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Plaintiffs request lawsuit return to district court

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HJ - Standard-Court

Petitioners in the ongoing lawsuit related to the proposed Shenandoah Hills Wind Project filed two new briefs Nov. 16 in federal court.

The first brief requested the case be remanded back to the Iowa District Court for Page County. In the second filing, the petitioners continued their objection to having a lawyer representing Invenergy, the Chicago-based developer of the Shenandoah Hills Wind Project, intervene in the case.

A group of 12 Page County residents living in the area impacted by the proposed Shenandoah Hills Wind Project filed their initial petition Sept. 19 in the Iowa District Court for Page County. A request for a temporary restraining order was then filed Sept. 26 in an effort to stop the Board of Supervisors from moving forward with the wind project.

In October of 2019, the Page County Board of Supervisors approved a county ordinance establishing the regulations for the development of proposed wind projects in the county.

The proposed Shenandoah Hills Wind Project would result in the construction of 28 wind turbines in Page County if finalized.

Representatives from the Des Moines law firm of Ahlers and Cooney then filed a notice of removal Oct. 18, requesting the case be moved from the Iowa District Court of Page County to the United States District Court for the Southern District of Iowa, Western Division.

The first brief filed Nov. 16 by the petitioners asked the case be returned to district court in Page County.

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The lawyers for Shearer Law Office in Des Moines, which is representing the plaintiffs in the case, invoked a legal concept known as the “Pullman Abstention Doctrine” that argues the case should be heard at the district level because it is based on unique issues of Iowa law and the ruling would be a “first impression” for the state.

“Iowa state court is essentially looking at this exact matter for the first time. There is no current Iowa state court decision on the books to advise how to reconcile a conflict between a zoning ordinance and a non-zoning ordinance,” Shawn Shearer, co-counsel for the petitioners, said in a press release issued Nov. 17 by Shearer Law Office. “Page County Ordinance 2019-2 does not give any entity the right to build wind turbines in Page County at this time. The ordinance fails to meet the standard of the Iowa Home Rule Statute. Petitioners requested review of this matter in what we contend is the correct venue — the Iowa District Court for Page County.

“Our clients are uncertain why some of their elected officials are hesitant to have this case heard in their own home county. In the ‘Pullman Abstention Doctrine,’ the U.S. Supreme Court decided long ago that cases of this type should be heard in state court before a federal court weighs in.”

Theodore Sporer, who also serves as co-counsel for the petitioners, said in the press release that the federal judge assigned to the case has given the issues at question immediate attention.

Sporer said the judge mandated all parties involved in the case submit a second round of briefings.

As for the second filing, Shearer said Invenergy and its legal counsel is repeating for a third time why the company should be allowed to intervene in the case. However, he said the petitioners have continued to object to such intervention.

“First, Invenergy told a state court that they have a permit to build wind turbines. They do not. Then, a month later, Invenergy told a federal court that they do not have a permit to build wind turbines. Invenergy has never proven to have a ‘property interest’ in this case, as is necessary to have a cause to intervene as a third party,” Shearer said in the release. “Such behavior does not make the process more efficient and ultimately undermines the purpose of allowing third party intervention.”

Although the next step in the case would likely involve holding a hearing on the various issues, Shearer said the approach of the end of the year, along with the upcoming holidays, make it unclear when that hearing could be held.

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