Case 5:17-cv-00162-F Document 21 Filed 06/05/17 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
1.

MINCO WIND IV, LLC
Plaintiff,
v.

1.

TOWN OF HINTON, OKLAHOMA,
Defendant.

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Case No. CIV-17-162-F

SECOND AMENDED COMPLAINT
Plaintiff Minco Wind IV, LLC (“Plaintiff” or “Minco Wind IV”), a Delaware
limited liability company, for its Second Amended Complaint against Defendant, Town of
Hinton, Oklahoma, a municipal corporation, alleges and asserts the following:
Parties, Venue and Jurisdiction
1.

Plaintiff is a limited liability company organized under the laws of the State

of Delaware with its principal places of business in the State of Florida. Specifically,
Plaintiff is organized under the laws of the State of Delaware and its sole member is ESI
Energy, LLC. ESI Energy, LLC, is organized under the laws of the State of Delaware and
its sole member is NextEra Energy Resources, LLC. NextEra Energy Resources, LLC, is
organized under the laws of the State of Delaware and its sole member is NextEra Energy
Capital Holdings, Inc. NextEra Energy Capital Holdings, Inc. is incorporated under the
laws of the State of Florida with its principal place of business in Florida. Therefore, none
of Plaintiff’s members is a citizen of Oklahoma.

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2.

Defendant, Town of Hinton, Oklahoma (“Town of Hinton”), is now, and at

all relevant times to this Second Amended Complaint was, a municipal corporation situated
within Caddo County, Oklahoma, and chartered under the laws of Oklahoma.
3.

This Court has jurisdiction over Plaintiff’s claims pursuant to 28 U.S.C. §

1332 because there is complete diversity of citizenship among the parties, and the value of
the amount in controversy exceeds $75,000 exclusive of interest and costs. The Court has
jurisdiction to render declaratory judgments pursuant to 28 U.S.C. §§ 2201 and 2202.
4.

Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(1) and (2)

because the events and omissions giving rise to this claim occurred in this district, and the
Town of Hinton is located in and operates within this district.
Statement of Facts
A.

The Minco IV Wind Energy Project
5.

Plaintiff’s indirect parent, NextEra Energy Resources, LLC (“NextEra”), and

affiliated companies, are leading producers of clean energy. In particular, Plaintiff and its
affiliates are the largest generators of wind energy in North America.
6.

NextEra, through affiliates, including Plaintiff, has invested heavily in wind

power projects within the State of Oklahoma. Plaintiff is the owner of a wind energy project
(the “Minco IV Project”) in Caddo and Canadian Counties, including near the town
boundaries of the Town of Hinton.
7.

The Minco IV Project represents a significant investment in Caddo County,

and furthers Oklahoma’s status as one of the world’s leading producers of wind energy.

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8.

The Minco IV Project has been in development for several years. During that

time, Plaintiff and its development partners have complied with all applicable regulatory
requirements. NextEra-affiliated companies, including Plaintiff, have spent millions of
dollars to lease land and otherwise prepare for construction of the Minco IV Project, with
the reasonable expectation that compliance with all existing laws, ordinances and
regulations would allow the project to proceed.
9.

In addition to being the owner of the Minco IV Project as a whole, Plaintiff

also owns valuable property rights (as described more fully below) within the project area
that it acquired through several Wind Farm Easement Agreements, which cover real
property that is within a two-mile radius of the Town of Hinton and on which one or more
wind turbines over 200 feet in height are planned to be constructed. At least two of these
Wind Farm Easement Agreements (“Easement Agreements”) for property within two miles
of Hinton’s borders were executed at or near one year before the ordinance at issue was
passed in January 2017 and this lawsuit was filed in February 2017.
10.

The first of these Easement Agreements was signed by the landowners on

December 9, 2015, by Minco IV on January 8, 2016 and the corresponding Memorandum
of Easement Agreement (“Easement Memorandum”) was recorded in the public records of
Caddo County on March 1, 2016 in the name of Minco IV.
11.

The second of these Easement Agreements was signed by the landowners on

December 22, 2015, signed by Minco IV on February 26, 2016, and the corresponding
Easement Memorandum was recorded in the public records of Caddo County on March
24, 2016 in the name of Minco IV.
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12.

The Easement Agreements owned by Plaintiff constitute property interests,

and they afford Plaintiff numerous rights. For example, the Wind Farm Easement
Agreements grant an unrestricted option, which Plaintiff may exercise unilaterally, to
property rights in the airspace above the leased parcels, which the Oklahoma Airspace Act,
60 O.S. § 801 et seq. and the Airspace Severance Restriction Act, 60 O.S. § 820.1 confirm
are real property interests. The Wind Farm Easement Agreements grant several additional
property rights in the form of immediate and continuing rights to enter and use the affected
property for specific purposes related to wind energy development, as described in the
following Section 3.3 of the Wind Farm Easement Agreements:

13.

In exchange for both these immediately-vested rights and obtaining the

option for further easements to fully develop wind energy facilities, the landowners
received consideration at the time they entered into the Wind Farm Easement Agreements.
B.

The Ordinance
14.

However, on January 17, 2017, the Town of Hinton passed Ordinance 2016-

08 (the “Ordinance”) that is intended to restrict and curtail the Minco IV Project.
Specifically, the Ordinance preemptively and improperly declares some of the wind energy

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equipment that will be used in the Minco IV Project to be a public nuisance, and prohibits
its presence within two miles of the Town of Hinton’s town boundaries. As it is currently
written, the Ordinance would prohibit the construction of certain parts of the Minco IV
Project; would specifically prohibit construction of planned wind turbines on property that
is the subject of Wind Farm Easement Agreements signed by Plaintiff prior to the date this
lawsuit was first filed; and potentially jeopardizes the viability of the Minco IV Project
entirely.
15.

Although the Ordinance allows for permits to be obtained for certain types

of non-commercial wind energy equipment, it explicitly prohibits some or all of the
commercial equipment that will be used in the Minco IV Project.
C.

Substantive and Procedural Problems with the Ordinance
16.

The Ordinance is clearly intended to disrupt the Minco IV Project. For

example, upon information and belief and according to published reports, Town of Hinton
officials cited the development of the Minco IV Project as the reason behind the Ordinance.
17.

Further investigation revealed that the Ordinance was not properly enacted.

The Town of Hinton generally only has power to pass ordinances that control activities
within its municipal boundaries. However, by statute, it may work through a regional
planning commission in certain instances to pass ordinances that control development up
to three miles outside the town borders. Here, the Ordinance purports to control
development two miles outside the borders of the Town of Hinton. Thus, to be effective,
the Ordinance must have been developed pursuant to the powers of a regional planning
commission. Indeed, public records reveal that the Ordinance was apparently considered
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and recommended by the Regional Planning Commission of the Town of Hinton
(“Regional Planning Commission”), before being passed by the Town of Hinton.
18.

However, towns and regional planning commissions may only wield

authority when they act in compliance with applicable statutes and regulations. Upon
information and belief, and after a search of public records, the Town of Hinton and the
Regional Planning Commission did not follow the proper procedures to consider and pass
the Ordinance, for at least the following reasons:
a. The Regional Planning Commission had no authority at the time it acted. The Town
of Hinton passed Ordinance No. 2016-17, which created the Regional Planning
Commission, at its December 20, 2016 meeting. Although most municipal
ordinances do not go into effect until 30 days after their passage, Ordinance No.
2016-17 purported to go into effect as soon as it was published, pursuant to an
“Emergency” clause contained therein. However, this “Emergency” clause was
invalid because it did not “state in a separate section the reasons why it is necessary
that the measure become effective immediately” as required by 11 O.S. § 14-103.
Therefore, Ordinance No. 2016-17 went into effect no earlier than 30 days after its
passage, or January 19, 2017. Thus, the Regional Planning Commission did not yet
have authority to act when it considered and recommended the Ordinance at its
January 12, 2017 meeting. Because the Regional Planning Commission lacked
authority to consider and recommend the Ordinance to the Town of Hinton, the
Town of Hinton likewise lacked authority to pass the Ordinance on January 17,
2017.
b. The Regional Planning Commission was not properly formed because it did not
include the Chairman of the Board of County Commissioners of Caddo County
and/or the county engineer as a member as required by 11 O.S. § 46-101, nor did it
notify the Chairman or county engineer of the January 12, 2017 meeting at which
the Ordinance was considered. Caddo County has not ceded its planning authority
over the unincorporated areas at issue in this lawsuit to the Town of Hinton.
c. The Regional Planning Commission did not make a preliminary report, hold public
hearings thereon, and/or submit a final report; and the Town of Hinton did not wait
to receive such final report before it considered and acted upon the Ordinance. This
is a violation of 11 O.S. § 43-109. Alternatively, the Regional Planning Commission
had no authority to make preliminary and/or final reports at its January 12, 2017
meeting because, as stated above, it did not have legally-sufficient authority to act
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because the ordinance that purported to create it, Ordinance No. 2016-17, had not
yet gone into effect.
d. The January 12, 2017 Regional Planning Commission meeting at which the
Ordinance was considered violated the Oklahoma Open Meetings Act, including by
failing to provide proper notice in accordance with 25 O.S. § 311.
e. The January 17, 2017 Town of Hinton meeting at which the Ordinance was passed
violated applicable notice requirements, including notice by publication and mail as
required by 11 O.S. § 43-104. Thus, the Town of Hinton passed the Ordinance
without giving proper notice to the Caddo County landowners that are affected by
it.
19.

Thus, the Regional Planning Commission and the Town of Hinton did not

properly consider and pass the Ordinance, rendering the Ordinance null and void.
20.

Moreover, the Ordinance declares certain equipment that will be used in the

Minco IV Project to be a “public nuisance,” without a sufficient basis for doing so.
Although the Ordinance lists ten findings to support its nuisance declaration, these findings
are factually and scientifically inaccurate, and wholly insufficient to support a conclusion
that the equipment constitutes a nuisance.
21.

The Minco IV Project also complies with the Town of Hinton’s

Comprehensive Plan, and is consistent with the rural and agricultural nature of the
surrounding area.
D.

The Ordinance Has Caused Clear, Immediate Injury to Plaintiff and its
Property Rights
22.

The Ordinance directly harms property rights owned by the Plaintiff,

including valuable property rights that Plaintiff owned long before this lawsuit was filed.
23.

As described above, Plaintiff owns immediate and continuing rights to enter

and use the affected property for specific purposes related to wind energy development, as
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well as the unrestricted option to perform additional development, such as erect turbines
and construct infrastructure.
24.

In addition to the standing afforded Plaintiff by virtue of its own vested

rights, the landowners also assigned to Plaintiff their standing to challenge an ordinance
such as the one at issue here. This assignment of standing is provided in Section 10.5 of
the Easement Agreements:

Thus, Plaintiff also has the contractual right (and potentially the contractual obligation) to
protect the interests assigned to it by the landowners that would be otherwise harmed by
the Ordinance.
25.

The Ordinance has destroyed Plaintiff’s rights to erect wind turbines and

associated facilities on property that was leased for that very purpose. Specifically, Plaintiff
owns the right to, and planned/plans to, erect wind turbines over 200 feet in height and
associated infrastructure on property within two miles of Hinton’s borders, which rights
Plaintiff received via Wind Farm Easement Agreements that Plaintiff signed before this
lawsuit was first filed. The immediate rights of entry and use granted in the Wind Farm
Easement Agreements are also rendered worthless by the Ordinance. For example, it is
pointless and a waste of resources to install and monitor wind energy devices (such as Met

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Towers) on property where the Ordinance prohibits the construction of a turbine or related
infrastructure. Moreover, the “option” aspect of the Wind Farm Easement Agreements can
be exercised by Plaintiff at any time without further notice to, or consent from, the
landowner. These rights are not “optional” future contingencies -- they are immediate and
tangible rights that serve as necessary and valuable precursors to eventual wind energy
development. The Ordinance took, invalidated, and rendered meaningless all these rights,
resulting in specific and severe injury to Plaintiff and its property interests (as well as injury
to the landowners and their property rights).
E.

Enforcing the Ordinance Will Cause Well Over $75,000 in Harm to Plaintiff
26.

Enforcing the Ordinance will harm Plaintiff in an amount far exceeding

$75,000, exclusive of interest and costs. If required to comply with the Ordinance, Plaintiff
stands to lose some, if not all, of the millions of dollars in time and money invested before
the Ordinance was enacted.
27.

As enacted, the Ordinance would preclude the construction of at least one

wind turbine that falls within the Ordinance’s two-mile radius around the town. In addition,
and perhaps more importantly, complying with the Ordinance could force the elimination
or relocation of Wind Farm Facilities, including transmission infrastructure, necessary to
transport the energy produced from individual turbines to the larger electrical supply
system. This would harm the entire Minco IV Project, and not just the portion located
within two miles of the town’s borders. The locations of turbines and Wind Farm Facilities
for the Minco IV Project are crucial pieces of a financial, legal, and operational jigsaw
puzzle that must be properly placed together in order to make the wind energy development
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physically and economically viable. Eliminating, or even relocating, a turbine or piece of
transmission infrastructure increases costs, decreases profitability, and threatens both the
operational and financial viability of the project. In short, compliance with the Ordinance
as currently worded would harm Plaintiff in an amount far exceeding $75,000, exclusive
of interest and costs.
Cause of Action: Declaratory Judgment
28.

Plaintiff incorporates by reference each of the preceding paragraphs.

29.

An actual controversy has arisen and now exists between Plaintiff and the

Town of Hinton relating to their respective rights and duties vis-à-vis the Ordinance. If the
Ordinance were to be enforced as written, it would bar Plaintiff from developing parts of
the already-planned Minco IV Project. However, Plaintiff contends that the Ordinance is
null and void, and has no legal effect, for many reasons including the reasons listed in this
Second Amended Complaint.
30.

The Town of Hinton’s passage of the Ordinance was also unreasonable, and

an arbitrary and capricious exercise of police powers. The Town’s reasons for passing the
Ordinance, including the reasons listed in Section 4-705 of the Ordinance, are not based on
facts and/or do not legitimately support the Ordinance. Therefore, the Ordinance, as
enacted and enforced, constitutes an unreasonable, arbitrary exercise of police power by
the Town of Hinton and would cause unnecessary hardship or create a substantial harm or
loss to Plaintiff.
31.

A judicial determination is necessary and appropriate at this time so that

Plaintiff and the Town of Hinton may ascertain their respective rights and duties with
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respect to the Ordinance. Plaintiff seeks a declaration that the Ordinance is null, void, and
of no legal effect.
32.

Plaintiff seeks an injunction because Plaintiff will be irreparably harmed if

the unlawful Ordinance is enforced against it. Upon information and belief, the Ordinance
was created for the sole purpose of hindering the Minco IV Project, which is a project into
which Plaintiff and affiliated companies have already invested years of time and millions
of dollars. If the Ordinance is allowed to be enforced despite its many deficiencies, Plaintiff
will be forever denied the right to proper notice and the opportunity to meaningfully
participate in the making of laws that purport to directly impact Plaintiff’s property rights.
Monetary compensation could not properly compensate Plaintiff for these injuries.
33.

The harm to the Town of Hinton, if any, of granting the injunction will not

outweigh the harm to Plaintiff of denying the injunction. Rather, if the injunction is granted,
the parties would be returned to the positions they would have been in had the Town of
Hinton not taken unlawful and unauthorized action. Moreover, the injunction sought in this
suit would serve the public interest by recognizing and enforcing the rights and
responsibilities contained in Oklahoma’s statutes relating to municipal and zoning
ordinances, and by ensuring that municipalities only interfere with private property rights
in a lawful manner.
Prayer for Relief
WHEREFORE, Plaintiff prays for the following relief:
a.

A judgment declaring that the Town of Hinton and/or the Regional Planning

Commission failed to comply with applicable law when passing the Ordinance;
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b.

A judgment declaring the Ordinance to be null and void, and of no legal

effect whatsoever;
c.

A judgment declaring that the Ordinance, as enacted and enforced,

constitutes an unreasonable, arbitrary exercise of police power by the Town of Hinton and
would cause unnecessary hardship or create a substantial harm or loss to Plaintiff;
d.

Temporary and permanent injunctions prohibiting the Town of Hinton from

enforcing the Ordinance;
e.

An award of Plaintiff’s reasonable attorneys’ fees and costs; and

f.

All other relief to which Plaintiff is entitled.
Respectfully Submitted,
s/ John M. Bunting
Thomas G. Wolfe, OBA #11576
Jason A. Dunn, OBA #22788
John M. Bunting, OBA #31503
PHILLIPS MURRAH P.C.
Corporate Tower, 13th Floor
101 N. Robinson
Oklahoma City, OK 73102
Telephone: (405) 235-4100
Fax:
(405) 235-4133
tgwolfe@phillipsmurrah.com
jadunn@phillipsmurrah.com
jmbunting@phillipsmurrah.com
Attorneys for Plaintiff

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CERTIFICATE OF SERVICE
I hereby certify that on June 5, 2017, I electronically transmitted the foregoing
document to the Clerk of the Court for filing. Based on the records currently on file, the
Clerk of Court will transmit a Notice of Electronic Filing to the following ECF registrants:
Kimberlee T. Spady
406 N. Broadway, Suite D
Post Office Box 433
Hinton, OK 73047
(405) 542-6056
KimSpady@hintonet.net
- and Andrew W. Lester
Spencer Fane LLP
9400 N. Broadway Extension, Suite 600
Oklahoma City, OK 73114
alester@spencerfane.com
Attorneys for Defendant
s/ John M. Bunting
John M. Bunting, OBA #31503
1134509.DOCX

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