Animal Welfare Institute et al v. Beech Ridge Energy LLC et al

Filing 101

MODIFICATION OF STIPULATION. Signed by Judge Roger W Titus on 03/14/2013. (bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
GREENBELT DIVISION

ANIMAL WELFARE INSTITUTE,

et aI.,

Plaintiffs,

v.
BEECH RIDGE ENERGY LLC, et al.,
Defendants.

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Civil Action
No.: 09-cv-01519

(RWT)

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MODIFICATION OF STIPULATION

WHEREAS,

on January 26, 2010, the Court entered as an Order the joint Stipulation of the

WHEREAS,

on November

parties;
15,2011, the Court entered a Modification

of Stipulation, requested

jointly by the parties;
WHEREAS,

Paragraph 15 of the Stipulation provides that "[ i]n the event either party believes

that the terms of this Stipulation should be modified based on new circumstances
the party seeking such modification

will provide written notice to below-signed

or any other factors,
counsel for the opposing

parties. If the parties cannot agree within 30 days following receipt of such notice to seek joint
modification
relief.";

of the Stipulation, the party seeking modification

may petition the Court for appropriate

WHEREAS, on February 16, 2012, the Court entered a second Modification of Stipulation
(“2012 Modification”), requested jointly by the parties, which substituted a new Paragraph 2 of the
Stipulation; and
WHEREAS, the parties believe that the circumstances and other factors in place at the time of
the 2012 Modification continue in effect and justify extension of the 2012 Modification of the
Stipulation, in its entirety;
THEREFORE, the parties hereby stipulate as follows, subject to the approval and entry of an
Order by the Court, that Paragraph 2 of the Stipulation will be replaced with the following Paragraph 2:
2.
Pending receipt of an ITP, Defendants may operate the 40 turbines the
construction of which was permitted by the December 8, 2009 Mem. Op. and Order, the 17
turbines authorized in Paragraph 3 of this Stipulation, and the 10 turbines authorized in
Paragraph 4 of this Stipulation, during both the daylight and nighttime hours of the Indiana bat
hibernation period (i.e., from November 16 to March 31 of each year). From April 1 to
November 15 of each year, the turbines may operate during daylight hours (i.e., between onequarter hour after sunrise and one-half hour before sunset, utilizing an agreed-upon published
source for such times). From April 1 to November 15, 2013, the turbines may operate during
nighttime hours, with cut-in speeds of 6.9 meters per second (i.e., between one-half hour prior to
sunset until one-quarter hour after sunrise). At all times of the year, and during all hours of the
day and night, Defendants will feather turbine blades so there is only minimal rotation (<2 rpm)
at winds below cut-in speeds. Defendants will engage in the following adaptive management
regime to monitor Project operations from April 1 to November 15, 2013:
a.
Defendants will retain a qualified biologist to search all operating turbines
every two days for bat carcasses. Before commencing with the new operation scheme,
carcass searches, or carcass removal trials, Defendants will provide Plaintiffs with the
names and affiliations of all qualified biologists that Defendants plan to involve in
carcass searches and/or the carcass removal trials, so that Plaintiffs can timely raise any
concerns they might have with specific individuals before such activities commence.
b.
Defendants will conduct a carcass removal study prior to April 1, 2012, or
as soon as weather permits, to determine carcass removal rates in the Project area.
Defendants will adjust the search interval period if FWS determines it is necessary to do
so in order to ensure that a sufficient opportunity exists to detect Indiana bat take.
c.
Defendants will conduct removal trials throughout the April 1 through
November 15, 2013, intensive monitoring period to monitor carcass removal rates, and
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Defendants will adjust the search interval if necessary to ensure that there is a sufficient
opportunity to detect Indiana bat take.
d.
Defendants will share results from carcass removal trials with FWS and
Plaintiffs, and discuss with FWS any proposed adjustments to search intervals if FWS
determines that more protective measures, such as a shortened search interval, are
necessary.
e.
Defendants will provide FWS and Plaintiffs with monthly monitoring
reports from April 1 through November 15, 2013, identifying the approximate date,
location, time, and species of any bat mortality occurring during the preceding month.
The first monitoring report will be due on May 15, 2013, for the period of April 1
through April 30, with subsequent reports due on the 15th of each month for the preceding
month.
f.
Defendants will notify FWS and Plaintiffs within 24 hours of suspected
identification of any endangered or threatened species injury or fatality.
g.
All carcasses of the myotis genus will be preserved using industry
protocols and provided to a qualified bat biologist at FWS or the West Virginia Division
of Natural Resources (“WVDNR”) for independent identification.
h.
If, under the process outlined in Paragraph 2(g), FWS or WVDNR
determines that an ESA-listed species has been killed or otherwise taken due to project
operation, Defendants will cease all nighttime turbine operations from one-half hour prior
to sunset until one-quarter hour after sunrise during the period of April 1 to November
15, 2013, until an ITP is issued.
i.
Defendants will provide weekly reports to Plaintiffs verifying that all
turbines operating during nighttime hours from April 1 to November 15, 2013 are
operating at a cut-in speed of at least 6.9 meters per second.
j.
Within thirty (30) days from the entry of a modified stipulation by the
Court consistent with the terms identified above, Defendants will contribute $10,000 to
Bat Conservation International, Inc. (“BCI”) for the purpose of conducting scientific
research to facilitate an increased understanding of White Nose Syndrome (“WNS”) and
its impacts on bat species.
i.
If Defendants have not received a final ITP by May 15, 2013,
Defendants will contribute an additional $5,000 to BCI by June 15, 2013 for the
purpose of conducting scientific research to facilitate an increased understanding
of WNS and its impacts on bat species.
ii.
If Defendants have not received a final ITP by July 1, 2013,
Defendants will contribute an additional $5,000 to BCI by August 1, 2013, for the

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purpose of conducting scientific research to facilitate an increased understanding
of WNS and its impacts on bat species.

Upon issuance of a final ITP, Defendants will implement the terms and conditions of the ITP and
HCP, including operational requirements and monitoring protocols.

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Respectfully submitted,
By: _/s/___________________
R. James Mitchell
Bar No. 017752
K&L GATES, LLP
1601 K St. NW
Washington, DC 20006-1600
Ph: 202.778.9000
Fax: [phone]
[e-mail]
Attorneys for Defendants

By: _/s/___________________
R. James Mitchell, Esq.
(signed by R. James Mitchell with permission of
William S. Eubanks II)
William S. Eubanks II (admitted pro hac vice)
Eric R. Glitzenstein (admitted pro hac vice)
MEYER GLITZENSTEIN & CRYSTAL
1601 Connecticut Avenue NW, Suite 700
Washington, DC 20009
Ph: 202.588.5206
Fax: [phone]
[e-mail]
[e-mail]
William K. Meyer
(Federal Bar No. 01214)
Zuckerman Spaeder LLP
100 East Pratt Street, Suite 2440
Baltimore, MD 21202
Ph: 410.332.1240
Fax: [phone]
[e-mail]

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Logan Hollers
Animal Welfare Institute
900 Pennsylvania Avenue, S.E.
Washington D.C. 20003
Ph: 202.446.2148
Fax: [phone]
[e-mail]
Attorneys/or Plaintiffs

So Ordered:

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U.S. Distnct Judge
Dated this ~day
of

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,2013

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