A U.S. Magistrate Judge in Maine Federal District Court issued a recommended decision yesterday denying all claims in a suit brought by opponents of TransCanada’s Sisk Mountain wind power project. Plaintiff Friends of the Boundary Mountains had challenged the U.S. Army Corps’ issuance of the project’s Clean Water Act Section 404 permit, claiming, among other things, that the permit issuance violated the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act (BGEPA) because the project was likely to result in take under those statutes.
U.S. Magistrate Judge John C. Nivison disagreed, recommending that the Court grant summary judgment in favor of the Army Corps and TransCanada on all counts. With respect to the MBTA, the Court found that, “Given the attenuated relationship between the Corps’ permitting process and any potential harm to migratory birds, not surprisingly, Plaintiff does not offer any persuasive precedent to support its attempt for private-party enforcement of the MBTA.” Friends of the Boundary Mountains v. U.S. Army Corps of Eng’rs, No. 12-357, at 12 (D. Me. April 23, 2014). The Court also found that several recent decisions by other federal district courts denying similar claims persuasively supported “the conclusion that a take permit was not required prior to the Corps’ issuance of the Section 404 permit, both in relation to the MBTA take permits and [BGEPA] take permits.” Id.at n.6. Magistrate Judge Nivison went even further to state that, because the MBTA and BGEPA do not contain citizen suit provisions, the plaintiff could not pursue independent claims against the Army Corps under those statutes, which are administered by the U.S. Fish and Wildlife Service and not by the Army Corps. Id. at 11-15.