Metropolitan News-Enterprise


Friday, September 19, 2008


Page 1


C.A. Rejects Suit Against Wind Farmers Over Killing of Birds


By STEVEN M. ELLIS, Staff Writer


The First District Court of Appeal yesterday threw out an environmental group’s lawsuit alleging that wind turbines on a Northern California wind farm have killed tens of thousands of raptors and other birds since the 1980’s.

Affirming an Alameda Superior Court judge’s order dismissing the action against owners and operators of electricity-generating wind turbines in the Altamont Pass Wind Resource Area, Div. Three held that private parties can use the public trust doctrine to bring suit to prevent the destruction of wildlife, but only against the public agency responsible for preserving the wildlife in trust, and not those allegedly causing the harm.

The Alameda County Board of Supervisors was in the process of considering applications to extend and consolidate existing 20-year permits to operate some 5,000-plus wind turbines in the pass straddling Alameda and Contra Costa counties approximately 50 miles east of San Francisco when the Center for Biological Diversity brought suit in 2004, alleging the turbines had killed between 17,000 and 26,000 raptors such as eagles, hawks, falcons and owls since the first turbines were erected in 1982.

Standing Questioned

The group contended the wind farm’s operations violated state and federal law, including the public trust doctrine, which holds that certain resources are preserved for public use, and that the government is required to maintain those resources for the public’s reasonable use. However, the trial court dismissed all claims except for the alleged public trust violation for lack of standing.

The board subsequently adopted a resolution granting permits subject to new conditions on wind turbine use aimed at mitigating avian mortality, and the trial court granted the defendants judgment on the pleadings on the ground that private parties are not entitled to bring an action for a violation of the public trust doctrine arising from the destruction of wildlife.

On appeal, Justice Stuart R. Pollak said that the trial court had correctly dismissed the action, but disagreed with the trial court’s conclusion about the doctrine’s application.

“Wildlife, including birds, is considered to be a public trust resource of all the people of the state, and private parties have the right to bring an action to enforce the public trust…when the public agencies fail to discharge their duties,” he wrote.

Wrong Parties

But Pollak said that the plaintiffs were still not entitled to maintain their complaint because they had brought it against the wrong parties.

“Under traditional trust concepts, plaintiffs, viewed as beneficiaries of the public trust, are not entitled to bring an action against those whom they allege are harming trust property,” he commented. “The trustee charged with the responsibility to implement and preserve the trust alone has the right to bring such an action.”

Taking notice of the board’s proceedings, which resulted in an attempt to strike a balance between the generation of clean renewable energy with wind turbines and the protection of birds adversely affected by the turbines, Pollak concluded that “the public agencies responsible for protecting these trust resources have taken action to do so,” and said that the proper means to challenge the adequacy of the agencies’ measures was by petition for a writ of mandate after exhaustion of administrative remedies.

“If plaintiffs believe that the Board of Supervisors or any other agency or subdivision of the state has failed to discharge its responsibilities under the public trust, they may bring an appropriate action against those agencies,” he wrote.

“The defendants who have been authorized to carry on the activities that plaintiffs contend should be prohibited may well be proper parties in such proceedings. But there is no basis for recognizing an action that is not directed against the appropriate state agency responsible for authorizing the wind farm operations.”

Presiding Justice William R. McGuiness and Justice Peter J. Siggins joined Pollak in his opinion.

The case is Center For Biological Diversity, Inc. v. FPL Group, Inc., 08 S.O.S. 5378.


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