A Salt Creek Wind turbine site under construction near II Avenue southwest of Traer on Wednesday, July 2. PHOTO BY SOREN M. PETERSON

TOLEDO – The possibility of Tama County heading to trial over the Board of Supervisors’ Jan. 6, 2025 wind moratorium became more likely when the judge in the Feb. 5, 2025 case Salt Creek Wind, LLC v. Tama County Board of Supervisors/Tama County denied the County’s motion to dismiss while also granting Salt Creek Wind’s motion for a temporary injunction.

Following a hearing held in Tama County District Court in Toledo on May 27, District Judge David M. Cox entered an order on July 2 temporarily prohibiting Tama County from “taking action pursuant to, or in reliance on” the moratorium as it relates to NextEra Energy Resources’ central Tama County wind project.

“A temporary injunction is a preventive remedy to maintain the status quo of the parties prior to final judgment and to protect the subject of the litigation,” Judge Cox wrote. “The Court finds Salt Creek has invested substantial sums into this project. They have ordered the wind turbines to be delivered and erected on the site. The cost of each turbine is in the millions. If their project is prevented from completing in a timely manner, the Plaintiff will lose around $2.5 million per month. The Plaintiff has adequately established great, irreparable, and substantial harm/injury if the temporary injunction is not granted.”

In terms of damage to the County, Judge Cox wrote, “Tama County has limited damage or cost associated with allowing the construction to proceed at this time. If the final ruling decides in the County’s favor, then it will be on the Plaintiff to pay for the dismantling of the construction site and not the County.”

County’s motion to dismiss

PHOTO BY SOREN M. PETERSON

While allowing construction on Salt Creek Wind’s 60+ turbine sites to continue, the order also paved the way for trial by denying Tama County’s “ripeness” argument which had claimed the lawsuit should be dismissed due to the County not yet reaching a decision on the moratorium.

Judge Cox wrote, [Salt Creek Wind] “asserts that the passage of the moratorium was an antagonistic action and a denial of a right … Plaintiff also claims it will suffer hardship without judicial action and that Defendants have presented no applicable arguments to its claims of bad faith and public policy violations. Therefore, Plaintiff’s challenge is ripe for decision and this court does have jurisdiction.”

In making his decision, the judge cited case law including, “A court should grant a motion to dismiss ‘only if the petition on its face shows no right of recovery under any state of facts.'”

Salt Creek Wind’s claim of vested rights lie at the heart of the lawsuit, the judge implied, writing, “The issue here depends on the passage of the moratorium and its scope. This is a legal question regarding the interpretation thereof. Reviewing the moratorium would allow Plaintiff to make an informed decision regarding the future of its project. Should the Court delay, Plaintiff may suffer hardship in the form of costs related to postponed construction.”

He then turned to the County’s argument for dismissal.

“Though Defendants claim that Plaintiff could apply for a variance or exception, the ambiguity Plaintiff faces regarding whether the moratorium would block its project coupled with the considerable planning and expense already invested in the project merit judicial action.”

Furthermore

Judge Cox also addressed Salt Creek Wind’s Conditional Use Permit (CUP) which was obtained by the project’s previous owners in 2020.

“The Court agrees with the Plaintiff that the County is unable to challenge the illegality of the CUP at this time. First, the time to challenge the illegality of the approval of the CUP was 30 days after it was approved back in 2020. Second, the approval of the CUP was the action of Defendant, Tama County, itself. It seems illogical for a party to allege it should win because of its own prior illegal activity.”

He further wrote that current construction “is not unlawful,” and the CUP “is valid.”

In terms of the County’s argument that turbine models being used by Salt Creek Wind do not match the original CUP, Judge Cox wrote, “No evidence was presented at the hearing that the new turbine models are different in any significant way to the models which were mentioned in the application.”

He likewise struck down the County’s argument that electrical line positions from the turbine sites to the substation had changed sufficiently to be out of compliance with the CUP.

He then turned to the Nov. 2024 election in which Tama County went from three supervisors to five while also seemingly electing a slate of anti-wind candidates.

“The Defendant’s real argument is that the voters of Tama County have spoken in the last election and their will should now control. This argument ignores two things,” Judge Cox wrote. “First, an election does not make every action by elected officials right. If the will of the voters was for the Board of Supervisors to violate the Constitution of the State of Iowa or the United States of America, then their actions would be illegal and struck down by the courts.”

“Second, it focuses so much on the will of the voters it fails to appreciate the reason for and existence of the Vested Rights Doctrine. Under the Vested Rights Doctrine a governmental entity cannot change the rules based on a recent election when a party has incurred substantial expense relying on the prior law. The Defendant’s position would allow a new board to be voted in and then every permit ever granted would be subject to revocation if the new board believed a mistake was made in the issuance of the permit. However, parties need finality, and the Vested Rights Doctrine impacts the Board’s ability to review permits in certain circumstances.”

Judge Cox also stated Salt Creek Wind was “likely to succeed on the merits” of the petition and therefore likely to succeed on their request that the moratorium does not apply to their pre-moratorium project.

In granting the temporary injunction, Salt Creek Wind will be allowed to continue work on the project; however, the judge also said the order is only temporary, designed to “maintain the status quo before a final adjudication.”

Protective order, trial scheduling conference

Also on July 2, Judge Cox granted Salt Creek Wind’s motion for a protective order. Materials and information protected by the order now include proprietary business or financial information of Salt Creek Wind LLC or its affiliates; information that reveals trade secrets; and research, technical, commercial, or financial information that Salt Creek Wind has maintained as confidential.

A trial scheduling conference (by telephone) in the case has been set for July 17 at 2:30 p.m. On Wednesday, July 9, the Board of Supervisors is set to hold a special meeting in regard to the lawsuit with a possible closed session on the agenda.

Doland concedes

On Monday, July 7, Tama County Board of Supervisors Chairman Mark Doland issued the following statement in response to Judge Cox’s ruling.

“As Chairman of the Tama County Board of Supervisors, I acknowledge the recent ruling by the Tama County District Court granting Salt Creek Wind LLC a temporary injunction. In my opinion, this order prohibits the Board of Supervisors from taking further action and bars the Tama County Board of Adjustment from convening to revoke the conditional use permits previously granted to the project.”

“This ruling is a pivotal moment for our county. Every argument that we had was put forward and was considered in the ruling. We were not granted wins on any of our contentions. Every one of them were rebuffed and judgment was clearly with Salt Creek Wind LLC.”

“While I respect the legal process and the court’s authority, I must also speak candidly to the people of Tama County. From my perspective, there is no longer a viable path to achieving the outcome that many of our constituents had hoped for. The court’s opinion makes clear the direction in which the final ruling is likely to go, and I do not believe that continuing to pursue litigation will change that outcome.”

“As difficult as this is to accept, I believe it is time for us to shift our focus. Prolonging this legal battle will only deepen divisions and drain resources — both financial and emotional — that could be better spent on building a stronger future for our community.”

“I understand the disappointment and frustration that many residents feel. I share those sentiments. But I also believe that leadership requires knowing when to fight and when to begin the process of healing. Now is the time for us to come together, to listen to one another, and to move forward with integrity and unity.”

“I remain committed to transparency, fairness, and the well-being of all Tama County residents. Let us take this moment to reflect, regroup, and recommit ourselves to the values that make our county strong.”

This is a developing story.