Wind farms vs. neighbors - Solar, Wind and Land: Conflicts in Renewable Energy Development - page 37

concerned about potential conflicts with wind farms. In fact, mineral rights
holders may actually benefit from the wind project because it would result
in new roads and other infrastructure that may lower the costs of explor-
ation and extraction on the land. Mineral rights holders may also feel
pressure from surface rights holders to cooperate and sign non-interference
agreements because surface owners often stand to make lots of money if a
wind project proceeds. If a mineral rights holder unjustifiably blocks the
wind project, the owner of the surface estate may prove less eager to accom-
modate future mineral exploration or extraction activities on the land.
Severed wind rights?
Conflicts between wind energy developers and mineral rights holders are
likely to become even more challenging in situations when a surface owner
has purportedly severed both the mineral rights and the “wind rights” from
the surface estate. As wind energy development has spread throughout
the western United States over the past decade, numerous landowners
have claimed to sever wind rights from their surface estate. When this has
occurred, a developer can find itself attempting to balance the interests of
three different parties: the wind rights holder, the surface rights holder,
and the mineral rights holder. Surface owners in these situations can find
themselves stuck in the middle when minerals extraction and wind farms
development are both occurring on their land. 107 If they have nothing to
gain from successful wind farm development or mineral rights extraction on
their property, these surface owners may actually prove reluctant to assist
in resolving disputes between mineral rights holders and wind developers.
The practice of wind rights severance can also raise difficult new legal
questions regarding whether the minerals estate or the wind estate for a given
parcel is the “dominant” estate. In other words, when a wind rights holder
wishes to install a turbine at a specific location but a mineral rights holder
wants to extract oil or minerals from the same spot, who wins? Although
courts in the United States seem to have reached some agreement as to the
priority relationship between mineral estates and surface estates, introducing
a wind estate into the mix creates an entirely new set of priority issues. 108
Perhaps in light of the many perplexing issues wind severance can raise,
a growing number of state legislatures in the U.S. have recently enacted
laws explicitly rejecting the concept of wind rights severance. In states that
have enacted such legislation, efforts to balance the interests of wind energy
developers and mineral rights holders will be a bit less complicated in the
decades to come. 109
Interference with crop dusting
Crop dusting is yet another activity that can be impacted by wind energy
development. Some farmers periodically use small airplanes to aerially