Nonprofit sues federal agency to stop Kibby Mountain wind farm

Pat Wellenbach/Associated Press

Turbines stand along the Kibby Mountain Range in remote Franklin County.

PORTLAND — A nonprofit organization filed a federal lawsuit Monday in a last-ditch effort to prevent the planned expansion of the Kibby Mountain wind farm in northwestern Maine.

The Friends of the Boundary Mountains filed the lawsuit in U.S. District Court in Portland against the U.S. Army Corps of Engineers, claiming the federal agency neglected several federal laws in late September when it provided a permit to TransCanada Maine Wind Development Inc. allowing the company to expand its Kibby Mountain wind farm onto nearby Sisk Mountain in northern Franklin County.

The lawsuit named as defendants Lt. Gen. Thomas P. Bostick, commander of the Army Corps of Engineers, and Jay Clement, the Army Corps’ senior project manager in the New England District.

The Friends of the Boundary Mountains, which was founded in 1995 and is based in Farmington, claims the expansion of the wind farm will violate the Migratory Bird Treaty Act and the Bald and Golden Eagle Act, according to court documents. In addition, the group alleges the U.S. Army Corps of Engineers failed to comply with the Clean Water Act when it issued the permit to TransCanada.

Before TransCanada had completed its original 44-turbine Kibby Mountain project in 2010, it already had proposed an expansion onto nearby Sisk Mountain. After TransCanada scaled back its expansion plans from 15 to 11 turbines, Maine’s Land Use Regulation Commission approved the project in January 2011. The Friends of the Boundary Mountains opposed TransCanada’s original Kibby Mountain wind farm, as well as the Sisk Mountain expansion.

Bob Wiengarten, the nonprofit’s president, said this lawsuit is the group’s last chance to stop TransCanada from building the Sisk Mountain expansion.

“We’ve been fighting this a long time,” Wiengarten said. “We’re a minority trying to protect these species from the onslaught from wind power.”

The group’s lawsuit is related to a permit TransCanada needed from the U.S. Army Corps of Engineers, which is the keeper of the inland waterways under the Clean Water Act, to temporarily and permanently fill in some wetland areas to build the wind farm expansion. As part of its compliance with the Clean Water Act, the Army Corps also is required to judge the resulting effect on wildlife.

The lawsuit argues that while the Corps had a responsibility to investigate the wind farm’s effect on the golden eagle and the Bicknell’s thrush, it failed to adequately do so. Wiengarten claims both species, which have habitat on or around Sisk Mountain, would be at risk if TransCanada is allowed to expand its wind farm.

The complaint argues that the golden eagle species is “falling between the cracks” as neither LURC nor the federal government has exercised “the necessary due diligence in evaluating the true risks and threats to the species,” the complaint claims. Maine considers the golden eagle an endangered species, though the federal government does not. It is protected, however, under the federal Bald and Golden Eagle Act.

The lawsuit cites a May 2011 letter from the U.S. Fish and Wildlife Service to TransCanada: “Proper siting of wind turbines continues to be the [service]’s most critical concern related to wind energy development to avoid and minimize wildlife mortality and habitat fragmentation. New information about migration and movements of golden eagles suggest this species may be the raptor most vulnerable to wind power in the eastern U.S.”

Wiengarten said the Army Corps put conditions into the permit that it claims will protect the golden eagle, but the conditions are inadequate. One such condition is that TransCanada needs to develop an eagle conservation plan, but the company can build the wind farm before submitting it, Wiengarten said.

“We don’t think that’s a very logical way of proceeding,” Wiengarten said. “We know in the real world that these conditions don’t mean anything. Once TransCanada builds it, it’s too late.”

This could be the first lawsuit in Maine that cites the Eagle Act as a reason to prevent the construction of a wind farm, according to Todd Griset, an attorney at Preti Flaherty who specializes in the energy sector.

“I have seen other lawsuits alleging violations of the Bald and Golden Eagle Protection Act, although I am not aware of any such claims made in Maine,” he wrote in an email.

The Bicknell’s thrush is a migratory bird that spends its winters in the Caribbean and its summers in the subalpine habitat found on Sisk Mountain. The species is rare and fickle about choosing its breeding habitat, Wiengarten said. The federal government is currently reviewing a request to identify it as a threatened or endangered species under the Endangered Species Act, a process Wiengarten points out could take at least a year.

“Our argument is they should pay attention to it right now,” he said. “Sisk is just not a good place to put a wind turbine because there’s this rare habitat that this bird, which may be endangered — it’s probably endangered now, but it needs the listing to be official — it needs that breeding habitat. It’s just too risky. It’s crazy to do this.”

When asked why he thinks the Army Corps did not pursue the effects of TransCanada’s wind farm on the Bicknell’s thrush and the golden eagle, Wiengarten said he believes federal agencies are under political pressure to support the wind power industry.

Wiengarten said he’s not against alternative energy, just not the siting of a wind farm on Kibby and Sisk mountains.

The Friends of the Boundary Mountains is asking the court to void the permit the Army Corps granted and prevent the issuance of a new permit until the violations are addressed. It’s also asking for monetary compensation for “their costs and expenses, including reasonable attorneys’ fees,” according to the complaint.

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Comments

A web site has turned up on

A web site has turned up on the internet. "The truth about Wind Power." I have looked it over. The name of the site should be changed to "What the industry would like you to believe about wind power." Take for example this statement their from the site:
"EAGLES
THE RHETORIC: Wind is responsible for thousands of eagle deaths annually."

Here is my statement: It is 100 percent true is that thousands of eagles have been killed by the wind industry. Over the last 28 years more than two thousand have been killed at just one wind farm, Altamont Pass. Wind turbines kill eagles anytime they are placed in eagle habitat. This occurs because at every wind farm located in eagle habitat, there are the same deadly combination of circumstances, wind currents, prey species, soaring eagles, and huge blades ripping through the air hundreds of feet up. Eagles also forage over hundreds and sometimes thousands of miles. For this reason wind farms have a mortality footprint that far exceeds their boundaries. Most eagle deaths also happen to go unreported because of the USFWS has only voluntary guidelines for this industry.
I have never seen any reference anywhere to anyone that has ever said thousands are killed annually.

The profiteers behind this bogus website are the ones that made up the false statement about eagles and then put it on their own web site. One also has to keep in mind that this site was created by desk nerds........ that have never spent one minute of their lives studying eagles in the wild.

Pay attention because this because this is what the people of Maine and the entire country are up against, a bombardment of lies and misinformation coming from the wind industry.

Bob Woodbury's picture

Foiled again...

...this time by a BIRD from away.

Communities fighting back

The Friends of the Boundary Mountains filed the lawsuit in U.S. District Court in Portland against the U.S. Army Corps of Engineers, claiming the federal agency neglected several federal laws. I looked over the studies used for the project; laws were neglected and the true impacts caused by these wind turbines hidden. This was all done with the help of our Government agencies.

This lawsuit is about communities being forced to fight back against fragmented ecosystems, impacts to mammals and people from infrasound, the slaughtering of the bird populations, and hideous view sheds.

Across the world people are finally waking up to the decades of deceit and the horrific impacts caused by the wind industry. They are finding out that wind energy can not possibly save mankind, make one bit of difference towards climate change, or supply society with enough energy to offset any other form of energy production. They also know that despite what they have been told, today's wind turbines never have been and never will be "green."

Today society must take action if we are going to save the whooping cranes and other species. This is because the negative impacts from the wind turbine invasion will last forever.

But besides filing lawsuits and being informed, there are other ways to wage war against this industry. A good start would be the elimination of the production tax credit given to this industry. The wind industry has had this kickback from the taxpayer for decades. A vote on extending this 12 billion dollar taxpayer gift to the industry comes up before Congress in the next few weeks.

One would think that after knowing the true impacts, no one would ever want to reward this industry for what has truly become an environmental disaster. But this isn't the way it works. If it did, this industry's killer wind turbine would have been thrown in the bone yard in 1984 when headless eagles started showing up at wind farms.

With the help of the USFWS the real impacts from wind turbines has been hidden for 28 years. Last year in an attempt to hide the wind industry impacts to the whooping cranes, the USFWS changed their survey methodology so their numbers could be exaggerated. This was done because when using the previous count method, the whooping crane numbers dropped by nearly 100 cranes. As a result of this move, the USFWS counts/estimates for the whooping cranes, with their shell game methodology, can no longer be trusted.

This year I believe that the official count will be delayed until after Congress votes on the production tax credit. For decades this count was conducted in early December.

That is why what I am about to say is very important. Congress should demand an accurate and verifiable 2012 winter count for the whooping cranes along with complete age class figures. The public has a right to know the fate of the whooping cranes. They also have a right to know many captive bred birds are being dumped into the population by the USFWS to offset reported mortality. This count should be done before there is a vote on the production tax credit (PTC) so members will have to answer to the public if they vote yes.

If Congress does not do this, then it is apparent they too are part of this cover-up. I encourage everyone to follow this closely.

Penny Gray's picture

How hypocritical that we

How hypocritical that we dismiss the idea of solving southern New England's energy problems by purchasing clean, green and CHEAP hydro from Canada, yet we wilingly give TransCanada permission (and taxpayer susbidies!) to blast our mountains, violate federal laws by killing and displacing our endangered species, and industrialize one of Maine's most scenic areas of the state in order to transport a trickle of wind power into Canada. Where are all the environmentalists? Where are the bird lovers? Where is Audubon???? What is happening to us, have we all been so brainwashed by the wind lobby that we allow this to happen to our state?

Robert McQueeney's picture

Not just Canada

Wind power in Bryant Pond (Woodstock) Maine is being sold to Mass and Connecticut, as well as the green credits. So all this wind power is blighting our state, without us receiving the benefit of it.

Dan McKay's picture

wind projects = tax shelter

wind projects = tax shelter for the rich = extra cost for the electricity buyers

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