Threat of Eminent Domain Hangs in the Air Over Minnesota Wind Power Project
by Tom StewardDoes the government’s power of eminent domain include seizing the rights to the wind that wafts over your property? That’s the controversial question swirling around an 8 megawatt wind farm proposed by the southern Minnesota city of New Ulm and opposed by several farmers in rural Lafayette Township who refuse to grant their “wind rights” to the city utility.
“This is merely an evolution of principles that have been evolving since the sovereign rights of eminent domain were determined to exist,” according to Hugh Nierengarten, New Ulm City Attorney.
“Eminent domain is basically like a nuclear bomb,” said Clete Goblirsch, a farmer who refuses to sign an easement. “The repercussions would be long lasting and widespread, not just for us, but for the wind industry.”
While public utilities have fairly broad powers to use government authority to force property owners to sell to meet their needs, the New Ulm plan involves an unprecedented move to expand eminent domain authority to include the seizure of air space on private property for power generation.
“This is a first time this question has come up and the first time any entity has indicated they might use condemnation for wind development,” said Bob Cupit, an expert with the Minnesota Public Utilities Commission (PUC).
The opponents’ objections to the proposed five wind turbines include noise concerns, lower property values, and adverse impact on the landscape and rural atmosphere. “Nobody’s against wind energy,” said Jeff Franta, a farmer who’s helped organize the opposition. “We’re just against a project being forced on an area that doesn’t want it.”
Legal experts say the city would need to make the case in court that the utility would be taking wind rights for a public purpose and necessity. In a July 30, 2009 filing with the PUC, Nierengarten, on behalf of the New Ulm Public Utilities Commission, insisted “the development of clean, renewable energy should be the motivating, prudent public policy consideration, not provincial notions of “local control” and the “rural way of life.””
Acknowledging there would be “a likely furor over such an effort,” Nierengarten added “it will be necessary for the City of New Ulm to exercise its powers of eminent domain to secure such rights and move this vital project forward.”
New Ulm has acquired easements for 237 acres on which the wind farm would be built. A little known state requirement, however, also compels wind farm operators to obtain the so-called wind rights to about 235 acres of adjacent property in the path of the prevailing winds to assure a free flow of wind to the turbines. The city has run into turbulence with the wind farm’s neighbors, who refuse to grant the necessary easements, stalling the $16-18 million project.
“Wind rights are property rights like oil, water or a gravel pit,” said Franta, “Wind is like the oil in the sky so to speak. How can you use eminent domain to get something that can produce a profit for people?”
Further complicating matters, the proposed site is located about 10 miles outside of New Ulm and in a different county, leaving opponents no option for holding local officials accountable at election time. “We don’t vote for city officials in New Ulm,” Franta said. “It wouldn’t do any good because we don’t vote for them.”
In its pending permit application before the PUC, the City of New Ulm has applied for a variance or exemption from the requirement to obtain the additional wind rights. That’s an unlikely outcome, according to PUC staff, who expect to recommend that commissioners approve New Ulm’s draft permit without a variance, setting the stage for a potential showdown.
“We (PUC) don’t have powers to settle eminent domain questions,” Cupit said. “We do have concerns about our permits being leveraged in this instance to force a project on a community that doesn’t want it.”
“If they deny the waiver and require us to acquire the wind rights, then the city and the public utility commission have to decide if they’re going to do this,” Nierengarten said. “Clearly the preference is to get on with the project.”
“Are they going to eminent domain our land to get to the wind rights?” asks Clete Goblirsch. “If they can’t eminent domain the wind rights, what’s to stop them from saying, ‘fine, we’ll get the land and the wind rights with the land?’”
The potentially volatile case comes at a critical time with Minnesota and the nation fast tracking green energy projects that are often fueled by federal grants, including billions in stimulus spending. Minnesota ranks fourth in overall wind production nationally with 1805 megawatts of wind-generated electrical capacity. Currently, approximately 21 wind energy projects and proposals are on the table statewide, according to the PUC.
“Until recently, utilities weren’t developing wind power. It’s been large private companies in most cases without eminent domain authority,” Cupit said. “We’re not aware of any utility in Minnesota that has used eminent domain for any wind project.”
“Don’t come do this to me. This is America,” said Goblirsch. “Don’t come and infringe on me.”
The Minnesota Public Utilities Commission expects to render a decision on the matter by early January at the latest.
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The governmet's power includes the right to seize your "wind rights", your wallet, your personal property, freedom of speech, your ability to earn a living and probably before long your first born if the current crowd in Washington is not brought under control.
Get a good lawyer. The easement can be battled. Nature conservancy fights these all the time. If he sold his surface to nature Conservancy, they could protect his rights. He can keep the land.
Will this madness ever end?!?!
…provincial notions of “local control”…
Major red flag right there, red with a hammer and sickle on it. The concept of local control is so provincial, so antiquated, so backwards when we should progressing forward. As with a property owner controlling their own property rights, or having states' rights rank above "national interest."
Further complicating matters, the proposed site is located about 10 miles outside of New Ulm and in a different county…
Wait a moment. The City of New Ulm would invoke eminent domain in another county, over property not within the city borders? This is now allowed? So Philadelphia can claim eminent domain and grab land next to State College? Ah heck, why not Boston grabbing land next to Palm Beach?
Now it begins in earnest.
Our rights being drained from us in the name of Public Good!
The Nature Conservancy? BULLSHIT!
That is one of the biggest frauds ever run. It is rife with trust fund babies, tree humpers and do-gooders. Want to know how they really work? They scam and CONvince stupid people to donate properties to them, as a 501 C(3) charitable organization. They then move the properties several times through shell corporations and dummy entities several times, washing them, then they sell the properties FOR A PROFIT. People are too stupid to figure it out. The Nature CON servancy and the Sierra Club are nothing but a scam.
Green Energy: It's not about generating power. It's about exercising power.™
Trust us, we are from the government, and we are here to help you stupid people……….
In Arizona SRP electric strong armed a elderly farmer to turn over his property. He goes out to his land everyday and looks at what he loved and lost. They told him to sale or they would take it.
Eminent Domain seems to be used to bully people rather than benefit. Stop government intervention!
That caught my eye as well. How can they excercise "eminent domain" over domain that's not theirs???
How about Watts, CA (of riot fame) excersizing eminent domain over a chunk of Beverly Hills?
All this for a measly 8 megawatts????? Build a coal plant and get a couple of hundred, if not more, megawatts. Then there is no need for this garbage, no eminent domain issues, no subsidy issues, no transmission issues(since by the time the coal plant is finished the network is ready), etc. Naaah. Doesn't give the "do-gooders" that warm fuzzy feeling they get when fleecing the masses.
Wind power is WORSE than useless, even if you believe CO2 emissions should be reduced. They utterly destroy thousands of acres of countryside, wildlife habitat, and wilderness, and generate no useful net power while vacuuming money from taxpayers into the coffers of Wall Street fat cats. This is beyond lunacy, it is criminal insanity.
The wind promotion industry is even more corrupt than the climate science; they have bought off huge numbers of local and state politicians in Ontario, New York, Maine, Wisconsin, and now they're working on Minnesota. Whee!
See wind-watch.org for more information.
" insisted “the development of clean, renewable energy should be the motivating, prudent public policy consideration, not provincial notions of “local control” and the “rural way of life.””
And don't think for a second that the "provincial notion" of personal property rights aren't also on the long term agenda for dismissal by some slick tongued lawyer.
The very notion that some Government entity, aided by the Courts, can actually lay legal claim to the very air around us…….As Beck has repeatedly warned, this America no longer looks at all like the one I was born in.
An easement to access something may be debatable, but Eminent Domain to take Property and Rights for a private company is ILLEGAL and UNCONSTITUTIONAL!!!!!
I recall an article where eminent domain was used to TAKE many private homes for a private company to develop a large building, only to have the private company pull out at the last minute.
More SCARY S#@%T…
US Supreme Court will examine whether a private company can demand payment in exchange for not seizing private property.
http://www.wikiprotest.com/index.php?title=Privat...
Some good info here:
http://www.castlecoalition.org/index.php?option=c...
Sounds like a typical lefty scam. Can you cite sources?
Your blood, your pee, your saliva…..next your sperm?
It's an ill wind that blows NO good. These farms will start to thrive–on OUR money, of course–and then the list of species becoming endangered will grow. Some bat or moth will put an end to the folley.
One of my family members thought it would be so lovely for the Nature Conservancy to keep 2 square miles of undeveloped property pristine so her DECENDANTS could enjoy it. 6 months after she signed the paperwork not one person is allowed to set FOOT on the land and never will be allowed to! These people are SCAM ARTISTS!
Now now Cowboy… you know FULL well they don't actually say that! They just hand out a lollypop and a pat on the head since we peons can't REALLY understand their lofty speech…..
The wind industry with compliant government stooges have taken many peoples property rights in these scam "wind farms".
See: http://betterplan.squarespace.com
jackbutts………..is it hunting season yet?
[...] city of New Ulm, Minnesota may try to use eminent domain to promote wind power [HT: VC reader Paul Milligan]: Does the government’s power of eminent domain include seizing the [...]
[...] unforeseen developments, the last we’ll present for the week), comes to us courtesy of Andrew Breitbart’s Big Government blog. (Hat tip: Volokh). The story presents a fascinating question: Can a state or city buil Read Full [...]
Air is of the same category as water or mineral rights(but I've yet to hear a court declare that wind rights actually exist- has this happened yet?), which leaves the government in the position where they MUST offer fair market value on those wind rights. Has the actual fair market value of wind ever been determined?
Excercising eminent domain for easements is an archaic practice, mainly used during railroad deveolopment and then later for highway deveolpment- things that actually had physical, literal, and assessable impact, and land that actually had real assessable value. They are proposing to use eminent domain NOT for the land itself, but for the "air rights", which means they cannot offer ONLY market value for the land itself, but ALSO the air passing over it. Besides this, the city must then show that they have no other way to access wind power somewhere else, such as on existing public lands, or from someone else who is willing to sell their air rights. The same system used to settle water rights for hydroelectric power plant proposals when a local government wishes to build an installation along side a river, or for mineral rights when an oil company wants to slant drill under someone else's property MUST be excercised when air is declared to be a comparable resource.
[...] unforeseen developments, the last we’ll present for the week), comes to us courtesy of Andrew Breitbart’s Big Government blog. (Hat tip: Volokh). The story presents a fascinating question: Can a state or city build a wind [...]
[...] View post: Big Government » Blog Archive » Threat of Eminent Domain Hangs in … [...]
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Mr. Steward, you stated in your article; "A little known state requirement, however, also compels wind farm operators to obtain the so-called wind rights to about 235 acres of adjacent property in the path of the prevailing winds to assure a free flow of wind to the turbines". The MN PUC reaffirmed in its January 11,2008 PUC Order Establishing General Wind Permit Standards (DOCKET NO. E,G-999/M-07-l 102) the requirement for developers to establish a "Wind Access Buffer Setback" around the project boundary at a distance of three rotor diameters on the secondary wind axis and five rotor diameters on the predominant axis. The wind access buffer setback is an external setback from lands and wind rights outside of an applicant's site control, to protect the wind and property rights of persons outside the permitted project boundary and persons within the project boundary who are not participating in the project. I would suggest anyone reading this to Google the MN PUC Docket Number above to read the real details within the PUC Order, there are many more requirements developed for public safety within that Order.
[...] more from the original source: Big Government » Blog Archive » Threat of Eminent Domain Hangs in … By admin | category: domain who is | tags: always-made, controversial, farm-proposed, [...]
Nobody owns the wind! And the so called easement doesn't make any sense, somebody's going to build a 400 ft sky scraper in front of the turbines? In the middle of nowhere! Puleeze!
What an ignorant comment. Why don't you enroll yourself in an American law school, learn the case history behind eminent domain issues, and then realize that all of the issues you listed were instituted for VALID public benefits,. The government is merely acting as an arbiter for the public good rather than an enterpriser seeking to derive a profit from this. Property rights, and the right to private property, even over your first born child (or your own life), are not absolute. What defines a piece of private property is merely the public's willingness to accept that the piece of property belongs to you, and their acknowledgement of this deters them from infringing upon your right to possess it. However, when countervailing public interests (here, clean, cheap energy for a whole bunch of people) arise, the government must act in the ways it deems best for society and will provide the greatest social benefit. Think about it. If the government did not have a right to act as an arbiter, and could not take your first child from you or your own right to abstain from fighting in WWII when a draft was instituted, the America that we know it today would not exist and the Nazi regime would have overrun our nation. The government there, by revoking ones right to abstain from fighting, was acting as an arbiter to allocate the human resources in ways it believed would provide the greatest social benefit for society, that is, fighting the Nazis to preserve our American way of life and beliefs in freedom in democracy. Here, the government is once again acting as an arbiter, not by removing not ones right to abstain from fighting in a war, but by removing ones right to abstain from having the wind over his property used to create a great social benefit. Because the government is seeking to institute a policy that will provide a widespread social benefit for society, and these interests in the public benefit outweigh the private damage done to the farmers, this case will be viewed as constitutionally valid and the government will be able to proceed with taking these individuals wind rights.
Without oil, wind turbines cannot exist
The equipment that builds the roads to the sites, prepares the sites and digs foundation holes have to have oil, the trucks that transport gearboxes and blades need oil. The gearboxes in wind turbines have to have oil, The plastics and composites, the wind turbines are made of come from oil. The ore for the metal parts wind turbines are made of is mined with machines that use oil.
Not one wind turbine can be manufactured, transported, installed, operated nor maintained without oil. Not one site for a wind turbine can be prepared without machines that depend on oil.
Shouldn’t the Energy Dept. be spending more on oil R&D and less on wind turbine subsidies?
My follow-up comment is directed at “SETH – December 6th, 2009 at 5:30pm”. Fact # 1 – The MN PUC reaffirmed Landowner Property and Wind Rights in the aforementioned PUC Order, as a Minnesota resident, the MN PUC speaks for the State Legislature as empowered by MN Statute 216F.08(C). Fact # 2 – The only reason eminent domain has raised its ugly head, the Town of New Ulm has monetary gains and these Turbines won’t be located near the city, nothing to do with “BEST For Society”, it’s all about money. Fact # 3 – There are thousands and thousands of acres around New Ulm and the developer is restricted to this tract. Lastly, landowners who allow these to be erected on their lands will reap 5-7K a year per turbine for their land/wind rights and 2-4K a year for road right away. After 10-20 years the developer will turn over the turbines to the landowners who will be responsible for their complete (to ground level) decommissioning at end of life. By the way, no one wants to address this issue, especially the developers…not their job. Right now it cost about 100K to get the specialized crane to a project site, so when these landowners spent all their lease earnings year after and have no money to carry out the decommissioning, the local citizens through tax increases will be stuck with those decommissioning costs (did you ever see the abandoned oil derricks in Texas, from an ecological standpoint we’re headed in the same direction). I only hope the county is smart enough to make the developer deposit money in an escrow earmarked for decommissioning. Again, within the PUC Order there are specifics about the documented requirements for decommissioning; those in charge of the Conditional Use Permit better hold them to those requirements.
[...] implications of new technology aren’t all covered in intellectual property classes – Andrew Breitbart’s Big Government blog looks at the possible use of eminent domain to take the “wind rights” of farmers and [...]
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Great quote…. trademarked?