Financing for the 8,500-acre wind farm on the tallgrass prairie west of Pawhuska is hanging in the balance as the Osage Nation and Wind Capital battle over the project in the U.S. Court of Appeals.
In court documents, Wind Capital says that its lenders, who are to finance the project to the tune of hundreds of millions of dollars, have been unwilling to advance money to start construction until all litigation over the project is complete. The company says it has to start construction by March 1 in order to ensure that the wind farm will be in operation by the end of the year, when lucrative federal tax credits that make it financially feasible will expire.
“Although the lenders have not abandoned the project, they have been unwilling to advance funds with this litigation still pending,” Wind Capital said in a motion to speed up the appeal.
The Court of Appeals has agreed to expedite the case, setting March 7 as the final date for any documents to be filed in the case, but it is not giving any guarantees to the wind company.
The appeal will be given expedited consideration and moved ahead of other pending appeals on the court’s docket,” the court ruled. “However, it is impossible at this time to state with certainty any specific date by which the court’s judgment will be entered.”
Under the administration of Chief John Red Eagle, the Osage Nation has opposed the wind farm, worried that it will interfere with oil exploration in the Burbank Field over which the 400-foot turbines will rise and a network of transmission lines will spread. The tribe has also brought up the spectre of the American Burying Beetle, a carrion eating insect that is federally protected under the Endangered Species Act and which is, indeed, present on the prairie.
The tribe did not completely oppose expediting the appeal, but balked at Wind Capital’s proposed schedule, which would have had the appellate court ruling on March 1. That was an “unreasonably compressed schedule, wrote Patricia Millet of the law firm Akin Gump, which has taken over the case from the Rosette Law Firm.
“Contrary to the developer’s unfounded assertion… the tribe is not pursuing a strategy of delay.” She wrote that Akin Gump was brought into the case in December and needed time to become familiar with the issues, something that couldn’t be done in the mere 11 days Wind Capital was proposing.
“The only thing allegedly preventing the developers from beginning construction by March 1, 2012, or, indeed, tomorrow, is projected response of developer’s lenders, who are not parties to this action.” Wind Capital, Millet added, also failed to say whether lenders will for sure release funds if the appeal is completed by March 1. Instead, she said, Wind Capital is speculating.
Millet also said that Wind Capital had made its own bed by waiting until time was tight before moving forward with the project.
“…[T]he urgency of completing the project by December 2012 to take advantage of a tax credit that has been available since 1992 … is surely of the developers’ own making,” Millet wrote.
On the other hand, Wind Capital says that the tribune is merely trying to delay the project in the hope of killing it, since it has profoundly lost on the merits of the case in U.S. District Court in Tulsa. The company says the tribe waited the full 30 days to file an appeal, and that its actions appear to amount to “purposeful delay, which indirectly achieves [the tribe’s] goal of ‘killing’ the project.”
“Moreover, because the appellants (the tribe) arguably enjoy the status of sovereign immunity, appellees (Wind Capital) may not have any recourse should Appellant successfully ‘kill’ the project by means of this appeal but ultimately fail to obtain judgment in its favor.”
Facing a non-tribal litigant, Wind Capital added, the company would be able to pursue a malicious prosecution claim.
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