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Osage County wind farm lawsuit to go to trial Dec. 14, judge rules

A mid-December court date in a lawsuit that aims to stop the construction of a massive wind farm in Osage County will be for a trial on the merits of the case and not merely an injunction hearing, a federal judge has decided.

Federal civil cases typically take many months or even years before going to trial, but U.S. District Judge Gregory Frizzell decided this week that holding the trial in this matter less than two months after the lawsuit was filed is warranted.

The Osage Nation, through the Osage Minerals Council, filed the lawsuit Oct. 18 in federal court in Tulsa opposing the planned development.

The complaint notes that the tribe is the owner of all the minerals located “in and under” Osage County and claims that construction of more than 90 wind turbines – as well as an associated network of electrical lines and roads – would interfere with future oil and natural gas production.

Defense attorney Craig Fitzgerald said during an October hearing that the project must start no later than mid-December or it will not be completed by the end of 2012 – which he said is the deadline for it to qualify for a vital federal tax credit.

Frizzell previously had set aside Dec. 14 and 15 for a preliminary injunction hearing.

The defendants – Wind Capital Group, Osage Wind and WC Investment Management – suggested that the injunction hearing and trial should be consolidated.

The defendants noted that the uncertainty caused by the pending lawsuit “jeopardizes the very existence of the wind facility.”

The tribe argued against consolidating the court proceedings, claiming that the condensed schedule would not leave sufficient time for the pretrial “discovery” process.

However, Frizzell wrote this week that the “plaintiff has not persuaded this court that the discovery necessary for trial cannot be completed in that time, that plaintiff’s experts cannot adequately review the project engineering layout and design in that time and that it would be not feasible to try this matter beginning on Dec. 14.”

Frizzell also said in an order posted on the court’s website late Tuesday that the factual issues raised by the complaint appear to be few, straightforward and identical to those that would be presented if the trial were held later.

The complaint filed by the tribe claims that “each of the 94 wind turbines will require extensive digging to construct deep pits containing concrete foundations similar to those required in the construction of tall buildings.”

However, the defense claimed in a subsequent pleading that each turbine installation requires a foundation “a mere” 16 feet in diameter at the surface.

They also say that the total footprint of the project would occupy less than 1.5 percent of a roughly 15-square-mile area.

The developers allege that the tribe is attempting to stop an effort “to harness a clean, environmentally friendly energy source” based on theoretical barriers the tribe says the project would create for “possible future oil and gas exploration at unspecified locations.”

Original Print Headline: Wind farm trial date set