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Environment Group Sues Wrong Parties Over Bird Death Controversy

Members of the public may sue to defend the public trust resource of wildlife, but the suit must be filed against public agencies responsible for protecting the wildlife, according to the First District Court of Appeal.

The court ruled against environmentalists who sued owners and operators of windmills that are responsible for killing many birds at the eastern Bay Area's Altamont Pass. Environmentalists may sue, but they should have sued the permitting or oversight agencies, not the private parties that own and operate the windmills, the court concluded.

"There is no suggestion that any defendant [windmill owner or operator] has conducted its operations in nonconformity with its conditional use permit," the court ruled. "Thus, a challenge to the permissibility of defendants' conduct must be directed to the agencies that have authorized the conduct."

The California Energy Commission designated the Altamont Pass Wind Resource Area in 1980, and it quickly grew into the state's largest wind farm with about 5,000 turbines. However, the hilly grasslands of the area provide ideal raptor habitat that is even better now because windmill tower foundations provide burrowing opportunities for rodents. What no one seemed to realize during the 1980s was the raptors might fly into turbine blades. In 2004, the Energy Commission estimated that up to 4,700 birds including golden eagles, red-tailed hawks, American kestrels and burrowing owls are killed by Altamont windmills every year. Thus, when 20-year use permits began to reach their sunset dates and operators sought new permits, environmentalists pressed for the replacement of old turbines with fewer, larger and more bird-friendly models. The Alameda County Board of Supervisors in September 2005 approved the updated permits with new conditions, but environmentalists were not satisfied (see CP&DR Environment Watch, August 2005).

Local Audubon Society chapters and a group with ties to organized labor filed California Environmental Quality Act lawsuits. That litigation was settled in early 2007 when the county and windmill operators agreed to adaptive management measures if bird deaths do not decrease by certain amounts.

The Center for Biological Diversity (CBD) took a different approach. Before the county completed use permit renewals, the organization sued the windmill owners and operators for allegedly violating the state Unfair Competition Law and for destroying wildlife in violation of the public trust. One Alameda County Superior Court judge ruled that the CBD could not bring the Unfair Competition Law claims because Proposition 64 approved in November 2004 restricted such suits. Later, a different judge rejected the public trust doctrine arguments.

The environmental group appealed only the public trust doctrine portion of the case. Superior Court Judge Bonnie Lewman Sabraw had accepted the windmill operators' argument that the public trust doctrine applies only to tidelands and navigable waters, and not to wildlife. In its unanimous decision, however, a three-judge panel of the First District, Division Three, ruled that Lewman Sabraw's ruling was wrong on this point. After reviewing the evolution of the public trust doctrine and case law, the First District concluded, "[I]t is clear that the public trust doctrine encompasses the protection of undomesticated birds and wildlife. They are natural resources of inestimable value to the community as a whole. Their protection and preservation is a public interest that is now recognized in numerous state and federal statutory provisions."

The First District also made clear that, although most public trust lawsuits are brought by government agencies, members of the public may also sue. "Many of the cases establishing the public trust doctrine in this country and California have been brought by private parties to prevent agencies of government from abandoning or neglecting the rights of the public with respect to resources subject to the public trust," Justice Stuart Pollak observed in the court's opinion.

Those portions of the ruling were victories for environmentalists. The rest of the decision went the other way.

"The defect in the present complaint is not that it seeks to enforce the public trust, but that it is brought against the wrong parties," Pollak wrote. "Plaintiffs have brought this action against the windmill operators whose actions they allege are destroying natural resources protected by the public trust. Plaintiffs have not proceeded against the County of Alameda, which has authorized the use of the wind turbine generators, or against any agency such as the California Department of Fish and Game that has been given the statutory responsibility of protecting the affected natural resources."

The CBD should have sued "the appropriate representative of the state" charged with upholding the public trust, the court ruled. And because the county approved the new use permits three years ago, it is too late to challenge their issuance now, the court concluded.

The Case:
Center for Biological Diversity, Inc., v. FPL Group, Inc., No. A116362, 08 C.D.O.S. 12362, 2008 DJDAR 14691. Filed September 18, 2008.
The Lawyers:
For CBD: Richard Wiebe, (415) 433-3200.
For FPL Group: William Berland, Ferguson & Berland, (510) 548-9005.

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