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Apex says windmill class action should be dismissed

By Kyla Asbury | Oct 5, 2014

OKLAHOMA CITY (Legal Newsline) - Apex has filed a motion to dismiss a class action lawsuit against it over its $452 million wind farm, which the plaintiffs claim is a nuisance that devalues their homes.

Apex claims the Oklahoma Wind Action Association does not appear to be an appropriate membership organization, according to the Sept. 23 motion to dismiss.

"Implicit in the first element is the requirement that the association be a membership organization that has members who participate in and guide the organization’s activities," the motion states. "Association standing is most appropriate when the organization at issue is a 'traditional voluntary membership organizations' — such as a trade association."

Although non-profit corporations and other entities may properly invoke association standing, such entities may do so only if they operate as "the functional equivalent of a traditional membership organization," the motion says.

"In determining whether an entity is the functional equivalent of a traditional membership organization, the court should look at whether the purported members actively participate in, control, and fund the organization’s activities," the motion states. "If the purported members do not play a role in selecting the organization’s leadership, guiding its activities, and financing those activities, association standing is not appropriate."

In this case, the association has alleged only that it is suing on behalf of its purported members and that it "represents a large group of landowners in Canadian and Kingfisher Counties, Oklahoma, who live and own property within the immediate vicinity, at least within three... miles, of defendants’ currently planned IWECS," the motion says.

"The complaint is silent, however, as to how many members the association has, or whether or how those purported members participate in and guide the association’s activities," the motion states. "Therefore, the complaint does not plausibly suggest the association is the functional equivalent of a traditional membership organization."

The complaint does not identify a single association member who will allegedly be injured by the proposed wind farm, according to the motion. In fact, the complaint does not even allege whether the landowners the association purports to represent are actually members of the association, it adds.

The complaint was filed Aug. 27 in the U.S. District Court for the Western District of Oklahoma by the Oklahoma Wind Action Association, Terra Walker, Cheyenne Ward, Julie Harris, Janelle Grellner, Elisa Kay Kochenower, Karri Parson and Cindy Shelley after they claimed the defendants' planned wind farm projects create a nuisance, devalue their homes and can adversely affect their health.

The lawsuit was brought against Apex Clean Energy Inc., Apex Clean Energy Holdings LLC, Kingfisher Wind LLC, Kingfisher Wind Land Holdings LLC, Kingfisher Transmission LLC, Campbell Creek Wind LLC and Campbell Creek Wind Transmission LLC.

The plaintiffs all live within three miles of the planned wind farm and own property within the "no-build" zone of the planned locations of the wind turbines.

The plaintiffs claim many citizens of Canadian and Kingfisher counties did not become aware of the wind farm’s development until 2012. Citizens voiced their concerns to local municipalities regarding adverse health and economic effects caused by IWECS to neighboring landowners.

Within the past several years, the defendants constructed the Canadian Hills Wind Farm between the City of Okarche, Okla. and Calumet, Okla., in Northwestern Canadian County, according to the suit.

The plaintiffs claim the infra and low frequency sound is caused by both in-flow air turbulence and also as a result of the blade passing in front of the tower at the bottom of the rotation.

The blade/tower interaction produces a pulse of sound with a rapid rise time and short duration that results in a dynamically modulated tone at the blade-pass frequency in the frequency range below 1 Hz, according to the suit.

"Additionally, noise exposure from IWECS operations, even at relatively low levels, can cause developmental problems with the brain’s ability to understand and learn language," the complaint states. "Environmental noise created from IWECS impairs children’s learning by changing how they process language sounds."

The plaintiffs claim the noise also deteriorates the ability — in both children and adults — to properly think, remember or concentrate during exposure.

The infrasonic noise generated by IWECS also causes sleeping disorders, headaches, mood disorders, tinnitus and vestibular problems, according to the suit.

The plaintiffs are represented by Jason B. Aamodt, Deanna L. Hartley, Krystina E. Phillips and Dallas L.D. Strimple of Indian and Environmental Law Group PLLC.

The defendants are represented by J. Todd Woolery, Timothy J. Bornhoff, Jodi Cole and Patrick L. Stein of McAfee & Taft.

The case is assigned to District Judge Tim Leonard.

U.S. District Court for the Western District of Oklahoma case number: 5:14-cv-00914

From Legal Newsline: Kyla Asbury can be reached at classactions@legalnewsline.com.

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