Animal Welfare Institute v. Beech Ridge Energy LLC

MEMORANDUM OPINION

TABLE OF CONTENTS

I. The Endangered Species Act 543

*542 II. The Indiana Bat.........................................................545

III. Wind Turbines and Bat Mortality.........................................547

IV. The Beech Ridge Project.................................................548

V. The Beech Ridge Project Development History and Environmental Studies ...............................................................549

VI. Evidence Developed During Discovery.....................................557

VII. Jurisdiction.............................................................559

VIII. Wholly-Future Violations Under the ESA.................................560

IX. Requisite Degree of Certainty Under the ESA..............................561

X. Factual Questions and Credibility of Trial Witnesses.......................564

XI. Presence of Indiana Bats at the Beech Ridge Project Site...................567

A. Hibernacula........................................................567

B. Physical Characteristics of the Beech Ridge Project Site...............568

C. Mist-Net Surveys....................................................570

D. Acoustic Data.......................................................570

E. Indiana Bats are Present at the Beech Ridge Project Site...............575

XII. Likelihood of a Take of Indiana Bats at the Beech Ridge Project Site.....576

XIII. Effectiveness of Discretionary Post-Construction Adaptive Management Techniques............................................................579

XIV. Injunctive Relief.........................................................580

XV. Conclusion..............................................................581

CALVIN: My report is on bats____ Ahem ... “Dusk! With a creepy, tingling sensation, you hear the fluttering of leathery wings! Bats! With glowing red eyes and glistening fangs, these unspeakable giant bugs drop onto ...”

Bill Watterson, Scientific Progress Goes “Boink”: A Calvin and Hobbes Collection 26 (Andrews and MeMeel 1991) (explaining that “Bats aren’t bugs!”).

This is a case about bats, wind turbines, and two federal polices, one favoring protection of endangered species and the other encouraging development of renewable energy resources. It began on June 10, 2009, when Plaintiffs Animal Welfare Institute (“AWI”), Mountain Communities for Responsible Energy (“MORE”), and David G. Cowan (collectively, “Plaintiffs”) brought an action seeking declaratory and injunctive relief against Defendants Beech Ridge Energy LLC (“Beech Ridge Energy”) and Invenergy Wind LLC (“Invenergy”) (collectively, “Defendants”). Plaintiffs allege that Defendants’ construction and future operation of the Beech Ridge wind energy project (“Beech Ridge Project”), located in Greenbrier County, West Virginia, will “take” endangered Indiana bats, in violation of § 9 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1538(a)(1)(B).

One month after this action was initiated, Defendants filed an answer and brought a counterclaim for costs. The next day, Plaintiffs filed a motion for a preliminary injunction and Defendants thereafter filed an opposition. On July 14, *543 2009, the Court conducted a telephone status conference with the parties and set a hearing on the preliminary injunction motion for August 11, 2009, but requested that the parties advise the Court by August 4, 2009 whether they would consent to treat the hearing as one on the merits, pursuant to Federal Rule of Civil Procedure 65(a)(2). On July 30, 2009, with consent of the parties, the Court consolidated the preliminary injunction hearing with a trial on the merits, rescheduled the hearing for October 21, 2009 and set an accelerated discovery and briefing schedule. 1 Defendants agreed to continue construction on only 40 of the 124 planned turbines, pending a disposition of the merits. The Court held a four-day tidal on October 21-23, and 29, 2009.

I. The Endangered Species Act

Congress enacted the ESA in 1973 in response to growing concern over the extinction of animal and plant species. See Gibbs v. Babbitt, 214 F.3d 483, 487 (4th Cir.2000). The text of the Act as well as its legislative history unequivocally demonstrate that Congress intended that protection of endangered species be afforded the highest level of importance. Congress concluded that threatened and endangered species “are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people.” 16 U.S.C. § 1531(a)(3). Accordingly, Congress passed the ESA “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of [certain enumerated] treaties and conventions” signed by the United States. 16 U.S.C. § 1531(b).

Not long after the passage of the Act, the Supreme Court in Tennessee Valley Authority v. Hill proclaimed that the ESA represented “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (enjoining the Tennessee Valley Authority from completing the Tellieo Dam because creation of the reservoir would destroy the critical habitat of the snail darter, a three-inch long endangered fish). Chief Justice Burger, writing for the majority, observed that “examination of the language, history, and structure of the legislation under review here indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities,” id. at 174, 98 S.Ct. 2279, and that Congress’ purpose “was to halt and reverse the trend toward species extinction, whatever the cost,” id. at 184, 98 S.Ct. 2279. More recently, the Fourth Circuit has similarly opined that the “overall federal scheme [of the ESA is] to protect, preserve, and rehabilitate endangered species, thereby conserving valuable wildlife resources important to the welfare of our country.” Gibbs, 214 F.3d at 492 (upholding the constitutionality of a regulation that limited the taking of red wolves on private land).

Section 9 of the ESA, the cornerstone of the Act, makes it unlawful for any person to “take any [endangered] species within the United States.” 16 U.S.C. § 1538(a)(1)(B). The ESA defines the term “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19).

*544 The U.S. Fish and Wildlife Service (“FWS” or the “Service”) has passed regulations implementing the ESA that further refine what activities constitute an impermissible “take.” The regulations define the term “harass” as:

an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.

50 C.F.R. § 17.3. The regulations also define the term “harm” as:

an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.

Id. In 1981, the FWS added to its definition of the term “harm” the “word ‘actually’ before the words ‘kills or injures’ ... to clarify that a standard of actual, adverse effects applies to section 9 takings.” 46 Fed.Reg. 54,748, 54,750 (Nov. 4, 1981). See also Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 703, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (rejecting a facial challenge to invalidate the regulation and concluding that the Secretary’s definition of harm to include habitat modification was consistent with “Congress’ clear expression of the ESA’s broad purpose to protect endangered and threatened wildlife”).

Anyone who knowingly “takes” an endangered species in violation of § 9 is subject to significant civil and criminal penalties. 16 U.S.C. § 1540(a) (authorizing civil fines of up to $25,000 per violation); § 1540(b) (authorizing criminal fines of up to $50,000 and imprisonment for one year). In order to provide a safe harbor from these penalties, Congress amended the ESA in 1982 to establish an incidental take permit (“ITP”) process that allows a person or other entity to obtain a permit to lawfully take an endangered species, without fear of incurring civil and criminal penalties, “if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.” § 1539(a)(1)(B). Congress established this process to reduce conflicts between species threatened with extinction and economic development activities, and to encourage “creative partnerships” between public and private sectors. H.R.Rep. No. 97-835, at 30-31 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2871-72. Some wind energy companies have obtained or are in the process of pursuing ITPs. Joint Pretrial Factual Stipulations ¶ 24.

A person may seek an ITP from the FWS by filing an application that includes a Habitat Conservation Plan (“HCP”). See 16 U.S.C. 1539(a)(2)(A)(i)-(iv); see also generally 50 C.F.R. § 17.22. A HCP is designed to minimize and mitigate harmful effects of the proposed activity on endangered species. 2 Applicants must include in a HCP a description of the impacts that will likely result from the taking, proposed steps to minimize and mitigate such impacts, and alternatives considered by the applicant including reasons why these alternatives are not being pursued. 16 U.S.C. § 1539(a)(2)(A)(i)-(iv); see also 50 C.F.R. § 17.22(b). If an ITP is issued, the FWS will monitor a project for compliance with the terms and conditions of a HCP, as *545 well as the effects of the permitted action and the effectiveness of the conservation program. 65 Fed.Reg. 35,242, 35,253-56 (June 1, 2000) (emphasizing the importance of periodic reports and field visits). The FWS may suspend or revoke all or part of an ITP if the permit holder fails to comply with the conditions of the permit or the laws and regulations governing the activity. 50 C.F.R. §§ 13.27,13.28.

Congress also provided under Section 11 of the ESA that “any person” may bring a citizen suit in federal district court to enjoin anyone who is alleged to be in violation of the ESA or its implementing regulations. 16 U.S.C. § 1540(g). 3 Congress included this provision to encourage private citizens to force compliance with the Act for the benefit of the public interest. Bennett v. Spear, 520 U.S. 154, 165, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (“[T]he obvious purpose of the particular provision in question is to encourage enforcement by so-called ‘private attorneys general’ — evidenced by its elimination of the usual amount-in-controversy and diversity-of-citizenship requirements, its provision for recovery of the costs of litigation (including even expert witness fees), and its reservation to the Government of a right of first refusal to pursue the action initially and a right to intervene later.”).

The ESA’s plain language, citizen-suit provision, legislative history, and implementing regulations, as well as case law interpreting the Act, require that this Court carefully scrutinize any activity that allegedly may take endangered species where no ITP has been obtained.

II. The Indiana Bat

The FWS originally designated the Indiana bat (Myotis sodalis) as in danger of extinction in 1967 under the Endangered Species Preservation Act of 1966, the predecessor to the ESA. 32 Fed.Reg. 4,001 (Mar. 11, 1967). The species has been listed as endangered since that time. Joint Pretrial Factual Stipulations ¶ 8. The Indiana bat is in the genus Myotis and shares some morphological similarities with other Myotis species. Id. ¶ 9. It closely resembles the little brown bat (Myotis lucifugus) and the northern long-eared bat (Myotis septenrionalis). U.S. Fish and Wildlife Serv., Indiana Bat (Myotis sodalis) Draft Recovery Plan: First Revision 15 (Apr.2007) (Pis.’ Ex. 52). An Indiana bat weighs approximately one quarter of an ounce (approximately seven grams), see Joint Pretrial Factual Stipulations ¶ 9, its forearm length is 1 3/8 inches to 1 5/8 inches (35-11 millimeters), U.S. Fish and Wildlife Serv., Indiana Bat (Myotis sodalis) Draft Recovery Plan: First Revision 15 (Apr.2007) (Pis.’ Ex. 52), and its head and body length is 1 5/8 inches to 1 7/8 inches (41-49 millimeters), id.

The current range of the Indiana bat includes approximately twenty states in the mid-western and eastern United States, including West Virginia. Joint Pretrial Factual Stipulations ¶ 10. The following map, last updated November 1, 2006 and included in the current FWS Indiana Bat Draft Recovery Plan, illustrates the distribution of counties with known summer and winter records of the Indiana bat:

*546 [[Image here]]

U.S. Fish and Wildlife Serv., Indiana Bat (.Myotis sodalis) Draft Recovery Plan: First Revision 19 (Apr.2007) (Pis.’ Ex. 52). 4

The Indiana bat population has declined since it was listed as an endangered species in 1967, and was estimated by the FWS in 2007 at approximately 468,184. *547 Id. ¶ 11. However, research suggests that the West Virginia population of hibernating Indiana bats has increased since 1990, with an estimated current population of about 17,000. Id. ¶ 12. Approximately three percent of Indiana bats are located in West Virginia. U.S. Fish and Wildlife Serv., Revised 2007 Rangewide Population Estimate for the Indiana Bat, Myotis sodalist, at *1 (Oct. 15, 2008) (Defs.’ Ex. 16).

The Indiana bat is an insectivorous, migratory bat whose behavior varies depending on the season. In the fall, Indiana bats migrate to caves, called hibernacula. The bats engage in a “swarming” behavior in the vicinity of the hibernacula, which culminates in mating. Joint Pretrial Factual Stipulations ¶ 19. Indiana bats ordinarily engage in swarming within five miles of hibernacula, but may also engage in swarming beyond the five mile radius. Id. During swarming, the bats forage for insects in order to replenish their fat supplies. U.S. Fish and Wildlife Serv., Indiana Bat (Myotis sodalis) Draft Recovery Plan: First Revision 40 (Apr.2007) (Pls.’ Ex. 52). In mid-November, Indiana bats typically enter hibernation and remain in hibernacula for the duration of winter. Joint Pretrial Factual Stipulations ¶ 20.

In April and May, Indiana bats emerge from hibernation. Id. ¶ 13. After engaging in “staging,” typically within five miles of the hibernacula, they fly to summer roosting and foraging habitat. Id. ¶ 13. In the summer, female Indiana bats form maternity colonies in roost trees, where they give birth to “pups,” and raise their young. Id. ¶ 14. Studies suggest that reproductive female Indiana bats give birth to one pup each year. Id. ¶ 15. Male Indiana bats spend their summers alone or in small temporary groups in roost trees, changing roost trees and locations throughout the summer. Id. ¶ 17. Roost trees generally consist of snags, which are dead or dying trees with exfoliating bark, or living trees with peeling bark. Id. ¶ 17.

Like other bats, Indiana bats navigate by using echolocation. Trial Tr. 134:2-14, Oct. 21, 2009 (Gannon). Specifically, bats emit ultrasonic calls and determine from the echo the objects that are within their environment. See, e.g., Donald R. Griffin, Echoes of Bats and Men 84-95 (Anchor Books 1959). Call sequences are typically composed of multiple pulses. Id. at 85-87.

The FWS published the original recovery plan for the Indiana bat in 1983 and a draft revised plan in 1999. In April 2007, the FWS published the current Draft Recovery Plan. See U.S. Fish and Wildlife Serv., Indiana Bat (Myotis sodalis) Draft Recovery Plan: First Revision (Apr.2007) (Pis.’ Ex. 52). The current plan provides substantial background information regarding the behavior of the Indiana bat and the many threats that endanger the species. See id. at 7-8. The plan also sets forth a recovery program designed to protect the Indiana bat and ultimately remove it from the Federal List of Endangered and Threatened Wildlife. See id. at 8.

III. Wind Turbines and Bat Mortality

Research shows, and the parties agree, that wind energy facilities cause bat mortality and injuries through both turbine collisions and barotrauma. Joint Pretrial Factual Stipulations ¶ 21; see also U.S. Fish and Wildlife Serv., Indiana Bat (Myotis sodalis) Draft Recovery Plan: First Revision 101 (Apr.2007) (Pis.’ Ex. 52); Edward B. Arnett et al., Patterns of Bat Fatalities at Wind Energy Facilities in North America, 72 J. of Wildlife Mgmt. 61, 61-78 (2008) (Pis.’ Ex. 31). Barotrauma is damage caused to enclosed air-containing cavities (e.g., the lungs, eardrums, etc.) as a result of a rapid change in external pressure, usually from high to low. Joint Pretrial Factual Stipulations ¶ 21. The majority of bat mortalities from wind energy *548 facilities has occurred during fall dispersal and migration, but bat mortalities have also occurred in the spring and summer. Joint Pretrial Factual Stipulations ¶ 23. At the Mountaineer wind energy facility in West Virginia, which is located approximately 75 miles from the Beech Ridge Project, a post-construction mortality study resulted in an estimated annual mortality rate of 47.53 bats per turbine. Id. ¶ 22.

The construction of wind energy projects may also kill, injure, or disrupt bat behavior. For example, the cutting of trees may kill or injure roosting bats and destroy potential roosting sites. 5 See, e.g., BHE Envtl., Inc., Chiropteran Risk Assessment 31-32 (June 19, 2006) (Pls.’ Ex. 126); House v. U.S. Forest Serv., 974 F.Supp. 1022, 1032 (E.D.Ky.1997) (finding that the cutting of trees will destroy Indiana bat roosting habitat).

IV. The Beech Ridge Project

Defendant Invenergy is the fifth largest wind developer in the United States, with an aggregate wind-energy generating capacity of nearly 2,000 megawatts. Pretrial Factual Stipulations ¶ 2. Beech Ridge Energy, a wholly-owned subsidiary of Defendant Invenergy, intends to construct and operate 122 6 wind turbines 7 along 23 miles of Appalachian mountain ridgelines, in Greenbrier County, West Virginia. Joint Pretrial Factual Stipulations ¶ 26; see also Beech Ridge Energy LLC, No. 05-1590-E-CS, 2006 W. Va. PUC LEXIS 2624, at *2 (W. Va. Pub. Serv. Comm’n Aug. 28, 2006). The first phase of the project currently consists of 67 turbines and the second phase consists of 55 turbines. Joint Pretrial Factual Stipulations ¶ 48.

The footprint for the transmission line will be approximately 100 acres and the footprint for the wind turbines will be approximately 300 acres. See Beech Ridge Energy LLC, No. 05-1590-E-CS, 2006 W. Va. PUC LEXIS 2624, at *2 (W. Va. Pub. Serv. Comm’n Aug. 28, 2006); see also Trial Tr. 125:15-23, Oct. 22, 2009 (Groberg) (stating that the total footprint is approximately 400 acres). The lowest turbines are located at an elevation of approximately 3,650 feet above sea level and the highest are at approximately 4,350 feet. Beech Ridge Turbine Elevations (Defs.’ Ex. 116); see also Trial Tr. 139:8-13, Oct. 22, 2009 (Groberg). The towers are 263 feet tall and the rotors have a diameter of 253 feet. Id. at 139:15-17 (Groberg). When the blade is pointing straight up at twelve o’clock, the turbine is 389 feet tall, id. at 139:18-19 (Groberg), and when the blade is pointing straight down at six o’clock, the bottom point of the blade is 137 feet off the ground, id. at 139:20-21 (Groberg).

The Beech Ridge Project will cost over $300 million to build and will produce 186 megawatts of electricity, equivalent to the amount of electricity consumed by approximately 50,000 West Virginia households in a typical year. 8 Id. at 146:11-20 (Gro *549 berg). The project is projected to operate for a minimum of twenty years. Joint Pretrial Factual Stipulations ¶ 28. Invenergy has signed a twenty-year contract with Appalachian Power Company to sell all output from the first 105 megawatts of power. Trial Tr. 144:25-145:6, Oct. 22, 2009 (Groberg). Sixty-seven turbines, the number of turbines in the first phase of the project, are required to produce this amount of electricity. Id. at 144:25-145:23 (Groberg).

V. The Beech Ridge Project Development History and Environmental Studies

In 2005, David Groberg, Vice President of Business Development for Invenergy and the lead developer of the Beech Ridge Project, hired BHE Environmental, Inc. (“BHE”) as environmental consultant to the Beech Ridge Project. BHE provides a variety of services to its clients, including agency coordination, study design and implementation, biological assessment and HOP preparation, as well as expert witness services. Letter from Russ Rommé, Director, BHE Envtl., Inc., to David Groberg, Invenergy LLC (Apr. 14, 2005) (Pis.’ Ex. 88). Russ Rommé, then Director of the Natural Resources Group at BHE, became the BHE project manager and was responsible for, among other things, assessing potential risks to bat species at the Beech Ridge Project site and consulting with state and federal regulatory agencies.

In July 2005, Rommé contacted Frank Pendleton, an employee at the FWS Field Office in Elkins, West Virginia (“FWS West Virginia Field Office”). Rommé then wrote an e-mail to Pendleton to “create a record of our phone conversation,” in which Pendleton told Rommé that BHE’s proposal to conduct a preconstruction bat presence survey consisting of fifteen mist-net 9 sites “was a reasonable level of effort” but with the specific caution that the proposed mist-netting survey would only reflect the presence of bats in the area during the summer. 10 E-mail from Frank Pendleton, U.S. Fish and Wildlife Serv., to Russ Rommé, Director, BHE Envtl., Inc. (July 19, 2005, 8:25 AM) (Defs.’ Ex. 68). Pendleton also stated that Thomas Chapman, Field Supervisor at the FWS West Virginia Field Office, would have the lead on any further discussions with the FWS regarding the Beech Ridge Project. Id.

From July 22-26, 2005, BHE conducted a mist-net survey at fifteen sites near proposed turbine locations. Joint Pretrial Factual Stipulations ¶34. The summer survey consisted of sixty-two net nights, BHE Envtl., Inc., Chiropteran Risk Assessment 11 (June 19, 2006) (Pis.’ Ex. 126), and was conducted during full moon or near full moon conditions, Joint Pretrial Factual Stipulations ¶ 35. At the time, the FWS recommended a minimum of three net nights per site, a minimum of two net locations at each site, and a minimum of *550 two nights of netting. U.S. Fish and Wildlife Serv., Agency Draft, Indiana Bat CMyotis sodalis) Revised Recovery Plan 52-53 (Mar.1999) (Defs.’ Ex. 18).

During the July survey, BHE captured a total of seventy-eight bats, representing six species. BHE Envtl., Inc., Chiropteran Risk Assessment 11 (June 19, 2006) (Pis.’ Ex. 126); see also BHE Envtl., Inc., Mist-Net Surveys at the Proposed Beech Ridge Wind Farm 5-10 (Aug.2005) (Defs.’ Ex. 113). Among those bats captured were post-lactating females and juveniles of Myotis species. Joint Pretrial Factual Stipulations ¶ 40. Several bats escaped prior to being identified, including at least one Myotis species. Id. BHE captured no Indiana bats in the mist nets. Id. ¶ 34.

On November 1, 2005, Beech Ridge Energy applied to the West Virginia Public Service Commission (“WV PSC” or the “Commission”) for a siting certificate to construct a wind-powered generating facility at the Beech Ridge Project site. Beech Ridge Energy LLC, No. 05-1590-E-CS, 2006 W. Va. PUC LEXIS 2624, at *1 (W. Va. Pub. Serv. Comm’n Aug. 28, 2006). Shortly thereafter, BHE provided the FWS and the West Virginia Department of Natural Resources (“WV DNR”) a draft Chiropteran 11 Risk Assessment. Joint Pretrial Factual Stipulations ¶ 41.

Based on post-construction mortality studies conducted at the Mountaineer wind energy facility, the draft Chiropteran Risk Assessment estimated that the Beech Ridge Project will cause approximately 6,746 annual bat deaths as the result of turbine collisions. 12 BHE Envtl., Inc. Chiropteran Risk Assessment, 22 (Nov. 9, 2005) (Pls.’ Ex. 125). The draft Chiropteran Risk Assessment also raised the possibility that Indiana bats are present at the Project site and that they may be injured or killed by the turbines once they are in operation:

The proposed Beech Ridge site presents potential concerns in that it is proximate to Indiana bat hibernacula, sites where Indiana bats have been identified in the summer, and caves used in winter and summer by Virginia big-eared bats. Proximity of these species occurrences increases the likelihood the species will be present in the project area and have potential to collide with turbine blades during spring, summer, or fall----

With Indiana bat hibernacula in Green-brier County, and in other nearby counties[,] it is likely male Indiana bats are present in the county during summer, but are as of yet undetected. Considering known proximate locations of summer and winter occurrences of Indiana bats, it is reasonable to presume individuals of this species move through Green-brier County in spring and fall. It is unlikely female and juvenile Indiana bats will occupy the project area during summer. Thermal conditions in the project are less than ideal, and may be entirely unsuitable for use by females and young.

Id. at 22, 25 (internal citations omitted).

On November 10, 2005, BHE and Invenergy participated in a conference call with Barbara Douglas, from the FWS, and Craig Stihler, from the WV DNR. Meeting *551 Minutes, Conference Call Regarding Beech Ridge Windpower Project (Nov. 10, 2005) (Pis.’ Ex. 101). The meeting minutes indicate that after a preliminary review of the mist-net report, the regulators believed that BHE properly conducted the summer mist-net survey and that the clearing of land is unlikely to adversely affect Indiana bat maternity colonies. Id. at *2.

However, the meeting minutes also reveal that the regulators believed that potential impact on “migrating and swarming Ibats [Indiana bats] will still need to be addressed,” id., and that they remained concerned about the risks posed by the Beech Ridge Project to Indiana bats:

Serviee/WVDNR both indicated that based on the proximity of this project to a large number of caves, including known Ibat hibernacula, there is an increased risk of high baVIbat mortality when compared to other projects. We recommended pre-construction site specific studies to evaluate potential impacts. The company seemed unwilling to do this, citing their proposed construction schedule and lack [of] alternative sites given the amount of investment at this site that has already been expended. We discussed the potential that pre-siting surveys could indicate that the turbines on a particular ridge or area could have increased potential for mortality and these areas could be dropped or modified.... WV DNR indicated that they were unwilling to accept a project that had unquantified (but likely high) resource impacts without a commitment to minimize. Service explained that if post-construction monitoring documented take of endangered species, company would be liable under ESA, project could be shut down, etc.

Id. at *2-3 (emphasis added).

From March 2-7, 2006, BHE conducted a cave survey, examining data on 140 caves and visiting 24 caves within five miles of the Beech Ridge Project. Joint Pretrial Factual Stipulations ¶43. Of these 24 caves, 12 were not surveyed by BHE because of flooding or blocked entrances. Trial Tr. 99:13-18, Oct. 23, 2009 (Rommé). BHE did not identify any Indiana bats in the 12 caves that it actually surveyed. Joint Pretrial Factual Stipulations ¶ 43.

On March 7, 2006, Chapman, the Field Supervisor of the FWS West Virginia Field Office and lead contact regarding the Beech Ridge Project, sent the first of three formal letters to Rommé. Letter from Thomas R. Chapman, Field Supervisor, U.S. Fish and Wildlife Serv., W. Va. Field Office, to Russ Rommé, Director, BHE Envtl., Inc. (Mar. 7, 2006) (Pis.’ Ex. 97). The letter begins by summarizing the November 10, 2005 conference call, stating that during the teleconference the FWS and the WV DNR recommended preconstruction surveys as well as post construction minimization measures. Id. at 1 (suggesting feathering turbines and shutting down operations during migration periods). The Service remained concerned that Indiana bats may be adversely affected by construction and operation of the project, id. at 2-3, and “strongly encouraged [BHE] to continue to determine the temporal and spatial use of the project area by bats so that such use by bats can be reported to us and others prior to construction.” Id. at 5. The FWS recommended “conducting multi-year studies (usually for three years)” as well as springtime emergence studies. Id. The Service also stated that BHE should employ “Hadar, thermal imaging, acoustical studies, mist-netting and other appropriate sampling techniques .... ” Id.; see also id. (“Additional acoustical, radar, and spring emergence studies should still be conducted.”).

*552 In the wake of this letter, Rommé had a series of communications in March and April, 2006 with Christy Johnson-Hughes, a Senior Biologist in the FWS West Virginia Field Office. 13 Rommé claimed at trial that during a March 14, 2006 telephone call, Johnson-Hughes was “apologetic” for the contents of the March 7, 2006 letter from the FWS, explaining that much of the letter contained “boilerplate” language that had been inserted by the FWS Regional Office. Trial Tr. 111:16-112:9, Oct. 23, 2009; see also BHE Contact Report, Telephone Call Between Russ Rommé, Director, BHE Envtl., Inc., and Christy Johnson-Hughes, Senior Biologist, U.S. Fish and Wildlife Serv. (Mar. 14, 2006) (Defs.’ Ex. 76).

Rommé also alleged that during a subsequent telephone call on April 6, 2006, Johnson-Hughes stated that the FWS considered Beech Ridge as a “lower risk” project, and that the developers should not be concerned about receiving negative input from the FWS if the project remained on track. Trial Tr. 113:2-14, Oct. 23, 2009; see also BHE Contact Report, Telephone Call Between Russ Rommé, Director, BHE Envtl., Inc., and Christy Johnson-Hughes, Senior Biologist, U.S. Fish and Wildlife Serv. (Apr. 6, 2006) (Defs.’ Ex. 82). During this conversation, Johnson-Hughes also purportedly indicated that after the FWS reviewed the cave report and revised risk assessment, it would write a letter to the WV PSC indicating that it had no significant concerns regarding the project’s impact on threatened and endangered species. Id. Johnson-Hughes did not testify at trial and no written communications from her were received in evidence indicating that she was “apologetic” for the letters from her supervisor, Chapman, or that BHE should not be concerned about the negative input from the FWS.

Because Frank Pendleton had advised Rommé that Chapman would have the “lead” on further discussions with the FWS, the Court asked Rommé at trial whether he had spoken with Chapman. Rommé testified that he did not recall raising his concerns regarding any of the formal FWS letters directly with Chapman, their author, even though Chapman had signed the letters and was Johnson-Hughes’ superior. Trial Tr. 159:11-161:14, Oct. 23, 2009 (“[T]he input I got from Christy [Johnson-Hughes] was that Tom [Chapman] was sort of stuck in the middle, and that he generally approved of the letters that Christy wrote. And then by the time those letters went up to the regional office and came back down, Tom did not have authority to change the letters.”).

The WV PSC held two public hearings in Lewisburg, West Virginia, in April 2006. Beech Ridge Energy LLC, No. 05-1590-E-CS, 2006 W. Va. PUC LEXIS 2624, at *10 (W. Va. Pub. Serv. Comm’n Aug. 28, 2006). Several hundred people attended each hearing. Id. In May 2006, the Commission held six days of evidentiary hearings at its office in Charleston, West Virginia. Id. Beech Ridge Energy presented numerous witnesses, including Groberg and Rommé. Id. at *12-13.

From June 12-22, 2006, BHE conducted a second mist-net survey at twelve sites along the transmission line. Joint Pretrial Factual Stipulations ¶ 45 (stating that some of the mist-net sites on the western side of the project overlapped planned turbine locations); see also BHE Envtl., Inc., MisWNet Surveys at the Proposed Beech Ridge Wind Energy Transmission Line Corridor 1-7 (Sept. 27, 2006) (Defs.’ Ex. *553 114). The survey consisted of 48 mist-net nights. Rommé Decl. ¶ 9 (Defs.’ Ex. 5). Johnson-Hughes approved the number of mist-net sites and indicated that acoustic data collection would not be required for the transmission line survey. E-mail from Christy Johnson-Hughes, Senior Biologist, U.S. Fish and Wildlife Serv., to Kely Mertz, BHE Envtl., Inc. (May 10, 2006 10:06 AM) (Defs.’ Ex. 85). As in 2005, BHE captured no Indiana bats during the 2006 mist-net survey, Joint Pretrial Factual Stipulations ¶45, and did not conduct any surveying, as recommended by the FWS, during fall dispersal and migration when a majority of bat mortalities occur.

On June 19, 2006, while the second mist-net survey was being conducted, BHE provided the FWS and the WV DNR a final Chiropteran Risk Assessment. Id. ¶ 46. The final Chiropteran Risk Assessment concluded that the Beech Ridge Project poses a low risk of harm to Indiana bats because the species is unlikely to be present at the site:

Based upon the best available information, including almost exclusively negative results of summer mist net surveys for Indiana bats in West Virginia, and the elevation of the Beech Ridge site, the likelihood of an Indiana bat maternity colony in the project area is very low. However, considering the proximity of the project area to known and potential hibernacula, there is perhaps potential for presence of male Indiana bats roosting and or foraging within the project area during the summer, and migrating/staging/swarming individuals utilizing the project area during spring and fall. There is one historic hibernaculum within 5 miles (8 km) (Bob Gee Cave), three active hibernacula (McFerrin Cave, Martha’s Cave, and Snedegars Cave) between 5 and 10 miles (8 and 16 km) of the site. The site generally lies within a band of counties in which Indiana bats occur in the winter (or winter and summer), and is just to the east of two, and northeast of two West Virginia counties in which Indiana bats occur in the summer. These summer occurrences are limited to a single male Indiana bat in each county.

BHE Envtl., Inc., Chiropteran Risk Assessment 32 (June 19, 2006) (Pis.’ Ex. 126) (internal citation omitted). The Chiropteran Risk Assessment assumed that no Indiana bats would be found during the second mist-net survey conducted along the transmission line. Id. at 32.

On July 27, 2006, Johnson-Hughes sent an e-mail to John Auville, Staff Attorney for the WV PSC assigned to the Beech Ridge Project, stating that the FWS wanted to provide recommendations to the WV PSC even though the submission deadline had expired. E-mail from Christy Johnson-Hughes, Senior Biologist, U.S. Fish and Wildlife Serv., to John Auville, Staff Attorney, West Virginia Public Service Commission (July 27, 2006, 8:46 AM) (Defs.’ Ex. 87) (explaining that the FWS was unable to comment before the June 14, 2006 deadline because it did not receive BHE’s final Chiropteran Risk Assessment until June 21, 2006). Johnson-Hughes indicated that although “Beech Ridge may be a lower risk site, it is not without risks to bats and birds,” and that it was therefore important that the Service respond to these issues before the WV PSC made its final decision. Id. Auville replied that the Staffs role in the casé was “finished,” that the matter was before the WV PSC for decision, and that the Commission would likely treat any comments submitted by the FWS as public comment. E-mail from John Auville, Staff Attorney, West Virginia Public Service Commission, to Christy Johnson-Hughes, Senior Biologist, U.S. Fish and Wildlife Serv. (July 31, 2006, 2:13 PM) (Defs.’ Ex. 87).

*554 In response to BHE’s final Chiropteran Risk Assessment, Chapman sent the second of three formal letters from the FWS West Virginia Field Office to Rommé on August 10, 2006. Letter from Thomas R. Chapman, Field Supervisor, U.S. Fish and Wildlife Serv., W. Va. Field Office, to Russ Rommé, Director, BHE Envtl., Inc. (Aug. 10, 2006) (Pis.’ Ex. 98). The letter states that the FWS remained “concerned that the proposed Breech Ridge wind power project may harm or kill federally-listed Indiana bats (Myotis sodalis) ....” 14 Id. at 1. The FWS again recommended that BHE conduct a minimum of three years of pre-construction surveys and studies, as described in the Service’s 2003 interim guidance, and conduct mist-net surveys during fall and spring migration. Id. at 1, 3. The Service also encouraged the developers to formulate and implement an adaptive management 15 plan to minimize the risk of harm to federally-listed species. Id. at 3 (describing possible mitigation techniques and post-construction mortality studies).

On August 28, 2006, the WV PSC issued an Order granting a siting certificate to Beech Ridge Energy for the construction and operation of 124 turbines at the Beech Ridge Project site. Beech Ridge Energy LLC, No. 05-1590-E-CS, 2006 W. Va. PUC LEXIS 2624, at *178-187 (W. Va. Pub. Serv. Comm’n Aug. 28, 2006). The WV PSC concluded that the evidence before it did not support a conclusion that Indiana bats live near the project site. Id. at *166-67 (reasoning that BHE captured no Indiana bats during its 2005 mist-net survey, that “Beech Ridge’s witness” testified that Indiana bats do not typically swarm more than five miles from hibernacula, and that no Indiana bats were found in a historic hibernaculum located six miles from the closest turbine during surveys conducted in 2002 and 2006). Furthermore, the WV PSC declined to require three years of preconstruction studies because (i) the FWS’s recommendation of three years of preconstruction studies was not mandatory and was articulated in interim guidance subject to revision; (ii) there was evidence that the recommendation was not being implemented across the nation; and (iii) the recommendation was made as public comment and not as evidence provided “under oath, tested through cross-examination, or ... subject to rebuttal testimony.” Id. at *176-77; see also id. at *165 (“The Commission agrees with Mr. Romm[é] that the preconstruction data is not particularly helpful in studying bat mortality.”). Although the WV PSC quoted extensively the August 10, 2006 letter from the FWS to Rommé, see id. at *27-30 (“[Mjist net surveys should be conducted during fall and spring migration to understand the number and diversity of bats in the area, the Service wrote.”), the Commission did not address *555 in its findings of fact or conclusions of law the absence of any surveying during fall dispersal and migration as the FWS had recommended, see generally id. at *141-78. Cf. id. at *164-65 (concluding that multi-year preconstruction studies were not required despite the FWS recommendations, but failing to discuss seasonal disparities).

The WV PSC’s Order granting the siting certificate contains numerous preconstruction and post-construction conditions, some of which address endangered species generally and bat mortality specifically. For example, in the event that a regulatory agency or court finds that the Beech Ridge Project has violated the ESA, the Order requires that Beech Ridge Energy notify the WV PSC within ten days of such a finding. Id. at *181-82. The Order states that the “Commission may seek any legal remedies it has authority to seek, including injunctive relief, to address any such findings.” Id. at *182. Moreover, the Order mandates that Beech Ridge Energy file with the Commission evidence of any required permits or certifications, including letters from the FWS and WV DNR indicating what actions, if any, it must undertake to be in co