Legal fight over death of eaglet rages on

When wildlife volunteers found it hobbling along a road on a Delaware River island, the endangered bald eaglet was dragging its maggot-covered broken tail.

On the way to a rescue center, the 11-week-old eaglet died.

Now, six years later, the tiny eaglet's demise remains at the center of a raging legal fight in New Jersey.

This month, the state Department of Environmental Protection appealed a December ruling that there was no factual evidence that a Raleigh, N.C., redeveloper and its birding consultant caused the eaglet's death.

While dismissing the case, Superior Court Judge Andrew J. Smithson remarked that the DEP had pursued the action over the Petty's Island eaglet with such vigor, it was "much akin to the passion I have seen in a death-penalty case." This is the DEP's second appeal in the case.

The DEP says Cherokee Investment Partners subsidiaries and New York falconer Thomas Cullen harassed a pair of nesting eagles and the eaglet soon after the company proposed a $1 billion project on the island. The agency wants $50,000 in civil penalties for violations of the state's Endangered and Nongame Species Conservation Act.

Cherokee was planning a golf complex and condominiums on the island, off Pennsauken's shores, when the bald eagles' nest was discovered. According to court documents, Cherokee hired Cullen to monitor how the pair tolerated human activities but ignored warnings about his credentials.

Cullen - who had been convicted of bird smuggling - trespassed on the island and pitched a tent so close to the nest that it frightened the eaglet and caused it to fall, the DEP said.

The case is a classic high-stakes clash over what happens when an endangered species is found on land designated for a lucrative project. Though the bald eagle is no longer listed as a federal endangered species, it remains protected in New Jersey. Its nesting sites can restrict or block development.

The project has since been abandoned, but not because of the bald eagles. It was caught up in a heated debate over long-term environmental preservation of the 400-acre island, which is owned by Citgo Petroleum Corp., later named in a federal grand jury investigation.

Cherokee said it's time for the DEP to give up its fight over the eagles. Michael O. Hill, a Cherokee lawyer based in Washington, said: "The trial judge found there was no evidence that Cherokee . . . intended to harm the eagles. We believe the decision by the trial court was right and are confident it will be upheld on the appeal."

But acting DEP Commissioner Bob Martin said the litigation would send a message.

"Clearly harassment did occur in this case, and we want people to know we're not going to tolerate that type of behavior when it comes to endangered species," he said this week. Enforcing environmental laws is necessary to protect "the future of endangered species."

The Cooper River Watershed Association is heartened by the high-profile case, said representative Bob Shinn.

"There's a lot more at stake than an errant teenager taking a potshot at some eagle in a rural area," Shinn said. "Here you have a venture-capital company with a billion-dollar project that would have been affected by the eagles in terms of where they could build."

In court documents, the DEP said Cullen also hired a kayaker to paddle within 150 feet of the nest until an adult eagle flew off. When the eaglet fell, the adults abandoned it "because of human disturbance" the DEP said.

"Usually, adult eagles feed, protect and otherwise nurture grounded eaglets until they recover and fledge," the complaint said.

In his final report to the developer that July, Cullen wrote that the eaglet's death before it fledged means "the adult eagles will naturally lose interest in the nest site."

Tod Eisenhuth, a state investigator who later interviewed Cullen, wrote in an August 2005 report, "It is apparent that the point at which the eagles would become disturbed was desired by Cherokee and sought by Cullen."

Cherokee's lawyers, however, said that an autopsy and toxicological reports showed that the eaglet likely died of contamination.

"It accumulated PCBs and other contaminants at an extraordinary rate," according to a brief filed by Jeffrey D. Smith, with DeCotiis, Fitzpatrick, Cole & Wisler of Teaneck, N.J.

The island was once used as a petroleum storage facility and also served as a marine terminal.

Cherokee's brief blamed the eaglet's death on state biologists, who took the healthy chick from a nest in Cumberland County and placed it in the Petty's Island nest for the eagles to adopt. The biologists moved the eaglet "to an area with PCBs known by the federal and state governments to be 4 to 20 times the concentrations found to be unacceptably dangerous to eagles," the brief says.

Under a bald eagle management project, the state would replace eggs that may be compromised by the insecticide DDT in their parents' bloodstream with healthy eaglets to see whether the birds can raise young.

In 2003, the Petty's Island eagles produced an egg that didn't hatch. Their 2004 egg was hatched in an incubator and produced a deformed eaglet.

In the civil suit, Judge Smithson questioned why the state would choose to place an eaglet on Petty's Island, noting it was not "a good habitat for eagles." He called it "an industrial site" with heavy truck traffic.

Cullen and his attorney, Peter Ginsberg, did not return calls.

The Petty's Island project had envisioned a hotel, a conference center, 300 homes, and a golf course. It became controversial when environmental groups objected to the development and supported a plan to turn the island into a nature preserve.

In the end, the nesting site had nothing to do with Cherokee's plans falling through. Citgo had offered to donate the island for a preserve, and the state preservation board's decision to turn down the donation in favor of the project became a 2005 gubernatorial campaign issue.

Early last year, the state's Natural Lands Trust finally accepted the donation.

Last summer, a federal subpoena requested documents relating to the Petty's Island project and two other failed Cherokee projects after a state report said the company had strong-armed state agencies and spent millions in publicly backed loans. The other projects were to be built atop landfills at the Meadowlands in Bergen County and at Cramer Hill in Camden.

Ironically, the bald eagle pair that abandoned Petty's Island in 2004 relocated to the Cramer Hill site the next year. There, it nurtured an eaglet, which flourished and flew away.