UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
AMERICAN BIRD CONSERVANCY
BLACK SWAMP BIRD OBSERVATORY
LISA S. DISBROW, Acting Secretary of the U.S. Air Force;
COLONEL ANDY STEPHAN, Ohio Air National Guard;
JIM KURTH, Acting Director, U.S. Fish and Wildlife Service; and
RYAN ZINKE, Secretary of the U.S. Department of the Interior,
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
1. Plaintiffs challenge the proposed installation and operation by the Ohio Air National Guard (“ANG”), a reserve component of the United States Air Force, of a wind turbine at Camp Perry, a training facility in Port Clinton, Ohio, on the shore of Lake Erie and adjacent to the Ottawa National Wildlife Refuge. ANG is aware that the proposed turbine is sited in a major bird migration corridor, is located in close proximity to numerous bald eagle nests, and is likely to kill species protected under the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-1544. Indeed, ANG has declared that the purpose of building the turbine is to study its impacts on avian (and bat) mortality.
2. ANG has violated, and the operation of the wind turbine will violate, the ESA. The existing violation occurred when ANG constructed the foundation for the wind turbine before completing its ESA-required consultation with the Fish and Wildlife Service (“FWS”), and before FWS had issued its ESA-required Biological Opinion (“BiOp”) concerning the operation of the turbine. See 16 U.S.C. § 1536(d) (forbidding “irreversible or irretrievable commitment of resources,” such as construction, before consultation).
3. The BiOp itself, on which ANG intends to proceed in constructing and operating the turbine, fails to comport with the ESA and its implementing regulations because it analyzes the anticipated “take” by the turbine of protected species in isolation and without regard to the effect of any other take that has previously been authorized by the FWS, and because it fails to take into account a recent FWS radar study showing that vast numbers of birds move through the Camp Perry area within the rotor sweep range of the wind turbine, thus greatly increasing the probability of collisions.
4. Although ANG is aware that the turbine will kill birds – indeed, is building the turbine to study the resulting avian mortality – it has not sought a permit under the Migratory Bird Treaty Act (“MBTA”), 16 U.S.C. §§ 703-712, which prohibits the unpermitted killing of migratory birds, and therefore operation of the turbine will violate that Act.
5. Although ANG is aware that the turbine will kill birds, and specifically threatens ESA-listed species and federally protected eagles, ANG has not prepared an environmental impact statement as required under the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370h, nor sought a permit under the Bald and Golden Eagle Protection Act (“BGEPA”), 16 U.S.C. §§ 668-668d. Hence construction and operation of the wind turbine will violate these statutes as well.