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Delay could spell death of wind project

The Osage Nation intends to invoke an endangered carrion-eating beetle as well as the tribal mineral estate to halt Wind Capital Group’s planned wind farm on the tallgrass prairie, a move that had the energy company’s lawyer aghast in U.S. District Court last Wednesday.

Wind Capital’s entire project hinges on starting construction by its “drop-dead” date of Dec. 15, and it wanted to start building its 94-turbine wind farm on 8,300 acres near Burbank on Nov. 19. Any delay beyond Dec. 15 will likely kill the project for two reasons: One, the company does not have lenders who are willing to release funds to build the project until the court fight is resolved, and two, the wind farm has to be up and operating by the end of 2012, when it is feared that lucrative tax credits for renewable energy will expire. Without those federal tax credits, the project is not economically viable.

In an interview with Climate Progress, a news website, last week, Senate Majority Leader Harry Reid said he was “not confident” that the credits would be extended, adding that many conservative members of Congress were “making a concerted effort to thwart development” of clean energy.

The Osage Nation argues that the wind project will interfere with oil exploration and seismic testing set to begin in a few weeks in one of its richest oilfields.

U.S. District Judge Gregory Frizzell asked how the wind development could interfere with oil exploration “in light of directional drilling,” which is commonly used but considerably more costly than conventional drilling.

“Because it will be more trouble than it’s worth,” said Roger Wylie, an attorney for the tribe. “It may scare away potential lease bidders.”

Wind Capital attorney Craig Fitzgerald urged Frizzell to accelerate the legal dispute or the entire project could be killed.

Frizzell, however, cautioned that Wind Capital’s big hurry was not going to force the hand of justice to rush at the expense of other cases on his docket, including an 8,000-plaintiff foster care case set in November.

“A member of your law firm tells me that I need to make a decision in a(nother) case,” Frizzell told Fitzgerald. “If you want to come back in my chambers and see the number of documents in that case, you can.”

Fitzgerald asked that that discovery in it be ordered complete by Nov. 11, while the tribe’s lawyer, Roger Wylie, asked for 45 days.

“It probably kills this project if we don’t get it resolved on the merits,” Fitzgerald said.

“November 11 reaches the point of absurdity,” Frizzell declared, though he did set a hearing date for a preliminary injunction for Dec. 14-15. The judge refused to rule on a Wind Capital motion to consolidate that hearing and a trial on the merits to be held on the same dates, saying that the tribe had the right to respond to that request, which was filed just minutes before last week’s hearing. “I can’t set this matter for trial at this juncture,” the judge said. Even if the case is completed by Dec. 15 and decided in Wind Capital’s favor, Frizzell said, the tribe could appeal – putting the energy company past its deadline to start construction.

Frizzell told tribal lawyer Wylie that Wind Capital’s motion to consolidate and speed up the trial had an undercurrent that suggested, “between the lines, that you did not file the case when you could have and waited until the projected start-up.”

Wylie denied that, saying his firm, Rosette, had just been retained in September and that he had been on the case only three weeks. Wylie also said that Wind Capital has known about the federal tax credits since 1992, suggesting that the company waited until the 11th hour to get cracking on its Osage County project.

Fitzgerald said that the tribe has repeatedly demonstrated that its goal is to kill the wind farm project, citing a statement its Governmental Affairs Director Chris White made to the press, when White said, “We are trying to kill the project.”

“That’s been the same message my clients have gotten,” Fitzgerald said. “They’re not interested in any accommodation. They just don’t want us there.

“…The tribe has known that they were going to file this lawsuit since at least the middle of August.”

Frizzell, however, asked when the project had received a conditional use permit from the Osage County Board of Adjustment.

“August 11,” replied Fitzgerald.

Frizzell: “Obviously, the plaintiff could’t file the lawsuit before that. Until they had a license, they couldn’t do anything. You would have had it dismissed as speculative.”

In its petition for injunction filed in court Oct. 18, the tribe doesn’t mention it will also allege the wind project violates the federal Endangered Species Act because there is a 60-day notice period required before it can do so, the tribe’s lawyer, Wiley, told Frizzell.

At issue: The American Burying Beetle, which has been on the federal endangered species list since 1989. One of the last places were the carrion-eating insect exists is in the prairie, and Wind Capital has plans to use carrion to entice it to move from its development areas if the beetle is in those areas.

Wiley said that Wind Capital did not do an environmental impact study on the beetle, hence the Osage Nation was raising a potential violation of the Endangers Species Act.

“A few seconds ago was the first I’ve heard of the endangered species claim,” Fitzgerald told Frizzell. “We’ve had conversations with the Nation since early spring.”

The 60-day notice required by the ESA, Frizzell noted, would at minimum push any construction start date to at least January. Again, past the drop-dead date for Wind Capital.

“The court has the power to order the Osage Nation to make the Endangered Species Act an issue (in the lawsuit),” said Wind Capital lawyer Craig Fitzgerald.

No, Frizzell replied, he doesn’t.

“I can’t override federal law,” the judge declared. “I can’t wave a magic wand and get rid of a federal mandate.”