Jawbone Project Pits Energy Versus Golden Eagle and California Condor

"Petitioners are collectively opposed to this particular wind energy project, however, because of it unacceptable impact on an important avian migratory corridor and protected species, including the majestic golden eagle and the extremely rare California condor," said the complaint.

The Sierra Club is joined by the Center for Biological Diversity and Defenders of Wildlife.

They are challenging the approval by the local board of supervisors and the county's planning department of two contiguous wind farms in an area called Jawbone Canyon. The defendants include Kern County, Jawbone Energy, North Sky River Energy and a group of individuals who appear to have a financial interest in the project.

The complaint filed in Kern County's superior court seeks a writ of mandate commanding the local board of supervisors to void their approval of the project. Their petition is based on the likelihood of damage to the water shed, to rare plants in the area including the Bakersfield Cactus, and to heavily protected birds species.

The golden eagle is one of the most powerful predators in the avian world. The species has seen its habitat decline, and another wind farm near Jawbone has caused a high death among the protected raptors.

The California condor has the largest wingspan of any bird in North America at roughly 10 feet, and an enormous range of up to 150 miles. While the bird was widespread in North America in the Early Pleistocene era, it had dwindled to only 22 birds when a Condor Recovery program was initiated in the late 1980s.

Since then, because of a catch-and-release campaign supported by California's Department of Fish and Game and the U.S. Fish and Wildlife Service, the condor population has bounced back, albeit slowly, to a population of roughly 170 birds.

Unfortunately for the birds, they Tehachapi Mountains area where they fly and roost is also one of the foremost wind energy regions in the nation, with a total of 49 wind farms already in operation. The region is roughly 200 miles north of Los Angeles, a ways north of Edwards Air Force Base where the Space Shuttle landed, and south of Sequoiah National Forest.

Underlying the contested project is a patchwork of private land and public land controlled by the Bureau of Land Management.

The larger part of project is controlled by North Sky River Landholdings, a subsidiary of NextEra Energy, one of the largest renewable energy providers in California with roughly 100 wind farms in the state. A smaller part is tied to any individual party named in the suit, Philip Rudnick, whose son Daniel is a land use lawyer in the region and the project's leader. BLM has granted rights of way.

In a brief interview, Daniel Rudnick said settlement negotiations are ongoing. "What I can say is that we are actively engaged with the non-governmental environmental organizations to reach a resolution of concerns that will minimize the negative impacts on birds and bats."

In a region of large and often wealthy agricultural families, the issues at stake are sufficiently controversial and local that the judge who originally drew the case was required to recuse himself shortly after it was assigned to him.

"Based on my family's close relationship to the family of one of the individuals named as a real party in interest," wrote Judge Kenneth Twisselman II. "I believe that a person aware of the facts might reasonably entertain a doubt that I would be able to be impartial, and therefore I disqualify myself in this case."

In its description of the project, the Kern planning department suggested a barren zone of desert, empty except for a few mobile home parks and some cows belonging to local ranchers grazing on the open range. On the other hand, a beneficial use of the land would be 500-foot-tall wind turbines that have the capacity to produce 325 megawatts of clean energy, about half the capacity of a typical coal-fired power station.

But the complaint by the environmentalists tells a different story, where the project developers and local government officials severely downplayed the damage that would be caused by the wind farm, rushed approval through the permit process and sharply limited public opportunity to comment.

The environmental impact report drafted by the promoters and certified by the county "misinforms the reader by claiming that 'several studies have been conducted that indicate overall avian use of the region is relatively low compared to wind resource areas in the United States,'" said the complaint.

California's Department of Fish and Game is among those who disagree with that assessment.

"The combination of highly suitable habitat, known historic condor occurrences in the area, and recent condor activity nearby lead the department to conclude the condors will utilize the project area in the near future and be at risk from turbine strikes," said the department's comment.

Contrary to the assurances by the developers and local planning officials, the state agency also concluded that the project was much more dangerous to birds than other wind farms in the region.

The host of wrongs catalogued by the environmental lawyers include the use in the county-approved environmental statement of incomplete bird death studies, general observations and studies conducted at other sites that have little bearing on Jawbone.

In addition, the environmental lawyers point out, the developers have been forced to admit the developer-dreaded "funnel effect" during the fall migration of birds through the Jawbone area. A funnel effect is a concentration of a swarm of migratory birds at a lower altitude. In combination with an array of turbines, it can result in a bird massacre.

The damage is not limited to birds but extends to rare flora and the water runs of the area. The complaint says the local officials OK'd a report that did not disclose the consequences of heavy equipment repeatedly going through Cottonwood Creek that flows year-round and the destruction of "many small ephemeral creeks and drainages."

In addition to approving a deeply inadequate environmental assessment, says the complaint, Kern County officials tried to argue that homes, gun clubs and resorts would move into the area if the wind farm was not put up. "There simply is no evidence in the records to support the county's assumption that without the project, this rural area with virtually no infrastructure would undergo unprecedented growth," said the complaint.

One of the most significant points by the environmental groups is that environmental damage could have been greatly reduced by some simple measures, such as keeping turbines off of ridge lines and sensitive biological areas, and building shorter towers.

"The county unreasonably refused to consider any of these alternatives," said the complaint.

Both the environmental groups and the developers are now limiting their comments, with both sides saying negotiations are underway and a deal may be in the making.

The case has been reassigned to Judge William Palmer, whose most recent action was to vacate a settlement hearing originally set for March 15 to allow the parties more time to negotiate.

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