Judge shoots down N.M. ranchers’ claims against Air Force

Source: Michael Doyle, E&E News reporter • Posted: Tuesday, April 9, 2019

A federal judge has grounded the claims of New Mexico ranchers who blamed the Air Force for earth-hugging overflights and loss of a wind energy lease.

U.S. Court of Federal Claims Judge Thomas Wheeler on Friday dismissed the two-pronged Fifth Amendment takings challenge brought by ranchers Buddy and Donna Taylor.

The Taylors have owned and operated since 1999 a 6,395-acre cattle ranch located near New Mexico’s Cannon Air Force Base as well as a training range. They have two beefs with the Air Force, both potentially relevant to other property owners and wind energy developers.

“In their complaint, the Taylors claim that the [Air Force’s] actions amounted to both a physical and regulatory taking of their property under the Fifth Amendment,” Wheeler noted.

Cannon is home to the Air Commandos of the 27th Special Operations Wing, who handle an assortment of what the Air Force calls “special missions” that include “infiltration/exfiltration.” According to the Taylors, Air Force pilots have “regularly” flown about 20 to 500 feet above their land during training.

Other property owners elsewhere have been similarly aggrieved by military overflights, though these complaints can be a hard sell.

To succeed, courts have ruled, property owners must show that planes flew directly over their land, the flights were frequent and at a low altitude, and the flights “directly and immediately interfered” with the owners’ enjoyment and use of the land.

In 2012, for instance, a Virginia resident named Jeanette Andrews sued over the noise and vibrations erupting from the F/A-18 E/F Super Hornet fighter jets flying out of Naval Air Station Oceana in Virginia Beach. The claims court dismissed the case, citing a lack of “factual support.”

Wheeler concluded the Taylors, as in the Andrews case, failed to back up their claim about the frequency of overflights.

“Notwithstanding the [Air Force’s] alleged interference, the Taylors continue to perform their cattle ranching operations seemingly without interruption,” Wheeler noted.

The alleged regulatory taking involved a 2008 lease contract between the Taylors and a company called Wind Energy Prototypes LLC. The lease would have allowed use of land for the GreenWing project, which was to include turbines more than 200 feet tall.

The lease provided an option term fee of $3 per acre per year, plus additional royalties depending on whether wind turbines were constructed on the property. Wind Energy, though, exercised its option in 2012 to terminate the lease.

The Taylors blamed Cannon Air Force Base officials for allegedly suggesting to Wind Energy that the Federal Aviation Administration would not issue a required “no-hazard” determination for the tall turbines of the GreenWing project.

Sometimes, these FAA determinations spur controversy.

In 2010 the agency issued 130 “no-hazard” determinations for an offshore wind farm proposed on Nantucket Sound. A group called the Alliance to Protect Nantucket Sound, among others, successfully challenged FAA’s initial action, and in 2017 the developer pulled the plug on the Cape Wind project (Greenwire, Dec. 19, 2017).

In the Taylors’ case, though, Wheeler noted that FAA never issued a determination one way or another concerning GreenWing.

“The FAA’s purported informal indication of its position is not a sufficiently clear decision,” Wheeler stated, adding that he “cannot review the Taylors’ claim because it is not yet ripe.”

And even if an FAA determination had been issued, the government argued in a brief, a “hazard/no hazard determination is advisory and does not have legal effect in authorizing the FAA to prevent plaintiffs (or anyone else) from constructing turbines on this property.”