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Second Motion To Dismiss Redacted PDF
Second Motion To Dismiss Redacted PDF
Second Motion To Dismiss Redacted PDF
Submitted by:
and
RE: GALLOO ISLAND WIND, LLC. 15-F-0327: Second Motion to Dismiss for
Fraud Upon the Siting Board
In the ruling denying our Motion to Dismiss1 the central premise in the
ruling was a reference to the Applicant’s response to our
Interrogatory (IR) Request CS-CM 2 on September 5, 2018:
“[i]n the spring of 2017 a potential eagle nest was brought to
the Applicant’s attention by the island caretaker. During the
2017 Point Count Survey, conducted in support of the Applicant’s
permit under the federal Bald and Golden Eagle Protection Act
evaluated by Western Ecosystems Technology on April 25, 2017 via
aerial survey, at which time a stick nest was confirmed with no
eagles, eggs or chicks observed in the nest.
1
Ruling Denying Maurer/Schneider Motion to Dismiss and Granting the Motion To
Postpone Proceeding, October 26, 2018, Item No. 294.
In Apex’s recent response to Interrogatory Request CS-CM 122 new
information shows Apex was not only aware of the nest but had
confirmation from their consultant that the nest was in fact a bald
eagle nest. Therefore, Apex in its interrogatory response misled us,
the Siting Board and all parties by using the term “potential eagle
nest” and omitted reporting the nest was used by bald eagles.
The Stantec biologist recorded, “The eagle nest just south of pt 3 had
a sitting adult on the nest @ 1018 (hrs)- shortly after, it flew off
(to) N @ 20m.”
Stantec’s biologist visited the nest again later April 13, 2017 while
surveying Station 3 and recorded these notes:
2
Email response, J. Klami, November 16, 2018
3
Id.
REDACTED IMAGE OF NOTES
The following two photos were among those taken on April 13, 2017 and
they verify the nest from a ground perspective and a large white tail
feather observed nearby the base of the nest supports the report that
a bald eagle was associated with the nest.
4
Letter Regarding Access to Redacted Material, October 13, 2017, Item No.
123.
5
Email response, J. Klami, September 5, 2018
expected within a few weeks.” On September 17, 2018 another IR request
was made for the Point Count Survey data (CS-CM 56). On September 19,
2018 in IR CS-CM 87 we reiterated our requests in CS-CM 2 and 5 for
Point Count Survey data; the same day Apex finally provided the survey
results in spreadsheet form. Because the digital data lacked any
remarks or notes, we requested in CS-CM 98 copies of data sheets, field
notes and photos for the date when Stantec staff first noted the nest.
Apex responded, “Datasheets, field notes and photos were not provided”
and that the “potential nest” was reported verbally to them by the
island caretaker. Then on November 1, 2018 in IR Request CS-CM 129 we
asked Apex to contact Stantec directly and have them provide copies of
field notes associated with their Point Count Survey for the spring of
2017. Finally, on November 16, 2018 Apex provided the Stantec field
notes we had long sought, and the field notes confirmed what we
suspected – that Apex misrepresented this important fact and knew the
nest was the nest of a bald eagle twelve days before they conducted
the helicopter survey.
That Apex was aware the nest was a bald eagle nest, then conducted a
helicopter survey without NYSDEC or USFWS authorization, was an action
that disturbed an active bald eagle nest, and therefore, could be
considered a “taking”, as described in Part 22 of CFR Title 50. This
purposeful action is far worse than what the Siting Board previously
understood, that the Applicant had no knowledge that bald eagles were
using the nest. Knowing what they knew, the Applicant should have been
more responsible and forthright by admitting what was observed and
recorded by Stantec and withdrawing from the unnecessary and
potentially disruptive and damaging helicopter survey by WEST.
10 Motion to Dismissal for Fraud Upon the Siting Board, September 13, 2018,
Item No. 248.
11
Email response, J. Klami, September 5, 2018
12
Email response, J. Klami, November 16, 2018.
is what they said in their application13. This scheming behavior
further supports the earlier determination that Apex lacks the proper
character and fitness to continue with this proceeding and
certification, construction and operation of an electric generating
facility in New York.
Respectfully submitted,
13
Appendix DD, p. 21.