CENTER FOR BIOLOGICAL DIVERSITY, Plaintiffs and Appellants, v. FPL GROUP, INC., et al., Defendants and Respondents.

In this case the Court of appeal upheld the dismissal of a public trust enforcement action against the owners and operators of wind turbines in the Altamont Pass area. According to the Center for Biological Diversity (“CBD”), the turbines injure and kill raptors and other birds. The trial court dismissed their action after granting defendants’ motion for judgment on the pleadings on the ground that private parties are not entitled to bring an action for the violation of the public trust doctrine arising from the destruction of wildlife. Ultimately, CBD was successful in clarifying that the birds are a public trust resource of all the people of the state. However, the appellate court held that the proper party to bring an action against is the public agency with permitting authority, rather than the Operators. 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. Nonetheless, in other proceedings of which we take judicial notice, the public agencies responsible for protecting these trust resources have taken action to do so. The proper means to challenge the adequacy of those measures is by petition for a writ of mandate or request for other appropriate relief brought against those agencies. Permitting the action to proceed as presented would require the court to make complex and delicate balancing judgments without the benefit of the expertise of the agencies responsible for protecting the trust resources and would threaten redundancy at best and inconsistency at worst.