COVER LETTER

RE: GALLOO ISLAND WIND, LLC. Case No. 15-F-0327

Date: November 27, 2018

Document title: REDACTED VERSION: Second Motion to Dismiss for Fraud

Upon the Siting Board

Submitted by:

Clifford P. Schneider, Individual Party

47243 Wood Cliff Drive
Wellesley Island, NY 13640
(315) 215-4019
clif.schneider@gmail.com
November 27, 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: Second Motion to Dismiss for
Fraud Upon the Siting Board

Dear Secretary Burgess and Your Honors:

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.

Apex’s November 16, 2018 response to Interrogatory Request CS-CM 123

included the file “1224_epc_ga_20170413_14_MD.pdf.” This file is a
copy of the field data forms for the Point Count Survey for Galloo
completed on April 13, 2017 by Stantec Consulting. The following is an
excerpt from the Notes section of the Station 2 Survey Form:

REDACTED IMAGE OF NOTES

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 Stantec biologist noted, “Checked the Eagle’s nest 1705-1720 – no

eagle present or nearby. There appears to be no eaglets in the nest as
far as what can be seen or heard. There are wings/bones and feather of
RBGU (Ring-billed Gull) under the nest. Took photos.”

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.

TWO REDACTED IMAGES

The sightings, field notes and photos were more than enough proof by
Stantec Consulting that the big nest on Galloo Island was a bald eagle
nest. The nest, however, was inaccurately characterized by Apex as a
“potential eagle nest.” By doing so Apex created uncertainty, which
provided plausible deniability. To admit bald eagles were nesting and
possibly reproducing on Galloo would have entailed additional study,
effort and time, all of which would have delayed Apex’s time line and
threatened the viability of their project.

Creating uncertainty was done by undertaking a subsequent aerial

helicopter survey, at great expense (e.g., $10,000). The helicopter
survey conducted by WEST Inc. was a tool that was guaranteed to drive
away any bald eagle long before the chopper approached the nest.
Consequently, WEST Inc. could rightfully observe that no eagles were
on the nest at the time of the helicopter survey. Apex and WEST noted
no eagles, eggs or chicks in the nest, but failed to describe a
partially eaten gull in the nest. The partially eaten gull was obvious
to anyone who carefully examined the photos provided by Apex and
supports the fact that the bald eagle observed nearly two weeks
earlier by Stantec was still at the nest actively feeding. None of
this was mentioned by Apex nor were they forthcoming in releasing
information about eagle surveys or nesting bald eagles on Galloo.

In this proceeding, Apex repeatedly ignored our formal and repeated

requests for information on Galloo’s eagles. Over a year ago we made
our first request for Bald Eagle Point Count Survey data4. We were told
then by Apex the study results pertained to federal permitting and
were not part of the Article 10 application. We reiterated interest in
the Point Count Survey at Pre-Hearing Conferences on August 15 and
September 21, 2018. On August 24, 2018 we submitted Interrogatory
Request CS-CM 25 for copies of Point Count Survey data. Apex responded
they did not have the survey data in its possession and that, “It is

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.

6 Email response, J. Klami, September 27, 2018.

7
Email response, J. Klami, October 3, 2018.
8 Email response, J. Klami, October 3, 2018.
9
Email response, J. Klami, November 16, 2018.
The Stantec records of April 13, 2017 present a problem in our first
Motion for Dismissal10 of the Galloo application as well as the
subsequent Ruling, since they both accepted Apex’s fabrication
“potential eagle nest” and both did not consider that the nest in
question was an actual bald eagle nest. Moreover, reporting the
“potential eagle nest” ruse in Interrogatory Response CS-CM 211 was a
fraudulent response in discovery, which is a serious matter.

What is worse is the damage done by Apex in forming a complete record

in this proceeding. Apex failed to institute appropriate notification
and follow-up study. Apex used the helicopter survey to justify not
doing any further study. We asked what Apex’s rationale was for
ignoring follow-up activities and they responded, “No eggs, chicks, or
young were observed in the nest during the aerial survey and no
further action was taken.”12 Now, however, we know Apex knew the nest
was being used by bald eagles as far back as the spring 2017. Apex
should have conducted follow-up study in spring and summer 2017, but
they did not. Apex should have instituted a comprehensive assessment
of nest use, eagle behavior and reproduction in 2018, but Apex did
nothing. They justified ignoring any follow-up study, because WEST
found no eagles, eggs or chicks. This failure to do a proper follow-up
assessment is unconscionable, and by itself, is enough reason to
dismiss Apex’s application.

It is obvious to us that Apex initially lied about bald eagle nesting

on Galloo, but then lied again during discovery, all to avoid any
further study and resultant delays. They tried to keep the public in
the dark so they could move the project ahead without interruption.
This is not insignificant, it is material and intentional. Apex, if it
were granted a certificate, planned to report the nest once
construction began and then request a permit to destroy the nest. This

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.

Pursuant to 16 NYCCR 1000.16(e) we are once again calling for the

dismissal of Apex’s Galloo application for “discovery of material
information that the applicant withheld or misrepresented” and for
“discovery of materially false or inaccurate statements in the
application or supporting documents.”

Respectfully submitted,

Clifford P. Schneider – Individual Party

Claudia Maurer – Individual Party

John Culkin – Town of Henderson

13
Appendix DD, p. 21.