Judge temporarily halts construction on Crazy Mountain Wind project

Johnathan Hettinger —
Wednesday, March 20, 2019
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A copy of the judge's ruling temporarily blocking the construction of the proposed Crazy Mountain Wind farm on the Park and Sweet Grass county lines is pictured Wednesday afternoon. (Enterprise photo by Justin Post)

A Montana District Court judge has temporarily blocked the construction of a proposed wind farm on the Park and Sweet Grass county lines. 

Judge Jon Oldenburg ruled Tuesday that San Francisco-based Pattern Energy cannot start the construction of a 22-turbine wind farm on the properties of ranchers Rick Jarrett and Alfred Anderson until the case goes to trial.

But a group of neighbors sued to stop the project, arguing it would hurt their ability to enjoy their land as it would kill wildlife, like golden eagles and bats, and change the character of the area.

In a three-day preliminary injunction hearing in February, Pattern Energy, meanwhile, said it must start construction by April 1 or else risk losing its negotiated power purchase agreement, which would cost the company $120 million. Pattern testified it has already spent more than $10 million on the project.

Oldenburg ruled that both sides could face potential harm, for plaintiffs if the wind farm is built, and for the defendants, if the wind farm isn’t build.

“Until the ultimate issues are decided by a trier of fact, the balance of equities does not fall in favor of one side or the other,” Oldenburg wrote in his decision.

The decision means the case must go to trial, and no construction on the wind farm or alterations to roads can take place until that trial. A date has not been scheduled for the trial.

Monica Tranel, a lawyer for Jarrett and Anderson, said they were disappointed by the decision and exploring their options. Calls to Pattern Energy and lawyers for the plaintiffs were not immediately returned.

Oldenburg said the plaintiffs demonstrated harm in their testimony.

“The construction and operation of the wind farm ‘is at least doubtful’ to cause irreparable injury to the plaintiffs due to their diminished viewshed, the potential for shadow flicker, the alleged noise associated with wind farms, golden eagle taking, or the loss of bats,” Oldenburg wrote.

The plaintiffs are four companies that own neighboring ranches. The owners of the four companies include David Chesnoff, a Las Vegas attorney who, according to news reports, has represented clients such as Bruno Mars, Britney Spears and Martha Stewart; Russell Gordy, who made his money in oil and owns $96 million worth of ranches includes the 48,000 acre Rock Creek Ranch and said he would potentially develop the former Hunter’s Hot Springs site; and Jan Engwis, who listed his ranch for sale for $19.5 million in June 2017.

Oldenburg said Chesnoff, Gordy and Engwis showed they could be harmed by the wind farm because of the large investments they’ve made in their property and how they use their property.

Oldenburg wrote that one of the most influential arguments was when an expert for the defendants said he would tell someone not to build their house on the edge of their property because of the potential wind farm.

Though Pattern said it must start construction by April 1 to get its wind farm up and running by Dec. 31 to meet its power purchase agreement, Oldenburg said it appeared as though that date could later be renegotiated, as Pattern has not met any of the benchmark dates yet.

Oldenburg pointed out that Pattern had not completed its financing, did not know who its financiers would be, did not know where, how or from whom it would get water for the construction and has not received any construction permits or take permits for eagle kills.

“There has been no testimony or argument presented by the Defendants that would show that an extension of the PPA, or a new PPA, could or would not be able to be negotiated based upon the fact of this litigation,” he wrote.