As developers pursue the construction of wind farms in Wyoming, some questions linger about the nature of wind rights and how they relate to land ownership.

Wyoming lawyers generally agree that whoever owns the surface of the land also owns the rights to develop wind resources. But the Wyoming Legislature has not addressed whether landowners can sever wind resources from their property, as state law allows for mineral resources.

"The prevailing thought is yes they can (be severed)," said Lynne Boomgaarden, director of the Office of State Lands and Investments, "for the reason that wind is a commodity that has value as do the minerals below the surface of the land, and you can severe the minerals."

Federal law doesn't address whether wind rights can be severed from surface estate. Some nearby states, including South Dakota, North Dakota and Nebraska, have enacted laws tying wind resources to the surface estate. Nebraska passed its law this year, while North Dakota addressed the issue in 2007 and South Dakota in 1996.

When wind rights are severed, it can be burdensome to the landowner, said Steve Wegman, executive director of the South Dakota Wind Energy Association.

"If you sever the wind rights, you really have no control over the surface of the land," he said. "It'd be like me coming over to your house and building a cell tower or radio tower, and I take my annual payment for that tower and I move to Florida, and you're stuck with that as long as you own that property."

Boomgaarden, speaking at a recent forum on wind energy development, said it could be complicated to negotiate land access between a surface owner and a different party with ownership of the wind resource.

"If the wind rights stay with the surface rights, there is an incentive for that surface owner to accommodate or optimize the number of uses on that surface, be it agriculture, wind, mining (and) mineral uses of the surface," she said.

Ronald Lehr, western representative for the American Wind Energy Association, a trade group, said wind developers are accustomed to dealing with restrictions on land they lease to build wind farms. The association recommends that landowners get a lawyer to make sure their rights are protected when negotiating with developers, he said.

"In so far as there's a wind right, it's associated with doing something on somebody's particular land," Lehr said. "I don't think there's a property right in wind particularly, but certainly there's a well-developed legal approach to using somebody's land. ... Right now the marketplace is working pretty well."

Dennis Stickley, a professor of energy law at the University of Wyoming, said he's heard of examples in Wyoming of landowners splitting their surface and wind rights. He said the Wyoming Legislature should address the question of whether that should be legal.

"They've given it attention in the case of water rights, mineral rights, pore space rights, so it's certainly an appropriate subject for the Legislature to deal with," he said. "These issues will have to be settled. We could settle it through debate in the Legislature or we'll settle in the courts. The issues won't go away."

The chairman of a legislative task force studying potential wind laws said he doesn't believe the Legislature will tackle wind rights during this winter's session.

"The recommendation coming out of wind task force would be just to research this further and research it quite carefully," said Sen. Jim Anderson, R-Glenrock.