Non-prosecution for past and future takings of migratory birds. Let me rephrase that: a ten year permit to kill eagles that hang around slice-and-dice farms in Wyoming.

I couldn’t make this up. I’m not that imaginative.

Previous post discussed the guilty plea by Duke Energy Renewables for two misdemeanor violations of the Migratory Bird Treaty Act.

In my opinion, the plea agreement signed by Duke is a superb bargain for their operation of wind farms. For only a million bucks, the Department of Justice agrees not to prosecute Duke for any other past takings of migratory birds and any future takings for the next ten years. The agreement covers all four of their wind farm operations in the state of Wyoming. The condition is they need to diligently pursue official permission to take eagles and comply with whatever plans they develop to mitigate migratory bird takings in the meantime.

Let me phrase that differently:  Duke gets an official, enforceable, in-writing promise they won’t be prosecuted for taking eagles for up to 10 years. They won’t be prosecuted for slicing-and-dicing eagles, other raptors, or any migratory birds through October 2023. Or until they get official permission to do so. Whichever comes first.

Again, I’m not creative enough to make this up. Seems to me like it would make a great sub-plot to a hyper-ventilating techno-thriller novel.

Read paragraph 16, on pages 10 and 11 for yourself. You can find the document here. Since it is a public document, I’ll quote it at length, just so you don’t think it is the product of my non-fertile imagination.

From page 10, with my emphasis added:

16. Non-Prosecution: The goal of the MBCP is to minimize and mitigate, to the greatest feasible extent, future unpermitted bird mortalities at the defendant’s wind projects in Wyoming. However, the parties acknowledge that some birds, including eagles, may be killed at the defendant’s wind projects in Wyoming despite conscientious implementation of the MBCP. As part of this plea agreement and in consideration of the defendant’s plea of guilty to Counts One and Two of the Information, the defendant’s promises and commitments in this plea agreement, the defendant’s obligations under the MBCP, and the defendant’s compliance with both this agreement and the MBCP, the government agrees to forego additional criminal prosecution of the defendant in the District of Wyoming for any other criminal offenses involving the unlawful taking of migratory birds, including eagles, at and by its currently operating Wyoming wind projects which: (a) occurred before the date of this plea agreement; (b) are known to the government at the time of the signing of this plea agreement; and (c) are not presently the subject of negotiation or litigation between the defendant or its subsidiaries, agents, or employees, and the government. The government further agrees not to prosecute the defendant under the MBTA or Bald and Golden Eagle Protection Act (“Eagle Act”) (16 U.S.C. §§ 668-668d) for unpermitted takings of migratory birds or other avian wildlife at and by its currently-operating Wyoming wind facilities that occur after the date of this plea agreement, (emphasis added)

Continued on page 11:

provided the defendant remains in compliance with the MBCP and other terms of this agreement. This Plea Agreement applies only to violations of the MBTA and Eagle Act committed by the defendant at its four Wyoming wind projects and has no effect on any proceedings against any entity or individual not expressly mentioned herein, including the actual or potential criminal liability of any individuals. The government has informed the defendant, however, that it does not intend to prosecute any individuals employed by it for any conduct described herein, or related hereto, unless it obtains new and material incriminating information not presently known to the government. As noted in paragraph IS(b )(ii) above, within 24 months of sentencing, the defendant will apply for, and diligently pursue, Programmatic Eagle Take Permit(s) for its Wyoming wind projects that have taken golden eagles. Given the complex scientific and regulatory nature of this recently-established Permit program, the parties expect the application process will be lengthy. Therefore, the government will extend its “non-prosecution” agreement under the Eagle Act and the MBTA beyond the probationary period, provided that defendant continues to implement the MBCP and diligently pursue the ETP(s) in good faith, until the earlier of the following two events: 1) the defendant has either obtained ETPs for its Wyoming wind projects that have taken golden eagles and any appeals of such permits have been resolved, or 2) October 15, 2023.  (emphasis added)

The remainder of paragraph 16 describes the outer limits of the non-prosecution agreement; specifically it doesn’t provide a get-out-of-jail-free card for any governmental agencies other than the federal Department of Justice:

The defendant understands and agrees that neither this paragraph nor this plea agreement limits the prosecuting authority of any federal, state or local regulatory or prosecuting entity, other than the United States Attorney’s Office for the District of Wyoming and the Environmental Crimes Section. Furthermore, this plea agreement does not provide or promise any waiver of any civil or administrative actions, sanctions, or penalties that may apply, including but not limited to: fines, penalties, claims for damages to natural resources, suspension, debarment, listing to restrict rights and opportunities of defendant to contract with or receive assistance, loans, and benefits from U.S. agencies, licensing, injunctive relief, or remedial action to comply with any applicable regulatory requirement. This plea agreement applies only to violations of the MBTA and Eagle Act by the defendant and has no effect on any proceedings against any entity or individual not expressly mentioned herein.

Summary

JPMorgan is likely quite jealous.

No prosecution of individuals.

No prosecution for future takings, until either Duke gets official permission to do so or 10 years from now, whichever comes first.

In other words, a get out of jail free card good for 10 years.

A bargain at only one million dollars.