The Animal Welfare Institute, Mountain Communities for Responsible Energy, and others submitted this pretrial brief and supporting reply briefs in their law suit opposing the Beech Ridge wind energy facility to be located in Greenbrier County, West Virginia. These briefs show that the developer, Beech Ridge Energy LLC, discovered the presence of the federally endangered Indiana Bat at the project site but withheld this information from federal and state authorities. With this information hidden from public inspection, the project was granted a siting certificate from the West Virginia Public Service Commission to construct up to 124 wind turbines, each 390 feet tall, along a twenty-three mile stretch of land on forested Allegheny Mountain ridgelines. Construction commence in early 2009 but a subsequent injunction request was filed by the plaintiffs and granted pending the outcome of this law suit. The pre-trial brief and reply briefs by renown bat experts Drs. Lynn Robbins, Michael Gannon and Thomas Kunz can be accessed by clicking on the links below. The introduction to the reply brief is also posted below. The trial is scheduled from October 21 before the United States District Court for the District of Maryland.

Now that the Court has consolidated Plaintiffs' Motion for a Preliminary Injunction with a final trial on the merits pursuant to Fed. R. Civ. P. 65(a)(2), the sole issue remaining in this case arising under the citizen suit provision of the Endangered Species Act, 16 U.S.C. § 1540(g) ("ESA"), is whether the massive Beech Ridge project - consisting of over 120 industrial wind turbines spread out over 23 miles on multiple Appalachian ridges in Greenbrier County, West Virginia, see Plaintiffs Exhibit ("Pfs. Exh.") 15 (Defendants' depiction of "Phase 1 and 2 Turbine Layouts") - will likely kill, wound, harm, harass, or otherwise "take" any federally endangered Indiana bats during the at least two decades that the turbines will operate.

Indeed, Defendants concede that "Plaintiffs are correct that the ESA compels a curative permanent injunction to prevent a proven ESA violation at the conclusion of a case . . . ." Defendants' Memorandum ("Def. Mem.") at 19 (bold added; italics in original) (citing Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978)). Accordingly, all of the arguments in the parties' earlier memoranda pertaining to the balance of equities and the correct standard for crafting preliminary equitable relief have no relevance to the Court's resolution of the case at this stage. Rather, if the Court concludes that an ESA violation has or will result from Defendants' activities on the site, appropriate injunctive relief must be fashioned; at the very least, the Court should enjoin further construction and turbine operation until Defendants pursue the permitting process that Congress mandated for all activities that entail "incidental take" of listed species, i.e., the process embodied in section 10 of the ESA for "minimiz[ing] and mitigat[ing] such impacts,"16 U.S.C. § 1539(a)(2)(A)(ii), and that has been and is being followed by other wind power companies, including for the precise purpose of addressing impacts to Indiana bats.

As for the Court's resolution of the merits, it is important to stress at the outset what, in view of the discovery taken to date, appears to be undisputed by Defendants and their experts:

• that Defendants' own consultant - BHE Environmental ("BHE") - has predicted that more than 135,000 bats would be killed by the turbines, through a combination of direct impacts with the turbine blades and barotrauma, see Deposition of Russ Romme at 104:1-8 (Pfs. Exh.
16);

• that this huge number of bat fatalities would be one of the largest, if not the largest, of any operating wind power project in the country, Romme Dep. at 105:6-9 (Q: "[D]o you know of any project with a higher mortality rate than this one per year?" A: "I don't think so.");

• that such deaths will likely include other "myotis" species - the taxonomic group that includes Indiana bats - including such species that have been captured on the Beech Ridge site and that resemble the Indiana bat and share similar ecological characteristics, Romme Dep. at 51:1-14, 53:7-11, 129:4-10; Deposition of Michael Lacki, Ph.D (Pfs. Exh. 17) at
43:10-25;

• that other wind power projects built on Appalachian ridges - including the "Mountaineer" facility in West Virginia, which is close geographically to the Beech Ridge project - have had far higher rates of bat mortality than wind power projects located in other parts of the country, and that the available data reflect that Appalachian projects have killed higher percentages of myotis species than elsewhere in the country, Romme Dep. at 107:9-19; Deposition of Karen Tyrell, Ph.D (Pfs. Exh. 18) at 170:19-171:2;

• that hundreds of Indiana bats presently hibernate in caves within ten miles of the project site - including some that are less than seven miles from turbine locations - and that there are no currently operating wind power projects closer to known Indiana bat hibernacula, Tyrell Dep. at 196:24-197:10;

• that Indiana bats can and do migrate between summer roosting and foraging habitat much further than the distance between the hibernacula and the project site, Lacki Dep. at 107:15-108:3;

• that there is in fact "suitable" Indiana bat habitat on the project site itself, as confirmed by the parties' site inspection, Romme Dep. at 181:12-14;

• that the overwhelming majority of bat kills associated with other wind power projects - including at Mountaineer and other projects located on Appalachian ridges - have occurred during the fall migration period, when bats are returning to hibernacula from their summer roosting and foraging sites, Lacki Dep. at 114:2-7; Tyrell Dep. at 173:21-174:6;

• that the 23 miles of Beech Ridge turbines will be physically located between known Indiana bat hibernacula to the south and east of the project and known Indiana summer foraging and roosting habitat to the west and north of the project. See Pfs. Exh. 19 (September 2009 map generated by BHE, based on data from the West Virginia Division of Natural Resources ("WV DNR"), reflecting known Indiana bat summer and winter occurrences); Romme Dep. at 178:15-179:2; and

• that Defendants performed no surveys whatsoever regarding Indiana bat - or, for that matter, any other bat - use of the site during the crucial Fall migration period, Romme Dep. at 117:17-20, 191:1-18, although both the United States Fish and Wildlife Service ("FWS") and WV DNR sent BHE letters urging that such surveys be performed.

Nonetheless, Defendants maintain that, notwithstanding the hundreds of thousands of anticipated bat mortalities associated with the project that will concededly afflict other bat species that reside in the project area, endangered Indiana bats will, miraculously, somehow manage to escape entirely unscathed during the entire life of the project. That counterintuitive proposition - which has been rebutted in detail by several of the nation's leading bat experts who are testifying for Plaintiffs, see attached rebuttal declarations of Drs. Kunz, Robbins, and Gannon, as well as by the chief bat biologist for the West Virginia Division of Natural Resources, who is aligned with neither party but who has nonetheless testified that the project will likely kill many Indiana bats, see Deposition of Craig Stihler (Pfs. Exh. 20) at 83:11-85:22 - rests largely on two factual premises, both of which have now been discredited by discovery taken to date.

First and foremost, Defendants assert that Indiana bats are unlikely to be killed, injured, or otherwise taken because Indiana bats have never been detected on the project site itself. See Def. Mem. at 1 (Plaintiffs "have not demonstrated that endangered Indiana bats are present at the Project site"); id. at 21 ("Plaintiffs have not shown presence of Indiana bats at the project"); id. at 14 n. 11 ("‘surveys did not detect any Indiana bat presence in the Project area'") (internal citation omitted).

As explained further below, even if it were true that Indiana bats were never detected on the site itself during surveys designed solely to assess summer presence of the species - which are the only on-site surveys Defendants have ever conducted - it would in no way mean that Indiana bats will not be killed, injured, or harassed as they attempt to fly through the project site during their annual migrations to and from winter hibernacula in close proximity to the project site. See infra at 21-24.

In any event, Defendants' factual assertion is wrong.

Thus, although Defendants represented to the Court - including in a sworn Declaration submitted by Defendants' consultant - that no "acoustic studies" for Indiana bat presence were completed at the project site, see Def. Mem. at 14 n. 11; Declaration of Russ Romme (Def. Exh. 3) at ¶ 11 (stating that "acoustic surveys were not completed" at the project site), discovery has uncovered that several such surveys were in fact completed at the same time that mist net surveying was undertaken on the project site in July 2005. Accordingly, as Defendants now admit, a subcontractor hired by BHE did collect "ultrasound" data that is used to detect and record bat calls - using a standard technology called "AnaBat" - "during our 2005 mist net survey of the turbine string area at the Beech Ridge project site." September 8, 2009 Supplemental Declaration of Russ Romme ("Romme Supp. Decl.") (Pfs. Exh. 21) at ¶ 2. Remarkably, however, Defendants contend that this acoustic data simply sat in BHE's file, unanalyzed and hidden from federal or state authorities, for four years; indeed, but for Plaintiffs' document production request for any acoustic studies performed at the project site, these data would evidently never have been unearthed and analyzed for Indiana bat presence. Id.

Most important, two of Plaintiffs' experts, Drs. Robbins and Gannon - who have extensive expertise in analyzing such acoustic data and AnaBat files in particular - have now analyzed these long-hidden files and have determined, with an extremely high degree of scientific probability, that they do indeed record Indiana bat presence on the project site itself. See Rebuttal Declaration of Lynn W. Robbins, Ph.D ("Robbins Rebuttal") (Pfs. Exh. 23) at ¶ 9 ("there is a statistical probability of approximately 97% that Indiana bats were present on the site during the survey") (emphasis added); see also Rebuttal Declaration of Michael R. Gannon, Ph.D. ("Gannon Rebuttal") (Pfs. Exh. 24) at ¶ 15 ("Based on analysis of those files, I identified multiple Indiana bat calls, indicating presence of Indiana bats on these two mist sites in July 2005.").

Second, in addition to erroneously asserting that there was no evidence of Indiana bat use of the turbine site, Defendants also relied heavily on the factual assertion that "there has been no history of an Indiana bat kill at any wind energy facility" presently in operation. Def. Mem. at 33. Once again, even if correct, that assertion would have little bearing on Plaintiffs' claims in this case, which involves a massive project in closer proximity to a "larger concentration of Indiana bats" than any other projects now in operation. Stihler Dep. at 58:9-59:11 (explaining why the FWS and WV DNR had both found an "increased risk" of Indiana bat mortality at Beech Ridge "when compared to other projects" already in operation); Rebuttal Declaration of Thomas H. Kunz, Ph.D. ("Kunz Rebuttal") (Pfs. Exh. 26) at ¶ 9 ("the Beech Ridge project presents a higher risk to Indiana bats than any existing wind facilities (for example, there are more hibernating Indiana bats within ten miles of the Beech Ridge project than at Mountaineer, Indiana bats are at closer distances to turbines here than at Mountaineer, and there are three times as many mortality-causing turbines here than at Mountaineer.")).

In any event, Defendants' assertion that an Indiana bat has never been killed at any existing wind power project contradicts the views of both federal and state authorities (and Plaintiffs' experts), all of whom believe that Indiana bats likely have been killed at operating wind power facilities, but that such deaths have, to date, gone either undiscovered or unreported. See 6/30/09 Letter from FWS regarding Liberty Gap Wind Force project (Pfs. Exh. 25) at 2 ("the number of bats killed [at the Mountaineer project] shows a high likelihood that endangered bats are also likely to be killed," although it is "very difficult to find bat carcasses on the ground" and there is "currently no monitoring [for bat mortalities] at the Mountaineer wind power facility"); Stihler Dep.at 74:10-21 (agreeing with FWS that there are likely Indiana bat deaths at Mountaineer that are "not being found" and that there is "no biological reason" why Indiana bats would not be "impacted similarly" to other bats killed at wind power projects). Indeed, Plaintiffs' third party subpoena to the company that operates the Mountaineer project - on which BHE relied to make mortality predictions for Beech Ridge - yielded an internal "incident report" suggesting that a carcass of a bat killed by a turbine was that of an Indiana bat. See Pfs. Exh. 27.

In sum, the central factual premises underlying Defendants' inherently implausible argument that Indiana bats will somehow avoid the fate of the other bat species in the project area have now been discredited by discovery and dissected by leading bad experts, including the head bat biologist for the State of West Virginia. However, before delving more deeply into why Plaintiffs should prevail on the factual record before the Court, it is first important to elaborate on the appropriate legal framework for assessing Plaintiffs' ESA claims, particularly because Defendants have also painted a seriously erroneous picture of the pertinent legal principles.

Download File(s):
37 - Plaintiffs' Reply and Pretrial Brief.pdf (323.55 kB)
37-11 Exhibit 23_Robbins.pdf (114.27 kB)
37-12 Exhibit 24_Gannon.pdf (248.41 kB)
37-14 Exhibit 26_Kunz.pdf (100.6 kB)