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Northern Cheyenne Tribe members.
National Park Service

Kiowa County Sued Separately by Invenergy & Northern Cheyenne Tribe Threatening Renewable Energy Projects

By Betsy Barnett

April 26, 2024

On April 11, 2024, the Kiowa County Board of Commissioners was slapped with two lawsuits concerning the March 14, 2024, Section 1041 Permits that approved two wind projects, the first ever to be developed in the County, for the Towner Wind projects (Towner East Wind Project and Towner West Wind Project) that have been in the planning and permitting stage for the past two, nearly three years.

The first lawsuit was a Complaint filed by Towner Wind Energy LLC, a Delaware limited liability company, (Invenergy) that claims Kiowa County, as it pertains to the impact fees detailed in the 1041 Permits, “exceeded its jurisdiction or abused its discretion, and further said the impact fees would be used, in substantial part, to remedy significant deficiencies in the County’s existing capital infrastructure, services, and facilities without regard to actual impacts of the Towner Wind Projects.”

The second lawsuit filed on the same day came from The Northern Cheyenne Tribe, specifically signed by Serena Wetherelt, President of the Northern Cheyenne Tribe in Lame Deer, Montana. That filing was a Complaint for Consolidated Judicial Review requesting the Court system commence an action concerning the March 14, 2024, Section 1041 Permits provided to the Towner East and Towner West Wind Projects. The Northern Cheyenne Tribe claims in the action that “the County failed to comply with the procedural and substantive requirements to consult with The Northern Cheyenne Tribe and its members.” In essence, the Towner Wind projects adversely impact the Northern Cheyenne Tribe and its members by fundamentally changing the cultural landscape and viewshed surrounding the Sand Creek Massacre National Historic Site.”

The permit approvals for the two wind farms have taken over two years to get accomplished requiring much work, discussion, and legal considerations by the BOCC, county administration, and their legal representatives. The initial 1041 application hearing on February 13, 2024, for both applications, was a long, drawn-out affair that featured approximately 130 people who were there, mostly in support, to learn more about Invenergy and their wind projects.

At that meeting, most attendees were in full support of the wind farms coming into the county, however, they also encouraged the commissioners to retain the 1% impact fee (of the total cost of the project) that Invenergy was trying to negotiate down as attendees felt the County’s sorely lacking infrastructure would require a financial shot in the arm in order to be able to respond to issues that the large amount of workers, equipment, traffic, and activity will bring during the construction phase.

According to Invenergy, the Towner East Wind project proposes 500 MW wind power generation facility in Kiowa County. With approximately 154 wind turbines spread across approximately 60,000 acres of private land, Towner East will include a 20- to 25-mile generator lead (gen-tie) transmission line with interconnection to the Public Service Company of Colorado’s (PSCo) May Valley Substation that is currently under construction by Xcel Energy in southeast Kiowa County. Other project assets for Towner East will include a storage facility taking up 5.1 acres and up to 50 acres of lay down area. Concrete batch plants will be needed, as well, and will be constructed where and when needed.

Towner West is a proposed 500 MW wind power generation facility with approximately 168 wind turbines generating 4.5 MW each and spread across approximately 120,000 acres of private land. Towner West will also include an 8- to 18-mile generator lead (gen-tie) transmission line with interconnection to the May Valley Substation currently being constructed by Xcel Energy.

The April 11, 2024, lawsuit filed by (Invenergy) claims that Kiowa County unlawfully applied a 1% impact fee to each of the two projects. Based on the County’s estimate that each project will cost $1 billion to develop the 1% impact fee would require Invenergy to pay Kiowa County $10 million in impact fees for each project for a total of $20 million. However, in the suit, Invenergy claims, “The $10 million impact fees—are in no way tied to actual present and future direct impacts of renewable energy projects in Kiowa County, but rather, they are tied solely to the cost of the Projects themselves. They also claim the money will be used to remedy Kiowa County’s deficiencies in existing capital infrastructure, services, and facilities without regard to actual impacts of the Tower Projects. In imposing separate $10 million impact fees, the County “violated its own 1041 Regulations, Colorado statutes, and the U.S. Constitution. In doing so, the County acted arbitrarily and capriciously, abused its discretion and exceeded its jurisdiction.”

In the lawsuit filed by Invenergy they claim on average the Wind Project would pay $1.53 million in property taxes per year, nearly doubling the annual tax revenue for the County. Further, Invenergy claims their project will increase economic activity in the County in the form of increased spending at local businesses and local jobs.

However, one argument that continued to be voiced by concerned citizens is the fact that Kiowa County is very attractive to develop because thus far there is no sales and use tax in the county. Therefore, companies such as Invenergy can develop their multi-million-dollar projects without paying up to 3-4% sales tax on the materials they bring into the County.

Invenergy requested, within the lawsuit, that the Court find that Kiowa County acted arbitrarily and capriciously, abused its discretion, and exceeded its jurisdiction when it imposed the impact fee(s). It further asks the Court to overturn and invalidate the County’s $10 million impact fee for each project ($20 million in total); declare Section 2.304 of the 1041 Regulations as unconstitutional, violates State statutory law, and is therefore unenforceable. They also want to be able to proceed with the projects, and collect all damages, costs, and reasonable attorney fees they have incurred for the County.

Alaina Merrill, Communication Manager for Invenergy, as usual provided a general statement concerning their lawsuit directed at Kiowa County detailing the many ways the projects can economically benefit the County, “Invenergy is continuing its ongoing investment in Kiowa County and the community through the development of the Towner Wind Energy Projects. These projects are anticipated to provide Kiowa County with economic benefits from hundreds of jobs and millions in landowner and property tax payments, as well as an economic boost for many surrounding communities. We look forward to finalizing an appropriate impact payment agreement with the County.”

The lawsuit filed by The Northern Cheyenne Tribe represents an ongoing fissure between the National Park Service, Sand Creek Massacre Foundation, and now the Northern Cheyenne Tribe and the landowners who own farmland or ranchland located near the national park.

The lawsuit filed against Kiowa County’s Section 1041 Permit actions on March 14, 2024 pertaining to Towner East and Towner West Wind projects by the Northern Cheyenne Tribe states the Tribe has been adversely affected or aggrieved because the Tribe has a “deep connection to the site of the massacre and its traumatic history and was instrumental in securing Federal legislation that identified the site, and subsequent legislation that established the Sand Creek Massacre National Historic Site.”

It goes on to claim the wind Projects adversely impact the Plaintiffs by fundamentally changing the cultural landscape and viewshed surrounding the Sand Creek Massacre National Historic Site and the broader area that more fully encompasses the site and its aftermath. They believe the turbines that will be erected will be visible from the Site, and the project area likely includes areas where Tribal members sheltered following the massacre. Since the massacre spilled out well-beyond the boundaries of the history park, they believe cultural resources are still located there and “only 1% of the entire project has been surveyed to Class III standards, which require the location and recording of all historic properties within the target area, and without tribal participation.”

Finally, the Tribe claims that Invenergy did not adequately consider, address, or mitigate impacts to the Tribe and the Site and will cause great cultural and spiritual harm. The surveys and cultural resources review performed were limited and severely inadequate. The Tribe submitted a letter to the County about their concerns on February 12, 2024, and the Tribe does not believe the County fully considered their concerns.

The Tribe requests the Permit be held unlawful and the enforcement of it should be restrained, the Court should also remand the case for further proceedings and afford the Tribe any relief as may be appropriate.

Merrill told the Independent concerning the Northern Cheyenne filing, “Invenergy is committed to listening to and engaging with Tribal governments and Kiowa County. Invenergy conducted thorough resource and field studies for the Towner Wind Energy Center projects, adhered to the requirements of Kiowa County’s 1041 permit, and continues to take additional measures to ensure the projects are sited responsibly. We will continue our important dialogue with Tribal governments and the County regarding these projects.”

Local landowners have expressed this type of action is taking away their Constitutional right to utilize their own land the way they see fit. The Sand Creek Massacre National Historic Site has established boundaries they have indicated is the place where the event took place in 1864, and the landowners say they have always honored those boundaries and are asking the same mutual respect be given to them, as well.

The Court has not yet set further action in these lawsuits. Until then, the Renewable Energy projects are at a standstill in Kiowa County.