2 down 1 to blow: Judge dismisses 2 of 3 Osage wind farm lawsuits

Mike ErwinJournal-Capital

A district court judge dismissed two of three Osage County wind energy lawsuits last week, while allowing for the continued development of a previously-approved turbine facility on a solemn stretch of tallgrass prairie approximately 15 miles west of here.

Osage Wind is a 94-turbine project currently under construction between Pawhuska and Ponca City along U.S. Highway 60 near Burbank. Owned by Lenexa-Kan.-based TradeWind Energy, it would be the first wind-energy facility in the eastern half of Oklahoma.

Thus far, access trails have been established to pads where turbines are to be erected. Work on the turbines still has not started at the site, however.

The TradeWind company also has proposed building another wind farm, Mustang Run, just east of the approved project. Last May, however, members of the Osage County Board of Adjustment voted to deny permission for the second facility, which was to include around 68 high-rise turbines.

In rulings issued Thursday, Ottawa County District Court Judge Robert G. Haney ordered the dismissals of two cases involving the Osage Wind project. The Osage Nation and Osage Minerals Council were listed as plaintiff parties in both actions.

One of the dismissed cases concerned the tribe’s appeal of a September 2011 decision by the Osage County Board of Adjustment. The board voted to grant a conditional-use permit needed to allow for construction to begin on the Osage Wind facility.

The other ruling denied the Osage Nation’s request for a declaratory judgment regarding the Osage County Board of Commissioners’ involvement in the approval process for the wind farm.

In the third Osage County wind-energy lawsuit, TradeWind is appealing the Board of Adjustment’s May 8 vote which denied approval of a permit requested for the proposed Mustang Run project.

During the three-plus years since the BOA granted approval to Osage Wind, work has been slow to progress on the project. That is due — at least partly — to a string of legal challenges posed by the Osage Nation.

The Pawhuska-based Indian tribe has raised questions related to the impact the wind farms could possibly have on its mineral rights, as well as protection of Native American artifacts in the area.

Other issues raised involved threats to the environment — particularly in regard to the dangers the turbines will pose to eagles, which are deemed sacred by the Osages and many other tribes. The Osage Nation was joined by a broad spectrum of ranching interests and conservation groups in its resistance to the wind farms over environmental issues.

The original developer of Osage Wind was the Wind Capital Group of St. Louis, which in September 2013 announced plans to sell the Osage County project to TradeWind Energy. That purchase was not completed until early this year, however.

Last week’s rulings by Haney came 20 days after he was specially-assigned to the three cases in the wake of recusals by two previous judges.

M. John Kane of Osage County recused due to conflicts involving family-owned property that had been included in negotiations for the wind farm project. The impending retirement (at the end of this year) of Rogers County Special Judge Dynda Post reportedly had become an issue prior to his Aug. 13 recusal.

Haney told all the parties in the case that he intends to consider only new evidence during the Mustang Run trial, which he reportedly said he would like to have started immediately. He indicated that he will base the bulk of his trial rulings on existing legal decisions from previous cases.

The judge gave the defendant in the case, Osage County’s Board of Adjustment, until Sept. 10 to submit its briefs for a trial. Attorneys for plaintiff Mustang Run were given until Sept. 17 to complete their responses to the new information.