Wind farm sues to block bird death data release 

OAK HARBOR – An Ohio wind farm has filed a lawsuit against two state agencies, hoping to conceal the number of bird deaths that are being caused by its operation.

The legal dispute was generated by an Ottawa County birding organization, the Black Swamp Bird Observatory in Oak Harbor, which contends that bird death data held by both federal and state agencies is public information. Blue Creek Wind Farm LLC, which operates a wind farm in Van Wert and Paulding counties in Ohio and Allen County, Indiana, says releasing its bird and bat kill reports would provide “trade secrets” to its competitors.

Blue Creek filed the lawsuit in May in Franklin County Common Pleas Court against the Ohio Department of Natural Resources and the Ohio Power Siting Board. The lawsuit seeks a court order to block the two state agencies from releasing the company’s reports on bird and bat kills.

Blue Creek met with Black Swamp officials last year and released some of its data in an unsuccessful attempt to placate the birding group.

The release of public information sought by Black Swamp would allow everyone to know the trade-off between developing renewable energy and killing birds and bats, said Kim Kaufman, executive director of Black Swamp Bird Observatory.

“In a way, the public information acts keep everybody honest,” she said.

Blue Creek’s lead attorney, Daniel E. Gerken, could not be reached for comment on why the company believes releasing the report would reveal trade secrets. An aide said he was out of the office but checking messages. Blue Creek says in a court filing that releasing the reports would release “highly confidential and valuable trade secrets.”

Art Sasse, director of communications for Blue Creek’s parent company, Iberdrola Renewables, said the company shared what it can.

“While we are limited as to what we can say regarding this matter due to the legal issues and respect for the judicial process – we can tell you that we have shared a very comprehensive synopsis of this data first-hand with this group previously. When they asked for our proprietary data from Fish & Wildlife, the legal system determined they were over-reaching.

“Now they have come to the state of Ohio with the same ask and of course we have made the same point – you have seen the heart of this matter already, and the rest of what you’re asking for would be detrimental to our competitive business model,” Sasse said.

Blue Creek began operations in June 2012 in 80 square miles of mostly agricultural land. In a court filing, the wind farm says it generates enough electricity to power about 76,000 homes every year.

Black Swamp Bird Observatory tried obtaining the reports from the federal government’s Fish and Wildlife Service, using a Freedom of Information Act request. Blue Creek objected, citing “commercial information and trade secrets” in the reports. The fderal agency sided with the wind farm.

Black Swamp then sent public records requests to ODNR and the Ohio Power Siting Board. ODNR did not accept Blue Creek’s trade secrets argument, and told the wind farm that it intended to comply with the state’s public records law and release the reports.

That decision generated the lawsuit seeking to block the release of the reports.

Blue Creek’s court filing says the wind farm does not cover any unique habitats for species listed or recommended for listing in the Endangered Species Act. The ODNR’s court filing in reply says that’s false and that both federally and state protected species are in the area.

Kaufman said the species that have been killed by the wind farm include the golden-winged warbler, according to information Blue Creek released to Black Swamp. The golden-winged warbler being considered for listing because the population is in serious decline, she said.

ODNR spokesman Matt Eiselstein says his agency doesn’t comment on litigation and said the attorney general’s office is defending the agency in court. In a court filing, the ODNR says it intends to comply with Ohio’s public records law unless a court orders it not to do so.

Black Swamp is not a party to the lawsuit but has offered to help the state agencies by providing expert testimony, Kaufman said.