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RE: GALLOO ISLAND WIND, LLC. Case No.

15-F-0327

Date: September 13, 2018

Document title: Motion for Dismissal for Fraud Upon the Siting Board

Submitted by:

Clifford P. Schneider, pro se


47243 Wood Cliff Drive
Wellesley Island, NY 13640
(315) 215-4019
clif.schneider@gmail.com
September 13, 2018

Hon. Kathleen H. Burgess


Secretary to the Commission
Three Empire State Plaza
Albany, New York 12223-1350

Co-Presiding Examiner Ashley Moreno


NY Department of Public Service
Three Empire State Plaza
Albany, New York 12223-1350

Co-Presiding Examiner James A. Costello


NY Department of Public Service
Three Empire State Plaza
Albany, New York 12223-1350

and

Associate Examiner Michael Caruso


New York State Department of Environmental Conservation
Three Empire State Plaza
Albany, New York 12223-1350

RE: GALLOO ISLAND WIND, LLC. 15-F-0327: Motion to Dismissal for Fraud
Upon the Siting Board

Dear Secretary Burgess, Judge Moreno, Judge Costello and Judge Caruso:

Apex Clean Energy, and its consultant WEST, Inc., deliberately engaged

in a deception which went to the heart of their claim that their

proposed project would pose no risk to New York’s threatened bald

eagle on Galloo Island. This deception included omitting important

information about the presence of a bald eagle nest on Galloo, which

was compounded by numerous assertions, in several submitted documents,

that no bald eagles were found or observed on Galloo Island.


Apex essentially set in motion a fraudulent scheme, backed by WEST,

calculated to avoid the honest assessment of the risk of their project

to the threatened bald eagle. By stating unequivocally that bald

eagles did not nest on Galloo, Apex evaded any discussion and vetting

of best practices and options to avoid, minimize and mitigate impacts

on bald eagle. Specifically, it circumvented any discussion that might

have occurred relative to NYSDEC’s 2016 Conservation Plan for Bald

Eagle in New York State.

Fraud of Omission

On August 24, 2018 Maurer-Schneider submitted an interrogatory request

asking if Apex’s consultant observed “any bald eagle nesting activity

or other evidence that would substantiate claims that bald eagles

nested on Galloo in the recent past?” Apex’s Neil Habig and David

Phillips responded in an email sent by Attorney Jessica Klami to all

parties on September 5, 2018:

“In 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 (BGEPA), Stantec
consultants observed the nest. The nest was then evaluated by
Western Ecosystem’s 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.”

In this response Apex is acknowledging a “potential eagle’s nest” on

Galloo Island that was observed by both Stantec Ltd and WEST, Inc

personnel. In Applicant’s Exhibit 22, Appendix DD and Appendix EE

submitted six or more months after the nest discovery, there is not a

single mention of a “potential eagle’s nest” on Galloo. Furthermore,


in Apex’s September 5, 2018 response there is no indication Apex

pursued further study to determine the nest’s species origin or that

Apex notified regulatory agencies, i.e., USFWS and NYSDEC.

In Appendix DD the Article 11 Endangered and Threatened Species

Incidental Take Permit Apex describes an August 30, 2017 meeting with

USFWS staff where they discuss options connected with “potential

responses to future nesting”, but Apex fails to inform the USFWS that

Apex found a “potential eagle’s nest” on Galloo four months prior to

their meeting:

“Because it is possible that nesting could occur during


development, construction or operations, the Applicant
coordinated with the USFWS on potential responses to future
nesting in a meeting on August 30, 2017. USFWS agreed that at
this late stage in development it would be inappropriate to move
turbines, curtail turbines, or implement other measures with
large impact on generation in response to future nesting on the
island if it occurs, but that one of the following options were
available to the Project to ensure compliance with federal
regulations, depending on when nesting occurs: 1) Development:
obtain a permit to remove the nest to deter nesting where
construction or operations risk would be anticipated, 2)
Development or Construction: obtain a permit to harass eagles to
deter them from nesting in areas of potential risk, or 3)
Construction or Operations: monitor the nest to determine how
they respond to the project This potential loss of nesting
productivity is unlikely, but considered in the take requested
under Article 11 in this conservation plan. The Applicant has
proposed to mitigate impact to bald eagles through lead
mitigation and conservation as described in Section 5.0.”
(Appendix DD, p.21)

Clearly, Apex’s omission was dishonest and diverted the discussion,

away from dealing with the truth, that there was potential eagle

nesting on Galloo, well before Apex submitted their application with

enough time to consider other design elements that could have avoided

or minimized risks to nesting bald eagles.


Fraud from False Statements

What follows are a listing of fraudulent statements occurring in

documents submitted by Apex in their Galloo Island Wind application:

Exhibit 22 Terrestrial Ecology (filed September 25, 2017)

1. “Bald eagles were observed as non-breeding during 2015


breeding bird surveys in addition to other on-site
surveys.” (p.44)
2. “Even though there are currently no known nesting bald
eagles on or within 10 miles from the island, the species
has been observed on the island at levels that may
subject it to risk (WEST, 2017).” (p.48)
3. “While there are no records of bald eagle nests on or
near Galloo Island, the 493 acres of forest habitat on
the island can be considered potentially suitable habitat
for bald eagle roosting.” (p.49)
4. “Although no current or historical bald eagle nests have
been documented on the island, the eagle population is
expanding and the species may begin nesting on the island
at some point in the future if it is not deterred or
displaced by the operation of the Facility. The Facility
is thus not expected to impact nesting eagles.” (p.49)

Appendix EE – Avian Risk Assessment (WEST, Inc. filed October 5, 2017)

1. “… however, NYSDEC reported no known bald eagle nests


occurring within 10 miles of the Project (B.
Denoncour, NYSDEC, pers. comm., April 13, 2017).”
(p.6)

Appendix DD – Article 11 Take Permit Applicaton (WEST, Inc., filed

November 29, 2017)

1.“Bald eagle is also included in this Plan, because


while there are currently no known nesting bald eagles
on or within 16 km of Galloo Island (B. Denoncour,
NYSDEC, pers. comm., April 13, 2017).” (p.5)
2.“Although such treed habitat could be considered
potentially suitable for nesting, no known records of
bald eagle nests on or near the island have been
documented (B. Denoncour, NYSDEC, pers. comm., April
13, 2017).” (p.8)
3.“Bald eagles are not currently breeding on Galloo
Island, and the closest known nests are located 14-18
miles away to the east around Black River Bay and north
on Carleton Island (B. Denoncour, NYSDEC, pers. comm.,
April 13, 2017). (p.8)
4.“No known or historic bald eagle nests have been
documented on the island, and the nearest known nest is
over 16 km (10 mi) away (NYSDEC, pers. comm., September
30, 2015 and April 13, 2017). Given the expanding bald
eagle population, if nesting habitat was optimal, it
would be reasonable to expect nesting to have occurred
in recent years. Therefore, although nesting could
occur during development, construction or operations of
the facility, it would likely only occur after other
more suitable nest sites in the region become
occupied.” (p.18)
5.“Therefore, construction and operation of the proposed
Project may impact a few non-breeding and/or wintering
bald eagles on the island (Old Bird, Inc. 2008a;
2008d), but are not likely to disturb bald eagles
nesting in the region.” (p.18)

These omissions and false statements paint a very clear picture of a

conspiracy between Apex and its consultant WEST, Inc., who prepared

the appendices and did the aerial survey, to deceive the examiners,

the parties, the siting board and the public. The purpose for the

deceit may have been to postpone finding the nest until construction

began and then claiming the project was too far along to do anything

other then destroy the nest and harass adult bald eagles from ever

trying to nest on Galloo again.

Apex may claim they had no evidence that the nest was built by a bald

eagle. This argument is absurd, since Apex did not do what it should

have done and what I did when I first learned of the report – I

contacted NYSDEC. NYSDEC and USFWS have expert staff that could have

inspected the nest, rather than base an examination on aerial flight

data, and provided their expert opinion on what species built the

nest. Moreover, both agencies would have undoubtedly planned a survey


effort in 2018 that could have confirmed use and reproduction by bald

eagle to better inform the siting board regarding bald eagle

reproduction on Galloo. Apex was, therefore, negligent and

irresponsible not reporting the nest to authorities.

The fact this fraud is so unambiguous and well documented makes moving

forward impossible. To allow Apex to simply edit-out the lies and

cleanse their documents sends a terrible message to the public – you

can lie, cheat, and get caught in the Article 10 process with little

inconvenience or penalty. But, there must be consequences other than

opposition parties complaining again during the hearing phase.

One example of the possible consequence of submitting a fraudulent

permit is to consider what will happen when Apex submits their Article

11 Take Permit Application to NYSDEC. The final requirement for

submission of the Take Permit to NYSDEC (Section C – 182.11) includes

an executed certification statement:

“I certify that the information submitted in this application is


complete and accurate to the best of my knowledge and belief. I
understand that any false statement herein may subject me to
denial, suspension or revocation of this permit, and to civil and
criminal penalties under the laws of the State of New York." (our
emphasis added)

If Apex submits their fraudulent Take Permit, then NYSDEC has ample

cause to deny the permit and prosecute Apex.


Likewise for the siting board, examiners have ample cause to recommend

dismissal of Apex’s Galloo application. The expectation for all the

parties to the Article 10 process is an honest application. This is

particularly true for local citizenry, because what you decide we must

live with here in Jefferson County. This is our home. We do not want

our local resources sacrificed for a lie. We deserve better.

The remedy for Apex’s fraudulent actions and documentation must be a

lesson to others. We should not reward those who would cheat New York.

What we have exposed is perhaps unprecedented, and for all these

reasons Apex’s application should be dismissed. It is an unfortunate

conclusion for Apex, but it is a self-created circumstance brought

about by the choices of an ambitious energy company that thought they

could deceive us and get away with it.

Respectfully yours,

Clifford P. Schneider, Individual Party

Endorsed and supported by:

Claudia Maurer, Individual Party

John Culkin, Town of Henderson Supervisor

Ann and Martin Maurer, Individual Parties

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