ERIE — Neosho County residents backing a lawsuit against a wind farm should be prepared to wait on the legal process.
A group of Neosho Ridge Wind opponents and some of their supporters gathered for a dinner Saturday evening at the Red Barn Lodge, rural Erie, to raise money for the lawsuit seeking an injunction on the project that will construct 139 turbines in the southwest part of the county. One couple facing the same concerns in McPherson County traveled 3 1/2 hours to the fundraiser to support the effort. The dinner also served as an update on the legal proceedings.
Forty-five landowners, some of whom live in the project footprint, filed suit against Neosho Ridge Wind LLC in July in Neosho County District Court. The civil suit states the project “will constitute a nuisance with respect to the plaintiffs and their property interests. It will be an annoyance and a use of property which gives offense to or endangers the life or health or obstructs the reasonable and comfortable use and enjoyment of the property of the plaintiffs.”
The project opponents say they aren’t necessarily against wind energy, but they do oppose the project in what they think is an area too heavily populated for the windmills that will tower over 600 feet tall.
The lawsuit is now in the discovery phase, which is the fact-finding period in which both parties gather information and make the other side aware of information.
Ed Spielbusch told attendees Saturday the discovery phase will take months.
“That’s just how the legal system works,” he said.
Spielbusch, who is administering the lawsuit fundraising account with Debbie Coover, said more financial support will be needed to continue the fight. All donations will remain anonymous.
If the group does win the injunction, Spielbusch said, an appeal surely will follow, meaning more money will be needed.
“If you have friends, if you have neighbors, reach out to them. If they could help, that would be fantastic,” Spielbusch said.
Spielbusch pointed to an open door in the barn and said the view beyond represents what the group is fighting for, although there are other worries, including shadow flicker, noise and property devaluation.
“There’s a lot of concerns, but that’s it, out that open door,” Spielbusch said.
Bryan Coover, one of the plaintiffs, along with his wife, Debbie Coover, predicted some information will be difficult or impossible to get from Apex Clean Energy, the project’s parent company, because no one has been able to get certain information from the wind industry in 20 years.
The suit was filed in Neosho County, but the attorney for Apex has requested the case be moved to federal court, either in Kansas City or Wichita. Coover said Wichita attorney Pat Hughes, with Adams Jones Law Firm, has told him he is pushing for the Wichita venue because that’s where he is based and it’s closer to Neosho County.
Apex’s intent, Coover said, is to drag out the process as long as possible so that the project gets far enough along that the firm has put in so much money that it can make the argument that it must be allowed to finish the project. Still, Coover said he would welcome the federal venue because a federal judge doesn’t have to worry about local politics and wants to do a good job.
In the end, even if the plaintiffs win something, it might not be an injunction. The court could award money to the property owners in the lawsuit.
“This isn’t a sure thing; it’s we’re going to do the best we can,” Coover said. “There sure is no chance to get them to stop if we don’t make any effort.”
He said it’s important that property owners know the value of their property now so that if the wind farm is allowed and valuations drop, they can prove it. The Coovers and some of the others already have had their property appraised. Neosho County Appraiser Bob McElroy has predicted that valuations in the footprint will drop 20 to 40%, according to opponents.
Even if the lawsuit fails, Coover said at least property owners will obtain some of the information through the discovery process that they have sought all along. For instance, the property owners wanted a blade failure study and an ice throw study. The blade failure study hasn’t been produced, he said, but Apex did reveal that studies show that ice can be flung off the turbines 1,000 feet farther than the required setback from a home in the Neosho Ridge Wind footprint. The thought is that the setback from nonparticipating homes should be at least farther than ice could fly, Coover said, and that’s why people were pushing for a 4,000-foot setback.
As the lawsuit progresses, Coover will share information with all involved, but there will be some information that the group’s lawyer will keep to himself.
“If sometimes it feels like you’re not getting the whole picture, I don’t expect him to give us the whole picture. I expect him to do his job,” Coover said.
Near the beginning of Saturday’s discussion, Neosho County Commissioner Paul Westhoff, who was in attendance, received a standing ovation. Kim Norris, owner of Red Barn Lodge and a lawsuit supporter, told Westhoff to continue the fight. She got emotional as she told him that those at the meeting support him and know that he is “in the trenches getting hammered” by the other two commissioners and that they are holding him up so he can continue to fight.
Spielbusch later added that Westhoff is representing the people of his district as the only commissioner elected by the people and not appointed by the governor or a political party. He was referring to Commissioner David Orr, who was appointed in April by Gov. Laura Kelly to replace Jennifer Orr, who resigned, and Commissioner Gail Klaassen, who was appointed by Kelly in May after being nominated by the Neosho County Republican Party following David Bideau’s resignation. Both commissioners voted in favor of agreements on June 6 making the wind farm possible. Westhoff voted against the agreements.