Wind farms vs. neighbors - Solar, Wind and Land: Conflicts in Renewable Energy Development - page 36

States, many landowners have severed these “mineral rights” from their
surface rights and conveyed them to other parties. Such mineral rights
generally include limited rights to access and disturb the surface of the land
for purposes of exploration and extraction.
Developers of utility-scale wind energy projects in the United States
sometimes discover during early stages of the planning and development
process that parties other than the wind energy lessor have interests in
oil, gas, or minerals deposited below the leased land. These subsurface
interests are usually disclosed as special exceptions on commitments for
title insurance. In many states, these mineral rights are “dominant” over
the surface estate, meaning that they take reasonable priority over the
surface owner's rights. They create additional risks for wind energy projects
because mineral rights holders or oil and gas lessees could theoretically seek
to exercise their exploration or extraction rights in ways that interfered
with the wind farm or its development. Because lenders and investors are
unlikely to finance a project unless risks associated with oil, gas, or mineral
rights are addressed, developers and their legal counsel must find ways
to deal with them. Title insurance companies are often willing to provide
insurance against oil- or mineral-rights related risks, but only if such
companies are convinced that the risks are minimal.
One recent case may provide wind farm developers in the United States
a small amount of additional comfort as it relates to mineral rights on their
project lands. The plaintiff in Osage Nation v. Wind Capital Group, LLC ,
was a Native American tribe that held mineral rights on certain lands that
the defendant had leased for wind energy development. 104 The tribe sought
to enjoin development of the wind farm, asserting that its mineral rights
were the dominant estate—superior to the surface rights associated with
the defendant's wind farm lease—and that the wind farm would limit the
tribe's ability to develop its mineral estate. The court rejected the tribe's
arguments, concluding that the tribe failed to establish that the wind farm
would unreasonably interfere with any exercise of mineral rights on the
property. 105 The wind farm would allegedly occupy less than 1.5 percent
of the surface within the project area, and oil drilling technologies were
available to avoid any potential conflict with wind turbines. 106 Based on
these sorts of arguments, the court concluded that minerals extraction and
wind energy development could harmoniously subsist on the same parcels
of land.
In some instances, developers or their legal counsel may be able to
contact mineral rights holders and convince them to sign an agreement
promising not to disturb the wind farm. Depending on the context, mineral
rights holders may conclude that it is in their interest to sign such non-inter-
ference agreements. Often, drilling and exploration for oil and gas occurs
at a parcel's lower elevations, while wind turbines tend to be installed at
higher elevations where more productive wind generally blows. On lands
where these generalizations hold true, mineral rights holders may be less