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The California Superior Court for Alameda County ordered a complete dismissal with prejudice of the lawsuit (Case No. RG04183113) brought by the Center for Biological Diversity Inc. (CBD) and its conservation director against the wind power operators in the Altamont Pass Wind Resource Area (APWRA).

Kaye Scholer represented the wind power operators, including FPL Group Inc., FPL Energy LLC, ESI Bay Area GP Inc., ESI Bay Area Inc., GREP Bay Area Holdings LLC, Green Ridge Power LLC, Altamont Power LLC, enXco Inc., SeaWest WindPower Inc., Pacific Winds Inc., WindWorks Inc. and Altamont Winds Inc.

CBD had asserted 10 causes of action against the wind power defendants for alleged violations of California's unfair competition law, California Business and Professions Code section 17200, et seq. (UCL) and the common law public trust doctrine based on bird collisions with the wind turbines in APWRA.

In this case, which interprets the restrictive standing requirements enacted by Proposition 64 for claims asserted under the UCL, the court held that CBD was not injured in fact or did not lose money or property to have standing to bring a UCL claim. The court found that CBD's abstract, public trust-based ownership interest in the birds was insufficient to satisfy the lost property standing requirement now applicable under the UCL. Also, the court found that even though wild birds are referred to at times as part of the public trust, CBD cannot pursue a public trust doctrine cause of action because such actions must be related to navigable waters and tidelands, which were not implicated in the case.


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