably enough, it's hard to find Interior employees who'll comment on those rumors.

So the question must be asked: Why isn't FWS following its legal mandate to protect eagles from wind turbine development under the provisions of BGEPA? Why is it apparently limiting its eagle protection activities to secret stakeholder meetings, and using press releases to entice companies to the table when they kill eagles without take permits?

I'm guessing that if the FWS filed charges of BGEPA violation against North Sky River owner NextEra, or Spring Valley's owner Pattern Energy, or Pine Tree's owner the LADWP, other companies would beat a path to the FWS's door.

Or are we going to have to find a dead Say's phoebe in a wind turbine facility?

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