Highlanders to sue if wind permit issued By Anne Adams Staff Writer
MONTEREY Highland supervisors have said for months they expect to be sued following their upcoming July 14 vote on a utility permit either by the wind energy developer or by those who oppose the project.
This week, a letter from a Roanoke law firm proves them right. Less than an hour before the board met for its 7:30 regular meeting Tuesday, the county received a notice of intent to sue from Highland landowners Ralph Swecker, the Goodall family, and Gregory A. Warnock, all of whom would be directly impacted by a 39-megawatt utility proposed for Allegheny Mountain.
The letter sent to county officials was drafted by attorneys James W. Jennings Jr. and Daniel C. Summerlin III, both of the Woods Rogers PLC law firm in Roanoke. Chris Singleton in Warm Springs and Monterey will join Jennings as co-counsel.
It was sent to Highland supervisors; Gale Anne Norton, Secretary of the U.S. Department of Interior, and to Henry T. “Mac” McBride and his company, Highland New Wind Development, LLC.
We basically just want to tell them whats coming if they dont back off and do their homework, Singleton told The Recorder Tuesday.
Wednesday, Jennings explained that under the Endangered Species Act, anyone who intends to seek injunctive relief is required to give 60 days notice to the Department of Interior. The department will then decide if it will undertake its own assessment or proceedings.
The plaintiffs describe some approaches they may use in a lawsuit if the county approves the conditional use permit requested by HNWD for its 18 to 20-turbine utility, consisting of car-sized turbines mounted on towers together about 400 feet in height. Those include a suit based on violations of the Endangered Species Act, nuisance violations, or failure to comply violations on regulatory processes (see sidebar for details).
“What were hoping to accomplish, what they (supervisors) have failed to do, is back off and tell the developer to do more homework,” Singleton said.
The letter states the plaintiffs intent to bring a civil suit against the board of supervisors to enjoin them from approving and issuing a permit to HNWD because constructing and operating the wind utility will “result in a taking” under the Endangered Species Act. In addition to giving the required statutory notice of its intent to sue, this letter will also set forth some, but not all, of our clients objections relating to the proposed wind farm, it says.
Jennings said if the Department of Interior decides to take no action, he will seek injunctive relief in federal court on behalf of his clients to prevent the county from issuing the permit, or un-doing the permit if it was issued, until an assessment can be done.
This will essentially stay the permitting process until a federal court decides the case, Jennings said. In his 30 years experience, he says the federal courts in western Virginia move at a fairly reasonable rate. In court, the plaintiffs would then present scientific evidence explaining what the project might do to endangered species.
The letter says McBrides project would destroy the natural beauty of Highlands ridges, thereby interfering with the reasonable use and enjoyment of the land by neighboring landowners and other residents of Highland County. In addition, the project would cause irreparable damage to the unique and fragile surrounding environment including the illegal taking of endangered species and migratory birds, and will result in excessive storm water and sediment run off creating a nuisance to neighboring landowners. Because of the highly sensitive nature of the proposed location for this wind farm, it continues, “it is imperative that the foregoing issues be studied and addressed prior to the board of supervisors’ decision on whether to grant the permit.”
Should the federal courts end up with primary jurisdiction, Jennings told The Recorder, its possible the court could exercise “pendant” jurisdiction. That essentially means the court could use its discretion to also hear any other state court actions like a nuisance suit. “If something is a nuisance to private property owners, its like having a beehive in a residential area,” Jennings said. “And in this case, if the federal court is already hearing evidence on the endangered species, it can decide to tend to the nuisance issue as well.” Jennings believes pendant jurisdiction would be appropriate in these circumstances, since the same evidence and the same witnesses make the issues related enough for the federal courts to hear them all.
Jennings letter points out the litany of issues outlined by the plaintiffs is not exhaustive, but it does illustrate that HNWDs proposed project is riddled with problems.
The letter concludes, “If the board of supervisors proceeds and authorizes the project, our client will be forced to consider all possible options including pursing the ESA option..”
Wednesday, Jennings said that if McBride decides to halt any further process toward constructing a wind plant, that would put an end to civil or federal action. But if its only put on hold, or McBride decides to sue the county for turning down his permit, the Department of Interior could still decide to remain involved.
In his opinion, Jennings said if the county denies HNWDs permit, McBride might sue based on “abuse of discretion,” meaning the developer would have to prove supervisors had somehow abused their powers or exceeded their authority in turning down the permit request. “But it would be very hard for (McBride) to prevail,” Jennings said.
Tuesday, county attorney Melissa Dowd said she could not comment on the letter. I havent even spoken to the supervisors about it yet, she said.
Ironically, just before supervisors learned of the letter, chairman Jerry Rexrode made statements about the publics frustration with the board for its failure to openly discuss HNWDs permit request and their opinions on whether wind energy is right for Highland.
“Some people think were not responsive to the public, but we are,” Rexrode said, adding the board members do listen to constituents but just cant openly respond. When anyone sits there in the audience and threatens us with lawsuits, we cannot protect the county and govern the county like we should. Rexrode said the board will probably go through the whole wind energy issue unable to discuss their feelings about it publicly. “Were elected to represent the whole county, not special interest groups,” he said, explaining the boards attorney had advised them to stay quiet about the permit request. “Anything we say, it can be sued against us … Were frustrated, too. Anytime we make a decision, weve got to make sure its legal and its in the best interest of the county.”
Monterey resident Larry Held, who is strongly opposed to the wind utility proposal, mentioned a comment Rexrode made several weeks earlier, about how Rexrode felt there was a lot of hate from constituents. “I dont believe thats true,” Held said. “Were frustrated. You have reasons to make us frustrated, and probably good reasons. Thank you for your patience with us.”
The board held a closed meeting immediately following its regular meeting, but by press time, the board had declined to offer any comment on the letter. At a 1:30 p.m. Wednesday, the board voted unanimously to retain the services of Roanoke law firm Gentry Locke Rakes & Moore. Two attorneys from the firm spent more than an hour with supervisors in closed session. County administrator Roberta Lambert says the firm is charging the county $250 an hour, but says it will try to hold costs down. The firm will advise the county on any matter related to wind turbines, and especially pending litigation.
Jennings says at this point, his clients will have to wait to hear from the Department of Interior before they do anything further, no matter how the board votes next Thursday.
Jennings has been with Woods Rogers for 30 years as a civil trial lawyer, often defending power companies and other utilities. He has worked with Singleton before, “usually against him … I have a great deal of confidence in him. Hes a fine lawyer,” he said. Dowd and Jennings have also found themselves on opposite sides in court, Jennings said. But having known her when she used to clerk for the firm, Jennings said she, too, is a fine attorney.”Shes a pro,” he said. “Shes done a very nice job for the county.”
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