A federal judge will let a nuisance complaint against a wind farm under construction in Kingfisher and Canadian counties go forward, although he dismissed another claim against Apex Clean Energy.
U.S. District Judge Timothy D. DeGiusti said a group of landowners failed to show the Kingfisher wind farm being built by Apex would trespass on their land. But their case can go forward on an anticipatory nuisance claim on health and safety grounds.
The lawsuit is still in its early stages, and no evidence has been presented.
DeGiusti said the Oklahoma Wind Action Association would be allowed to be part of the case if it could identify its members.
“If plaintiffs can allege facts as to OWAA’s members’ participation, control and funding, they may also be able to allege facts as to the identity of its members and whether they have standing to sue in their own right,” the judge wrote.
DeGiusti also said he would be open to additional arguments that would show others might be affected by the wind farm through a class-action status.
The plaintiffs want to include all landowners within a three-mile radius of the planned locations of the wind turbines.
The judge gave the landowners and the association three weeks to file an amended complaint that addresses his concerns.
Terra Walker, one of the seven landowners who brought the lawsuit, said she was happy with the court’s ruling.
“Our nuisance claim is upheld and we have a chance to move the case forward,” Walker said. “We’re happy they didn’t dismiss the entire case and are saying it’s not frivolous.”
Apex representatives declined to comment on DeGiusti’s order, issued Monday in federal court in Oklahoma City.
Apex said last week it had sold the 298-megawatt Kingfisher project to First Reserve Corp., a private equity and infrastructure investment firm based in Connecticut. Apex will continue to manage construction.
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