Landowners: eminent domain laws no longer reflect wind economy 

WRIGHT – The eminent domain laws that will be cited as Mid-Kansas Electric Company takes 28 holdouts to court later this month no longer reflect the reality of the wind energy generation economy, a group of the landowners said at a gathering, Thursday.

Times change, said Lyle VanNahman, who is helping his mother navigate the complicated proceedings. Eminent domain should be used for the public good, but wind energy produced in Ford County is a product reaping profits for private investors for shipping to larger markets.

“This is a new, uncharted use of eminent domain,” VanNahman said.

Mid-Kansas is being required to build a new 115 kilovolt transmission line from Spearville to North Fort Dodge by the Southwest Power Pool, a company that oversees interconnection between the many electricity generation and transmission companies that make up a portion of the power grid.

Representatives from Mid-Kansas said the line is part of a requirement by Southwest Power Pool to maintain interconnection to the rest of the grid.

The landowners see it as a way for private investors to make profits while using the powers of eminent domain, the government’s right to force sale for the public good, to cut landowners out of wind energy boom.

Mid-Kansas will be paying for 20 percent of the cost of the line. The other 80 percent will be paid by other outside entities. The shared costs from Southwest Power Pool upgrade requirements typically represent the local benefit compared to the benefit to the entire grid.

“They’re shipping a commodity,” landowner and named defendant Gerard Lix said.

“More wind farms coming into area will have to get power somewhere. All the wind farms are owned by (outside investors) and they have to get that power to a substation or some place so they can get it online. I think there needs to be something paid for the line for the landowners,” Maurice Bleumer said.

Not only that, the landowners said, the contracts offered to each of them required the deed holder to maintain liability insurance on the property and would have given Mid-Kansas broad authority to transfer the easement – a transfer of certain property rights – to anyone.

“They shouldn’t be able to do that,” Scott Fischer said. His impression what that his attempts at negotiation, like removing the liability and transferability, were not met in good faith.

He also wondered how many lines out of Spearville could be built using eminent domain powers. Since utilities are among the few organizations in Kansas that can utilize the power without explicit legislative approval, how many lines can the residents of northeast Ford County expect?

VanNahman said offers to accept an agreement if the utility maintained liability were rejected, as was the offer to accept a contract that offered rent payments instead of a one-time payment.

He offered an example concerning the ongoing cost of liability: if a safety issue arises and is not immediately addressed by the utility, the VanNahmans would have to hire an attorney and file a civil suit to enforce the contract. If someone is hurt due to a safety issue, VanNahman would be responsible.

In short, landowners would see a perpetual cost in liability insurance but would only see one payment from the utility.

“We can pay the taxes on the property but they can tell you how we can use it,” land owner Mike Demuth said. “They are just buying a right-of-way, they aren’t buying the land from us… they don’t want to own the land, they’d rather that liability be on property owners.”

Meetings with the landowners and third-party representatives for Mid-Kansas left a bitter taste for the farmers, ranchers and trust managers. The representatives from Colorado were rude, the group meetings were a farce and they refused to negotiate.

“The first thing they did with us is threaten us with eminent domain,” Lix said.

Bleumer said he understands it’s a complicated issue and the local electric company may be in a difficult position, but “they just need to treat us fair.”

State Rep. John Ewy (R-Jetmore) attended the meeting to hear the concerns of the landowners who will stand before a district court judge on Sept. 16.

Ewy said he has been and remains a strong proponent of wind energy, same as the landowners, but that if the landowners are expected to give up use of their land they should share in the profits made by outsiders.

He encouraged each of the landowners to write down their experiences with the third-party representatives for Mid-Kansas and he would take them with him to Topeka.

He said he will also solicit advice from Attorney General Derek Schmidt and remain in contact with the landowners.

One of the major concerns from the group of landowners is that they are less familiar, and far less funded than their opponents.

In some states, plaintiffs in eminent domain cases, also known as “condemnation,” are required to pay a certain amount of the defendant’s legal fees. In Kansas, no such requirement exists.

Currently, there are permits for up to 400 megawatts of new wind generation granted by Ford County. Mid-Kansas hopes to have the line completed by early 2015.

The first hearing has been set for Sept. 16. If the judge agrees that the line is a suitable use of eminent domain, the court will appoint three appraisers to determine what payments should be made to the landowners.