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Federal Judge Orders Fish and Wildlife to Redo Broomfield Project’s Eagle Take Permit Application

December 21, 2018
A pair of bald eagles are seen perched in a tree near the construction site for the Caliber at Flatirons apartments in Broomfield in November.

A U.S. district judge this week ordered the U.S. Fish and Wildlife Service to revisit an application by a developer for an eagle take permit related to construction of an apartment complex in Broomfield.

Court documents show that the judge vacated an environmental assessment the fish and wildlife service conducted, as well as the eagle take permit it granted in May to The Garrett Companies of Indiana. The agency was ordered to revisit the take permit application.

An eagle take permit shields a company from liability should it inadvertently disturb the birds. The fish and wildlife service, which declined to comment for this story, pulled its initial permit and issued a second one in May.

The Thursday ruling closes out a lawsuit filed in February by Front Range Nesting Bald Eagle Studies , a Boulder County-based eagle advocacy organization, which alleged the permit was improperly issued.

The Garrett Companies of Indiana is building an apartment complex, Caliber at Flatirons, near Northwest Parkway and Via Varra. A pair of bald eagles uses a nearby cottonwood tree — known as the Stearns Nest — and the nest has been inhabited for about eight years.

The company is not a party in the lawsuit.

Garrett Companies President Eric Garrett in an email said nothing in the court’s order prevents continued work on the project, but his company will continue to adhere to the permit’s terms.

“Ultimately we feel this is a temporary issue and will quickly be resolved,” Garrett said. “It is important to understand that it was not the science behind the permit that was overturned — that was upheld by the court. ... The court’s rulings dealt only with a procedural issue and with what happens after construction is completed.”

Court records show that the judge agreed with the Fish and Wildlife Service on most of its actions with regard to the permit, but ruled the agency didn’t perform an analysis on the cumulative effects of long-term disturbance of the birds. The judge also ruled the service didn’t properly explain why it had a “relatively short public comment period” in light of some members of the public asking for more time to weigh in on the matter.

Garrett said the company is hiring a full-time monitor and has taken multiple other steps to ensure the eagles are not disturbed, including allowing a biologist to call for work stops if necessary and changing its site plan to move buildings farther away from the nest. He added that the company delayed the start of the project until an eaglet was able to fledge successfully.

Garrett worries the lawsuit sends a message to developers that there is no benefit to obtain a take permit because someone might sue and try to have it revoked anyway, a sentiment shared by the federal government in court filings.

“Not all developers are like The Garrett Companies,” he said. “Not many will plan, take the actions that we have, and voluntarily spend hundreds of thousands of dollars to protect an eagle. We have, and those efforts have resulted in success for the eagle.”

Front Range Nesting Bald Eagle Studies in July said the pair of birds had mostly left the area because of construction noise and only returned to feed the young eagle in the nest. Two eaglets in the nest died during a wind storm in April.

Bald eagles were first noticed in Colorado in the mid-1970s and populations have increased since then. The bird was removed from the Colorado list of threatened and endangered species in 2009, according to Colorado Parks and Wildlife. Currently, about 200 active bald eagle nests exist in the state.

Dana Bove, founder of Front Range Nesting Bald Eagle Studies, in an email said the ruling is an important victory and, as far as he knows, the first instance of a judge vacating a take permit since a new rule regarding permits came into effect more than a year ago.

Bove said, however, that roosting and nesting bald eagles are not receiving the necessary protections afforded them under the Bald and Golden Eagle Protection Act, including nests and roosts in Boulder County.

“We have a long way to go in this state to protect eagles,” Bove said. “Unfortunately, most Coloradans still have no idea that eagles in our state have any issues, and certainly few are aware that protections for eagles in these types of instances are essentially nonexistent.”

John Bear: 303-473-1355, bearj@dailycamera.com or twitter.com/johnbearwithme

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