When you are walking a land parcel before acquisition, your checklist usually includes soil conditions, zoning restrictions, utility access, and market comps. But there is one thing many builders forget to check: what lives above. A recent case from Southwest Florida offers a costly reminder of why regulatory policy changes and environmental compliance deserve a spot on every developer’s due diligence list.
Mark A. Borinsky, a land owner in North Port, Florida, purchased a parcel for $59,000 and later sold it for more than two and a half times that amount. The profit looked like a textbook land flip. But the U.S. Fish and Wildlife Service had a different view. Investigators discovered that Borinsky and his partner had cleared trees from the property including a 100-foot pine tree that contained an active bald eagle nest. A federal judge ordered the men to pay a combined $100,000 fine under the Bald and Golden Eagle Protection Act, one of the largest judgments ever levied under that statute. The fine erased Borinsky’s profit entirely.
This case is not an isolated incident. Builders who acquire land without checking for protected species face serious financial and legal consequences. This article explains what you need to know about protected species due diligence, the laws that govern habitat protection, and the practical steps you can take to avoid becoming the next cautionary tale.
Understanding the Bald and Golden Eagle Protection Act
The Bald and Golden Eagle Protection Act (BGEPA) is one of the most powerful wildlife protection statutes in the United States. Enacted in 1940, it prohibits anyone from taking, possessing, selling, or transporting bald or golden eagles or their parts, nests, or eggs without a permit from the U.S. Fish and Wildlife Service.
What the Law Prohibits
Under BGEPA, the term “take” is broadly defined. It includes not only direct killing or capturing of eagles but also any action that disturbs or harms them. The law specifically prohibits:
- Removing or destroying eagle nests, whether active or inactive
- Cutting down trees that contain eagle nests
- Conducting activities that cause eagles to abandon their nests
- Disturbing eagles during breeding, feeding, or sheltering
- Possessing eagle feathers, parts, or eggs without a permit
Penalties and Enforcement
The penalties under BGEPA are severe. Criminal violations can result in fines of up to $100,000 for individuals and $200,000 for organizations, plus imprisonment of up to one year for a first offense. Civil penalties can reach $10,000 per violation. The Borinsky case shows that courts are willing to impose the maximum fines when the violation involves clear destruction of an active nest.
The U.S. Fish and Wildlife Service actively investigates potential violations. They work with local law enforcement, review satellite imagery, and respond to citizen reports. In the Florida case, investigators were able to document the tree clearing and connect it to the subsequent land sale, establishing a clear link between the habitat destruction and the financial gain.
Protected Species Due Diligence for Land Acquisition
Before you close on any land parcel, you need to assess the presence of protected species. Federal laws like BGEPA, the Endangered Species Act, and the Migratory Bird Treaty Act all impose obligations on property owners and developers. Ignorance of these laws is not a defense.
Pre-Acquisition Checklist
A thorough due diligence process should include the following steps:
- Review federal and state species lists Check the U.S. Fish and Wildlife Service’s Environmental Conservation Online System for listed species in the county where the property is located.
- Hire a qualified biologist A professional wildlife survey can identify active nests, dens, or habitat that may be protected.
- Check historical satellite imagery Platforms like Google Earth allow you to review vegetation cover and land use history before your site visit.
- Contact the local U.S. Fish and Wildlife Service field office They can provide information about known eagle territories and other protected species in the area.
- Review state wildlife agency records State agencies often maintain more detailed local data on species occurrences.
- Incorporate protective covenants If protected species are found, consider conservation easements or buffer zones as part of your development plan.
What to Look For During Site Walks
When you walk a property, pay attention to these indicators:
- Large trees with visible stick nests, especially pine, cottonwood, or oak trees near water
- Whitewash (droppings) on tree trunks or the ground beneath roosting sites
- Cast pellets or prey remains under perches
- Eagles or large raptors circling or perching in the area
- Cavity trees that could shelter bats, owls, or other protected species
- Wetlands, streams, or ponds that attract wildlife
How to Navigate Environmental Regulations During Development
Finding protected species on your land does not necessarily mean you cannot develop the property. It means you need to follow the proper procedures to minimize harm and obtain the necessary permits. The key is to identify these issues early, before you have invested significant time and money in design and engineering.
Permitting Pathways
| Scenario | Required Action | Timeline | Typical Cost Range |
|---|---|---|---|
| Active eagle nest found | Obtain BGEPA permit or establish protective buffer (typically 330-660 feet) | 6-12 months | $5,000 – $25,000 |
| Inactive eagle nest found | Consult with USFWS; may require buffer until nest is confirmed abandoned | 3-6 months | $2,000 – $10,000 |
| Endangered species habitat identified | Section 7 consultation (federal) or Habitat Conservation Plan (private) | 6-24 months | $10,000 – $100,000+ |
| Migratory bird nesting season | Avoid clearing during breeding season (typically March-August) | Seasonal restriction | Scheduling cost only |
| Wetlands present on site | Clean Water Act Section 404 permit from Army Corps of Engineers | 6-18 months | $5,000 – $50,000+ |
As this table shows, the cost of compliance is relatively modest compared to the potential fines and legal fees from a violation. The Borinsky case resulted in a $100,000 fine that erased the entire profit from the land sale. A proper environmental assessment before clearing would have cost a fraction of that amount.
Best Practices for Environmental Compliance
Builders who manage environmental risk effectively follow a consistent set of practices:
- Conduct environmental assessments before making an offer, not after closing
- Build contingency language into purchase agreements that allows exit if protected species are found
- Work with environmental consultants who specialize in your region and local species
- Maintain documentation of all surveys, consultations, and permit applications
- Train site supervisors and subcontractors to recognize protected species and habitat indicators
- Schedule clearing activities outside of breeding seasons when possible
Lessons for Builders From the Eagle Clips Case
The Eagle Clips land flipper case offers several concrete lessons that every builder should integrate into their land acquisition process.
The Financial Reality of Non-Compliance
Borinsky and his partner paid $100,000 in fines. The court directed $40,000 to the Audubon Center for Birds of Prey and another $40,000 to the Bald Eagle Conservation Fund. The remaining $20,000 went to other restitution. The fine exceeded the profit from the land sale. Beyond the direct financial penalty, the men faced legal fees, reputational damage, and potential civil liability.
Builders should also consider the liability risk management strategies available to protect against environmental claims. Standard general liability policies often exclude pollution and environmental damage. You may need specialized environmental liability insurance to cover cleanup costs, legal defense, and regulatory fines.
Timing Matters
The Borinsky case highlights a common pattern: the violation occurred when the owner tried to maximize land value quickly. The tree clearing was done to improve the property’s appearance and increase its marketability before sale. This rush to improve a property without proper due diligence is a frequent cause of environmental violations.
A slower, more methodical approach would have revealed the eagle nest and allowed the owner to either obtain the necessary permits or adjust the development plan. The profit from the sale was attractive, but the cost of getting caught was higher.
Integrating Environmental Review Into Your Workflow
Every land acquisition should include an environmental review as a standard step. This is not just about eagles. Protected species can include bats in caves or abandoned buildings, desert tortoises in arid regions, red-cockaded woodpeckers in mature pine forests, and many others depending on your region.
Staying current with building codes and standards is essential for understanding how environmental regulations intersect with construction requirements. Codes increasingly reference habitat protection, stormwater management, and site preservation as part of the permitting process.
Building a Culture of Compliance
The most successful home building companies treat environmental compliance as a core business function, not an afterthought. They invest in training, build relationships with regulatory agencies, and conduct internal audits to identify problems before regulators do. This proactive approach costs less in the long run than paying fines, fighting lawsuits, and repairing damaged reputations.
Implementing comprehensive essential risk management strategies for home builders helps protect your business from the full range of operational risks, including environmental liability. The companies that survive market downturns and regulatory shifts are those that have built compliance into their DNA.
Conclusion
The story of the Eagle Clips land flipper is a reminder that due diligence is not optional. One pine tree with an eagle nest turned a profitable land flip into a six-figure loss. For builders acquiring land for development, the lesson is clear: look up before you cut down. A small investment in environmental assessment upfront can save you from a very expensive mistake later.
Protected species regulations are not going away. As development pressure increases and wildlife habitat shrinks, enforcement is likely to intensify. Builders who integrate environmental due diligence into their standard acquisition process will avoid fines, maintain their reputation, and build more resilient businesses. The key is to act early, ask the right questions, and never assume that a clear title means a clear site.