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Oral Arguments in Companion Cases Heard By Iowa Supreme Court

April 12, 2019
By Anesa McGregor , Emmetsburg News

by Anesa McGregor

The following is a continuation of the story from Tuesday, April 9, The Reporter. At the end of the article the last lawyer was incorrectly identified as Haley Van Loon.

The lawyer's name is not known but she was an attorney for the Iowa Utilities Board.

Case two, the companion case, was Bertha Mathis et al v. Palo Alto County Board of Supervisors.

In this case the Plaintiffs challenged the Palo Alto County Board of Supervisors wind energy ordinance and their approval of a construction application to Palo Alto Wind Energy for a wind energy project. The district court granted summary judgment in the Board's favor. The court found that the Board followed proper procedure.

On appeal, the Plaintiffs argue the Board's actions were arbitrary, capricious and unreasonable because essentially Palo Alto Wind Energy and Middlemarch Energy drafted an ordinance the way they wished it to be so that it was in their favor.

The Plaintiffs also believe that the Supervisors failed to consider the recommendations from the Iowa Department of Natural Resources and the State Archaeologist, reports regarding project noise levels and other material.

The argument by the Palo Alto County Board of Supervisors is that they acted appropriately under home rule authority and that the ordinance produced is a product of the Board's general police power rather than the county's zoning power.

John Murray, attorney for the Plaintiffs began his arguing of the case by focusing on the application for construction.

"It was clear during the process that the owner/operator was to be MidAmerican Energy," Murray began. "The ordinance clearly states that the applicant is the intended owner/operator of the wind energy conversion system. So the applicant needs to be the intended owner of the facility and in this case, it was not MidAmerican Energy."

"I thought the record was it was not a done deal, that at the time PAWE was owner but there was an asset purchase agreement that MidAmerican, at that point, might or might not exercise it," Justice Edward Mansfield noted. "And that there was an opportunity to terminate and that was all disclosed in the application process and the Supervisors were aware of it, so what's the big deal?"

"That's a good point; however, the purchase agreement went into effect March 2017 and clearly states MidAmerican intends to purchase the project," Murray said.

"If I was the County, I would be happy MidAmerican might be on the hook," Mansfield said. "Aren't they owned indirectly by the company that is controlled by a very wealthy individual from Omaha?"

"Is there anything in the record that said what would happen if MidAmerican exercised their right not to purchase the project?" Justice Brent Appel asked.

Discussions were held between the attorney for the Plaintiffs and the Justices regarding what would happen if MidAmerican did not purchase the project.

Later in the argument for the Defendants, Attorney Sheila Tipton explained to the Justices that Invenergy intended to own and operate the project if need be.

"We want to bind the purchaser, in this case MidAmerican, was not the purchaser or included in the application process," Murray stated.

"But they would be bound. That's part of a provision in the ordinance that stated if an entity comes in that they agree to be bound by all the conditions of the development?" Appel questioned.

"That's the transfer process, which is completely different," Murray responded.

"It is thought that whatever problems we have with the application, we can magically solve them with the transfer agreement," Murray continued.

Murray went on to spend some time on the ways the plaintiffs feel the Supervisors acted in an arbitrary and capricious manner, including: the applicant is not involved; the sound study was rejected; the DNR recommendations were rejected; and, the State Archaeologists recommendations were not taken into consideration.

"We had a sound study rejected that was completed by the Supervisors that stated there were times when the sound decibel would exceed the ordinance's maximum decibel of 50," Murray stated.

The District Court took issue with this in her ruling," Appel stated. "The original study was completed by PAWE and Invenergy and it was determined that even with certain conditions the sound would not exceed 40 decibels. Then Richard James reevaluated this original study PAWE and Invenergy and came up with several pessimistic conclusions including that 196 turbines would be included, when in fact it is only 170. "

Appel referenced, at one point during this entire litigation process the Supervisors testified that PAWE will have to comply with the ordinance or the supervisors will shut them down until they do comply.

"So what is wrong with this?" Justice Appel asked.

"It sounds like a fact issue to me," Murray replied.

"What is the fact issue?" Appel questioned. "It's your burden to show that the Supervisors acted illegally, arbitrarily and capriciously and it seems to me that it was an exercise of judgment by them on the undisputed record sworn to by them."

According to Murray, he felt there were disputes in prior testimony and again brought up the issue of the sound study being ignored when presented to the Supervisors.

Sheila Tipton, Attorney for the Supervisors, gave her arguments, pointing out that in Section 9, any change in ownership, the new owners are bound by the same contractual agreements as the developer.

"The County also has a separate decommissioning agreement and secondary road agreement, which must be agreed to by all parties in the development stage," Tipton stated.

"The ordinance is a stand alone ordinance. At the time the Supervisors developed it, the setbacks in the ordinance were the toughest and farthest setbacks in the state.

"We request that you uphold the lower courts decision and rule in favor of the Supervisors," Tiption added.

Comments on

Oral Arguments

"The whole justification is that the IUB has taken their responsibility, which they say in their mission and vision statement, and put it on all 99 County Supervisors, who are not experts in the energy field as the IUB claims they are," Bertha Mathis commented. "It's not about opposing wind energy; it's siting and the correct siting of wind energy, especially around residents. And we need regulation, especially with energy companies regulating themselves."

Supervisor Chairman Craig Merrill had this to say, "I believe the process is working and we will wait for the decision."



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