May 3, 2012

Goodhue County landowners face lawsuit over wind project

By Brett Boese, The Post-Bulletin, Rochester MN, 2 May 2012

ZUMBROTA – The AWA Goodhue wind project took another turn last week when the wind company began filing lawsuits against some Goodhue County citizens, alleging they illegally terminated their contracts with the 78-megawatt development.

The paperwork has yet to be filed in Goodhue County Court, but more than five former project participants were served with legal papers at their homes last week, according to a citizen who directed questions to his attorney. The citizens’ legal counsel, Dan Schleck, says the lawsuit seeks more than $50,000 in damages to be proven at trial, per state statute. Two different sources – including state Rep. Tim Kelly, R-Red Wing, a project critic – have said that final figure could be $100 million.

Calls seeking comment from National Wind, the project developer, were not returned on Wednesday. The company has not returned calls from the Post-Bulletin since the fall of 2011.

Schleck said the timing of the lawsuit is unusual. His clients began being served the day after oral arguments were held at the Minnesota Court of Appeals on April 25, where Schleck is also representing the Coalition for Sensible Siting group. The group has challenged the Minnesota Public Utilities Commission’s decision to issue AWA Goodhue a site permit.

Schleck also said it was odd that the lawsuit hasn’t been officially filed with the courts yet, given that time is of the essence for developers; the $180 million project must be operational by the end of 2012 to qualify for an expiring federal production tax credit that is worth millions.

“It seems kind of counterintuitive to me, because it seems like they’d want to take care of this as quickly as possible,” Schleck said. “By not filing it, they’re just delaying (a decision).”

The lawsuit stems from action that was taken by citizens in late 2011. According to Schleck, AWA Goodhue was not making payments to project participants per contract language. The attorney sent letters to the wind company stating that there had been a breach of contract and the contract was being terminated unless it was resolved within 30 days.

Schleck said he never received a response, and then his clients were hit with the lawsuit.

It’s possible that allowing the citizens out of their contracts would stop the project from moving forward. Of the project’s planned 32,000-acre footprint, Schleck said “a significant piece” belongs to his clients.

“I think someone needs to ask the question about whether they really have a project,” Schleck said. “I want the guys from AWA Goodhue to read that. Do you have a project or don’t you?”

In a press release sent to the Post-Bulletin, Schleck argues that the lawsuit is a tactic to “frighten his clients into reinstating their leases.” Further, he notes that AWA Goodhue still faces significant hurdles before it can begin construction:

• The Minnesota Court of Appeals case won’t be resolved until July.

• Approval of the debated Avian and Bat Protection Plan may require an additional year of field work.

• Minneola and Belle Creek townships have yet to approve road-use agreements.

The lawsuit is the latest wrinkle in a protracted permitting process, which are usually approved in 6-12 months; AWA Goodhue filed its initial paperwork with the PUC in late 2008.

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