Stark County rescinds June moratorium on wind turbines; orders new moratorium drafted 

Commissioners rescinded the moratorium at their regularly scheduled July meeting, on the advice of legal counsel, and instead directed the county planning and zoning director to draft a new legally sound moratorium with legal and definitive processes to be presented at the next commission meeting and undergo the legal notification procedures in accordance with the North Dakota Century Code.

Addressing the concerns with the original moratorium and to quell confusion on the rapid changes, Stark County State’s Attorney Amanda Engelstad issued a public letter outlining the situation, path forward and answering the legal questions surrounding the original moratorium, which was not legally binding in her legal opinion.

“At the regularly scheduled June 2021 County Commission meeting, a moratorium on wind energy was contemplated and approved. Moratoriums are a unique mechanism that are at times used to suspend or delay certain activities. Throughout the United States, moratoriums have been issued on a variety of activities and there have been prior challenges to their legality,” Engelstad said. “Depending on the activity that is being suspended or delayed, moratoriums have been legally upheld by numerous courts. After careful review of the moratorium that Stark County passed at the June meeting, I concluded that, because certain notice requirements and other procedural steps had not yet been accomplished, it was not legally binding.”

Engelstad added, “This means that the moratorium did not prohibit Marathon and One Energy from submitting a conditional use permit application to erect its proposed wind turbines.”

Commissioner Carla Arthaud says that Marathon and One Energy have, and are, acting in bad faith with the county and its citizens.

“At the first meeting Marathon and One Energy said they wanted to be good neighbors. Then they filed a lawsuit against Stark County for the moratorium that was passed at the June meeting,” Arthaud said. “This could have been avoided if Marathon and One Energy would have followed procedure.”

Holding up a document during the commission meeting on Tuesday, Arthaud added that the details on the proposed construction have evolved and changed without any communication or consultation with the public or governing body of the county.

“According to this it says that their energy could be sold off the grid, but they originally said that their energy is not going to get sold off the grid. But then at another meeting, they said it might get sold off the grid if they have extra energy. They’ve said the moratorium was arbitrary, capricious and unreasonable and was not supported by substantial evidence and was made in bad faith … I can turn around and say everything that Marathon did was arbitrary, capricious, unreasonable and made in bad faith for the citizens of Stark County.”

Conflicts in 2021 surrounding wind energy aren’t unique to Stark County, as Mercer County unanimously imposed their own July moratorium on all wind-related projects – the pause is tentatively slated for two years. Mercer County’s decision, like the one in Stark County, is a response to a proposed construction of a wind farm.

The row of wind turbines. (Josiah C. Cuellar/The Dickinson Press)
The row of wind turbines. (Josiah C. Cuellar/The Dickinson Press)

Commissioners in Mercer County voted in favor of their moratorium at the behest of local residents and entities who submitted written and verbal concerns about the energy project.

Engelstad explained that Stark County’s resending of the moratorium issued in June does not provide Marathon and One Energy with the go-ahead to move forward on their turbine project at the renewable diesel facility in Dickinson.

“The rescission of this wind energy moratorium does not mean that Marathon and One Energy, or any other individual or entity, has a green light to erect wind turbines in Stark County. While Marathon and One Energy’s conditional use application has been accepted, it must go through the normal process Stark County already has in place, which includes review by the Planning and Zoning Committee, a public hearing and ultimately a decision on whether that conditional use permit will be granted or denied.”

Engelstad added, “By rescinding the moratorium at the July meeting, the Stark County Commissioners spared the County of Stark potentially burdensome and expensive litigation. They also recognized that Stark County may have a need for a moratorium in the future and, because of that, agreed that an ordinance outlining the notice requirements and procedural steps required by the North Dakota Century Code would be beneficial to citizens of Stark County.”

Arthaud applauded the move to host public input meetings as part of the process, saying none of the actions by Marathon or One Energy have been in good faith or in the public eye.

“The first meeting they had was confidential, none of the information was put out,” she said.

Public notice requirements, posted in local newspapers in accordance with the North Dakota Century Code, were posted in the Bismarck Tribune – a newspaper scarcely carried in western North Dakota and from a city nearly 100 miles away from the proposed construction site.

“They did not start by filing a conditional use permit and follow the right direction in the first place,” Arthaud said. “So, when we talked to Marathon at the meeting, they said that One Energy was going to play nice. I said, ‘Go ahead and file a conditional use permit’ and then after they said they were going to play nice, all of a sudden they started to sue Stark County with a scare tactic on the moratorium.”

Speaking directly to the general public, Engelstad said she was thankful for the public’s engagement in their local governance and encouraged public hearings.

“Stark County is working diligently on that ordinance and we look forward to hearing your comments when it is presented at a public hearing. By being proactive in this approach, we hope to avoid any future confusion or potential litigation when a moratorium is deemed appropriate,” she said. “Thank you for being attentive and engaged citizens.”

The Planning and Zoning department is responsible for administration and enforcement of Stark County zoning and subdivision regulations; staff support to the Stark County Planning and Zoning Commission; and long-range planning for land use and development in Stark County.

The Planning and Zoning director’s responsibilities include counseling citizens with zoning and development questions, assisting citizens with rezoning requests, processing and scheduling of requests for rezonings, conditional use permits, variances and subdivision plats, and issuing zoning code violation notices.

County Planner Steve Josephson can be reached at (701) 456-7672, or by email at sjosephson@starkcountynd.gov.

The next regularly scheduled planning and zoning meeting is scheduled for 3 p.m. July 29 at the Stark County Courthouse.