In this on-going nuisance claim filed by Walker et.al. against Apex Wind Construction et.al in advance of construction beginning at the Kingfisher wind facility, Apex filed a motion to dismiss. The court ruled on the motion finding that some portions of the motion were granted and others denied. Excerpts of the court ruling are provided below. The full ruling can be accessed by clicking the links on this page.
In this on-going nuisance claim filed by Walker et.al. against Apex Wind Construction et.al in advance of construction beginning at the Kingfisher wind facility, Apex filed a motion to dismiss. The court ruled on the motion finding that some portions of the motion were granted and others denied. Excerpts of the court ruling are provided below. The full ruling can be accessed by clicking the links on this page.
Plaintiffs are individuals who own land in Kingfisher and Oklahoma Counties, within the State of Oklahoma. In addition, Plaintiff, Oklahoma Wind Action Association (OWAA), is an Oklahoma Corporation which purports to bring this suit on behalf of itself and its members. Plaintiffs allege that Defendants are negotiating lease agreements with landowners in Canadian and Kingfisher counties for the construction, operation and maintenance of Industrial Wind Energy Conversion Systems (IWECS) for production of electricity (referred to hereafter as IWECS or the wind farm.) Plaintiffs bring claims for anticipatory nuisance and anticipatory trespass and further seek a permanent injunction to enjoin Defendants from constructing these IWECS. They do not seek monetary relief in this action. Plaintiffs also allege facts in support of class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure.
Defendants move to dismiss the claims of OWAA on jurisdictional grounds and contend the Complaint fails to plausibly allege the requisite facts for associational standing. Defendants also move for dismissal of the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants contend the Complaint “fails to distinguish [among] Defendants.” See Motion at p. 9. In addition, Defendants move for dismissal of Plaintiffs’ anticipatory nuisance claim on grounds the Complaint does not “plausibly suggest[] the proposed wind farm or any turbine in it is likely to adversely affect any Plaintiffs’ health or safety.” See id. at p. 14. Defendants further move for dismissal of Plaintiffs’ anticipatory trespass claim and contend the Complaint “fails to identify an anticipated or actual physical invasion of Plaintiffs’ property.” Id. at p. 17. Finally, Defendants seek dismissal of the class action allegations.
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2. Anticipatory Nuisance
Defendants seek dismissal of Plaintiffs’ claim for anticipatory nuisance “because the Complaint does not plausibly suggest any Plaintiff is likely to suffer substantial, irreparable harm.” See Motion at p. 11. Oklahoma law governs Plaintiffs’ claims. See Macon v. United Parcel Service, Inc., 743 F.3d 708, 713 (10th Cir. 2014) (in a diversity action, the claims at issue are governed by the law of the forum state).
Plaintiffs bring a claim for private nuisance pursuant to Okla. Stat. tit. 50, § 3. See Complaint, ¶ 64. Under Oklahoma law, a nuisance includes any act or omission which “[a]nnoys, injures or endangers the comfort, repose, health or safety of others” or “[i]n any way renders other persons insecure in life, or in the use of property[.]” Okla. Stat. tit. 50, § 1. Oklahoma law further recognizes a claim for anticipatory nuisance, i.e., a plaintiff can seek injunctive relief without having to wait for the actual infliction of a loss. See, e.g., Sharp v. 251st Street Landfill, Inc., 925 P.2d 546, 552 (Okla. 1996).
Defendants contend the relevant inquiry for purposes of their motion to dismiss is whether the Complaint sufficiently alleges facts to plausibly demonstrate the wind farm is likely to adversely affect any Plaintiff’s health or safety. Because Plaintiffs seek injunctive relief, Defendants further contend the focus of the inquiry “is on the likelihood Plaintiffs will suffer substantial irreparable harm.” See Motion at p. 13. In response, Plaintiffs contend that the Complaint includes a “plethora” of allegations to demonstrate their health and safety will be adversely affected. See Response at p. 9.
The Complaint alleges that Plaintiffs all live within three miles of the proposed IWECS. See Complaint, ¶¶ 36-37. The Complaint identifies potential adverse health effects from noise and light flicker associated with the turbines. See id., ¶¶ 49-52. The Complaint makes reference to the findings of the City of Piedmont, based on review of scientific studies, that “[h]ealth effects related to noise emissions from IWECS are observable up to three (3) miles from the system, with the effects being greatest within one (1) mile from the system.” See id. at ¶ 29(f). The Complaint also dentifies types of adverse health effects associated with IWECS including: sleep disturbance,
impairment of mental health, stroke, heart failure, dizziness, vertigo, nausea, ringing in the ears, breathing problems, abdominal and chest pain, urinary problems and effects on speech and headaches. Id. at ¶ 29(c). Although Defendants contend the allegations do not demonstrate that “these Plaintiffs’ health or safety is likely to be substantially harmed if the proposed turbines are not enjoined,” see Reply at p. 6, the Court disagrees. Construing the allegations of the Complaint as true, the Plaintiffs’ close proximity to the turbines potentially subjects them to a multitude of adverse health effects alleged to be associated with noise emissions from IWECS. While Plaintiffs may or may not ultimately be able to meet their burden of proof, at the pleading stage, Plaintiffs have adequately stated a plausible claim for anticipatory nuisance.
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IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss is GRANTED in part and DENIED in part as follows:
1) Defendants’ Motion is GRANTED as to claims brought by Plaintiff Oklahoma Wind Action Association on grounds the Complaint does not allege facts to plausibly support associational standing, but Plaintiffs are granted leave to file an amended complaint to allege additional facts regarding associational standing as more fully set forth herein.
2) Defendants’ Motion is GRANTED as to Plaintiffs’ anticipatory trespass claim (Complaint, Count II) and the claim is dismissed pursuant to Fed. R. Civ. P. 12(b)(6).
3) Defendants’ Motion is GRANTED as to Plaintiffs’ Class Allegations pursuant to Fed. R. Civ. P. 12(b)(6), but Plaintiffs are granted leave to file an amended complaint to allege facts regarding the numerosity requirement of Fed. R. Civ. P. 23(a) as more fully set forth herein.
4) Defendants’ Motion is DENIED in all other respects.
IT IS FURTHER ORDERED that if Plaintiffs choose to file an amended complaint, they must do so no later than twenty-one (21) days from the date of this Order. Defendants shall respond to the amended complaint within the deadlines prescribed by the Federal Rules of Civil Procedure and the Local Civil Rules.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Hearing on Defendants’ Motion to Dismiss [Doc. No. 39] is DENIED as moot.
IT IS SO ORDERED this 26th day of January, 2015.
