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Trina LeGarde who has been researching the federal laws pertaining to the bald eagles which nest next to Ordean has submitted information from the Duluth School District to Andrea Kirk and Phil Delphey of the U.S. Fish and Wildlife Service for their feedback.  Trina explains that she's doing this “because I wanted to ensure that my facts were accurate, and that I wasn’t misrepresenting the situation.”  Andrea Kirk told Trina “You have prepared a very succinct and comprehensive overview.”  

Bald Eagle Fact Sheet

Image taken from the "Bluebirder" blog 

This picture was taken over the tip of the city of Superior and could be one of the 
Ordean eagles which nest on the Minnesota shore opposite Wisconsin.

UPDATED 2/9/09

The next Ordean Neighborhood Meeting is on 2/11/09

Compiled by Trina LeGarde

Although the Bald Eagle is no longer on the endangered species list, this does not mean they are no longer legally protected.  In fact, because of the Bald and Golden Eagle Protection Act which was enacted in 1940, Bald Eagles are even more protected, and on a national level.

The U.S. Fish and Wildlife Service have established National Bald Eagle Management Guidelines which support the Bald and Golden Eagle Protection Act.  Here is the link: 

 On Page One the intent of the Guidelines are listed:

  • Publicize the provision of the Eagle Act that continue to protect bald eagles, in order to reduce the possibility that people will violate the law,
  • Advise landowners, land managers and the general public of the potential for various human activities to disturb bald eagles, and
  • Encourage additional nonbinding land management practices that benefit bald eagles (see Additional Recommendations section).

Although the Duluth School District has told the public that the eagles’ nest would not be disturbed, what they haven’t mentioned is that they do not have a permit from the U.S. Fish and Wildlife Division of Migratory Birds Permitting Office.

The Duluth School District was told in early December 2008 that NO permits were available, and that NO new permits were being issued at this time.  The U.S. Fish and Wildlife Service Permitting Dept. does not know when any permits will become available.

I (Trina) had a lengthy discussion with the U.S. Fish and Wildlife official (Andrea Kirk) regarding what this decision meant, especially in light of the District’s proposed plans for the Ordean site.  Here is some additional information that I found out:

1) The Duluth School District is required to follow the National Bald Eagle Management Guideline s as developed by the U.S. Fish and Wildlife Service.

2) The definition of “disturb” – as stated in these guidelines – is very specific.  It cannot be redefined by the District, or their representatives.

“Disturb means to agitate or bother a bald or golden eagle to a degree that causes, or is likely to cause, based on the best scientific information available, 1) injury to an eagle  2) a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior, or  3) nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior.”

“In addition to immediate impacts, this definition also covers impacts that result from human-induced alterations initiated around a previously used nest site during a time when eagles are not present, if, upon the eagle’s return, such alterations agitate or bother an eagle to a degree that injures an eagle or substantially interferes with normal breeding, feed, or sheltering habits and causes, or is likely to cause, a loss of productivity or nest abandonment.”

(Taken from page 2 of the National Bald Eagle Management Guidelines/U.S. Fish and Wildlife Service/May 2007)

3) An eagles’ nest is considered to be “active” for 5 years – even if there are no eagles present.  In addition, because the Ordean eagles’ nest is near water it is also considered a roosting and foraging area.  This is another “plus”. 

Note: “Migrating and wintering bald eagles often congregate at specific sites for purposes of feeding and sheltering.  Bald eagles rely on established roost sites because of their proximity to sufficient food sources.  Roost sites are usually mature trees where the eagles are somewhat sheltered from the wind and weather.”  The Boyd’s property is a significant part of the eagles’ habitat.

(Taken from page 8 of the National Bald Eagle Management Guidelines/U.S. Fish and Wildlife Service/May 2007)

4) If the Duluth School District chooses to proceed with their plans at the Ordean site, without a permit, they are doing so at their own risk.

5) A violation of the Bald and Golden Eagle Protection Act can result in a criminal fine of $100,000 ($200,000 for organizations), imprisonment for one year, or both, for a first offense.  Penalties increase substantially for additional offenses, and a second violation of this Act is a felony.

Note: Who will pay this penalty?  Superintendent Dixon?  The school board members?  JCI?  The taxpayers? 

Note: I have since found out that the Duluth School District would pay all fines and litigation costs – which means that we, the taxpayers, would end up paying the fines.

6) The Guidelines also contain specific structure and activity criteria that need to be adhered to.  This is because there are certain critical time periods when the eagles are more sensitive to certain types of human activities.  (Pages 8 – 14 of the Guidelines)

Note: Construction occurring during the nesting/hatching/rearing/fledging season – January to July/August – carries with it the great potential of disturbing the eagles.  That pretty much leaves late summer, fall, and part of winter as the construction months that would be deemed “safe”.  Why is the DSD willing to take this risk when Central H.S. would make an excellent second high school site?

7) Another eagles’ nest, in another location, is NOT the standard.  We are talking about this eagles’ nest, and this pair of eagles, at this particular location.

8) It is highly advisable that the Duluth School District restrict construction activities as recommended in the National Bald Eagle Management Guidelines and maintain at least a 660 ft. buffer around the nest.

Note: There is some wiggle room here because of the already existing fields/structures.

 Additional questions/facts which I double-checked with Andrea Kirk on 1/13/09 (her responses are in red):

1) Are the eagles and their nest protected on a state, federal, or national level? (They understand about the Bald and Golden Eagle Protection Act being more “protective” than the eagles being on the endangered species list.)

The eagles and the nest are protected on a national level by the Bald and Golden Eagle Protection Act.

2) What is the significance of obtaining a permit from the U.S. Fish and Wildlife Service? (Is there something else besides the Duluth School District proceeding “at their own risk”?)
If the construction causes the eagles to abandon the nest and there are eggs or nestlings present, the school district could be held liable by the U.S. Fish and Wildlife Service if it does not have a permit.

3) How will the formal notification to the Duluth School District from your department help our situation?
I am advising the Duluth School District of the need to comply with the National Bald Eagle Management Guidelines in the absence of a permitting system.

Note: A formal notification was sent to Superintendent Dixon on 1/13/09 from Andrea Kirk of the U.S. Fish and Wildlife Service.

4) What if the Duluth School District “assures” you that they will comply with the National Bald Eagle Management Guidelines, but they begin construction during a critical time? What should the citizens do? What can the U.S. Fish and Wildlife Service do?
If the district begins construction during the breeding and nesting season, citizens should monitor the behavior of the eagles. If the eagles abandon the nest and leave their young, the US. Fish and Wildlife Service Law20Enforcement Division should be contacted immediately at: 651-778-8360.

Note: There is nothing that the U.S. Fish and Wildlife Service can do until the eagles are disturbed.  This is very unfortunate as by that time, it could be too late.

Below is the contact info for everyone who I spoken with about this issue thus far:

DNT Non Game Division Regional Office (Grand Rapids)

I was referred to this office by the Duluth DNR office
Contact person: Maya (Pronounced May-yuh)

Very sympathetic, but their office is unable to help.  She referred me to:

U.S. Fish and Wildlife Field Office

Bloomington, MN
Contact person: Phil Delphey
Endangered Species Coordinator

I contacted him the week of Thanksgiving.  He said the only contact he had had re the eagles’ nest was back in April 2008 when a landscape architect firm contacted him (he didn’t recall who it was).  They were looking for more info as they were considering putting in a bid on the Ordean site.  Phil came to Duluth, and he looked and drove around the site.  He did not contact the Boyd’s nor did he go on their property.  He never spoke directly to a District representative, nor was he aware of any District representative contacting their office.

Note:  I have been informed by Kerry Leider, Property and Risk Manager for the DSD, that the architect firm was LHB.  Phil Delphey was not aware that they were representing the District.  This was a general site visit.  Phil does not recall seeing any design plans at that time, although he may have –> Important: See 2/9/09 e-mail below.  Phil has not seen any design plans since his visit to Duluth in April 2008. 

Update – Taken from e-mails on 1/27/09 from Phil Delphey to me:

“I did get a call from a person representing the school district - she left a message about a week ago.  I called her back and left a message on her voicemail, but I have not heard back from her.”

“Also, I would describe their communications with me as sporadic and indirect - it's hard and maybe not worth much to parse their words ("all along") too carefully, but I think that Katie is the first person that has contacted me who actually works for the school district.

[Note: Katie Kaufman, Public Relations for the DSD, left Phil a voice message the same week I was inquiring from the District who they had been in contact with from the U.S. Fish and Wildlife Service.  Katie had Phil have not actually “talked” – they have just left voice messages.]  

”It's hard to be conclusive w/o some clear proposal to review.  We've only had preliminary plans discussed so far, but that's not atypical of projects as they evolve.  It seems to me that they have been working out the details, but it's hard for me to tell for sure where they are in the planning process.”

“Kerry states below that "U.S. Fish & Wildlife Service provides these guidelines rather than requiring a permit."  It's probably important to understand that the guidelines are not regulations, per se, but our general recommendations for persons wishing to avoid implementing an action that would disturb eagles, as defined under the Bald and Golden Eagle Protection Act.  USFWS does not issue permits to disturb eagles because it does not yet have authority to do so, although we have been in the process of developing a permit program.  The general need for a permit is for when someone will do something that would be otherwise prohibited by one of our wildlife laws.  If someone is not going to perform a prohibited act, then they would not need a permit.”  [Emphasis mine]

“Kerry has my title a little incorrect - I am the Endangered Species Coordinator.  From the information presented to me, it did seem clear that existing activities at the ballfield had been tolerated by the eagles.  I do not recall making any specific conclusions during this field meeting - it was basically a quick opportunity to see the site and the proximity of the nest to the existing activities, although I do recall discussing some of the issues that would be important - e.g., landscape buffers and timing of construction, as Kerry mentions below.  As Kerry suggests, I had expected that we would see further details regarding the project - it did not seem as if any detailed project design had been agreed upon.”

“… I do think that I've heard that there would be an additional stadium, but do not recall whether I first head that during my site visit or afterwards from someone else.  I really do not think that it is worth commenting on specific aspects of the project out of context - if we are going to provide any technical assistance on this we really need to see the project in its entirety. “  [Emphasis mine]

Update from a 2/9/09 e-mail from Phil Delphey to me:

“ … I may have seen some sort of plans during my site visit, but I don't think that the nature of those plans was very clear to me and I certainly did not provide any kind of conclusive statement regarding likely effects of the project.  The project information has just never been presented in a clear enough manner and there was never any official request for technical assistance on this project.”  [Emphasis mine]

U.S. Fish and Wildlife Field Office  Division of Migratory Birds Permitting Office

Bloomington, MN
Contact person: Andrea Kirk - Migratory Birds Permit Program Manager, Midwest Region,

This is the official who I have been in contact with since 12/12/08.  She has been extremely helpful.

Update – Taken from e-mails on 1/27/09 from Andrea Kirk to me:

“The truth is that the District has not consulted with the Service beyond the extent that Phil has relayed to you. As I stated previously, the Bald Eagle Management Guidelines are just that - guidelines. There is currently no permit program in place to protect the public against any disturbance that may occur to Bald Eagles as a result of human activities. The U.S.F.W.S. recommends that the guidelines be followed to avoid disturbance, but cannot enforce the adherence to these guidelines unless a violation occurs. The school district can proceed with the construction activities they have proposed. However, if the district chooses NOT to follow the guidelines, and disturbance occurs, the district may be liable under the Bald and Golden Eagle Protection Act for any negative population impacts derived from their activities.”  [Emphasis mine]

“Disturbance is measured after the fact. In other words, if the eagles abandon the nest AND the nest has young or eggs in it, disturbance occurs. Disturbance is prefaced upon nest abandonment.

As I stated previously, we cannot enforce the guidelines because they are recommendations. However, if the eagles abandon the nest, AND there are young or eggs in the nest AT THE TIME OF ABANDONMENT, disturbance can be said to have occurred. If this is a risk the school district is willing to take we do not have the authority to intervene unless the scenario I describe above results from their actions.” 
[Emphasis mine]

American Eagle Foundation

Pigeon Forge, TN|

Contact person: Bob Hatcher

Very helpful and knowledgeable individual however, he said that we need our help to come from the local level (Bloomington, MN office of U.S. Fish and Wildlife Service).


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