540 675 FEDERAL SUPPLEMENT, 2d SERIES · 2016. 4. 6. · 540 675 FEDERAL SUPPLEMENT, 2d SERIES nor...

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

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).


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.


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).


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


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,


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.


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).


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).


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.


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


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


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.


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).


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.’’).


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.


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).


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.


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-


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).


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.


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).


(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.


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


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


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.


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.


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

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