Conservation Is for the Birds 

Local judge's ruling in a case pitting enviros versus wind-power firms delivers a blow to California wildlife, and a legal rebuke to her stepson.

In a little-noticed decision, an Alameda County Superior Court judge has delivered a major setback to environmental groups that aim to prevent companies from killing wildlife. The October 12 ruling by Judge Bonnie Lewman Sabraw also served as a stinging rebuke to her stepson, another local judge.

The Center for Biological Diversity, an Arizona-based conservation group, has tried for years to stop wind-power companies from slaughtering golden eagles and other large raptors at Altamont Pass, where the blades of their wind turbines shred thousands of big birds. A 2004 study by the California Energy Commission put the annual avian death toll at the wind farm — which is adjacent to I-580 near Livermore — at between 1,700 and 4,700.

After state Fish and Game and the US Fish and Wildlife Service repeatedly refused to intervene, the center sued to stop the bird kills. Its suit, filed November 1, 2004, relied on the state's so-called unfair competition law, which let public-interest lawyers sue businesses that gain an unfair competitive advantage via illegal activities — such as killing golden eagles.

But on Election Day 2004, the day after the suit was filed, voters severely curtailed that law by enacting state Proposition 64, which disallowed such suits unless a plaintiff could prove personal harm. And since it's usually difficult to prove personal harm when a corporation breaks the law, the effect was to stifle the majority of unfair-competition lawsuits.

After the election, corporate attorneys, including lawyers who represented the wind-power companies, convinced the courts to make Prop. 64 retroactive, which meant that all pending unfair-competition lawsuits were poised for dismissal.

But in February 2005, Alameda County Superior Court Judge Ronald Sabraw — Bonnie Lewman Sabraw's stepson — gave the enviros a reprieve. He refused to throw out the wind-farm suit, citing a legal precedent called the "public-trust doctrine." The younger Judge Sabraw interpreted it to mean that all state residents had a stake in the environment and thus could be harmed by the illegal bird killings.

The case was then transferred to the senior Judge Sabraw, who oversees any environmental litigation that survives early attempts at dismissal. The wind-power lawyers renewed their motion to dismiss, arguing that stepson had misinterpreted Prop. 64. Stepmom agreed, saying that the deaths represented a loss of "an abstract interest" and "not a loss of property owned by plaintiffs individually" as the proposition required.

Lewman Sabraw then took things one step farther and dismissed the public-interest doctrine argument entirely, saying that no case law exists to support her stepson's ruling. The environmental group's attorneys had argued — and Ronald Sabraw had agreed — that the 1983 state Supreme Court decision that saved Mono Lake under the public-trust doctrine could be extended to protect wildlife. But Lewman Sabraw ruled that the Mono Lake decision covers only "tidal waters, the lands uncovered by such waters, and navigable lakes and streams."

Her decision effectively stripped enviros from using either the unfair-competition law or the public-trust doctrine to save wildlife.

Richard Wiebe, lead attorney for the Center for Biological Diversity, says it hasn't decided whether to appeal. But the feeling is that Lewman Sabraw interpreted the doctrine too narrowly. "There's no basis for saying that the only public-trust issue that can be enforced by the public concerns water," Wiebe says. "Wildlife, by definition, is in the public trust."

In effect, Lewman Sabraw's ruling means only public agencies such as Fish and Game and the US Fish and Wildlife Service and, by extension, the state attorney general or US attorney, have the power to stop illegal killing of wildlife not on the endangered species list. The problem, center spokesman Jeff Miller notes, is that the government seems unwilling to enforce the law. "This takes away tools for the public — essential tools for when agencies, regulatory agencies, don't do their jobs," he says.

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