(CN) - New Jersey's Department of Environmental Protection can continue its claim that two men harassed bald eagles on an island in the Delaware River, a state appeals court ruled.
A judge in Mercer County had previously cleared Thomas Cullen and Bennett Mohin of liability.
Also named in the lawsuit were Cherokee Camden and Cherokee Pensauken, companies that redevelop properties that have been exposed to contamination.
Cherokee hired Cullen and his company, defendant T.C. Management, in 2004 to monitor a pair of bald eagles on Petty's Island and see if the site could be developed without disturbing them.
Cullen hired Mohen to observe the eagles and to note their food preferences, roosting sites and reactions to disturbances.
At times, Mogen and Cullen drove onto the island or approached in a kayak. Once, when Mohin's kayak came with 50 yards of the eagle, the bird flew away.
A worker from the department's Endangered and Nongame Species program placed a 2-week-old eaglet into the birds' nest. A volunteer later noted that the eaglet was doing well.
Cullen and Mohin set up a tent 200 yards from the nest in May 2004 when the vegetation on the island made the birds difficult to view from the shore.
A department volunteer who checked the nest eight days later found that the eagles were gone. Six days later, the eaglet was found by the roadside with a broken bone and a puncture wound. The head of the endangered species program said it later died of malnutrition.
Cullen's final report to Cherokee stated that the eagles had a high tolerance to humans moving about the island in cars, boats and on foot.
In an ensuing lawsuit, the department claimed that the harassment of the eagles amounted to violations of the Endangered and Nongame Species Conservation Act.
After a protracted legal battle, the trial court granted the defendants summary judgment in 2010.
But the New Jersey Appellate Division ruled March 6 that the department introduced enough evidence to survive summary judgment and bring some claims to trial.
"The DEP's evidence supports a reasonable inference that Cullen and Mohin annoyed the eagles to such an extent so as to significantly disrupt their normal behavioral patterns, thereby creating a likelihood of injury," Judge Joseph Yannotti wrote for three-member panel.
For hiring of a contractor with questionable qualifications, Cherokee must also remain as a defendant, the court ruled.
"DEP's evidence indicates that Cullen had no prior experience monitoring bald eagles, and he had no education or experience in wildlife ecology," Yannotti wrote. "According to the DEP, Cullen's only experience was with 'bird abatement,' which involves the use of falcons or raptors to chase other birds away, and 'hacking,' which involves the release of birds into the environment."
The panel nevertheless supported the lower court's interpretation of the word "harass." Cherokee did not need to come to the department to set up a monitoring program, the decision states.
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