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Judge switches course on conflict of interest case: Board members can vote on Sand Hills wind project

The wind is blowing in a new direction in Cherry County.

A court order that had temporarily prevented two of the county’s board members from voting on an application for a 19-turbine wind farm in the Nebraska Sand Hills was vacated last week – a move that, for the time being, allows the county to hold a vote on the project.

That’s potentially bad news for Preserve the Sandhills, an advocacy group opposed to wind energy development in the scenic hills of north-central Nebraska.

The group, along with a local landowner, sued the county last month to prevent board members Martin DeNaeyer and Tanya Storer from voting on the application. They argued that those board members have conflicts of interest because members of their family stand to financially gain from the wind farm’s approval.

But in vacating his initial temporary injunction, State District Court Judge Mark Kozisek rejected the notion that those familial connections constitute a conflict of interest as defined by state law.

The statute defines “immediate family” as a child residing in a household; a spouse; or an individual claimed as a dependent for federal income tax purposes.

Kozisek’s recent order isn’t the end of the court proceedings. The parties will convene at the end of the month to set deadlines and parameters on discovery – the process by which the two sides exchange evidence and facts of the case, according to Jason Bruno, the Omaha attorney representing Preserve the Sandhills.

Bruno said the group will use that time to explore finding more information related to possible conflicts of interest.

A final trial will then be scheduled, during which a judge will determine whether the board members should be barred from voting, Bruno said.

In the meantime, the county is moving forward with meetings on the application by developer BSH Kilgore.

DeNaeyer’s wife sits on the board of directors for Cherry County Wind LLC, which formed in 2012 to connect its investor landowners with the project’s developer. And his mother has leased land to Cherry County Wind.

Storer has multiple family members, including brothers, a sister and her parents, who are connected to the project.

Wind farms typically pay private landowners to house infrastructure, like turbines, access roads and generators, on their land.

DeNaeyer and Storer had filed conflict of interest statements with the Nebraska Accountability and Disclosure Commission outlining their families’ connection the wind project.

“In both commissioners’ cases, the executive director of the commission opined that there were no conflicts; they were not advised to remove themselves from any decision on the matter,” Kozisek’s order states.

Bruno said he believes the proceedings in Cherry County show that the state statute is a flawed law that “enables self-dealing” among elected officials and their family members.

“That can’t be the intent of the law – to allow people to vote when their families can get wealthy,” Bruno said in an interview.

In a Facebook post made after Kozisek vacated the injunction, Storer wrote, in part, “I have followed the law and respected the process, as I promised I would do, and I will continue to do.”

Kozisek considered other legal doctrines when issuing his order.

One, called ripeness, is the idea that courts should avoid inserting themselves in disagreements based on events that “may not occur at all.” Kozisek wrote it is unknown how Storer and DeNaeyer will vote on the project.

A public hearing on the wind farm’s application is scheduled for 4:30 p.m. Sept. 17 at Valentine High School.