Prosecutor contends Bittner more concerned with economic gain than well-being of raptors;

Bittner data used to justify wind and other energy projects in San Diego/Imperial Counties, Mexico & elsewhere

By Nadin Abbott and Miriam Raftery

August 13, 2013 (San Diego)—U.S. Magistrate Judge David H. Bartick sentenced John David Bittner of Julian, president of the Wildlife Research Institute in Ramona, to three years probation and a $7500 fine. Bittner pled guilty to unlawful taking of a Golden Eagle without a permit and failing to file any data reports for a four-year period on birds that he had banded. The government could have imposed up to a $100,000 fine and a one-year prison sentence, but instead hope to induce Bittner to turn over years of missing data as a condition of probation.

"We support the Justice Dept’s vigilance in prosecuting Bittner for his serious transgressions and unlawful behavior,” said Donna Tisdale with the Protect Our Communities organization. ““When unethical and basically corrupt experts like Bittner side with industry over avian protection—our beautiful birds literally get clobbered with the blunt end of the turbine blade.”

But she suggested that the fine amounted to a slap on the wrist in light of the more than $600,000 that Bittner’s Wildlife Research Institute raked in through consulting fees for corporations. Iberdrola and Pattern Energy hired him to write reports justifying their wind projects, Tule Wind in McCain Valley and the Ocotillo Express Wind Facility. Sempra Energy also hired Bittner as its eagle consultant for its massive Energia Sierra Juarez Wind in Baja California.

“Now we know why Bittner was the go-to-guy for the industry. His services, and whatever ethics or integrity he might have once had, were literally ‘for sale’ to the highest bidder—aka unscrupulous wind developers,” Tisdale contends.

The sentencing memorandum reveals that Bittner had a long history of noncompliance with state and federal laws protecting birds of prey—including one nine- month period when witnesses contend that 90% of eagles fitted with transmitters by Bittner died.

In 1979, the state of Ohio and the federal government revoked his bird banding permit in that state following his conviction for taking wild turkey eggs, arrest for having wild turkey vultures and a Snow Owl without a permit, and failure to file banding reports required by law. Yet he continued banding wild raptors after his permit was revoked. His permit status was later changed to inactive at Bittner’s request.

Bittner lied to probation officials, the sentencing memorandum indicates, falsely stating that this case was the first time in 48 years that his permit had lapsed. In fact he had no active federal permit to band birds from 1980-1997. It was reactivated in 1997 after Bittner filed an application from his new location in Ramona, California.

After the reauthorization, Bittner advised the BL that he had retained nearly 2,500 bird bands, which are strictly regulated – but has never accounted for his activities. Bittner later lost the permit again and has not had a valid permit since 2000 in California due partly to his failure to provide required data—13 years ago.

In 2011 he provided the state Department of Fish & Game with a report on nearly a thousand raptors (936) including 200 Golden Eagles that he banded from 2000 to 2011—with no state permit issued, though the state did cash Bittner’s checks, oddly. His federal permit expired in 2010 and was later renewed despite questions over 300-400 bands not accounted for. These included eagles in San Diego and Imperial County as well as Orange, Riverside, San Bernadino and Kern counties. Most of those eagles were also tagged and 44 were fitted with transmitters.

Bittner was also found to be using wild raptors in educational programs for the public at his Wildlife Research Institute facility in Ramona. He also illegally trapped and marked 164 birds while his permits were lapsed in 2010, including 29 Golden Eagles in San Diego and Imperial County, as well in 5 in Nevada while working on a wind project there—also without a Nevada state permit. He also illegally banded an injured bird and released it with multiple transmitters, a practice bird experts have said had no scientific justification. Witnesses said it had trouble flying; Bittner noted it was found dead later, apparently a victim of a wind turbine, but Bittner never provided flight data on the bird.

Most shocking, several witnesses reported a mortality rate of 90% for birds mounted with Bittner’s transmitters during one nine-month period, when experts said an 85% survival rate should have been expected. Yet Bittner reported only a 20% mortality rate during that nine month period in 2011.

Bittner claimed he had no time to manage permits in eight states when questioned by federal authorities.

He was also found to illegally have four freezers full of dead birds including 26 migratory birds, of which 11 were golden eagles, some dating back years. Dead eagles are requiredt to be turned over to the federal government immediately so that feathers may be used by Native Americans for ceremonial purposes.

He also conducted a helicopter survey of eagle nests in Joshua Tree National Park even after being specifically denied a permit for use of a helicopter due to fears of disturbing the birds

He has never published any scientific papers on his survey findings. Nor has he turned over results to state or federal authorities, as he is required by law to do. Instead, his data has only been provided to his paying corporate clients.

Now the federal government wants him to submit data on thousands of unreported bird bands issued to him, as well as telemetry data from transmitters, though the latter were not provided by the government.

The extent of his probation will depend on Bittner fulfilling the terms of his probation. These also include the sharing of the raw data obtained from telemetry studies on birds by Bittner with the Fish and Wildlife Service . Bittner has argued that this is intellectual property that cost him and the Wildlife Research Institute, and that sharing this material with the government will put the birds at risk by allowing the public to find eagle nests.

The government argued that this material was generated from equipment provided by the Federal Bird Banding Lab. The government also required that Bittner return all bands still in his possession to the government and provide full accountability for them.

Before the sentencing Bittner’s lawyer, Gerissa Santos, argued before Judge Bartick that her client had been punished already. Due to the negative publicity generated by the case, he had lost clients, who paid for his services. She also argued that Bittner is set to retire, and wanted to protect the birds.

Santos added that the “joint recommendation for probation is sufficient to ensure payment of the fine.” She also said that the Federal banding permit has been revoked as of 2009, and there have been negative repercussions in the scientific community.

She objected to the sharing of the information requested with the Fish and Wildlife Service, since “it is just raw data.”

Santos also argued that all this has negatively affected the Wildlife Research Institute (WRI_. In her mind the Court should also consider the effect on the Institute, which might close in 2014 due to lack of operating funds.

Bittner's Wildlife Research Institute recently sent out a fundraising letter signed by Bittner, brazenly seeking funds for additional raptor research including eagles, without disclosing Bittner’s guilty plea. Among other things, the letter asks donors for support for its education programs using illegally kept raptors and to "conduct Golden Eagle research to aid agencies in making sound scientific decisions regarding wind, solar, and other development projects."

Santos closed by saying that “no harm has been done to any birds.” But that point was disputed by the prosecution.

“Birds were harmed,” Assistant U.S. Attorney Melanie K. Pierson argued at the sentencing hearing, also noting that the damage to the Wildlife Research Institute did not come from the prosecution.

Pierson referred to the educational program in Ramona where Bittner used wild raptors, who “get stressed when exposed to large quantities of people.”

Moreover, “Bittner does not want to give the data to the government, that wants to protect the birds” even though the raw data is valuable information for Fish and Wildlife. On the other hand, he is willing to sell it to private parties.

He is far more concerned about economic gain than the bird’s well being, Pierson concluded.

Santos argued that the United States Forest Service contracted Bittner in 2007, and he sold Telemetry data to them in 2007. Some of this data ended up in the hands of mountain climbers and he is afraid for the safety of the birds. In the end there was an agreement to have access to this data only to proper federal agencies and not open it for a Freedom of Information request.

When Bittner addressed the Judge, he was clear that he was afraid that his legacy would be the end of the Wildlife Research Institute.

After the sentencing Bittner did answer questions from the press. He told ECM that “We submitted 600 more bands than they have on record.” All this happened over a 40 year period.

He said that all the government wanted was the raw data. He added that the time that his permit was laid dormant he was not in the business. According to him, “Agent Nichols has requested the data. This is about getting the data and the intellectual property.”

He, and his wife Leigh, added that they raised the money necessary to buy the Ramona Grasslands and sell the property to the Nature Conservancy. This is Raptor habitat, including most recently, a reported nesting pair of bald eagles.

He insisted that “everything we do is standard operating procedure.”

Since one of the reasons Bittner was sentenced today was because he did not have the proper federal or state banding permits, Tisdale added that “You have to have a permit to band, and data has to be provided to Fish and Wildlife, so they can protect the eagles.”

She added that in the last few weeks, a dead pelican was found near the Ocotillo Express Wind facility and a dead Turkey Buzzard at Sunrise Powerlink. “All these structures have an impact.”

She also added that Bittner’s research supported Tule Wind, Ocotillo Wind, and the Sempra facility in the Sierra Juarez in Baja California.

”Perhaps it is time to review all his material, and its validity,” she said, suggesting an ulterior motive behind his findings used to justify the wind projects.

Senior Special Agent Lisa Nicholls explained why the raw data is so important. This data tells the Service if a bird is just passing through, or staying put for a few hours, using a ridge for hunting for example. It helps to map the area and bird density.

This information is critical when permits are requested for development. The data tells the service, “where the eagles go and when they go.” This is critical information before permitting a wind turbine, for example.