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Group continues legal battle to reverse Cherry County’s endorsement of Kilgore-area wind farm

Legal efforts to reverse Cherry County’s 2019 endorsement of a 19-turbine wind farm near Kilgore continue, more than a year after the project was submitted to county officials.

County commissioners, the county itself and BSH Kilgore LLC filed answers Monday to a lawsuit by wind-farm opponents seeking to overturn an Oct. 29, 2019, County Board vote granting BSH a conditional use permit.

Their filings followed an Aug. 14 order by District Judge Mark Kosizek to let that suit continue, albeit with an altered lineup of plaintiffs and a trimmed-down list of defendants.

Meanwhile, Kosizek dismissed on Sept. 10 a fresh lawsuit by wind-farm opponents objecting to a June 9 County Board vote to give BSH an extra four years to complete its project.

The newest suit repeated claims that the fragile environment of the Sandhills would be compromised by wind farms. It again alleges that Commissioners Martin DeNaeyer of Seneca and Tanya Storer of Whitman have conflicts of interest because both have family members in pro-wind entity Cherry County Wind LLC.

Kosizek’s Monday dismissal order didn’t address those matters. But he said only the County Board’s vote to grant the original permit – already at issue in the 2019 suit – was legally appropriate for opponents to appeal.

A relevant 2008 Nebraska Supreme Court decision “does not stand for the proposition that every decision made by the (County) Board in any way touching upon a conditional use (permit) is subject to trial … on appeal,” the judge wrote.

Kosizek’s August order removed Preserve the Sandhills LLC as a plaintiff in the 2019 suit against the 3-0 County Board vote to grant BSH Kilgore its permit.

The judge, however, allowed the older suit to proceed with 12 additional Cherry County residents as co-plaintiffs alongside original party Charlene Reiser-McCormick of rural Valentine.

The new group, added to the case in June, are William Schmit, Danielle Robinson, Shawn and Kayte Robinson and Jim and Anita Robinson, all of rural Nenzel; Deborah Galloway of rural Kilgore; and Kort Hamilton, John Hamilton, Wayne Eatinger and Marion and Merrial Rhoades, all of rural Thedford.

All 12 and Reiser-McCormick are members of Preserve the Sandhills, but that entity itself lacks standing to appeal the County Board’s vote on BSH Kilgore’s permit, Kosizek ruled in August.

The 13 individual members have shown enough potential standing as Cherry County landowners to continue the appeal, the judge added. Preserve the Sandhills claims some 500 members.

Along similar lines, Kosizek’s August ruling dismissed Cherry County Wind and Bluestem Sandhills LLC as defendants in the 2019 suit.

Remaining as defendants are Cherry County, the County Board and BSH Kilgore. The latter is part of the joint Bluestem Sandhills venture of Bluestem Energy Solutions of Omaha and Sandhills Wind Energy of Valentine.

Both contended in their Monday filings that the 13 landowners lack standing to appeal the conditional use permit. BSH Kilgore also alleges some of them didn’t file their appeal in time.

Pretrial court filings also continue in an even older suit by Preserve the Sandhills and Reiser-McCormick seeking to prevent DeNaeyer and Storer from voting on County Board matters involving BSH Kilgore.

Kosizek issued a temporary restraining order to that effect in July 2019, which denied the three-member County Board a quorum to take up the wind farm’s permit that month.

The judge lifted his temporary ban a month later, though he also allowed the conflict-of-interest suit to proceed. That allowed commissioners to approve BSH Kilgore’s permit last October.

Storer, one of the two County Board members involved, is challenging state Sen. Tom Brewer of Gordon for the Legislature’s District 43 seat in the Nov. 3 general election.