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Tuesday, October 31, 2006

No Public Trust for Birds in California?

     Altamont Pass, a windy ridge in the east bay portion of the San Francisco bay area is the site of many wind turbines.  In addition to generating energy, those turbines kill around 1,000 eagles and hawks each year, and from 800 to 3,000 other birds annually.  Two years ago the Center for Biological Diversity sued the turbine owners and operators in California state court under California's unfair competition law and the public trust doctrine, in an attempt to stop these deaths.  In mid-October a state trial judge dismissed the complaint as to all causes of action.  The trial judge reasoned that, under California's unfair competition law a plaintiff is required to show personal harm to his property to have standing.  Because the harm alleged was to all Californians via their public trust ownership of the birds, standing to assert the unfair competition claim was absent.  The public trust claim fared no better.  The judge narrowly construed the doctrine to apply to waters, rather than include within the doctrine all unowned natural resources enjoyed in common. 

     A press release from the Center of Biological Diversity provides more information.  Here is a  news article about the decision.  A link to the press release by the law firm representing the turbine operators is here.  A wind energy industry site with links to various issues concerning birds and wind turbines is here.  The complaint is here.  I'm trying to get a copy of the judge's ruling and opinion, which I will post when I obtain it. 

Calvin Massey

http://lawprofessors.typepad.com/property/2006/10/no_public_trust.html

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Comments

The Birds are smarter than the people who say they are being killed by wind turbines. This does not happen.

Posted by: Chris | Oct 31, 2006 2:50:08 PM

Chris:
When considering dismissal of a complaint for failure to state a cause of action, a court is required to assume the truth of the allegations.

Posted by: Calvin Massey | Nov 1, 2006 7:50:26 AM

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