Walker et al v. Apex Wind Construction LLC et al

Filing 160

ORDER denying 116 Motion for Summary Judgment on Issue of Standing; granting 117 Motion for Summary Judgment on the Merits of Nuisance Claim. Signed by Honorable Timothy D. DeGiusti on 10/13/2016. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
TERRA WALKER, et al.,
Plaintiffs,
v.
KINGFISHER WIND, LLC,
Defendant.

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Case No. CIV-14-914-D

ORDER
The individual plaintiffs to this action1 own land in Kingfisher and Canadian
Counties, within the State of Oklahoma. Plaintiff Oklahoma Wind Action
Association (OWAA) is an Oklahoma non-profit corporation. In this action,
OWAA, purportedly on behalf of itself and its members, and the individual
plaintiffs, bring tort claims for anticipatory nuisance against Defendant Kingfisher
Wind LLC (Kingfisher) stemming from its construction and maintenance of a wind
turbine farm in Kingfisher and Canadian Counties (hereinafter the Kingfisher
Wind Project or KWP).
Before the Court is Kingfisher’s Motion for Summary Judgment on the issue
of OWAA’s standing [Doc. No. 116] and Motion for Summary Judgment on the
Merits of Plaintiffs’ Nuisance Claim [Doc. No. 117]. Plaintiffs have responded to

1

The individual plaintiffs are Janelle Grellner, Terra Walker, Cheyenne Ward,
Julie Harris, Elise Kay Kochenower, Karri Parson, and Cindy Shelley.

both motions [Doc. Nos. 136, 137]. The matter is fully briefed and at issue. The
Court heard oral argument on the motions on September 27, 2016. Because
standing is a threshold concern that involves the Court’s power to hear a case,
Green v. Haskell County Bd. of Comm’rs, 568 F.3d 784, 792 (10th Cir. 2009), the
Court addresses Kingfisher’s motion relating to that issue first.
FACTUAL BACKGROUND2
Kingfisher is in the business of constructing and operating industrial wind
turbines. At issue in the present case is the Kingfisher Wind Project, which consists
of 149 wind turbines. Plaintiffs contend the wind farm’s construction and operation
constitutes an anticipatory nuisance; specifically, Plaintiffs allege the wind farm
causes and/or will cause adverse health effects, emits noise at a disconcerting level,
destroys the natural landscape, interferes with the use and enjoyment of their
property, and otherwise constitutes an annoyance due to “shadow flicker” and the

2

The following material facts are undisputed and viewed in the light most
favorable to Plaintiffs. Scott v. Harris, 550 U.S. 372, 378 (2007). To determine
which facts are not in genuine dispute, the Court disregarded any unsupported
allegations, legal conclusions, or legal arguments couched as facts which appeared
in either party’s statement of material facts or response thereto. Undeveloped
arguments, or those raised in a perfunctory manner, were also not considered.
Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024-25 (10th Cir.
1992).
2

casting of light. Plaintiffs seek permanent injunctive relief in the form of a 1.7 mile
setback of the wind farm from any property owned by a plaintiff.3
I.

THE OWAA
OWAA is a 501(c)(4) nonprofit corporation that was incorporated on

February 10, 2014, six months before this lawsuit was filed. Its principal office is
listed at the home address of Brent Robinson, its president. The governing
documents of OWAA include its Certificate of Incorporation and Bylaws. On
February 9, 2015 OWAA adopted its first set of bylaws, which provide that
eligibility for membership extends to “[a]nyone who signs in at a meeting, signs a
document for OWAA, or signs up for the email distribution list,” unless the
individual indicates they do not wish to be a member. On May 20, 2015, OWAA
adopted a new set of bylaws that establish two tiers of membership: (1) voting
members, who are members of the board of directors, and (2) non-voting members.
OWAA’s officers are: Brent Robinson (president); Plaintiff Terra Walker (vice
president), and Plaintiff Karri Parson (treasurer). In addition, OWAA has nine
directors: Plaintiff Cindy Shelley, Plaintiff Elise Kochenower, Plaintiff Julie
Harris, Plaintiff Janelle Grellner, Plaintiff Cheyenne Ward, Steve Wittrock, Sharon
Robinson, Beth Scheiber, and Jaclyn Rother.
3

Although the exact distance of the setback requested by Plaintiffs has varied over
the course of these proceedings, Plaintiff’s response to Kingfisher’s motion seeks a
setback of 1.72 “statute miles.” Pl. Resp. to Mot. for Summary Judgment at 6
[Doc. No. 137].
3

OWAA purports to represent 380 members, described as “a list of people
who at one point had concerns” about the Kingfisher Wind Project or a list of
“interested citizens.” OWAA has no formal membership process; to become a
member, one would only need to contact the group and ask to be added to the
membership list. OWAA has no regularly scheduled meetings. When meetings do
occur, OWAA records the “member” attendance by the names appearing on its
sign-in sheet. Over half of the members of OWAA have properties located near the
wind turbines at issue.
II.

THE INDIVIDUAL PLAINTIFFS
A.

Janelle Grellner

Ms. Grellner lives near the KWP; the closest turbine to her residence is .9
miles away. At her deposition, Grellner testified she could not hear the turbines
while inside her home and that although the wind farm has not presently affected
her health, she believes it is likely to do so in the future. Grellner worries about the
wind farm’s potential effects on children with special needs. Grellner also contends
the wind farm’s aesthetics disrupt the peace and tranquility of a rural environment
and a person’s potential future use of their property.
B.

Terra Walker

Ms. Walker lives near the KWP; the closest turbine to her residence is .5
miles away. At her deposition, Walker testified that she has experienced “shadow
4

flicker” from the turbines on portions of her property.4 Walker is concerned that
the wind farm will adversely affect her children’s health, but does not know how it
will affect them. Walker alleges that she experiences pressure and headaches due
to the wind turbines; however, she has not seen a doctor to address these
symptoms. Walker also claims that her son’s breathing issues, though not caused
by the wind turbines, could be worsened by their presence.
C.

Cheyenne Ward

Ms. Ward lives near the KWP; the closest turbine to her residence is .4 miles
away. At her deposition, Ward stated she may have a heart condition that could be
relevant to her claims. However, she has not asked her doctor whether her heart
condition was caused or could be worsened by the wind turbines. She has not
considered returning to the doctor for that purpose. Ward also complains of noise
and sleep disturbance due to the wind turbines. Ward has not seen a doctor to
address any symptoms she has allegedly experienced due to the wind turbines.
Ward homeschools her children; an audiologist reported that background noise
significantly deteriorates the clarity of speech for her son. According to the report,
if Ward’s son were in an environment where the background noise is significantly
louder than speech, voices would sound even more muffled and his ability to learn
would become increasingly more complicated. Although Ward experiences
4

“Shadow flicker” describes the alternating pattern of light and dark that happens
when wind turbine blades sweep through the path of sunlight.
5

shadow flicker on her property, it has not caused any adverse health effects. Ward
does not know if she or her family has been affected by any infrasound emitting
from the turbines.5
D.

Julie Harris

Ms. Harris lives near the KWP; the closest turbine to her residence is .5
miles and has been operating since October 2015. Harris testified she experiences
“glint” from the sun’s reflection off the turbine blades. Harris alleges noise from
the wind turbines causes her dogs to constantly bark, which in turn causes her to
have trouble sleeping. She also claims she suffers memory loss and dizziness as a
result of the turbines. Harris, however, has not been seen by a doctor regarding her
symptoms. Harris contends her son has had adverse health effects as a result of the
turbines; however, there has not been any diagnosis which states his health
problems are caused by the turbines.
E.

Elise Kay Kochenower

Ms. Kochenower lives near the KWP; the closest turbine to her residence is
1.3 miles away. Kochenower testified she has experienced migraines for thirty-two
years and believes they could be worsened by the turbines. Kochenower states that

5

Infrasound describes wave phenomena that share the physical nature of sound,
but with a range of frequencies below that of human hearing (about 20 hertz).
Williams v. Invenergy, LLC, 13-CV-1391, 2016 WL 1725990, at *3 (D. Or. Apr.
28, 2016); Protect our Communities Foundation v. Salazar, No. 13-cv-575, 2013
WL 5947137, at *6 n. 2 (S.D. Cal. Mar. 25, 2014).
6

her worry about the wind turbines’ potential harm causes her stress and could
increase her shingles. Kochenower has not sought medical advice regarding what
adverse health effect, if any, the wind turbines are having on her. Kochenower
contends the wind turbines also hurt her son’s ears. However, no medical provider
has linked her son’s problems to the wind turbines. Kochenower also fears her
grandchildren could suffer adverse health effects from the turbines.
F.

Karri Parson

Ms. Parson lives near the KWP; the closest turbine to her residence is 1.9
miles away. At her deposition, Parson testified that the wind turbines could affect
her sleep. Parson also believes the wind turbines could affect her lupus, but she has
neither discussed this matter with a medical doctor nor has she received any such
diagnosis. Parson cannot hear the wind turbines from insider her home. She does
not allege the wind turbines are causing any adverse health effects in her children.
G.

Cindy Shelley

Ms. Shelley lives near the KWP; the closest turbine to her residence is 1.4
miles away. Shelley testified that she cannot hear the turbines from her home and
she does not experience any shadow flicker. Shelley contends the turbines make
her “queasy,” though she has not consulted a doctor and does not intend to assert
such a claim at trial. Instead, Shelley intends to assert an anticipatory nuisance
claim on behalf of her seventeen year old daughter, who she contends suffers from
7

dizziness, nausea, seizures and migraines. Shelley’s daughter, however,
experienced seizures prior to the turbines’ construction. Shelley states her daughter
will be impacted by the turbines when she visits family; however, her daughter has
not received a diagnosis that the wind turbines either cause or will contribute to her
medical condition. Shelley also contends the turbines will destroy the landscape
and present dangers during severe weather season.
III.

EXPERT OPINIONS
In support of their contentions regarding the adverse health consequences

surrounding the KWP, Plaintiffs retained Dr. Michael Nissenbaum and Richard
James as expert witnesses. Dr. Nissenbaum, in sum, opines that that the closer one
lives to a wind farm, daytime sleepiness increases, sleep quality decreases, and
mental health diminishes. Dr. Nissenbaum’s findings are related to a prior study in
Maine; he did not conduct an investigation specific to the wind farm at issue in this
case, nor did he conduct any medical examinations of the individual plaintiffs or
review their medical records.
Among other things, Mr. James, who was retained to offer expert testimony
on the effects of audible sound and infrasound, opines that properties within 1.5
miles of the wind farm will have sound levels greater than 35 “A-weighted
decibels” (dBA), which will likely cause sleep disturbance and adverse health
effects. James, however, is unable to identify which plaintiffs might experience
8

such effects until the wind farm is fully operational, and has not conducted an
operational study.6
STANDARD OF DECISION
Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Universal Underwriters Ins. Co. v. Winton, 818 F.3d 1103, 1105 (10th Cir.
2016) (quoting Fed. R. Civ. P. 56(a)). The movant may make such a showing
through the pleadings, depositions, other discovery materials, and affidavits. Water
Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1136, 1142 (10th Cir. 2013). At the
summary judgment stage, the Court views all of the facts in the light most
favorable to the non-movant and draws all reasonable inferences from the record in
favor of the non-moving party. Schaffer v. Salt Lake city Corp., 814 F.3d 1151,
1155 (10th Cir. 2016).
Although the non-moving party is entitled to all reasonable inferences from
the record, the non-movant must still identify sufficient evidence requiring
submission to the finder of fact in order to survive summary judgment. Piercy v.
Maketa, 480 F.3d 1192, 1197 (10th Cir. 2007). Thus, if the non-movant bears the
burden of proof on a claim at trial, summary judgment may be warranted if the
6

In their briefing and at the hearing on Kingfisher’s motions, Plaintiffs’ counsel
stated an additional sound study was ongoing. Plaintiffs, however, did not move
the Court for additional time to respond in light of the ongoing studies, as
permitted under Rule 56(d) of the Federal Rules of Civil Procedure.
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movant points out a lack of evidence to support an essential element of that claim
and the non-movant cannot identify specific facts that would create a genuine issue
for trial. Water Pik, 726 F.3d at 1143-44. “An issue is ‘genuine’ if there is
sufficient evidence on each side so that a rational trier of fact could resolve the
issue either way,” and “[a]n issue of fact is ‘material’ if under the substantive law
it is essential to the proper disposition of the claim.” Adler v. Wal–Mart Stores,
Inc., 144 F.3d 664, 670 (10th Cir. 1998).
DISCUSSION
I.

STANDING
“Standing is a ‘core component’ of the case-or-controversy requirement of

Article III necessary to invoke federal jurisdiction.” Tennille v. Western Union Co.,
809 F.3d 555, 559 (10th Cir. 2015) (quoting Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992)). As noted, standing is a threshold consideration that
involves the Court’s power to hear a suit. Green, 568 F.3d at 792. Without
standing, a plaintiff cannot proceed with a lawsuit in federal court. In Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83 (1998), the Supreme Court has
observed that federal courts should not even assume a plaintiff had demonstrated
standing in order to proceed to the merits of the underlying claim, regardless of the
claim’s significance:
We decline to endorse such an approach because it carries the courts
beyond the bounds of authorized judicial action and thus offends
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fundamental principles of separation of powers. This conclusion
should come as no surprise, since it is reflected in a long and
venerable line of our cases. “Without jurisdiction the court cannot
proceed at all in any cause. Jurisdiction is power to declare the law,
and when it ceases to exist, the only function remaining to the court is
that of announcing the fact and dismissing the cause.”
Id. at 94 (quoting Ex parte McCardle, 7 Wall. 506, 514, 19 L.Ed. 264 (1868)).
To show standing, an aggrieved party must make three showings: (1) it has
suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision. Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). The
party invoking the court’s jurisdiction bears the burden of establishing these
elements. Lujan, 504 U.S. at 561. Standing is determined at the time the action was
filed. WildEarth Guardians v. Public Service Co. of Colo., 690 F.3d 1174, 1182
(10th Cir. 2012).
Kingfisher’s motion questions whether OWAA has the requisite standing to
bring claims on behalf of its members, commonly referred to as “associational
standing.” The Supreme Court has held “an association may have standing to assert
the claims of its members even where it has suffered no injury from the challenged
activity.” Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 34345 (1977) (citing Warth v. Seldin, 422 U.S. 490, 511 (1975) (further citations
11

omitted)); Kan. Health Care Ass’n, Inc. v. Kan. Dept. of Soc. and Rehab. Servs.,
958 F.2d 1018, 1021 (10th Cir. 1992). In order to have associational standing,
OWAA must demonstrate (1) that its members would otherwise have standing to
sue in their own right; (2) that the interests the organization seeks to protect are
germane to the organization’s purpose; and (3) that neither the claim asserted nor
the relief requested requires the participation in the lawsuit of the individual
members. Southern Utah Wilderness Alliance v. Palma, 707 F.3d 1143, 1153 (10th
Cir. 2013) (citing Friends of the Earth, 528 U.S. at 181). Kingfisher contends
OWAA cannot satisfy the first and third elements. Mot. for Summary Judgment at
7.
First, Kingfisher argues OWAA lacks associational standing because, in
reality, it does not have any members on whose behalf it can sue. In support of this
contention, Kingfisher notes that (1) when OWAA filed the present suit, it had no
bylaws which established how one becomes a member, (2) OWAA’s bylaws did
not go into effect until ten months after this lawsuit was filed, and (3) the current
bylaws set forth no membership qualifications, outside of the qualifications for
directors.7

7

In this regard, Kingfisher also argues that OWAA cannot sue on behalf of its
directors.
12

“Because organizations derive associational standing from their members,
the threshold inquiry is whether the organization actually has members.”
Riverkeeper v. Taylor Energy Co., LLC, 113 F.Supp.3d 870, 876 (E.D. La. 2015)
(emphasis in original). Corporate formalities and formal membership structure are
not constitutional requirements for associational standing. Hunt, 432 U.S. at 34445; Friends of the Earth, Inc. v. Chevron Chem. Co., 129 F.3d 826, 827-28 (5th
Cir. 1997) (finding associational standing even though non-profit environmental
organization did not have formal membership requirements). Instead, the Court
inquires whether an individual possesses certain “indicia of membership,” such as
(1) participating in the organization’s elections, (2) financing the organization's
activities, (3) associating with the organization voluntarily, and (4) providing
sworn testimony of membership. Id. Thus, in determining whether the relationship
between an association and its members is sufficiently close for constitutional
standing, courts do not “exalt form over substance.” Hunt, 432 U.S. at 345;
Chevron, 129 F.3d at 828. This is a holistic test. The purpose of the inquiry is to
determine whether the association provides the means by which its members
“express their collective views and protect their collective interests.” Hunt, 432
U.S. at 345.
Moreover, there is no requirement in associational standing that 100% of an
organization’s members have standing in their own right. To the contrary, at least
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one member of the association must satisfy the constitutional requirements of
injury-in-fact, causation, and redressability. Hunt, 432 U.S. at 342-43; Colorado
Outfitters Ass’n v. Hickenlooper, 823 F.3d 537, 550 (10th Cir. 2016); see also
Osage Producers Ass’n v. Jewell, No. 15-CV-469, 2016 WL 3093938, at *3 (N.D.
Okla. June 1, 2016) (“The first prong of this test ... requires an associational
plaintiff to specifically identify at least one member harmed by the defendant’s
conduct[.]”) (citing Summers v. Earth Island Inst., 555 U.S. 488, 49-99 (2009)
(further citations omitted)).
Viewing the evidence and all reasonable inferences in the light most
favorable to Plaintiffs, the Court finds Plaintiffs have satisfied the first factor.
Albeit informal, OWAA has an identifiable membership structure: a person
becomes a member through active, voluntary involvement, such as by attending
meetings or otherwise requesting membership. Members are linked through
informal networks and email contact lists. OWAA members elect the governing
body and its members contribute to the financing of its activities. Members are also
united for a common purpose, i.e., contesting what they perceive to be the harmful
effects of wind turbines, and many of its members own property near the turbines
at issue in this litigation. OWAA was clearly formed to provide the means by
which its members “express their collective views and protect their collective
interests.” Hunt, 432 U.S. at 345. Although many members may not have a
14

tangible interest in challenging the turbines’ construction and operation,
associational standing does not require that each and every member meet the
Article III requirements. The Court believes it would indeed be exalting form over
substance to conclude OWAA lacks associational standing based on the objections
raised by Kingfisher.
The third factor of associational standing – whether the relief requested will
require the participation of the organization’s members – represents prudential, as
opposed to constitutional, concerns. United Food & Commercial Workers Union
Local 751 v. Brown Group, Inc., 517 U.S. 544, 557 (1996) (“the third prong of the
associational standing test is best seen as focusing on these matters of
administrative convenience and efficiency, not on elements of a case or
controversy within the meaning of the Constitution.”). With regard to individual
participation in the relief requested, the Supreme Court has stated:
[W]hether an association has standing to invoke the court’s remedial
powers on behalf of its members depends in substantial measure on
the nature of the relief sought. If in a proper case the association seeks
a declaration, injunction, or some other form of prospective relief, it
can reasonably be supposed that the remedy, if granted, will inure to
the benefit of those members of the association actually injured.
Indeed, in all cases in which we have expressly recognized standing in
associations to represent their members, the relief sought has been of
this kind.
Warth v. Seldin, 422 U.S. 490, 515 (1975). Seeking equitable relief, however, does
not per se overcome the prudential prong of associational standing; associational
15

standing is only proper if neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit. Hunt, 432 U.S. at
343. Nevertheless, courts have held where such individual participation is minimal,
i.e., where a limited amount of individual proof may be necessary, such
requirement, in itself, does not preclude associational standing. See, e.g., National
Ass’n of Coll. Bookstores, Inc. v. Cambridge Univ. Press, 990 F.Supp. 245, 249-50
(S.D.N.Y. 1997) (“The fact that a limited amount of individuated proof may be
necessary does not in itself preclude associational standing.”) (citing New York
State Nat’l Org. of Women v. Terry, 886 F.2d 1339, 1349 (2d Cir. 1989)).
Kingfisher asserts OWAA fails the third prong because the lawsuit requires
numerous individualized determinations of fact as to how each member is
allegedly affected by the turbines. Plaintiffs contend that their injury is solely
related to their proximity to the wind farm, and the only individualized proof
necessary would be the location of properties owned by OWAA’s members. The
Court, viewing the evidence and all reasonable inferences in the light most
favorable to Plaintiffs, finds that neither the claims asserted nor the relief requested
by OWAA would require any significant participation of individual members in
the lawsuit. OWAA requests equitable relief in the form of an injunction. See
Second Amend. Compl., ¶¶ 61, 66-70 [Doc. No. 69]. Although the anticipatory
nuisance claims at issue would require some individualized proof among the
16

plaintiffs, the Court believes such a showing may be satisfied without the
significant participation of individual members. Accordingly, the “relief requested”
aspect of the third prong of the Hunt test is satisfied.
Having found that OWAA meets the threshold requirements for
associational standing, the Court declines to consider whether OWAA has standing
under the “functional equivalency test” or whether the directors of OWAA
constitute “members” for purposes of associational standing.
II.

ANTICIPATORY NUISANCE
Oklahoma law provides a common law and statutory cause of action for

private nuisance. By statute, “[n]uisance ... consists in unlawfully doing an act, or
omitting to perform a duty, which act or omission annoys, injures, or endangers the
comfort, repose, health or safety of others; or, in any way renders other persons
insecure in life, or in the use of property.” Briscoe v. Harper Oil Co., 1985 OK 43,
¶ 9, 702 P.2d 33, 36 (quoting 50 OKLA. STAT. § 1). Common law nuisance is
defined more broadly as the “unwarrantable, unreasonable or unlawful use by a
person of his own property to the injury of another.” B.H. v. Gold Fields Mining
Corp., 506 F.Supp.2d 792, 800 (N.D. Okla. 2007) (citation omitted).8 Under either

8

There are several kinds of nuisances, two of which are relevant to this discussion.
A nuisance at law, also called a nuisance per se, is “a nuisance at all times and
under any circumstances, regardless of location or surroundings.” See 66 C.J.S.
Nuisances § 4 (2013). A nuisance in fact, also called a nuisance per accidens, is
“one which becomes a nuisance by reasons of circumstances and surroundings.”
17

a common law or statutory nuisance claim, a court may award, among other things,
injunctive relief against a defendant who created, maintained, or owns a nuisance.
Id. (citing 50 OKLA. STAT. §§ 5, 6, 13).
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., 1996 OK 109, ¶ 16, 925 P.2d
546, 552 (overruled on other grounds by DuLaney v. Oklahoma State Dept. of
Health, 1993 OK 113, 868 P.2d 676) (“[W]hen a neighboring landowner is
confronted with a nuisance ... they do not have to wait [for] the actual infliction of
such loss, but have a right to apply to a court for injunctive relief.”). However, the
harm suffered must be irreparable – not compensable in money damages – and the
evidence must be “clear and convincing that there is a reasonable probability of
injury, not just a mere apprehension.” Id. (citing McPherson v. First Presbyterian
Church, 1926 OK 214, ¶ 18, 248 P. 561, 566). Further, the complained-of injury
“must not be nominal, theoretical or speculative.” Id. at 549 (citing Jackson v.
Williams, 1985 OK 103, ¶ 9, 714 P.2d 1017, 1020). Here, Plaintiffs advance solely

Id. Generally, the conduct of a lawful business is not a nuisance per se. However, a
lawful business may become a nuisance in fact if the place and manner of
operation result in such substantial injury as to amount to an invasion of a
homeowner’s rights to repose and the enjoyment of their property. See Finance &
Inv. Co., Ltd. v. UMA, L.L.C., 2009 OK CIV APP 105, ¶ 16, 227 P.3d 1082, 108788.
18

a cause of action for anticipatory nuisance, and seek only permanent injunctive
relief.
The Court must consider whether Kingfisher has identified a lack of
evidence on an essential element of Plaintiffs’ anticipatory nuisance claim, and
whether Plaintiffs have come forward with sufficient evidence to present a triable
issue. If Plaintiffs’ evidence is insufficient, it cannot, as a matter of law, achieve
actual success on the merits, i.e., that the KWP is, or will constitute a nuisance.
Further, to be entitled to its requested relief – a permanent injunction – Plaintiffs
must not only show actual success on the merits, but must also make out a clear
and unequivocal showing of the remaining elements of the equitable remedy.
For their anticipatory nuisance claim, Plaintiffs rely almost entirely on
asserted adverse health effects and annoyance caused by the turbines. See, e.g., Pl.
Resp. to Mot. for Summary Judgment at 37-42 [Doc. No. 137].9 Kingfisher asserts

9

Plaintiffs make passing reference in their briefing to aesthetics and interference
with intended uses of their land, and mentioned property values and investments at
oral argument. However, no persuasive argument or significant evidence in the
summary judgment proceedings is devoted to these areas of potential harm. Indeed,
regarding aesthetic impact, Plaintiffs cite to a single, non-precedential decision
from the Oklahoma Court of Civil Appeals. No meaningful evidence regarding
diminution of property values was tendered, nor were issues regarding frustrated
land use or impaired aesthetics developed. Moreover, expert opinion evidence
proffered by Plaintiffs was restricted to sound and infrasound levels and potential
health effects, and related assertions regarding sleep disturbance and its impact on
health.
19

that Plaintiffs have failed to present more than merely speculative proof of harm
from the operation of the turbines.
On the record before it, the Court concludes that Plaintiffs have failed to
make the required showing of likely harm. Specifically, Plaintiffs have failed to
show a triable issue that there exists a reasonable probability an injury will occur
as a result of the wind farm’s operation. The harm alleged by Plaintiffs and their
experts, at this juncture, is speculative at best, and in the Court’s view, a
reasonable trier of fact could not conclude, based on the evidence presented to
date, that the shadow flicker or sound/infrasound from the turbines has caused or
will cause adverse health effects to Plaintiffs. Moreover, the Court finds that the
aesthetic concerns voiced by certain plaintiffs, based on the current record and
absent any significant evidence of adverse health effects, are insufficient alone to
constitute an actionable nuisance. At this late stage of the litigation, after a full
opportunity to conduct discovery and marshal evidence, the injuries cited by
Plaintiffs are simply too speculative to constitute harm sufficient under their
anticipatory nuisance theory and, as discussed infra, to support the mandatory
injunctive relief requested.10

10

Whether an activity constitutes a nuisance is ordinarily a question of fact. See
e.g., Smilie v. Taft Stadium Bd. of Control, 1949 OK 42, ¶ 13, 205 P.2d 301, 307.
But as with any question of fact, such issue can be resolved on summary judgment
if the evidence “is so one-sided that one party must prevail as a matter of law.”
20

For a party to obtain a permanent injunction, it must prove: (1) actual
success on the merits; (2) irreparable harm unless the injunction is issued; (3) the
threatened injury outweighs the harm that the injunction may cause the opposing
party; and (4) the injunction, if issued, will not adversely affect the public interest.
Southwest Stainless, LP v. Sappington, 582 F.3d 1176, 1191 (10th Cir. 2009)
(quoting Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 822 (10th Cir.
2007)). A permanent injunction is an extraordinary remedy, thus, the right to relief
must be clear and unequivocal. Schrier v. Univ. of Colo., 427 F.3d 1253, 1258
(10th Cir. 2005). As noted above, “a mere fear or apprehension of injury is
insufficient.” Burlington Northern and Santa Fe Ry. Co. v. Grant, 505 F.3d 1013,
1023 (10th Cir. 2007) (quoting Sharp, 925 P.2d at 549). “Moreover, the Court
recognizes that mandatory permanent injunctions are looked upon disfavorably and
are generally only granted in compelling circumstances.” Florham Park Chevron,
Inc. v. Chevron U.S.A., Inc., 680 F.Supp. 159, 166 (D.N.J. 1988) (citation omitted).
In addition to the failure of proof regarding the harm required to establish a
claim for anticipatory nuisance, the balance of hardships as between the parties
cannot reasonably be viewed as tipping in favor of Plaintiffs. Defendant correctly
points out that, because Plaintiffs elected not to pursue preliminary injunctive
relief, there was no legal impediment to its continued construction – and
Simpson v. Univ. of Colo., 500 F.3d 1170, 1179 (10th Cir. 2007) (quoting
Bingaman v. Kan. City Power & Light Co., 1 F.3d 976, 980-81 (10th Cir. 1993)).
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completion – of the wind farm during the pendency of this case. Thus, the KWP is
now operational, at a cost of approximately $450,000,000. Plaintiffs’ stated reason
for eschewing the pursuit of preliminary injunctive relief early on in this case –
that they would not likely have been able to afford an injunction bond – is
unavailing (the Court has “wide discretion” in determining the amount of a bond,
see Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d 1149,
1158 (10th Cir. 2001) (citation omitted); Coquina Oil Corp. v. Transwestern
Pipeline Co., 825 F.2d 1461, 1462 (10th Cir. 1987)). In the face of Plaintiffs’
speculative evidence of injury from the KWP, the enormous cost and delay
associated with the relief sought by Plaintiffs strongly militates against an
injunction here, and compels the clear conclusion that the balance of hardships
here does not tip in Plaintiffs’ favor.
Because Plaintiffs have failed to make an adequate showing of success on
the merits, irreparable harm, or that the threatened injury outweighs the harm that
the injunction would cause Kingfisher, the Court need not consider the remaining
factor regarding the issuance of an injunction. See Heideman v. South Salt Lake
City, 348 F.3d 1182, 1188-89 (10th Cir. 2003) (“It is the [plaintiff’s] burden to
establish that each of these factors tips in his or her favor.”) (citing Kikumura v.
Hurley, 242 F.3d 950, 955 (10th Cir. 2001)). Thus, Plaintiffs have not established
the existence of a triable issue regarding likely harm sufficient to support their
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claims of anticipatory nuisance, and have failed to demonstrate that a rational trier
of fact could find in their favor regarding an entitlement to permanent injunctive
relief.
The Court’s ruling is confined to the particular facts and circumstances of
this case, and the singular claim advanced by Plaintiffs. Based on the record before
it, the Court only concludes that Plaintiffs, under their present theory of
anticipatory nuisance, have failed to meet their burden of showing injury will
likely occur from the turbines’ operation, and that they would be entitled to the
remedy they seek.
CONCLUSION
The Court has carefully considered all of the parties’ arguments. To the
extent any issue was not specifically addressed above, it is either moot or without
merit. Defendant’s Motion for Summary Judgment on the issue of standing [Doc.
No. 116] is DENIED, and its Motion for Summary Judgment on the Merits of
Plaintiffs’ Nuisance Claim [Doc. No. 117] is GRANTED as set forth herein. A
separate judgment shall be issued forthwith.
IT IS SO ORDERED this 13th day of October, 2016.

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