RENEWABLE ENERGY:

Tribes lead fight against eagle 'take' permits for wind farms

American Indian tribes have emerged as vocal opponents of an Obama administration plan to allow wind farms to harm or kill a limited number of eagles.

From the Osage Nation of northern Oklahoma to the Hopi Tribe of Arizona, tribes are urging the Fish and Wildlife Service to abandon plans to permit wind farms to "take" bald or golden eagles, which many tribes regard as culturally or spiritually significant.

In May, the National Congress of American Indians, the oldest and largest national organization of tribal governments, along with attorneys representing Osage Nation and 20 Arizona tribes, met with the White House to discuss the agency's eagle take rules, according to a meeting notice posted this week.

One month later, NCAI passed a resolution accusing the administration of failing to meaningfully consult with tribes as it pursues a rule to lengthen eagle take permits for wind farms from five to 30 years. The resolution said eagle permits should not be issued without the consent of affected tribes.

"Eagles, their populations, nests, migration areas, and other activities must be protected to ensure the longevity of the species and preserve tribal cultural, religious, and spiritual practices," the resolution signed by NCAI President Jefferson Keel says. "... Authorizing the killing of eagles on tribal lands and extending eagle kill permits by 25 years are major federal policy decisions that jeopardize the vitality of eagle populations and threaten tribal religions and cultures that depend on them."

Tribal opposition signals another front in the battle over how to expand carbon-free, renewable wind power without jeopardizing sensitive species, their habitats and cultural resources.

While eagles are protected from being harmed or killed under the Bald and Golden Eagle Protection Act, FWS since 2009 has allowed developers to apply for five-year eagle take permits as long as strict avoidance and mitigation steps have been taken and overall harm to eagles will not reduce the local population.

The agency is expected to soon extend those permits to 30 years, a move backed by the wind industry but strongly opposed by tribal and environmental groups.

The 30-year permits are designed to offer regulatory certainty for wind developers, whose wind farms operate at least that long, and make eagle rules consistent with those for threatened and endangered species, for which FWS already issues take permits for up to 100 years, FWS Director Dan Ashe said.

Moreover, permits would require companies to agree to adaptive management measures that could trigger additional mitigation if impacts to eagles exceed expectations or if new scientific information suggests additional protection is necessary.

But environmental groups say FWS lacks sufficient experience issuing eagle take permits -- for example, it has yet to issue any five-year permits -- to accurately predict impacts and effective mitigation measures over a 30-year period.

Tribes are emerging as key allies in the environmental fight.

For example, the Hopi, who believe their clan ancestors return to them in the form of eagle nestlings, are one of dozens of tribes that opposed the eagle rule in official comments to FWS last summer.

"It is no exaggeration to suggest that the Hopi Tribe's ancient religious practices would deteriorate and perhaps cease altogether without golden eagles," LeRoy Shingoitewa, the tribe's chairman, wrote the agency.

He said the agency had acknowledged it has "relatively little information on the impacts of wind energy on eagles" but still expects to issue as many as 1,000 30-year take permits over the next 30 years. The agency has budgeted too little time and resources to visit wind facilities to monitor eagle impacts, he said.

But many tribal advocates remain supportive of wind power, arguing the alternatives to renewable energy are a warming planet and increased species die-offs.

Bob Gough, secretary of the Intertribal Council on Utility Policy, which includes representatives of about 10 tribes in the northern Great Plains and advocates for tribally owned large-scale wind projects, said he is saddened by the number of eagles killed by turbines but is not surprised given the growing populations of bald eagles and relatively steady populations of golden eagles.

"I would also like to see consideration of how the species population numbers look with mounting impacts of continued CO2 emissions into the future," Gough said. "Life is full of trade-offs. Examining only part of one side of the scale doesn't give you a balanced understanding of what is actually happening."

Tribes feel 'blown off'

Still, many tribes say they've been ignored in the FWS rulemaking process and fear they will have little influence in future permitting decisions, said Susan Montgomery, an attorney who represents the Inter Tribal Council of Arizona, which includes 20 of the state's 22 tribes, including the Hopi.

"The service has blatantly blown off tribal interest on this," Montgomery said. "If you're not at the table, you're on the menu."

The perceived lack of interest "fosters a relationship of distrust" and has discouraged tribes from sharing traditional ecological knowledge that could help the wind industry better site projects, the council said in comments to FWS.

Moreover, pushing the rule without conducting a full environmental review could run afoul of the National Environmental Policy Act, Montgomery said.

Permits for wind developers could also jeopardize tribes' ability to obtain their own take permits for ceremonial rituals, Montgomery said.

For several years, FWS has granted the Hopi Tribe annual permits to take up to 40 golden eagles a year for religious purposes. After raising the baby eaglets, the Hopi sacrifice them and give their feathers to other tribal members.

FWS last year also for the first time authorized the Northern Arapaho Tribe of the Wind River Reservation in Wyoming to take up to two bald eagles (Greenwire, March 14, 2012). Normally, the agency lets tribes draw eagle parts from a repository of deceased birds.

Few tribes have registered stronger opposition to allowing wind farms to take eagles than Osage Nation, where tribal officials are vigorously opposing a St. Louis-based wind developer's plans to erect 94 turbines on private lands near what the tribe says are key nesting grounds.

FWS is mulling a permit that would allow the Osage County Wind Energy Project to kill up to three eagles annually, or roughly 120 over the project's lifetime.

"It's very disturbing when you start looking at the numbers," said Osage Nation Assistant Chief Scott BigHorse. "Who is monitoring it and who is turning in these numbers?"

The developer, Wind Capital Group, has told FWS it wants to start construction by the end of the year in order to qualify for a lucrative production tax credit set to expire in December. The Associated Electric Cooperative Inc. of Springfield, Mo., has agreed to buy the power.

"The millions and billions in federal tax incentives, that's the big rush to get these things up and going," he said.

BigHorse said he was unaware the company had applied for the eagle permit until he was notified by his attorney, Ian Shavitz. BigHorse told the Tulsa World he fears the tribe is being used as a "guinea pig" and will become the first to have an "eagle-kill permit in their backyard."

But the Osage Nation's concerns over the project transcend eagles. The tribe in 2011 sued the company, arguing the turbines, foundations, collector lines, transmission lines and substation would hamper its ability to lease and develop its oil and gas reserves, which are worth an estimated $4 billion.

Oil and gas companies have shown increased interest in the tribe's 1.5 million acres of mineral estate, particularly with the recent advancements in horizontal drilling and hydraulic fracturing.

But a federal district judge rejected the suit in December 2011, noting that the wind project's estimated footprint is only 1.5 percent of the 8,500 acres the developer has under lease. Most of those lands are unoccupied or used for livestock grazing and wouldn't conflict with the tribe's mineral dealings, the judge said.

Wind-related eagle deaths 'not a common occurrence' -- industry

Tribal advocates say issuing an eagle permit absent the Osage tribe's consent would set a dangerous precedent that could threaten tribal customs and sovereignty nationwide.

"While an extreme example of pursuing energy projects against the wishes of local tribes, the situation on Osage is not an isolated case," NCAI said in a May 3 letter to Ashe. "We are aware of other wind farm proposals -- including one in eastern North Carolina near the Pocosin Lakes Wildlife Refuge -- that could kill dozens of eagles a year. These numbers are shocking and unacceptable."

NCAI urged the agency not to issue permits until it has held preliminary discussions with tribal governments, religious and spiritual leaders, and conservation and environmental experts.

FWS and Wind Capital Group met with Osage leaders yesterday to discuss their concerns over the eagle permit and potential surface impacts to culturally significant tribal campsites and burials. Shavitz said the tribe has met four times with the administration to discuss the project.

Neither FWS nor the company provided comment for this article.

A spokesman for Wind Capital provided a link to the company's website, which states that the 150-megawatt project west of Pawhuska enjoys strong government and community support and is expected to generate more than $30 million in property taxes and $1.5 million in local business activity over its lifetime. It will also bring 250 construction jobs and up to 15 permanent jobs.

Jerry Thompson, FWS's chief of the Southwest Region Migratory Birds Permits Office, earlier this month told the Tulsa World the agency was still steadily working through the consultation process and survey of cultural resources.

The wind industry argues that it has taken significant steps to avoid and mitigate harm to eagles and that mortality from turbines is "far lower" than from other leading causes including lead poisoning, electrocutions from power lines, vehicle collisions, drowning in stock tanks and illegal shootings.

John Anderson, director of siting policy for the American Wind Energy Association, said earlier this week that wind developers are actively engaged with regulators and conservationists to avoid, minimize and mitigate impacts to eagles.

"No one takes wildlife impacts more seriously than the wind industry," Anderson said in an email. "While some eagles occasionally collide with turbines at some wind farms, this is not a common occurrence, with fatalities of golden eagles at modern wind facilities only representing 2 percent of all documented sources of human-caused fatalities and only a few bald eagles in the history of the industry."

Moreover, wind energy is seen as a key cog in President Obama's pledge to lower greenhouse gas emissions and slow global climate change, which could wreak permanent havoc on a wide range of avian species.

Still, the administration is under intense pressure from conservationists and tribes to judiciously site and design wind farms to minimize harm to eagles, a key bird of prey.

A report published this month by FWS scientists found that wind farms have killed at least 85 eagles in the past 15 years, with 80 percent of those deaths coming in the last four years as the wind industry expands (E&ENews PM, Sept. 11).

And that study did not include eagle deaths from the Altamont Pass Wind Resource Area in California, where previous studies have estimated that as many as 75 eagles have been killed annually.

Click here to see the NCAI letter.

Click here to see the ITCA comments.

Click here to see the Hopi comments.

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