Lawyers for landowners, Crowned Ridge, and the PUC made their case before the South Dakota Supreme Court on Tuesday, Oct. 5. Deuel County landowners who live near a large wind farm are appealing the project’s state permit. Six landowners in four homes say the Public Utilities Commission violated their private property rights by not requiring Crowned Ridge Wind to get an easement.
A.J. Swanson represents the Deuel County landowners who say their enjoyment of their property has been negatively affected by noise and shadow flickers coming from the Crowned Ridge Wind farm.
Swanson said the $400 million project has 132 turbines already built and operating on leased land located in seven townships and three counties.
None of the project is located on his clients’ land, and so they don’t receive lease payments.
But Swanson told justices that because his clients are affected by the project, the PUC should not have approved the permit without requiring Crowned Ridge to seek easements. Without doing that, the PUC has taken property without compensation, and Swanson said that violates state and federal constitutions as well as South Dakota law.
“That, in effect, is a taking of the property,” he said. “It is a violation of the landowners’ right to exclude others from the use and enjoyment of their land. That’s a statutory right.”
The attorney for Crowned Ridge is Dana Van Beek Palmer. She said appellants are asking the Supreme Court to go beyond the allowable purpose of the appeal, which is to review the PUC’s ordering decision that granted the permit.
“The commission is not a court of general jurisdiction. The commission cannot consider issues such as constitutional arguments. It didn’t consider those issues,” she told justices. “That being the case, all that this court really is empowered to consider here is whether the commission abused its discretion in granting the permit.”
Van Beek Palmer says if the court doesn’t address the constitutionality of the permit in its subsequent opinion on this case, then plaintiffs are not precluded from raising that issue elsewhere.
