A Free-Market Energy Blog

Bald and Golden Eagles Victorious: Court Invalidates 30-Year “Eagle Take” Rule (feds vs. federal law)

By Robert Johns -- August 13, 2015

“The Obama administration crafted the [court invalidated] rule to offer wind farms a legal path to accidentally kill eagles, as long as they agree to a suite of mitigation and monitoring requirements to ensure eagle populations remain stable. But it hit major opposition from bird advocacy groups, which argued FWS lacked the resources or know-how to ensure the permits actually benefit the nation’s official bird and its golden kin.”

– Phil Taylor, “Court Strikes Down FWS’s Eagle ‘Take’ Rule,” E&E News, August 12, 2015.

The American Bird Conservancy, [1] where I am director of public relations, issued the following press release yesterday in response to a U.S. District Court ruling that the federal government should follow federal environmental law.

(Washington, D.C., August 12, 2015) The U.S. District Court, Northern District of California, in San Jose has ruled that the Department of the Interior violated federal laws when it created a final regulation allowing wind energy and some other companies to obtain 30-year permits to kill protected Bald and Golden Eagles without prosecution by the federal government.

The American Bird Conservancy (ABC), a plaintiff in the lawsuit, hailed the decision. “We are pleased that the courts agreed with us that improper shortcuts were taken in the development of this rule,” said Dr. Michael Hutchins, Director of ABC’s Bird Smart Wind Energy Program. “The court found that important laws meant to protect our nation’s wildlife were not properly followed by the U.S. Fish and Wildlife Service, putting Bald and Golden Eagles at greater risk.”

The court wrote: “… substantial questions are raised as to whether the Final 30-Year Rule may have a significant adverse effect on bald and golden eagle populations.”

In particular, the courts cited a lack of compliance with the National Environmental Protection Act (NEPA). “We’re ready to work with the U.S. Fish and Wildlife Service to conduct the required NEPA analysis and formulate a better system to protect eagles from poorly-sited wind energy projects,” said Hutchins. “We must come up with a better system to assess the potential risks to birds and bats prior to a project’s siting and construction and to track and mitigate project impacts post-construction.”

The previous “eagle take” rule, adopted in 2009, provided for a maximum duration of five years for each permit to kill eagles. A key part of the court’s ruling held that:  “… FWS has failed to show an adequate basis in the record for deciding not to prepare an EIS (Environmental Impact Statement) — much less an EA (Environmental Assessment) — prior to increasing the maximum duration for programmatic eagle take permits by sixfold.”

“ … While promoting renewable energy projects may well be a worthy goal,” the ruling continued, “it is no substitute for the [agency’s] obligations to comply with NEPA and to conduct a studied review and response to concerns about the environmental implications of major agency action. … Accordingly, the Court holds that FWS violated NEPA’s procedural requirements and that the Final 30-Year Rule must therefore be set aside and remanded to FWS for further consideration.”

The court cited concerns that had been raised by FWS staff during development of the 30-year eagle rule, stating: “The record [in the case] bolsters the Court’s conclusion, as FWS’s failure to adequately ‘address concerns raised by its own experts’ is cause for the Court to find a NEPA violation.”

ABC filed the lawsuit on June 19, 2014 in federal court against the Department of the Interior, alleging multiple violations of federal law in connection with the December 9, 2013 rulemaking. ABC contended that DOI violated the National Environmental Policy Act (NEPA), the Bald and Golden Eagle Protection Act, and other statutes.

ABC believes that wind energy and other renewable energy sources can be encouraged without putting Bald and Golden Eagles, and other protected wildlife, at risk. Proper siting of turbines is critical: New ABC-funded research has revealed that more than 30,000 wind turbines have been installed in areas critical to the survival of federally-protected birds in the United States and that more than 50,000 additional turbines are planned for construction in similar areas.

“The U.S. Fish and Wildlife Service is one of ABC’s most important partners,” said ABC President George Fenwick. “We collaborate frequently, share many goals, and have enjoyed many successes together. However, FWS is encountering unprecedented financial constraints that lead to shortcuts and poor decisions. We hope that this court decision shines a light on the need for the Service to be fully empowered to do the job it is mandated to do. Our nation’s wildlife – and the agency appointed to protect it – deserve nothing less.”

NOTE: ABC is represented by the Washington, D.C. public interest law firm of Meyer Glitzenstein & Crystal.


ABC’s efforts to establish Bird Smart wind energy in the U.S. are made possible in part by the generous support of the Leon Levy Foundation.

[1] American Bird Conservancy is the Western Hemisphere’s bird conservation specialist—the only organization with a single and steadfast commitment to achieving conservation results for native birds and their habitats throughout the Americas. With a focus on efficiency and working in partnership, we take on the toughest problems facing birds today, innovating and building on sound science to halt extinctions, protect habitats, eliminate threats, and build capacity for bird conservation.


  1. papertiger  

    Some stories make you want to stand up and salute the flag.


  2. Mike Lowe  

    So what now? Surely the law will now insist that this law-breaking practice cease immediately, which means all bird-killing windmills should be de-activated pending proposals to eliminate the illegal offending?


    • papertiger  

      It begs the question, why are wind turbine operators given any moratorium on the law against killing eagles?
      The reason why is windfarms are a total waste of money. They are uneconomic eye sores plague on the natural environment, propped up by government subsidy, that operate so close to margin that a single fine would break them.

      I agree. They should be broken.


    • Surya Maruvada  

      Well, our government has become, since Jan. 20, 2009, a government of men rather than one of laws. This will go the way of all the other judicial decisions the admin. does not like! Court decisions and even congressional contempt citations (remember Eric Holder?) are simply ignored by the Teleprompter of the US.


  3. papertiger  

    Here’s an eagle taking out a video drone. Victorious theme.



  4. Bald Eagles Win: You Don’t Get to Chop Up Our National Bird! | American Elephants  

    […] species. The Obama administration was more interested in wind energy than in a bunch of birds, so they crafted a rule to give wind farms a legal path to “accidentally kill” eagles, as long as they agree to […]


  5. Gordon J. Fulks, PhD  

    Finally, we have a real victory against an administration that wants to be hailed as completely environmentally conscious but has no environmental conscience at all. They are only “concerned” when it suits their political schemes. They are only concerned when they can beat into the ground an industry they do not like. They are only concerned when their schemes create business opportunities for their pals.

    And this administration is TOTALLY unconcerned when their schemes are causing massive environmental damage. Industrializing our last open spaces in the West with ugly symbols of stupidity should be viewed as criminal. Killing large numbers of endangered bats as well as birds of prey should be viewed as criminal. Failing to mention that windmills DO NOT reduce carbon footprints, because of the need for inefficient fossil fuel backup, is criminal. And finally, poisoning the main water supply of the entire US Southwest (Colorado River) with lead, arsenic, and cadmium is beyond belief. Forgetting to mention that the EPA says all of these heavy metals will cause deaths, even in extremely small concentrations, is criminal.

    Finally, a real victory for the environment against the forces of darkness and ignorance.

    Gordon J. Fulks, PhD (Physics)
    Corbett, Oregon USA


  6. BillTheGeo  

    Where was the national audubon society in all this? Spending most off their time supporting the climate change scam rather than protecting birds and habitat. Audubon has lost its way so three cheers for ABC.


  7. papertiger  

    I’ve noticed that links to the required permits for Native Americans to use eagle feathers in ceremonies are full and complete, with official government seals intact and maintained.
    http://www.fws.gov/faq/featherfaq.html – for example.
    This makes sense because there are revenues to be had.

    But on that same well maintained gov site the link back to The Bald Eagle Protection Act
    (http://www.fws.gov/permits/mbpermits/ActSummaries.html) is defunct and non operational.

    IS that a thing? It that a deliberate action by the Obama Admin to make the Fish and Wildlife dept. march in lockstep with President GDA’s attitude regarding the Nation’s symbolic bird?
    Could they be hiding the Bald and Golden Eagle Protection Act in hope that no one will remember?


  8. papertiger  


    Trump Welcomes a Bald Eagle to His Office for Photo Shoot

    Published on Aug 20, 2015
    Donald Trump graced the cover of the newest Time magazine, under the headline, “The Donald Has Landed: Deal With It.”


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