Posted by: Patricia Salkin | May 2, 2017

OK Supreme Court Finds Standing Based Upon Possession of Property Interests Allegedly Harmed by an Ordinance Governing Wind Energy Facilities

The District Court of Osage County had three related but distinct proceedings before it involving wind farms in Osage County, and orders in each of the three were appealed to in this case.  One of the appeals was adjudicated in Mustang Run Wind Project, LLC v. Osage County Board of Adjustment, 2016 OK 113, 387 P.3d 333. The next appeal arose from the Osage Nation and the Osage Minerals Council’s request for declaratory and injunctive relief against the Board of Commissioners of Osage County, the Board of Adjustment of Osage County, and Osage Wind, LLC. Plaintiffs’ request for relief was premised on an allegation defendants Board of Commissioners and Board of Adjustment had created an “unlawful authorization of wind energy facilities in Osage County.”
As to the first appeal, during the trial court hearing the Osage Nation argued the conditional use permit approved for Osage Wind, LLC, in a 2011 Board of Adjustment hearing was void because the Board did not possess authority to issue such a permit. However, Appellant’s petition to vacate filed with the Board of Adjustment and the Board’s decision on that petition was not in the appellant’s record provided to this Court. Additionally, the appellate record in appeal No. 113,415 contained no formal pleading filed in the District Court except a notice of appeal and certain documents marked “File # 1 from the Osage County Board of Adjustment.” As such, the judgment of the District Court in the appeal from the Board of Adjustment was affirmed.
In the second appeal, the petition sought injunctive relief “against each of the Defendants permanently enjoining and restraining them from permitting, authorizing, constructing and using a Wind Energy Facility on the property listed in the Application of Osage Wind based upon the approval of CUP 2012-1.” The trial court stated that these claims were barred by laches. Here, the petition reflected that plaintiffs testified against the conditional use permit in August 2011, and they knew at that time the permit had been issued. Plaintiffs did not bring their action in the District Court for an injunction until June 25, 2014, almost three years later. Osage Wind also made a statement in support of its motion to dismiss that it had expended two hundred and twenty million dollars ($220,000,000) in various costs; however, the court noted that it did not consider that statement in concluding that laches applied and plaintiffs’ claims were barred on the face of the petition.
Finally, the Osage Nation did not allege it had either some type of broad Oklahoma “taxpayer standing” involving the expenditure of public funds, or a non-Hohfeldian standing seeking to secure judicial relief that would benefit a public entity or the community as a whole. Instead, the Osage Nation asserted standing based upon possession of property interests allegedly harmed by the ordinance. The trial court’s judgment did not make any specific findings concerning the regularity of the creation of the Wind Energy Ordinance or the standing of the Osage Nation in challenging that ordinance by declaratory judgment apart from the perceived preclusive effect of the federal court litigation. Accordingly, the court reversed the District Court’s judgment on the sole ground that the Osage Nation’s petition against government entities alleging an invalid Wind Energy Ordinance due to irregularity in its creation was not, as a matter of law, a facially insufficient pleading, and the trial used an incorrect standard for determining Osage Nation’s standing for this cause of action.
The Osage Nation v Board of Commissioners of Osage County, 2017 WL 1632673 (OK 5/2/2017)

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