United States of America v. Osage Wind, LLC et al
Filing
226
OPINION AND ORDER by Judge Gregory K Frizzell ; denying 218 Objection to Magistrate Judge's Order (lah, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,
and
OSAGE MINERALS COUNCIL,
Intervenor-Plaintiff,
v.
OSAGE WIND, LLC,
ENEL KANSAS, LLC, and
ENEL GREEN POWER
NORTH AMERICA, INC.,
Defendants.
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Case No. 14-CV-704-GKF-JFJ
OPINION AND ORDER
This matter comes before the court on the Partial Objections to Magistrate Judge’s
Opinions and Orders [Doc. 218] of defendants Osage Wind, LLC; Enel Kansas, LLC; and Enel
Green Power North America, Inc. 1 For the reasons set forth below, the Objection is overruled and
Osage Wind’s request that this court reverse portions of the Magistrate Judge’s Opinions and
Orders at [Doc. 210] and [Doc. 214] is denied.
Background and Procedural History
This case, filed in 2014, presented the question of whether a large-scale excavation project
undertaken by Osage Wind during the installation of eighty-four (84) wind turbines in Osage
For ease of reference, the court refers to defendants Osage Wind, LLC; Enel Kansas, LLC; and
Enel Green Power North America, Inc., collectively, as “Osage Wind.”
1
County, Oklahoma constituted “mining” under regulations governing development of minerals in
the Osage Mineral Estate and therefore required a lease approved by the Secretary of Interior.
[Doc. 2; Doc. 20]. United States District Judge James H. Payne said “no,” and, on September 30,
2015, entered Judgment in favor of Osage Wind. [Doc. 44; Doc. 45]. The United States, as trustee
of the Osage Mineral Estate, did not appeal the district court’s Judgment, but the Osage Minerals
Council (OMC), acting on behalf of the Osage Nation, appealed.
In a September 18, 2017 Decision, the Tenth Circuit reversed the district court, and held
that, pursuant to 25 C.F.R. § 214, defendants’ “extraction, sorting, crushing, and use of minerals
as part of its excavation work constituted ‘mineral development,’ thereby requiring a federally
approved lease which Osage Wind failed to obtain.” [Doc. 78, p. 3; United States v. Osage Wind,
LLC, 871 F.3d 1078, 1081-82 (10th Cir. 2017)]. The Circuit remanded the case to the district court
for further proceedings consistent with the Decision. [Doc. 78, pp. 26-27]. On October 24, 2019,
the Court Clerk randomly reassigned the case to the undersigned. [Doc. 89]. The court then
permitted OMC to intervene in the remanded proceedings. [Doc. 136].
On July 1, 2020, this court issued an Opinion and Order limiting the United States and
OMC to the relief requested in the Amended Complaint filed by the United States on December
12, 2014. [Doc. 161]; see also [Doc. 20]. Thereafter, OMC filed an Amended Complaint in
Intervention. [Doc. 164]. In the Answer to OMC’s Amended Complaint in Intervention, Osage
Wind asserted seventeen separate defenses. [Doc. 174].
On August 12, 2020, Osage Wind filed a motion to compel against the United States,
seeking answers to three interrogatories (Interrogatories 5, 6, and 7) and responses to three requests
for production (Requests for Production 4, 5, and 6) included in Osage Wind’s First Interrogatories
and Requests for Production. [Doc. 177]. The interrogatories and requests for production at issue
2
generally sought information and documents regarding the United States’ and/or Bureau of Indian
Affairs’ communications with the OMC, Osage Nation, and other agencies regarding the wind
turbine project. See generally [Doc. 177-4]. The United States asserted relevancy objections to
the discovery requests. See generally [Doc. 187-1].
Osage Wind then filed a motion to compel against the Osage Minerals Council. [Doc.
179]. The motion sought, among other things, communications between the OMC and the Osage
Nation concerning this litigation. [Id. at p. 12].
The parties fully briefed the motions to compel, and U.S. Magistrate Judge Jodi F. Jayne
held a hearing on the motions, as well as two other pending discovery motions, on October 7, 2020.
[Doc. 197]. At the conclusion of the hearing, the Magistrate Judge took the motions under
advisement.
While the discovery motions were pending, on November 13, 2020, the OMC sought
judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) relative to five of Osage Wind’s
affirmative defenses: (1) estoppel, (2) laches, (3) waiver, (4) unclean hands, and (5) in pari delicto.
[Doc. 204]. On January 11, 2021, the court granted the OMC’s motion and precluded Osage Wind
from asserting the equitable defenses of estoppel, laches, waiver, unclean hands, and in pari
delicto. 2 [Doc. 207].
Thereafter, on January 16, 2021, the Magistrate Judge issued an Opinion and Order
regarding the pending discovery motions, including Osage Wind’s First Motion to Compel Against
the United States, as well as against the OMC (“Discovery Order”). [Doc. 210]. The Magistrate
Judge stated that the “discovery rulings reflect the district judge’s recent preclusion” of the
estoppel, laches, waiver, unclean hands, and in pari delicto affirmative defenses. [Doc. 210, p. 3].
2
For ease of reference, the court refers to the January 11, 2021 Opinion and Order as the
“Affirmative Defense Order.”
3
In light of the preclusion of the equitable defenses, the Magistrate Judge framed the dispositive
issue as “whether the requested discovery is relevant to the potential remedies of ejectment of, and
a permanent injunction against, the existence and operation of the Project.” [Doc. 210, p. 22].
Looking first to the applicable test, the Magistrate Judge observed that, in the Affirmative
Defense Order, this court indicated it would apply the “balancing of equities” test articulated by
the Tenth Circuit in Davilla v. Enable Midstream Partners, L.P., 913 F.3d 959 (10th Cir. 2019),
to the claims for permanent injunction and easement, and opined that such test “does not include
any backward-looking considerations of past conduct or knowledge.” [Doc. 210, p. 23]. Rather,
the Magistrate Judge characterized the Davilla test as “focus[ing] on the present balance of harms
to the parties and the public.” [Id.]. Because the requested discovery related to Osage Wind’s
activities prior to the litigation and defendants “[did] not attempt to link their discovery requests
to any present equitable concerns,” Magistrate Judge Jayne concluded the requested discovery was
irrelevant to the issues remaining in this litigation. [Doc. 210, pp. 21-25]. Thus, the Magistrate
Judge denied Osage Wind’s motions to compel. [Id.]. 3
Pursuant to Fed. R. Civ. P. 72(a), Osage Wind now seeks review of the Discovery Order
as to the rulings on its motions to compel against the United States [Doc. 177] and the OMC [Doc.
179], respectively. Both the government and the OMC responded in opposition [Doc. 223; Doc.
224], and Osage Wind filed a reply [Doc. 225]. The Objections are therefore ripe for the court’s
determination.
3
On March 9, 2021, the court amended the Affirmative Defense Order solely to correct a
typographical error therein. See [Doc. 219]. Because the Discovery Order and the instant briefing
cite to the January 11, 2021 Opinion and Order in the briefing and the March 9 amendment did not
substantively alter the court’s analysis, the court will also refer to the January 11, 2021 Opinion
and Order—the Affirmative Defense Order—unless specifically noted.
4
Standard
Subject to certain exceptions, “[a] judge may designate a magistrate judge to hear and
determine any pretrial matter pending before the court[.]” 28 U.S.C. § 636(b)(1)(A). A party may
seek review by the district judge of a magistrate’s judge order by filing an objection within fourteen
(14) days of being served with a copy of the decision. Fed. R. Civ. P. 72(a). “Rulings by
Magistrate Judges that fall within this general grant of authority are reviewed under a ‘clearly
erroneous or contrary to law’ standard.” Jama v. City & Cnty. of Denver, 304 F.R.D. 289, 294 (D.
Colo. 2014); see also Fed. R. Civ. P. 72(a) (“The district judge in the case must consider timely
objections and modify or set aside any part of the order that is clearly erroneous or is contrary to
law.”). “The clearly erroneous standard applies to factual findings . . . and requires that the district
court affirm unless it is left with the ‘definite and firm conviction that a mistake has been
committed.’” Williams v. Sprint/United Mgmt. Co., 238 F.R.D. 633, 637-38 (D. Kan. 2006),
subsequent determination, 464 F. Supp. 2d 1100, reconsideration denied, 2007 WL 315826
(internal citation omitted) (quoting Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th
Cir. 1988)). “By contrast, the ‘contrary to law’ standard permits ‘plenary review as to matters of
law.’” Id. (quoting Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice
and Procedure § 3069, at 355 (2d ed. 1997)).
Analysis
Osage Wind objects to the Discovery Order on two general grounds. First, Osage Wind
argues the Discovery Order is contrary to law because it improperly construes Davilla to exclude
“backward-looking” evidence from the balancing of equities. Second, Osage Wind contends that
the Magistrate Judge erred in applying the relevancy ruling based on Davilla to excuse OMC from
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supplementing its discovery requests because OMC allegedly did not assert a relevancy objection.
The court separately considers each objection.
A.
Exclusion of “Backward-Looking” Evidence
As previously stated, the Magistrate Judge reasoned that the “balancing of equities” inquiry
articulated in Davilla “does not include any backward-looking considerations of past conduct or
knowledge,” but, instead, “focuses on the present balance of harms to the parties and the public.”
[Doc. 210, p. 23]. Osage Wind contends this is contrary to law.
1.
Davilla and Other Authorities Cited by the Magistrate Judge
In Davilla, the Tenth Circuit considered whether a district court applied an incorrect legal
standard to grant a permanent injunction requiring defendant Enable Midstream Partners L.P. to
remove a pipeline that remained in operation after the expiration of Enable’s easement rights to
real property held in trust for the benefit of certain Indian allottees. Davilla, 913 F.3d at 964, 971.
In granting the injunction, the district court relied primarily on Oklahoma law for the general
principle that “equity will restrain [a continuing] trespass,” and did not weigh the equities. Id. at
971. The Tenth Circuit held that the district court erred in failing to apply the federal permanent
injunction standard, concluding “a federal district court’s decision to permanently enjoin a
continuing trespass on allotted land should take into account (1) whether an injunction is necessary
to prevent ‘irreparable harm,’ (2) whether ‘the threatened injury outweighs the harm that the
injunction may cause’ to the enjoined party, and (3) whether the injunction would ‘adversely affect
the public interest.’” Id. at 973 (quoting Kitchen v. Herbert, 755 F.3d 1193, 1208 (10th Cir. 2014)).
In the Objection, Osage Wind emphasizes the Tenth Circuit’s description of the district
court decision, which it characterized as follows: “Though it observed ‘some courts have declined
to enter an injunction when the trespass was unintentional and when the landowner’ delays
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objection, it did not think such issues at play in this case. Thus, with no further weighing of the
equities, the court ordered Enable to remove the pipeline.” Id. at 971 (internal citation omitted)
(emphasis added). Osage Wind argues that, “[b]y reversing on this point, Davilla indicated the
district court erred by not considering actions that occurred in the past—specifically including
failing to timely assert that a structure’s presence was in derogation of tribal allottees’ property
rights—in considering whether equitable relief was proper.” [Doc. 218, p. 11 (emphasis in
original)]. The court is not persuaded.
First, Osage Wind’s argument is premised on the Tenth Circuit’s description or summary
of the district court’s decision—not the court’s holding. Further, looking to the district court
opinion in Davilla, the court first explicitly stated: “Courts that have addressed whether a
permanent injunction should be entered in relation to a continuing trespass do not conduct a
separate analysis of the four factors a court typically considers when determining whether a
permanent injunction should be entered.” Davilla v. Enable Midstream Partners, L.P., CIV-151262 (W.D. Okla. Mar. 28, 2017), Doc. 56 at p. 8. Rather, the court cited five cases for the general
principle that “courts typically enter a permanent injunction when there is a continuing trespass,”
but noted two Oklahoma decisions in which the courts declined to enter an injunction “when the
trespass was unintentional and when the landowner stands by and makes no objection until the
greater part of the work has been completed.” [Id. at pp. 8-9]. Thus, the district court’s reference
to a non-objecting landowner was not in the context of a balancing of the equities, as the district
court had explicitly declined to apply a four-factor test and instead imposed the injunction based
solely on liability. [Id.]; see also Davilla, 913 F.3d at 973 (“Accordingly, by ordering Enable to
remove the pipeline on the basis of liability alone, the district court legally erred and thus abused
its discretion.”). Thus, the court is not persuaded that the Tenth Circuit’s summary of the lower
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court decision was intended to convey that the district court “erred by not considering actions that
occurred in the past.” 4
Instead, the Tenth Circuit explicitly required consideration of the following factors in cases
of continuing trespass to Indian land:
“(1) whether an injunction is necessary to prevent
‘irreparable harm,’ (2) whether ‘the threatened injury outweighs the harm that the injunction may
cause’ to the enjoined party, and (3) whether the injunction would ‘adversely affect the public
interest.’” Davilla, 913 F.3d at 973 (quoting Kitchen, 755 F.3d at 1208). The factors reflect the
prospective nature of injunctive relief, see generally Estate of Schultz v. Brown, — F. App’x —,
2021 WL 650853, at *2 (10th Cir. Feb. 19, 2021) (unpublished), and focus on the future effect of
the requested relief. Thus, in Davilla, the court emphasized the importance of “knowing the
relative costs and benefits of [defendant] removing the pipeline, either as they pertain to these
parties or the public at large.” Davilla, 913 F.3d at 974. Likewise, in this case, the court will
consider the relative costs and benefits of removal, both as to the parties hereto and the public at
large. 5
In addition to criticizing the interpretation of Davilla, Osage Wind contends that the
Magistrate Judge erred in her reading of the U.S. Supreme Court’s decision in eBay Inc. v.
MercExchange, L.L.C., 547 U.S. 388 (2006). In eBay, Inc., the Court reiterated, “[a]ccording to
4
In fact, applying the erroneous standard, the district court did consider the plaintiff’s past conduct
in objecting to defendants’ continuing trespass. Davilla v. Enable Midstream Partners, L.P., CIV15-1262 (W.D. Okla. Mar. 28, 2017), Doc. 56 at p. 9.
5
Insofar as Osage Wind argues that the requested discovery is relevant to the equitable factors
articulated in the RESTATEMENT (SECOND) OF TORTS § 936, Osage Wind has not demonstrated that
the test applies in this case, either with respect to an ejectment remedy or permanent injunction.
See [Doc. 191, p. 5 n.3 (conceding that, in the context of alleged trespass on Indian land, ejectment
is a form of injunctive relief); Doc. 209, p. 2 n.1]. Further, in the Affirmative Defense Order—in
the context of cases cited by the parties in the relevant briefing—the court did not signal it would
apply the RESTATEMENT test. Rather, it footnoted that it was not clear that the court would be
obligated to apply the RESTATEMENT. [Doc. 207, p. 9, n.6 (quoting Davilla, 913 F.3d at 969)].
8
well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy a fourfactor test before a court may grant such relief,” specifically to demonstrate:
(1) that it has suffered an irreparable injury; (2) that remedies available at law, such
as monetary damages, are inadequate to compensate for that injury; (3) that,
considering the balance of hardships between the plaintiff and defendant, a remedy
in equity is warranted; and (4) that the public interest would not be disserved by a
permanent injunction.
Id. at 391.
In Davilla, the Tenth Circuit “acknowledge[d] that our circuit’s articulation of the rule
differs slightly from that of the Supreme Court in eBay,” but concluded “the two articulations
capture the same considerations in any event.” Davilla, 913 F.3d at 973 n.9. Significantly, Osage
Wind does not direct the court to anything in the Supreme Court’s eBay decision requiring
consideration of “backward-looking” evidence. See [Doc. 218, p. 12]. Rather, Osage Wind relies
on the district court’s (the Eastern District of Virginia) interpretation of the factors on remand.
[Id.]. Respectfully, that district court’s decision is neither precedential nor persuasive as it did not
relate to trespass to Indian land. 6 Further, the district court discussed the parties’ prior behavior
in the context of “unclean hands,” a defense unavailable to Osage Wind in this action. See
MercExchange, L.L.C. v. eBay, Inc., 500 F. Supp. 2d 556, 588-89 (E.D. Va. 2007).
6
Additionally, the court notes that, in eBay, the Supreme Court cited Weinberger v. RomeroBarcelo, 456 U.S. 305 (1982) and Amoco Production Co. v. Village of Gambell, 480 U.S. 531
(1987), to articulate the four factors. In those cases, the Court stated a district court must “balance[]
the conveniences of the parties and possible injuries to them according as they may be affected by
the granting or withholding of the injunction,” Weinberger, 456 U.S. at 312 (emphasis added), and
“a court must balance the competing claims of injury and must consider the effect on each party
of the granting or withholding of the requested relief.” Amoco Prod. Co., 480 U.S. at 542. These
decisions also suggest that the court should look only to prospective considerations. However, the
court need not decide whether the permanent injunction inquiry is always limited to forwardlooking evidence, as Davilla is dispositive of the issue under these facts.
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2.
Additional Authorities Cited by Osage Wind
In addition to arguing that the cases relied on by the Magistrate Judge do not preclude the
relevance of “backward-looking” evidence, Osage Wind asserts that “[o]ther relevant case law”
also suggests that the Magistrate Judge erred in ruling the equitable analysis in this case is not
backward-looking. See [Doc. 218, pp. 13-18]. Osage Wind first directs the court to Weinberger,
Keystone Driller Co. v. General Excavator Co., 290 U.S. 240 (1933), Ohio Oil Co. v. Sharp, 135
F.2d 303 (10th Cir. 1943), and Precision Instrument Manufacturing Co. v. Automotive
Maintenance Machinery Co., 324 U.S. 806 (1945). These cases are not persuasive as they do not
relate to Indian land claims. In the specific context of Indian land claims, the undersigned has
previously written that permitting third-parties to avoid liability for violation of the stringent
leasing requirements of 25 C.F.R. § 214.7 by pointing to the Osage Nation’s own conduct would
frustrate federal Indian law policy. See [Doc. 207, pp. 7-8]. Accordingly, recitations of the general
principles of equity—that do not contend with the strong federal policy in favor of vindicating
Indian law claims—do not persuade the court that it must consider the United States and OMC’s
past conduct to determine the propriety of equitable relief. 7
Osage Wind points the court to decisions of the Fourth, Second, and Fifth Circuits, dating
to 1941, 1920, and 1961, respectively, to argue that the court’s equity jurisdiction specifically
requires application of the “clean hands doctrine” “even though the Court has stricken the
affirmative defense.” [Doc. 218, p. 17]. This court previously dismissed Osage Wind’s delaybased defenses, including unclean hands, reasoning the equitable defenses were inapplicable under
7
Keystone Driller Co. and Precision Instrument Manufacturing Co. were decided in the context
of patent law. It is firmly established in patent law jurisprudence that “a person sued for
infringement may challenge the validity of the patent on various grounds, including fraudulent
procurement.” Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172, 176
(1965) (citing Keystone Driller Co. and Precision Instrument Manufacturing Co.).
10
the factual circumstances. [Doc. 207; Doc. 219]. For the same reasons, the court is not persuaded
that “clean hands” and other backward looking variants of the affirmative defense of unclean hands
are relevant to determine the availability of equitable relief here, in the context of a tribal land
claim. See Opinion and Order at Doc. 207, pp. 6-8. Thus, application of the “clean hands doctrine”
is not required. See CGC Holding Co. v. Hutchens, 974 F.3d 1201, 1214 (10th Cir. 2020) (internal
citation omitted) (quoting Houston Oilers, Inc. v. Neely, 361 F.2d 36, 42 (10th Cir. 1966)) (“[T]he
[unclean hands] doctrine ‘does not exclude all wrongdoers from a court of equity nor should it be
applied in every case where the conduct of a party may be considered unconscionable or
inequitable.’ And district courts have discretion in deciding whether to apply the unclean hands
doctrine.”).
For all of these reasons, the court concludes the Magistrate Judge’s interpretation of
Davilla and general equitable principles was not contrary to law.
3.
Relevance to Affirmative Defense of Res Judicata
Regardless of the equitable defenses precluded in the Affirmative Defense Order, Osage
Wind contends that the requested discovery is relevant to its affirmative defense of res judicata
(a/k/a claim preclusion).
As an initial matter, it does not appear that the relevance of the discovery to res judicata
was sufficiently raised and argued before the Magistrate Judge. Osage Wind’s motion to compel
against the United States refers to res judicata only once [Doc. 177, p. 23], and res judicata was
specifically referenced only once during the motion hearing and, then, by the OMC rather than
Osage Wind. 8 [Doc. 198, p. 46]. “[P]erfunctory complaints [that] fail to frame and develop an
issue [are not] sufficient to invoke appellate review.” Femedeer v. Haun, 227 F.3d 1244, 1255
8
The court notes defense counsel generally referred to “defenses based on timing and consistency
of position.” [Doc. 198, p. 34].
11
(10th Cir. 2000) (quoting Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994)). For this
reason, the Magistrate Judge’s denial of the requested discovery was not contrary to law, although
res judicata remains a “live issue” in this litigation. 9
Additionally, Osage Wind fails to tie the requested discovery to any principles of law
underlying res judicata/claim preclusion. Federal courts must give a state court judgment the same
preclusive effect as would its originating state.” Campbell v. City of Spencer, 777 F.3d 1073,
1077-78 (10th Cir. 2014) (citing Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81
(1984)). Thus, the court must look to Oklahoma law.
Osage Wind argues that, because Oklahoma law applies claim preclusion principles to “bar
the relitigation of issues by the parties or their privies which were or could have been litigated in
an action,” communications illustrating the United States and OMC’s knowledge of potential
claims prior to this litigation is relevant. Carris v. John R. Thomas & Assocs., P.C., 896 P.2d 522,
527 (Okla. 1995) (emphasis added). To determine the application of res judicata/claim preclusion,
Oklahoma courts are “not limited to the mere formal judgment,” but may also look to “pleadings,
verdict or findings.” Hine v. Bd. of Cnty. Comm’rs of McClain Cnty., 108 P.2d 112, 116 (Okla.
1940). “The scope and meaning of the judgment is often determined by the pleadings.” Id. Thus,
although the court may look beyond the judgment entered in any prior state-court proceedings, it
appears that the relevant inquiry is limited to court filings and proceedings. Osage Wind has not
shown that the inquiry extends to internal communications amongst the parties and third-parties.
For this additional reason, Osage Wind fails to demonstrate the relevance of the requested
discovery to its res judicata/claim preclusion affirmative defense.
9
Likewise, the court does not consider the potential relevance of the requested discovery to Osage
Wind’s good faith in proceeding without a lease, as Osage Wind raised this argument for the first
time in its reply in support of its Objection. See [Doc. 225, p. 10].
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4.
Argument that “Forward Looking” Ruling Must Apply to All Evidence
Finally, with respect to “forward looking” evidence, Osage Wind argues that, “if the Court
overrules the objections . . . it must also limit the United States and the OMC to ‘forward-looking’
evidence when considering the Davilla factors.” [Doc. 218, p. 23]. Osage Wind’s argument is
vague and unmoored to any specific factual or legal context, and the court is therefore unable to
assess the merits of the argument as applied to other, unspecified evidence. Thus, Osage Wind’s
argument does not merit reversal of portions of the Magistrate Judge’s Opinions and Orders. And
any objections to specific discovery requests, or any motions in limine as to specific evidence, will
be addressed in due course.
B.
Relevancy Objection as Applied to OMC
Osage Wind also contends that the Magistrate Judge erred by applying the Davilla
relevancy analysis to its discovery requests to the OMC, “when the OMC had not asserted a
relevancy objection.” [Doc. 218, p. 6]. However, Osage Wind failed to brief the issue in its
Objection and therefore “may not assign as error” the alleged defect. Rather, the issue is fully
argued only in the reply brief before this court. See Fed. R. Civ. P. 72(a) (“A party may not assign
as error a defect in the order not timely objected to. The district judge in the case must consider
timely objections.”); Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011) (“[T]he general rule
in this circuit is that a party waives issues and arguments raised for the first time in a reply brief.”).
Even if Osage Wind had sufficiently briefed the objection in the first instance, the court
has conducted a de novo review of the OMC’s discovery responses, and concludes that OMC
sufficiently asserted a relevance objection to the requested discovery. The court interprets OMC’s
Responses to Defendants’ First Set of Interrogatories and Requests for Production to include the
relevance objection. See generally [Doc. 179-3]. Moreover, the undersigned did not issue the
13
Affirmative Defense Order until January 11, 2021. [Doc. 207]. Within two days, OMC joined in
support of a Notice filed by the United States that articulated an objection to relevancy in light of
that Order. [Doc. 208]. Accordingly, the court concludes that OMC sufficiently asserted a
relevancy objection, and the Magistrate Judge committed no error in this regard.
Conclusion
WHEREFORE, the Partial Objections to Magistrate Judge’s Opinions and Orders [Doc.
218] of defendants Osage Wind, LLC; Enel Kansas, LLC; and Enel Green Power North America,
Inc. are overruled, and Osage Wind’s request that this court revisit reverse portions of the
Magistrate Judge’s Opinions and Orders at [Doc. 210] and [Doc. 214] is denied.
IT IS SO ORDERED this 21st day of May, 2021.
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