The Animal Welfare Institute, Mountain Communities for Responsible Energy and David G. Cowan have filed a law suit against Beech Ridge Energy LLC and Invenergy Wind LLC under the federal Endangered Species Act ("ESA"). This filing seeks preliminary injunction to halt further construction, turbine erection, and operation of the Beech Ridge industrial wind power project. The plaintiffs argue that the project, if constructed, will result in the "likely killing, injury, and other forms of "take" of endangered Indiana bats in violation of the ESA." The wind project is proposed to be located on ridgelines in Greenbrier County, West Virginia.

Five important documents are included with this filing as follows: 

a) The motion for preliminary injunction and request for oral argument;
b) Animal Welfare Institute et.al law suit filed;
c) Affidavit of Dr. Thomas H. Kunz in support of the requested injunction;
d) Affidavit of Dr. Michael R. Gannon in support of the requested injunction;
e) Affidavit of Dr. Lynn W. Robbins in support of the requested injunction.

All five documents can be downloaded by clicking on the links at the bottom of this page.
The text of the motion for preliminary injunction appears below.

 

PLAINTIFFS' MOTION FOR A PRELIMINARY
INJUNCTION AND REQUEST FOR ORAL ARGUMENT

Plaintiffs - organizations and individuals concerned with the fate of the endangered Indiana bat - hereby move pursuant to Rule 65 of the Federal Rules of Civil Procedure for a preliminary injunction to halt further construction, turbine erection, and operation of the industrial wind power project at issue in this case until the Court has an opportunity to resolve the case on the merits. For the reasons set forth below, Plaintiffs respectfully request that the Court schedule a hearing on this motion during the first two weeks of August. In support of this Motion, Plaintiffs state as follows:

1. The Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq., makes it unlawful for any person to kill, injure, or otherwise "take" members of a federally listed endangered species without a permit issued by the United States Fish and Wildlife Service. Id. at §§ 1538, 1539.

2. As explained in the accompanying legal memorandum, supporting affidavits from several of the nation's leading bat biologists, and other exhibits, Defendants' proposed wind turbine project will result in the "taking" of a federally protected species, the Indiana Bat, because (a) construction will destroy Indiana Bat habitat and (b) construction, erection, and operation of the wind turbines will kill and/or injure Indiana bats who live, hibernate, forage, and mate on or in close proximity to the current proposed site of the wind turbines. In violation of the ESA, Defendants have never obtained, or even applied for, a permit from the U.S. Fish and Wildlife Service which would authorize such "taking" while mitigating effects on the endangered
species.

3. Pursuant to the requirements of the ESA, Plaintiffs have twice put Defendants on notice - on October 6, 2008 and March 5, 2009 - that the project as planned would harm a federally protected species, and they offered to discuss with Defendants how the project could be modified to comply with the ESA. Specifically, Plaintiffs believe that the ESA and the laudable goal of production of renewable energy can be harmonized in this matter by re-siting the wind turbines to locations that would minimize the risk of harm to a federally protected species. However, Defendants ignored both of those notices and have instead proceeded rapidly with construction of the project as planned, including the destruction of additional Indiana bat habitat.

4. This action was commenced on June 10, 2009. In subsequent communications between the parties, Plaintiffs advised Defendants that they intended to seek preliminary injunctive relief unless Defendants would defer construction, turbine erection, and operation while the case is being resolved on the merits. Defendants have informed Plaintiffs that, starting in August, they will begin erecting the wind turbines, including in locations that are particularly problematic for Indiana bats, with commencement of operations planned for several months thereafter. According to leading bat experts, these activities will result in further unpermitted - and hence still more unlawful - "takes" of Indiana bats.

5. Plaintiffs will be irreparably harmed if Defendants' continued construction of the wind turbine project is not enjoined pending a trial on the merits in this action because continued construction and turbine erection will (a) cause additional "takes" of Indiana bats, and (b) effectively render the project a fait accompli before the Court even has an adequate opportunity to address the merits of Plaintiffs' claims. Plaintiffs therefore seek preliminary injunctive relief to maintain the status quo during the pendency of this action.

6. Given Defendants' ongoing construction, including the planned erection of wind turbines beginning in August, Plaintiffs respectfully seek a hearing on this Motion during the first two weeks in August.

WHEREFORE Plaintiffs respectfully request that this Court issue a preliminary injunction pursuant to Rule 65 enjoining, until a trial on the merits of this action can be held, Defendants' further construction of the wind turbine project as described in Plaintiffs' Complaint, including but not limited to further site preparation, and the construction, erection, and operation of wind turbines. In support of this Motion, a Memorandum of Points and Authorities and exhibits are attached hereto and made a part hereof.

Respectfully submitted,

/s/ William S. Eubanks II
William S. Eubanks II
(admitted Pro hac vice)
(No. 93342)
Meyer Glitzenstein & Crystal
1601 Connecticut Avenue, NW
Suite 700
Washington, DC 20009
(202) 588-5206
(202) 588-5049 (fax)
beubanks@meyerglitz.com

/s/ Eric R. Glitzenstein
Eric R. Glitzenstein
(admitted Pro hac vice)
(No. 93343)
Meyer Glitzenstein & Crystal
1601 Connecticut Avenue, NW
Suite 700
Washington, DC 20009
(202) 588-5206
(202) 588-5049 (fax)
eglitzenstein@meyerglitz.com

/s/ William K. Meyer
William K. Meyer
(Federal Bar No. 01214)
Zuckerman Spaeder LLP
100 East Pratt Street, Suite 2440
Baltimore, MD 21202
(410) 332-1240
(410) 659-0436 (fax)
wmeyer@zuckerman.com

Download File(s):
Motion for Preliminary Injunction and Supporting Memorandum.pdf (426.82 kB)
Affidavit of Thomas H. Kunz, Ph.D..pdf (75.64 kB)
Affidavit of Michael R. Gannon, Ph.D..pdf (132.53 kB)
Affidavit of Lynn W. Robbins, Ph.D..pdf (328.66 kB)
AWI_LawSuit_WV.pdf (90.77 kB)