Xcel Energy’s bid to have the state Supreme Court weigh in on a dispute with a Cheyenne County landowner over a 550-foot right of way to connect wind farms to the Goose Creek substation was rejected by the court Monday.
In a brief unanimous decision, the court denied the utility’s attempt to have the state’s highest court overturn a Cheyenne County district judge’s ruling that Xcel Energy did not have the power to use eminent domain to acquire the right of way.
Xcel Energy argued that the case raised serious statewide issues on the future of clean energy policy in Colorado and sought writ of certiorari enabling the case to bypass the Colorado Court of Appeals.
“The case is of such imperative public importance as to justify the deviation from normal appellate processes and to require immediate determination in the Supreme Court,” the company argued.
The Colorado Energy Office and the Sierra Club submitted amicus briefs supporting Xcel Energy.
The Sierra Club said the legal dispute was delaying adding two wind farms to the grid: the 603 megawatt Singing Grass project and the 450 MW Cheyenne Ridge II wind farm.
“Timely connecting the Singing Grass and Cheyenne Ridge II wind projects to the electric grid is of imperative public importance,” the club’s brief said. In addition, the district court’s ruling threatens to delay or prevent Xcel Energy and other utilities from using eminent domain.
Nevertheless the Supreme Court in a two-paragraph ruling, which did not address legal issues, denied the request.
“Xcel Energy is disappointed the Colorado Supreme Court declined to take up this case, and will proceed with the appeal pending with the Court of Appeals,” the company said in a statement.
“The inability to complete the final segment of this critical transmission infrastructure is delaying project benefits to customers, participating landowners and local economies,” Xcel Energy said.
The land dispute is between Xcel Energy’s subsidiary Public Service Company of Colorado, known as PSCo, and Dryland Partners, or DLP, a family farming and ranching operation run by Darin Dickey and his brothers.
The utility’s preferred right of way to connect the wind farms to the Goose Creek substation and Xcel Energy’s $1.7 Power Pathway transmission project — linking Eastern Plains wind and solar to the Front Range — is across an intersection of two rough county roads.
Xcel Energy’s plan is to run generation tie lines 27 miles from the Singing Grass facility to the substation and a line 5 miles from Cheyenne Ridge II. The company said it had negotiated with more than 100 landowners for easements and had the entire route, save for the last bit.
The two wind farms would link to the substation by cutting across the intersection of County Road DD and County Road 36.
The problem for Dryland Partners is that it would require putting a tower on the side of the road that could raise safety issues with heavy-duty farm equipment and also compromise a gas pipeline right of way the partnership holds.
In 2022, the Dickeys sold Xcel Energy about 90 acres, for $585,000, as the site of the Goose Creek substation and drew up corridors for transmission lines to the substation. Xcel Energy’s proposed right of way is not among those corridors.
Dryland Partners then negotiated a right of way so NextEra Energy Resource’s Dusty Rose wind farm, in neighboring Kit Carson County, could connect to Goose Creek.
Xcel Energy is offering $19,000 for the right of way, which Dickey said is substantially less than NextEra paid.
Dickey said he has offered other options for connecting the wind farms and the substation. Xcel Energy in a statement said the other options are prohibitively expensive.
“This sole remaining landowner issue involved approximately 550 feet of easement and remains unresolved after years of negotiations and extensive efforts to reach an agreement,” the company said. “Xcel Energy’s offer for the property was far above fair market value.”
In his ruling in June, Cheyenne County District Judge Mike Davidson said the utility did not have the power to condemn the strip, since it is for a tie line and not transmission that brings electricity to homes and businesses, and that the company had acted in bad faith.
“As we’ve told PSCo, DLP remains open to resolution for any of the available corridors PSCo approved and on the same terms the built-project (Dusty Rose),” Dryland Partners’ attorney Bradley Haight said in an email.