Wind farm operator forced to supply privileged communications in Osage County fight


In a court case going back nearly 8 years, a Tulsa Federal Judge has ordered wind farm developer Osage Wind to turn over documents it contended were privileged communication with its legal representation.

Osage Wind was sued by the Osage Minerals Council after it began construction of a wind farm in Osage County in 2013. The U.S. government joined the lawsuit in 2014 in which the Osage tribe contended the ground development for the 84 wind turbines constituted mining and Osage Wind, whose parent company is Enel Green should have obtained a lease approved by the Secretary of Interior.

U.S. District Judge James Payne’s ruling that the work did not constitute mining was overturned by the 10th U.S. Circuit Court of Appeals.

Subsequently, Osage Wind LLC contended it did not trespass and violate laws based on its argument that it had acted on legal advice which said a mining permit was not necessary.

The U.S. government filed motions to obtain the legal memoranda, email communications and documents between the legal advisors and Osage Wind.

U.S. Magistrate Judge Jodi F. Jayne recently issued an opinion that the documents should be made available for an in camera review “because Defendants placed their counsel’s advice directly at issue by relying on a “detailed legal analysis” of outside counsel to prove their subjective good faith belief in the legality of their conduct.”

The judge ruled against Osage Wind in the continuing legal battle over the wind farm.


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