Oct 02 - Oakland Tribune

A state appeals court has upheld an earlier ruling that rejected a lawsuit brought by an environmental group against wind-turbine operators in the Altamont Pass for the killing of raptors and other birds.

In a Sept. 18 decision, the Court of Appeal in San Francisco dismissed the lawsuit brought by the Center for Biological Diversity, saying while members of the public may sue under the "public trust doctrine" to protect wildlife, they may sue only government agencies and not private parties.

The decision reaffirms a Superior Court ruling to dismiss the lawsuit, although the appeals court differed with the original ruling by saying wildlife is considered a public trust resource "and private parties have a right to bring an action to enforce the public trust."

"While we are gratified that the Court of Appeal reaffirmed the traditional public trust ownership of wildlife, we are disappointed that it rejected the possibility of a lawsuit directly against those who are illegally killing wildlife," said Rick Wiebe, the attorney representing the Center for Biological Diversity. "A lawsuit against those who are killing wildlife is the most direct and effective means of protecting wildlife and vindicating the public trust in wildlife."

Jeff Miller, an advocate with the center, said his organization is studying whether to ask the California Supreme Court to review the court of appeals' decision and if the center should bring action against local or state agencies in charge of protecting public trust resources.

In 2004, the center filed its lawsuit in state court to seek restitution from Altamont wind power operators for the killing of raptors. The lawsuit alleged that these violations by wind power companies FPL Energy, GREP, Green Ridge Power, Altamont Power, Enxco, Seawest Windpower, Windworks, Altamont Winds and Pacific Winds are unlawful and unfair business practices under California's Unfair Competition Law.

Alameda County officials, environmental groups and wind companies have sought a solution for years on how to decrease the number of raptors, such as the golden eagle, red-tailed hawk, American kestrel and burrowing owl, killed by the turbines.

Reach Chris Metinko at 510-763-5418 or cmetinko@bayareanewsgroup.com.

Originally published by Chris Metinko, Oakland Tribune.

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