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Court: Injunction order halting construction of Crazy Mountain Wind farm

Montana District Court Judge Jon A. Oldenburg ruled no construction activity involving the Crazy Mountain wind farm proposed by Pattern Energy can proceed including no alterations to roads until a trial is held to determine if the project will cause irreparable harm to the neighboring property owners. Judge Oldenburg decided that “[u]ntil 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."  The full order can be accessed at the document link on this page. Below is an excerpt of the court's ruling justifying the injunction and halting construction of the project.

Excerpt

22. The ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others. In Montana, the thing of which there may be ownership is called property.

23. The commission of a single act which is destructive to the affected property, either physically or in the character in which it had been held or enjoyed, can result in an irreparable injury.

24. Continuing invasion of property rights also constitutes an irreparable injury; absent injunctive relief, an injured party would be forced to bring a multiplicity of actions at law in order to be compensated for the ongoing injury.

25. In Madison Fork Ranch v L&B Lodge Pole Timber Prods., 189 Mont. 292, 615 P.2d 900 (1980), the Montana Supreme Court concluded that the District Court had not abused its discretion in issuing a permanent injunction to stop the destruction of standing timber. They similarly concluded that the injunction was not overbroad. In issuing its injunction the District Court had considered “the character and use of the property” and that the principal use of the property was “recreational aesthetic and environmental.” In Madison Fork Ranch, 189 Mont. 302.

26. Based upon the testimony of various plaintiffs who own land at or near the boundary line of the proposed wind farm site, this Court finds that the plaintiffs’ principal use of the property is also “recreational aesthetic and environmental.” In Madison Fork Ranch, 189 Mont. 302.

27. This Court finds that plaintiffs have shown that, pursuant to Mont. Code Ann. 27-19-201(2) the commission of an act i.e. the construction and operation of the wind farm “is at least doubtful” to cause irreparable injury to the plaintiffs due their diminished viewshed, the potential for shadow flicker, the alleged noise associated with wind farms, golden eagle taking, or the loss of bats.

28. The testimony of the Plaintiffs shows they clearly use and enjoy the entirety of their properties, and not just their residences. Under Montana property law, this Court concludes that it is “at least doubtful” shadow flicker or noise, especially at the boundary of the windfarm development and not necessarily at the residences of the Plaintiffs, could negatively impact Plaintiffs’ ability to build a residence on the property, and/or change the nature of the property, resulting in destruction of “the character in which it has been held or enjoyed” thereby inflicting irreparable harm”.

29. The Court found particularly relevant to its conclusion that during the hearing on Plaintiffs’ Motion for Preliminary Injunction, Defendants’ own expert on the noise and shadow flicker associated with windfarms, Dr. Ollson, when asked what he would tell one of the Plaintiffs if they told him they were contemplating building a house closer to the Wind Farm, placing it near the border of the same in the proximity in which the effects of shadow flicker and noise begin to worsen, his reply in effect was, “don’t build your house there”.

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Park Dv 2018 161

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MAR 19 2019
http://www.windaction.org/posts/49625-court-injunction-order-halting-construction-of-crazy-mountain-wind-farm
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