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Don’t separate wind rights, surface rights  

Credit:  Star-Tribune Editorial Board, trib.com 7 December 2010 ~~

It’s in Wyoming’s best interest to set the ground rules now for the growing wind energy industry, to avoid future conflicts between landowners and developers.

A bill being drafted by the Legislature’s Joint Judiciary Committee would establish wind energy property rights alongside surface and mineral rights. It would also prevent landowners in the state from selling their wind energy rights separately from their surface rights, which a few have already done.

Wyoming has already seen many negative effects of the “split estate” concept, which allows mineral rights to be sold separately from surface rights. Five years ago the Legislature passed a law that requires developers to make reasonable accommodation of existing surface uses, which has greatly reduced some – but not all – of the conflicts.

“It’s taken 125 years to sort out the relationship just between the mineral owners and the surface owners,” noted Dennis Stickley, a University of Wyoming law professor who helped develop the panel’s draft wind energy bill. He predicted that without this bill, “We’ll have another 100 years of litigation and conflicts between wind rights and surface rights.”

There’s no reason for such costly and time-consuming battles, because the Legislature has the opportunity to head them off now.

Wind energy rights could still be leased under the draft bill, but they wouldn’t be able to be sold separately from surface ownership. Lawmakers in North Dakota, South Dakota and Nebraska have already taken such an approach, and Wyoming should follow their example.

While some have maintained Wyoming should follow the same rules used for mineral rights and in some respects water rights in the state, there’s good reason to handle wind rights differently. Lawmakers should recognize that wind rights should be conditioned on ownership of the land.

“The winds possess characteristics unique to the condition and location of the surface estate and are, therefore, intimately tied to the surface estate,” according to a report last year to the Legislature’s Wind Energy Task Force by two UW law students. A state law that disallows separation of wind and surface rights would maintain property owners’ rights to develop their land as they wish, while preventing complications and conflicts if the land changes hands later.

The bill would also set time limits for energy producers to start developing land they’ve leased. The proposal requires that unless the developer and landowner agree otherwise, any wind energy lease would be automatically canceled if wind energy production ceases for 10 years or if no electricity is generated from a wind turbine within 20 years of the lease being signed.

Any sales of wind rights that have already occurred would remain in effect under the bill. The measure would not affect the primacy of mineral rights or the ability of a surface owner to transfer lease royalty payments elsewhere.

One of the best indications that the draft bill is a workable compromise is the fact that officials of both the Wyoming Stock Growers Association and the Powder River Basin Resource Council – two groups that often stake out opposite positions on issues – have indicated they support the current version of the bill.

Given the rapid pace of wind energy development in Wyoming, it makes sense to set these vital ground rules for the industry now, before more landowners decide to sell their wind energy rights.

Source:  Star-Tribune Editorial Board, trib.com 7 December 2010

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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