- Associated Press - Sunday, January 19, 2014

BILLINGS, Mont. (AP) - A dispute over a Montana wind farm is back before a Montana court, where a state judge will decide if the project’s developers took enough steps to protect a nearby cluster of golden eagles.

San Diego Gas & Electric promised in 2012 to invest $285 million in the Rim Rock wind farm near Cut Bank. Now the utility wants to back out of the deal, saying a U.S. subsidiary of the Spanish wind power company NaturEner misrepresented the project’s risk to eagles.

NaturEner says it’s gone to great lengths to minimize any harm to large birds that approach its 126-turbine wind farm. With a Jan. 31 deadline looming, NaturEner is seeking a temporary restraining order to block the California utility from cancelling its investment contract.

SDG&E; in December sought to move the case to federal court. The utility’s attorneys said the matter should be handled by a federal judge because eagles are a federally protected species.

But on Jan. 15, U.S. District Judge Brian Morris rejected SDG&E;’s argument that the dispute hinged on federal wildlife laws. That put the matter back in state court, where NaturEner filed a lawsuit against SDG&E; last month.

“It’s a matter of an interpretation of a contract, and that’s a state law issue - whether or not the parties are acting reasonably in their conduct under the contract,” Naturener spokesman Patrick Ferguson said.

SDG&E; spokeswoman Jennifer Ramp said the utility remains confident in the merits of its case.

SDG&E; claims NaturEner understated the wind farm’s risk to birds in order to induce the utility to invest in the deal. SDG&E; also wants to cancel a 20-year contract under which it was buying renewable energy credits from NaturEner.

A second lawsuit is pending in California, where SDG&E; filed a complaint on Dec. 19. An initial case management conference is scheduled for Aug. 29 before Judge John Meyer in Superior Court in San Diego.

NaturEner has said SDG&E; is using the eagle issue as a pretext for getting out of a contract it no longer finds favorable. The company alleges the utility is suffering from “buyer’s remorse” as the cost of renewable energy has fallen from when the two sides struck a deal almost two years ago.

The wind farm is in an area with seven golden eagle nests and dozens of other raptors, including Montana’s densest concentration of ferruginous hawks, according to Montana Audubon.

NaturEner previously moved 25 of its towers to be farther from nesting areas after complaints from the conservation group that the project was in the wrong place. The company also uses radar and workers on-site to watch out for eagles and other large birds, and can shut down its turbines if a collision is pending.

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