Some Parts Of Knox Co. Wind Lawsuit Dismissed

CENTER, Neb. — Parts of a federal lawsuit regarding wind energy zoning regulations in Knox County, Nebraska, continue to blow forward, while other portions have been dismissed.

Senior U.S. District Judge John Gerrard, in a 40-page memorandum and order issued last Friday, granted in part and denied in part Knox County’s motion to dismiss the lawsuit filed against it by North Fork Wind (NFW) LLC, a company based in Bloomington, Minnesota, and about a dozen Knox County landowners with whom NFW arranged lease and easement agreements.

“The plaintiffs have stated a claim under the Fifth Amendment Takings Clause, and its corollary clause in the Nebraska Constitution,” Gerrard wrote in his ruling. “The plaintiffs may also pursue state law claims, limited to those related to Knox County’s alleged noncompliance with publishing zoning ordinances. The remaining claims (against Knox County) will be dismissed.”

He noted that the limited avenue available to the plaintiffs to pursue their lawsuit may seem “stringent,” given the allegations concerning the conduct of the Knox County Planning Commission.

“But governmental bodies are provided wide latitude to enact laws that those bodies believe are in the best interest of the public,” Gerrard wrote. “It is not the place of the court to disrupt those decisions.”

The Takings Clause provision of the Fifth Amendment of the U.S. Constitution bars the government from taking private property for public use without just compensation.

Gerrard noted that to be successful in their Takings Clause claims, the plaintiffs must first prove that they had a “vested interest” in using the land at issue as a commercial wind energy conversion system.

“To do so, Nebraska law requires that the physical use of the land be of such a ‘substantial’ nature so as to put the ‘neighborhood’ on notice of the nonconforming use of the land,” Gerrard wrote. “The alleged behavior on the part of Knox County has no relevance to the determination of the plaintiffs’ property interest. Whether Knox County’s attitude towards wind energy is wise or in the best interest of its citizens are questions outside this court’s purview. Rather, those issues must be decided by the political process. …”

Gerrard referred the litigation to a federal magistrate judge for case progression and bifurcated, or two-stage, discovery. Engaging in discovery is the formal process of exchanging information between the plaintiffs and defendants about the witnesses and evidence they each will present at a trial.

The plaintiffs’ original complaint was filed last Aug. 23 in the U.S. District Court for the District of Nebraska, and an amended complaint was filed on Oct. 9.

Special Knox County Attorney David Begley of Omaha, Nebraska, represented the following defendants in the lawsuit: Knox County, six of its seven supervisors (though one member listed in the litigation has since been replaced by a new one), its planning commission, individual members of those governmental bodies and its zoning administrator.

“This is a substantial victory for the citizens and taxpayers of Knox County,” District 4 Supervisor Jim Sokol Jr. of rural Verdigre, Nebraska, the chairman of the Knox County board, said in a press release. “It is significant that at this early stage of the litigation, the bulk of (the) lawsuit was dismissed. The possibility remains that the entire lawsuit could be dismissed on summary judgment (a judgment entered by a court for one party and against another party without a full trial).”

Julie Ryan of Omaha, the attorney for District 5 Supervisor Kevin Mackeprang of Bloomfield, Nebraska, who has a conflict of interest in the civil case, previously filed a brief in support of Mackeprang’s motion to have the lawsuit and all claims against him raised by the plaintiffs dismissed with prejudice, meaning the litigation could not be brought again.

Mackeprang originally signed an agreement with NFW in 2018. It was extended into 2023 and amended at the end of that year. The other defendants previously argued that the plaintiffs’ lawsuit should be dismissed because North Fork Wind filed the litigation knowing that Mackeprang had to be a “party defendant” and that he was also a “lessor” of NFW for six years, according to court documents.

Gerrard ruled that Mackeprang’s motion to have the lawsuit and all claims against him dismissed was granted. Mackeprang also was terminated as a party to the litigation.

As of late Wednesday afternoon, North Fork Wind’s attorneys had not filed a response to Gerrard’s ruling.

In one of the footnotes in his ruling, Gerrard wrote, “[T]here’s no mechanism under Nebraska or federal law that prevents Knox County from banning commercial wind farms, so long as there is a conceivably or hypothetically rational reason to do so.”

In light of this, the Knox County supervisors are contemplating taking “the appropriate actions” to ban new commercial wind energy conversion systems in Knox County, according to the county’s press release.

The supervisors, who discussed the lawsuit during a closed session on Wednesday, are slated to talk about the possibility of new wind and solar energy projects in the county at their April 3 meeting and schedule a public hearing on the topic for a future meeting.

Knox County is currently home to two commercial wind energy conversion systems that both are on a much smaller scale than NFW’s proposed 600-megawatt North Fork Wind Project. The Crofton Bluffs Wind Farm, located southwest of Crofton, Nebraska, was established in 2012 and is a roughly 40-megawatt system. The Elkhorn Ridge Wind Farm is a roughly 80-megawatt system located near Bloomfield, Nebraska, that was established in 2009.