This article originally appeared on Inside Climate News, a nonprofit, independent news organization that covers climate, energy and the environment. It is republished with permission. Sign up for their newsletter here.
By Lee Hedgepeth, Inside Climate News
AUBURN, Ala.—By Monday morning, Jim and Pam were already trying to build back better.
The pair of bonded bald eagles, symbols of the nation and of Auburn University, were busy at work in the skies above the city, gathering large sticks and other nesting material in their talons, flying them to what may soon become their new home. It was a heartening sight for nearby residents who’d feared the worst after workers for Hughston Homes, federal “nest take” permit in hand, had cut down the tree over the weekend where the eagles’ nest had been.
Hughston Homes is now under investigation by federal law enforcement, according to the U.S. Fish and Wildlife Service (USFWS). But residents familiar with the unfolding “war on eagles,” as they’ve called it, have said that’s not enough.
USFWS should have never issued the permit, they argued, given evidence of active eagles present in the nest, which could preclude a nest take under the plain language of the Bald and Golden Eagle Protection Act.
On Tuesday evening, USFWS published a letter to the Auburn community, writing that the agency “understand[s] the deep emotional connection that many in the community have with these birds.”
“We take your concerns seriously,” the letter said in part. “We are conducting a review to ensure the conditions of the permit were followed by the permit holder. We will provide updates if new information becomes available.”
Local officials haven’t escaped residents’ scrutiny, either. At least some city officials knew about the nest as early as June, when Auburn’s planning commission voted unanimously to approve the preliminary plat of the development, a residential subdivision called Heritage Ridge. The eagles’ nest protection was a federal issue, members of the body told concerned homeowners at the meeting, and would best be handled by USFWS.
Once the federal agency had issued the nest take permit in October, based in part on the developers’ self-reporting of a lack of eagle activity, things began to move quickly. Beth Witten, an Auburn city councilor who represents the area of the planned development, expressed her concerns to Hughston Homes and asked that representatives of the company meet with city officials to discuss options around protecting the eagles’ nest, potentially through the city’s purchase of the surrounding property. Tyler Findley of Hughston Homes agreed to that meeting, according to Witten, and it was scheduled for Monday, Nov. 18.
But that meeting never happened. Instead, sometime over the weekend, possibly under cover of night, the developers had the tree containing the nest cut down. Soon, Jim and Pam, named by a local after characters from The Office, were circling the area, apparently looking for their now-destroyed nest. Residents gathered together, their tear-filled eyes turned to the sky.
The incident has united locals, who say they’re committed to getting justice for the birds.
They’ve already got a battle cry: War Eagle.
“They passed the buck”
At a June 13 meeting of Auburn’s planning commission, Matt Durchholz, an economics Ph.D., told commissioners that he’d reported the presence of the eagles to state wildlife officials as early as January 2021.
“As an economist, I’m for property rights,” he told members of the planning commission. “But having property rights involves inherent responsibilities in how you use that property, which means you have to obey the local and federal regulations.”
During the meeting, Justin Wahid Cotton, Auburn’s planning director, read a statement on behalf of the city claiming that any protection for the eagles would need to come from federal officials, not from the planning body.
“This week, we did receive a lot of communications about this, a lot of concerns, a lot of emails and also pictures verifying the presence of eagles’ nests on the site,” he said.
Cotton then read a prepared statement relaying that while city officials had been made aware of the presence of bald eagles and their nest, their protection would not be considered in approving or denying the developer’s application before the planning body.
“In summary, the city recognizes that there are protections put in place for the bald eagles’ nest on the property in question, but those protections do not impact the Planning Commission’s review of the application to subdivide this property.”
Residents interviewed by Inside Climate News said that the planning commission’s approval of the preliminary development proposal, which passed by a unanimous 8-0 vote, was an abdication of members’ duties to serve and represent citizens’ views.
“They passed the buck,” one resident said. “We see how that went.”
Members of the commission could have withheld their approval of the plat, the resident argued, forcing the developer to the table to hash out a plan to protect the eagle’s nest.
Other homeowners have also questioned the chair of the commission’s participation in the consideration of the plan’s approval. Nonet Reese, the body’s chair, works as a broker and realtor at Three Sixty, a development and real estate firm she co-founded, according to a press release about her appointment to the planning commission written by a marketing firm and published by AL.com.
Reese is also listed by the Alabama Secretary of State’s website as the registered agent of Tivoli Final Phase, LLC, the entity that currently owns the land involved in the Heritage Ridge development, according to county property records. Reese was among the members of the planning commission who voted for the approval of the preliminary plat. She did not disclose her role as Tivoli’s registered agent during the June meeting, according to a recording of the proceedings. Reese has not responded to questions about her level of involvement in the development and about her participation in the June vote, an action some residents consider a conflict of interest.
Permit issued
Once planning commission officials approved the plat, concerned residents and public officials’ attention turned to USFWS, the agency responsible for issuing nest take permits and enforcing the provisions of the Bald and Golden Eagle Protection Act.
That law, enacted in 1940, prohibits anyone, without a permit issued by the Secretary of the Interior, from “taking” bald or golden eagles, including their parts, including feathers, nests or eggs.
Permits for such a purpose are only to be issued in specific circumstances, the text of the law explains, such as when the eagles in question are causing injury or harm to wildlife or agricultural interests.
The “take” of an eagle or its nest can only be permitted, the law states, when it “is necessary to protect a legitimate interest in a particular locality…and cannot practicably be avoided.”
Approval of such permits can often rely on self-reported or third-party information about eagle activity in and around the nest.
Inside Climate News has requested copies of Hughston Homes’ nest take permit, which USFWS said was issued in October, as well as all supporting documents submitted as part of the permit application.
A representative from USFWS said that release of the permit would require a formal Freedom of Information Act request. The agency has not yet responded to Inside Climate News’ FOIA request.
Initially, officials from USFWS said in a statement that the presence of adult eagles would prevent the issuance of a permit. The agency’s later comments said that only the presence of eggs or young birds would rule out the possibility of a nest take permit, a change in view not lost on those following the unfolding debacle.
Residents near the planned development, which is set to include the construction of 48 homes on 76 acres, have for weeks documented eagle activity on the site. One resident posted a video of adult eagles in a nest on the property as recently as Nov. 15. The presence of adult eagles in the nest should preclude the issuance of a nest take permit except in extreme circumstances, according to experts.
Even when such permits are issued, there are specific requirements around the means by which the take can be executed.
It’s unclear to what extent Hughston Homes complied with the requirements outlined in the nest-take permit issued by USFWS. In a statement emailed to Inside Climate News on Tuesday but dated Nov. 15, a representative wrote that the company has complied with federal regulations involving the nest take. The company did not answer questions about the pending investigation into the incident.
A councilor with purpose, a developer with other plans
Beth Witten got into politics because of issues just like this.
More than a decade ago, she and other nearby residents became concerned with a developer’s plan to clear-cut the land on which they had planned to build a subdivision—land adjacent to the property at issue today.
“Myself and the people from my neighborhood started speaking up at council meetings—not being belligerent or anything—just asking questions,” Witten told Inside Climate News. “We made it so uncomfortable for the developer, whose margins were so thin anyway, that they just walked away from it.”
The tactic was a success, she explained, and now the subdivision, later completed by a more amenable developer, has at least some tree cover. The experience was empowering for Witten and other residents, she said, and made her feel that she could help make Auburn a better place.
Within a few years, Witten was on the council, trying to represent constituents the way she had wanted to be represented.
Since the bald eagle incident began to unfold, she’s received dozens of communications from residents who’ve demanded protection for Jim and Pam, and she said she’s done her best to make that happen. It was Witten who helped spearhead the effort to meet directly with representatives of Hughston Homes to discuss, for example, whether the city may be able to purchase the land around the nest as a way to avoid disrupting the eagles.
Witten said she spoke to Tyler Findley from Hughston Homes on Friday, during which they scheduled a formal Zoom meeting for Monday to get into the weeds of how best to address the issue.
“I asked him specifically on that call if it was safe to say there would be no activity regarding the eagle’s nest until after the call on Monday, and he said ‘absolutely,’” Witten said.
After hearing from residents the next day that the tree with the eagles’ nest had been cut down, she immediately reached back out to Findley, Witten said.
“He did confirm to me that after our call, he drove to the site and had his contractor there, and they took a tree down with a nest in it,” Witten said—but not the tree with the eagles’ nest.
“I explained that I strongly believed he was wrong about that,” Witten said. “I told him that I thought it was very deceptive and that I did not appreciate the intent to deceive and lie to a city official…I felt there was a lack of transparency and a lack of integrity through this process on their behalf.”
Witten also said that this experience has taught her valuable lessons about the abilities—and inabilities––of federal agencies. She thought that the agency would send someone out to look at the site, for example, before issuing a permit based on self-reported or third party information.
“I guess I was a bit naive,” she said. “But self-reporting just isn’t enough.”
The flight of Jim and Pam
On Saturday, residents near the development gathered to watch as Jim and Pam circled the area near their former home, apparently confused as to the location of their nest.
Barry Fleming, past president of the Alabama Ornithological Society, was among them.
Some residents cried. Some were furious.
“I look over at a big old feller who’s a little younger than me,” Fleming said. “It’s about noon and he’s popping open a Snake Handler,” a high-alcohol beer.
“I have to,” the man told Fleming. “I’m shaking I’m so mad.”
Fleming turned to his other side. Elizabeth White, a prominent local television journalist who’d first reported the threat to the birds, was in tears.
For Fleming, the incident has provided a learning opportunity for the community—a teachable moment where people can begin to think more critically about the implications of development, even when there isn’t a charismatic animal like the bald eagle under threat.
“Sometimes it takes the sexiness of something like a bald eagle—the power of the eagle, its dynamism, its majesty—to encourage people to realize that there are more species at risk,” Fleming said.
He said he saw this process of consciousness-raising already at work among the residents in Auburn: “They start to hear about other wildlife as we’re standing around, and you see the thoughts start to come across their faces… What about these other animals?”
Bald eagles have long been the focus of conservation efforts, not in small part because of their status as the national symbol of the United States and as one of the de facto symbols of Auburn University.
“So I keep thinking, the silver lining here is that even if we’re just caught up in America, and even in Auburn, by the bald eagle, maybe that’ll rub off on some salamander that’s about to go extinct,” he said. “Maybe that’s part of the solution.”
An investigation ensues
Following the public outrage that sprung from the taking of the eagle nest over the weekend, Auburn city officials announced that they had urged USFWS to conduct an investigation into the incident.
On Monday, a spokesperson for the federal agency confirmed such an investigation in a statement to Inside Climate News.
“We are aware the bald eagle nest at the Heritage Ridge development project has been removed, and it is now under investigation by our law enforcement officers,” wrote Denise Rowell, an agency representative covering Alabama and Georgia.
The Bald and Golden Eagle Protection Act provides criminal penalties for violations of its provisions.
“A violation of the Act can result in a fine of $100,000 ($200,000 for organizations), imprisonment for one year, or both, for a first offense,” according to the USFWS’s website. “Penalties increase substantially for additional offenses, and a second violation of this Act is a felony.”
Some residents, though, find it ironic that the federal agency is only now conducting a serious inquiry into the situation unfolding in Auburn.
Charles Williams sat outside in his driveway Monday morning, watching the skies with his wife Betty and Corgi puppy named Duke, looking for any signs that Jim and Pam would be okay.
The news that USFWS had launched a criminal investigation into the incident made Charles laugh.
“If they’re doing an investigation, I hope they have a mirror,” he said. “They’re the ones who permitted it. They’re the ones who should be investigated.”
The developer, he said, should be ashamed of themselves.
“Cutting it down and lying to city officials? That’s pretty low,” he said.
The Williamses said they’ve been watching Jim and Pam for at least a year. Now, they just hope that the birds will find a suitable home, hopefully close enough to their home that they can still enjoy them.
In a statement emailed to Inside Climate News on Tuesday, a representative of Hughston Homes wrote that the company was unaware of the eagles and their nest when they bought the property. The company said in the statement that they have complied with all federal regulations around the taking of the nest.
Their decision to remove the nest was taken in consultation with an unnamed wildlife expert, according to the statement.
“Please know that this decision was made with respect for the environment and the welfare of these magnificent birds,” the statement concluded.
What comes next
Experts interviewed by Inside Climate News say they believe Jim and Pam are resilient enough that the taking of their nest shouldn’t have too detrimental an impact on their lives.
Geoffrey Hill is a professor in Auburn University’s Department of Biological Sciences, where he serves as the William P. Molette Professor and Curator of Birds.
Hill said he teaches his students that bald eagles are a prime example of the success of the Endangered Species Act. Their numbers bottomed out in the 1970s and 1980s, and following their protection under the ESA, their population rebounded in a significant way.
“During the 1970s, I don’t think there were any eagle nests in the entire state of Alabama,” he said. “The first eagles’ nests in the state were probably built in the early 1990s, as a result of the protection provided by the act.”
One of the main threats that had brought the species close to extinction was DDT, a pesticide that was later made illegal.
Now that the population is robust across Alabama, it’s going to take more than a stray developer to harm the species—and even these specific birds.
“These eagles will be fine,” he said. “They’re going to renest in another tree. If anything, this is just a terrible public relations blunder by the developer. They’re probably one of the most hated companies in Alabama right now.”
Hill may be right about the company’s notorious reputation, and about the eagle’s resilience, too. An online petition around the issue has garnered more than 8,000 signatures as of Tuesday. Councilor Witten said her inbox is full of communication from worried residents.
Witten said she’s heartened by seeing photographs of the eagles carrying nesting material, preparing a new home for themselves.
“It gives me a warm fuzzy feeling that they’re already rebuilding,” she said. “And that our community came together to fight for these animals.”
As for the developer, she said its representatives have retained counsel and largely gone quiet.
But for Witten, her advocacy around conservation will continue. She said that while Alabama law limits what local governments can do legislatively, she plans to explore what types of ordinances could be passed to protect bald eagles at a local level, particularly here in Auburn, where residents hear the screech of rescued raptors over many home football games.
Such protections may become relevant quickly, as it appears that Jim and Pam may be building their new nest in a tree on the same development. Once again, Witten will do what she can to make sure history doesn’t repeat itself.
As for the city’s relationship with Hughston Homes, Witten said she’ll always be even-handed and vote based on the facts in front of her.
“But if they chose to pick up and move out of Auburn,” she said, “it wouldn’t hurt my feelings.”