Landowner and lawyer explain lawsuit against wind farm and county judge

The $400-million Scout Clean Energy Nimbus Wind Farm project proposed near County Roads 905 and 920 has hinged on Carroll County Judge David Writer allowing road improvements for turbine blades more than 200 feet long to be transported to the rural sites. Writer said the Road Use and Management Agreement (RUMA) he signed on Sept. 25 protects the county from damages that could occur from Scout’s use of county roads while allowing landowners who have leased to Nimbus the ability to make revenue.

On Oct. 1, attorney Matt Bishop filed a 35-page lawsuit in the Eastern District Circuit Court of Carroll County Civil Division on behalf of landowners along the roads alleging that the RUMA results in an unconstitutional taking of property of the 25 plaintiffs and other private citizens, and that the roads in question are owned by adjacent private property owners, not the county.

The complaint states that a public or county road is a right of ingress and egress [entering or departing] only, and ownership of remaining interests in underlying property remains with adjacent property owners.

It further states that any attempted conveyance of interests in land, other than the already existing public right of ingress and egress over the portion of the plaintiffs’ property encumbered by a county road, constitutes a taking under the Fifth Amendment to the U.S. Constitution and the Arkansas Constitution Article 2. The RUMA grants an interest in the land of those owners without compensation.

The lawsuit alleges that the action by Writer is an illegal exercise of the power of eminent domain and would allow an illegal alteration of county roads. The complaint states that the roads designated in the RUMA may be public roads, but that does not make them county roads.

Writer, who consulted at length with the county attorney regarding the RUMA, wrote in an email that he had every right to enter the agreement.

Former County Judge E. Richard Williams, a plaintiff in the case, states that the roads in question have never had an easement or deed giving the roads to the county.

“In my title, I own to the middle of the road,” Williams said. “I own the entire road for 220 feet of CR 905 because I own property on both sides of the road. Other people’s titles also read that way. Another plaintiff owns about 7/10^th of a mile on both sides of the road.”

Williams contends the RUMA provides illegal government assistance to a private entity. One of his biggest concerns is that weight of the equipment to be transported exceeds safe limits.

“They are just far too heavy,” Williams said. “Recently I was talking to a contractor for Nimbus who was surveying the road to bring in a transformer. I asked how much it would weigh and was told 300,000 pounds. That is far heavier than current uses like a concrete truck that weighs 67,000 pounds or a Tyson’s truck loaded to the max at 80,000 pounds.”

Williams said he believes the RUMA was not written by the county, but by the wind industry.

The complaint also states that the RUMA unfairly allows Nimbus the right to terminate the agreement with a mere 15-day notice, but there is no ability for the county to terminate the agreement. It is perpetual.

Another allegation in the complaint is that any expenditures in furtherance of the RUMA by the county or the county judge, including the use of county equipment, constitutes an “illegal exaction,” improper use of public funds. The lawsuit requests that Nimbus be required to refund any money illegally exacted due to the RUMA, attorneys’ fees, and costs for the plaintiffs.

The RUMA also gives Nimbus the authority to use road rights-of-way for cables or electric lines. It binds the county to, under the extent permitted by Arkansas law, issue master overweight and oversize permits in a timely manner not to exceed 30 days. “Developer agrees to transport or cause to be transported the tower segments and other oversize loads in accordance with good industry practice to reasonably minimize, where possible, adverse impact on the local traffic,” the RUMA states.

Attorney Bishop points to an interview with Judge Writer on KY3-Springfield (Mo.) where Writer said, “I share a lot of their same opinions, but that is not what the law says, so that is why we have to go with what the law says. People don’t want a lawless judge; I will just say that they do not want that. No matter how much they would want me to agree with them, I have to go by the law.”

Bishop said he agrees with Writer about following the law but contends that the law doesn’t allow the county to simply give away interests in his clients’ property or give police powers to a private entity.

“My clients don’t believe the law allows the county to waive a citizen’s personal rights to hold a private entity liable for its negligence or intentional acts,” Bishop wrote in an email to the Independent. “My clients don’t believe the law allows the county to take private property via eminent domain without following procedure and giving just compensation. So, my clients are asking the court to hold the county to the law. I think it’s what differentiates America from a lot of other nations – our individual citizens have the right to go toe-to-toe with their government and massive corporations in court.”

Bishop said anytime citizens are willing to go to court to seek enforcement of their rights, it’s a brave thing and should be applauded. Over the years Bishop said he’s learned a lot of people talk about doing something, but few will put their names on the paper. 

“It’s time-consuming, brings praise from some but scorn from others, and it’s expensive to take on the government and a massive foreign entity with their vast resources,” Bishop wrote.” I think individual citizens win when we require the powerful to strictly comply with the letter of the law.”