Two lawsuits filed last week have launched fresh legal assaults by foes of further wind-energy development in the Nebraska Sandhills.
A state district judge Monday will hear Preserve the Sandhills’ request for an injunction effectively blocking Cherry County commissioners from voting Tuesday on a 19-turbine wind farm west of Kilgore.
That request was made July 5, the same day opponents of the Nebraska Public Power District’s “R-Project” transmission line filed a federal lawsuit to vacate the U.S. Fish and Wildlife Service’s June 12 approval of the power line’s environmental permit.
Preserve the Sandhills, joined by rural Valentine landowner Charlene Reiser-McCormick, seeks to disqualify Commissioners Martin DeNaeyer of Seneca and Tanya Storer of Whitman from “hearing, discussing, considering, influencing or voting” on the Kilgore-area wind project.
Both commissioners and their relatives “have significant and personal stakes” in whether project developer BSH Kilgore receives a county conditional use permit, the lawsuit says.
If District Judge Mark Kozisek grants the injunction, the three-member County Board would lack a two-member majority to vote on the permit.
The judge will hear the matter at 2 p.m. Monday at the Holt County Courthouse in O’Neill, where Kozisek has his office.
The federal suit, filed in U.S. District Court in Denver, says Fish and Wildlife ignored its own field biologists’ findings in approving an “incidental take permit” affecting endangered American burying beetles along NPPD’s 345-kilovolt R-Project route.
The agency, the suit continues, brushed aside potential impacts on historic sites and dismissed threats to endangered whooping cranes and other birds posed by both the power line and the wind farms it would enable.
It restated opponents’ belief that “there are reasonable alternatives to the R-Project that would have far less dire impacts on the exceptional environmental, historic and cultural values of the Sandhills.”
Fish and Wildlife leaders, “under pressure from NPPD, have refused to engage in a meaningful analysis and comparison of such alternatives, instead deferring to NPPD’s unsubstantiated assertion that any option other than NPPD’s preferred approach and route would be impracticable,” the suit continued.
U.S. District Judge Robert E. Blackburn will preside over the federal suit, filed by the Oregon-California Trails Association, the Western Nebraska Resources Council and the Hanging H and Whitetail Farms ranches between Paxton and Sutherland.
The two adjoining ranches say the R-Project line will cross their properties, “permanently destroying the current viewshed” and “negatively impacting its use by migratory waterfowl and other wildlife.”
Both legal challenges arise from a decadelong effort to either encourage or limit wind-farm development – depending on one’s point of view – in the windy but fragile Sandhills.
Cherry County Wind LLC, formed by 70 county landowners in 2012, has promoted both the 19-turbine Kilgore project – reduced from an original 30-turbine plan – and a wind farm of about 150 turbines in southeast Cherry County near Thedford.
Leaders of that group say they organized to limit wind farms in their county to sites sturdy enough to handle the heavy turbines. BSH Kilgore is part of Bluestem Sandhills, a joint venture of Omaha-based Bluestem Energy Solutions and Sandhills Wind Energy of Valentine.
Local and regional foes dispute Cherry County Wind’s stated motivations and say the region’s delicate ecological balance is in peril if wind farms spread west from their closest footholds in Brown and Custer counties.
The BSH Kilgore project, which would link to an existing power line, was rejected by Cherry County commissioners in 2016 but resubmitted June 4 with 19 turbines instead of 30.
The county’s Planning Commission voted 4-3 that day to recommend the scaled-back project to the County Board. But at its next meeting July 2, the panel voted 8-0 to recommend a moratorium on future wind and solar-energy projects.
DeNaeyer and Storer have refused to declare conflicts of interest, the injunction request says, even though DeNaeyer’s wife, Bree, and Storer’s brother Todd Adamson are both Cherry County Wind board members.
Seven other members of Storer’s family are part of Cherry County Wind’s membership, and Bree DeNaeyer told a Unicameral committee in 2017 that group members expect to share in wind-farm profits, the complaint says.
Allowing DeNaeyer and Storer to vote on the project “would be improper, unlawful, create the appearance of impropriety, jeopardize the independence, fairness, integrity and impartiality of the (County) Board and result in a determination that is tainted and void,” it adds.
Some wind-energy opponents believe blocking the R-Project would in turn thwart Cherry County Wind’s would-be southern wind farm, which could deliver electricity to an expanded NPPD substation near Thedford.
NPPD expects construction to start this fall on the $417 million power line. It would start at the Gerald Gentleman Station near Sutherland, head generally north to Thedford and run east from there to meet existing NPPD lines near Clearwater.
The utility’s leaders have regularly cited improved power reliability – not wind energy – as the main reason for the 225-mile-long transmission line.
Foes in turn cite statements by the multistate Southwest Power Pool, to which NPPD belongs, that the R-Project would facilitate additional wind farms.
After issuing a draft “environmental impact statement” in 2017, Fish and Wildlife’s Nebraska office held a July 2018 public hearing in North Platte on whether the R-Project would hurt migratory bird populations and disrupt historical and cultural sites.
The federal lawsuit claims Fish and Wildlife wrongly cleared the R-Project despite a Sept. 10 analysis by Eliza Hines, the agency’s Nebraska field supervisor, that 40 to 84 whooping cranes could be killed over 50 years by colliding with the power lines. About 500 cranes currently migrate through Nebraska each year.
Hines’ analysis was aided by a team including Fish and Wildlife biologist Robert Harms, the suit says. Harms and Hines conducted the North Platte hearing, at which some 100 Sandhills and Platte Valley residents strenuously opposed the R-Project.
But in granting the environmental permit last month, Fish and Wildlife declined to expand its scope beyond American burying beetles likely to be killed or disrupted during construction.
To help mitigate those losses, NPPD is buying a 600-acre site in Blaine County to develop as a substitute habitat. The utility says it will apply to expand its permit to mitigate whooping-crane losses should the R-Project impact their populations.
But the new lawsuit contends that additional Sandhills wind farms are “a predictable, intended result of the project itself,” requiring Fish and Wildlife to examine how they would impact whooping cranes, burying beetles, “other wildlife species and historic and cultural resources.”
Historic sites affected by the R-Project route include a Native American archaeological site in Lincoln County’s Birdwood Creek valley and the Oregon-California and Mormon trails north of the terminus at Gerald Gentleman.
NPPD has said it will work to protect the trails’ physical footprints as much as possible. But the utility has rejected calls to lessen the R-Project’s impact on the migrant trails by using existing power lines’ rights-of-way east and north of North Platte.
Such a rerouting would add nearly 18 miles to the line and cost more time and an extra $30 million, the final environmental impact statement said.
The opponents’ lawsuit says Fish and Wildlife hasn’t shown how a longer route would be “impracticable or infeasible.” It adds that NPPD would pay only 7 percent of the final construction cost, with the Southwest Power Pool covering the rest.