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The Osage Nation v. Board of Commissioners of Osage County

Supreme Court of Oklahoma

May 2, 2017

THE OSAGE NATION, Plaintiff/Appellant
v.
BOARD OF COMMISSIONERS OF OSAGE COUNTY, OKLAHOMA; BOARD OF ADJUSTMENT OF OSAGE COUNTY; and OSAGE WIND LLC, Defendants/Appellees. and THE OSAGE MINERALS COUNCIL, Plaintiff, THE OSAGE NATION, Appellant, and THE OSAGE MINERALS COUNCIL, Plaintiff,
v.
OSAGE COUNTY BOARD OF ADJUSTMENT, Appellee, and OSAGE WIND, LLC, Intervenor.

         APPEAL FROM THE DISTRICT COURT FOR OSAGE COUNTY: Nos. 113, 414, 113, 415 Honorable Robert G. Haney

          John W. Moody, Tulsa, Oklahoma for Appellant, Osage Nation.

          R. Tom Hillis, Assistant District Attorney of Osage County, Pawhuska, Oklahoma, for Defendants/Appellees Osage County Board of Adjustment and Board of Commissioners of Osage County.

          Joel L. Wohlgemuth and Ryan A. Ray, Norman Wohlgemuth Chandler Jeter Barnett & Ray, Tulsa, Oklahoma, for Defendant, Osage Wind, LLC.

          EDMONDSON, J.

         ¶0 Plaintiffs in two related District Court proceedings challenged zoning ordinances and a conditional use permit approved by the Board of Adjustment for Osage County for the construction and operation of a wind energy facility. One District Court proceeding sought declaratory and injunctive relief against the Board of Adjustment and County Commissioners. The second proceeding was filed in the District Court as an appeal from an order by the Osage County Board of Adjustment. Upon conclusion of a combined hearing on both proceedings, the District Court, Hon. Robert G. Haney, District Judge, dismissed the actions by a single journal entry of judgment and Plaintiffs appealed. The Court retained the appeals. We hold: (1) In appeal No. 113, 414, all claims for injunctive and declaratory relief by the Osage Nation are barred by laches except one claim for a declaratory judgment against governmental entities on the validity of a zoning ordinance, and this claim is remanded with instructions; (2) In appeal No. 113, 415, the Osage Nation's 2014 appeal to the District Court from a board of adjustment decision was untimely to review a permit issued by that board more than two years previously and other issues raised in No. 113, 415 are not reviewable on appeal due to a lack of a supporting record.

         ¶1 The District Court of Osage County had three related but distinct proceedings before it involving wind farms in Osage County, and orders in each of the three were appealed to this Court. [1] One of the appeals was adjudicated by our recent opinion in Mustang Run Wind Project, LLC v. Osage County Board of Adjustment, 2016 OK 113, 387 P.3d 333. The remaining two appeals arise from a single journal entry of judgment which adjudicated claims in two District Court proceedings, and we address those two appeals by a single appellate opinion.

         ¶2 The first appeal, Okla. Sup. Ct. No. 113, 414, arises from a journal entry of judgment adjudicating claims made in Osage County case CV-2014-41. The Osage Nation and the Osage Minerals Council filed a proceeding in the District Court for Osage County and requested declaratory and injunctive relief against the Board of Commissioners of Osage County, the Board of Adjustment of Osage County, and Osage Wind, LLC. Plaintiffs' request for relief was based upon an allegation defendants Board of Commissioners and Board of Adjustment had created an "unlawful authorization of wind energy facilities in Osage County." [2] The Board of County Commissioners and Board of Adjustment filed a combined motion to dismiss. Osage Wind, LLC, filed a separate motion to dismiss.

         ¶3 When responding to these motions the plaintiffs summarized their position and stated that "neither Osage County law nor State of Oklahoma law authorize the Board of Adjustment of Osage County ("Board of Adjustment") to issue a Conditional Use Permit ("CUP") for a wind energy facility in Osage County." [3] Plaintiffs argued the Legislature created five different statutory schemes for counties to enact zoning regulations and the authority for creating conditional use permits was not granted to counties. Plaintiffs also argued sections 1.7.1, 2.1.2, and 6.5.2 of the Osage County zoning ordinances do not allow a conditional use permit. They argued the Osage County Wind Energy Ordinance was improperly created due to an alleged deficient public notice.

         ¶4 The second appeal, Okla. Sup. Ct. No. 113, 415, is brought by the Osage Nation from adjudicated claims made in Osage County case, CV-2014-36. This appeal was prosecuted pursuant to Rule 1.36 which provides for the trial court filings to serve as the appellate briefs and the assignments of error on appeal are those listed in an appellant's petition in error. [4] The Osage Nation's petition in error in this Court classifies this District Court proceeding as an appeal from a decision of the Osage County Board of Adjustment.

         ¶5 The petition in error alleges: (1) Appellant could prove facts in support of its claim and dismissal for failure to state a claim was improper; (2) Appellant was entitled to a trial de novo on an appeal from a board of adjustment; (3) Disputed facts were raised by the motions to dismiss, and the motion to dismiss should have been converted to summary judgment and appellant provided an opportunity to respond; (4) Appellant possessed a statutory right to challenge the decision of the board of adjustment; (5) Counties possess zoning powers only when granted by the Legislature; (6) 19 O.S. 2011 § 866.23 does not give authority to Osage County the to adopt a zoning ordinance empowering the Board of Adjustment to approve special use permits or conditional use permits; (7) A trial de novo was required to determine whether Osage County Zoning Ordinance, § 6.5.2, was valid and constitutional as measured against 19 O.S. 2011 § 866.23; (8) Zoning Ordinance § 6.5.2 is void ab initio because it authorizes the board of adjustment to issue conditional use permits; (9) The Board of Adjustment had no authority to approve a conditional use permit for a wind generating facility; (10) Sections of Oklahoma Statutes, Title 11, giving authority to municipalities to pass zoning ordinances and authorizing a board of adjustment to grant conditional use permits do not authorize a county board of adjustment to issue such permits; (11) Issues precluded by the previous litigation in federal court should not prevent an appeal from a board of adjustment; and (12) Issue preclusion and laches do not bar an appeal from a decision of a board of adjustment when the board acts outside its jurisdiction by issuing a conditional use permit. The District Court held a hearing to simultaneously address the pending District Court proceedings involving these parties, and dismissed both cases by a single journal entry of judgment after hearing arguments from counsel. The filed judgment first addressed the motion to dismiss and the sufficiency of the petition in CV-2014-41.

         ¶6 The District Court determined the Osage Nation's 2014 legal challenge seeking declaratory and injunctive relief came too late to attack a conditional use permit granted to Osage Wind in 2011, and the challenge was barred by laches. The trial court stated "all of the alleged legal infirmities in the Petition for Declaratory Judgment fail as a matter of law on their merits." The trial court also determined the Osage Nation and the Osage Minerals Council lacked standing to prosecute the claims raised because these parties "litigated the issue of the Osage Wind energy project's interference with their mineral estate in the United States District Court for the Northern District of Oklahoma... and lost that issue on the merits... [and] they are accordingly precluded by the doctrines of claim preclusion and issue preclusion from relitigating that finding of fact in this proceeding." The trial court determined other issues raised by plaintiffs were insufficient to confer standing "because they fail to demonstrate an injury in fact to a legally protectable interest of the Osage Nation or the Osage Minerals Council."

         ¶7 The judgment then addressed CV-2014-36 and dismissed it because (1) all of the grounds in support of dismissal in CV-2014-41 also supported dismissal in CV-2014-36, and (2) the claims of the plaintiffs were barred by a ten-day statute of limitations for appeals of decision of boards of adjustment in 19 O.S. § 865.64. No order consolidating the two cases in the trial court appears in either of the appellate records in this Court, and we have treated them as companion cases for the purpose of appellate review.

         I. Okla. Sup. Ct. No. 113, 415, Board of Adjustment Appeal (No. CV-2014-36).

         ¶8 In May 2014, the Osage Nation filed in the District Court a "Notice of Appeal." This Notice states appellant's "do hereby appeal the decision of the Board of Adjustment of the County of Osage, Oklahoma, rendered on May 8, 2014, denying Appellant's Petition to the Board of Adjustment to Rescind the Wind Capital Energy Project Variance rendered in Case No. CUP-2012-01 and Prohibit Construction at the Project Site Until the Board Properly Authorizes the Project (the "Petition") to the District Court of Osage County, State of Oklahoma." Osage Wind, LLC, filed a motion to intervene in the District Court proceeding.

         ¶9 During the trial court hearing the Osage Nation argued the conditional use permit approved for Osage Wind, LLC, in a 2011 Board of Adjustment hearing was void because the Board did not possess authority to issue such a permit, and this alleged jurisdictional flaw had legal consequences of: (1) negating the ten-day statutory limit for filing a Board of Adjustment appeal to the District Court, (2) providing the Osage Nation an opportunity to file an appeal in the District Court from the Board's decision and thereby challenge the underlying three-year-old decision of the Board which issued the permit, and (3) providing the Osage Nation with an opportunity to file a petition to vacate the permit with the Board and then appeal that decision to the District Court.

         ¶10 In 1995, we explained when an order is "utterly void on its face" this attribute does not change or alter the time for appealing that order: "One cannot justify postponing an appeal by one's good-faith belief in the decision's invalidity. Mandatory appeal time applies to orders, whether valid or infirm." [5] A municipal board of adjustment exercises quasi-judicial power when granting a variance, [6] and the statutory requirements for perfecting an appeal from a municipal board of adjustment are mandatory. [7] A county board of adjustment deciding to issue a conditional use permit also exercises a quasi-judicial power. [8] An appeal from a county board of adjustment's decision to a District Court is required by 19 O.S.2011 § 865.64 to be brought within ten days. [9]

         ¶11 In the related case of Mustang Run Wind Project, LLC v. Osage County Board of Adjustment, 2016 OK 113, we observed "the materials presented in the appellate record appear to show the existence of a cooperative municipal and county planning commission, i.e., "Pawhuska-Osage County Planning Area Commission" which regulates zoning in all of Osage County" and we applied the City-County Planning and Zoning Act, 19 O.S. 2011 §§ 866.1 -866.35. [10] This Act also contains a similar ten-day requirement for an appeal from a Board of Adjustment to a District Court: 19 O.S.2011 § 866.24. [11]

         ¶12 A statutory time limit for commencing an appeal has been historically viewed as jurisdictional in nature [12] and beyond a court's power to alter in the absence of an applicable constitutional requirement. [13] The oral request for dismissal of the appeal in the District Court was based, in part, upon the jurisdictional requirement of 19 O.S.2011 § 866.24, Notice of Appeal in the District Court, and the filings made with the Board of Adjustment which had been filed in the District Court.

         ¶13 When applying a mandatory time limit for commencing an appeal we have used language describing this issue as jurisdictional and apart from issues on the merits of the controversy or appeal. [14] Resolution of the issue whether the jurisdictional ten-day requirement in § 866.24 bars a 2014 appeal of the three-year-old permit does not thereby require resolving any substantive issue plaintiffs raised in their CV-2014-36 challenge to the permit, and the § 866.24 jurisdictional issue is not intertwined with the merits of the controversy. [15] We may adjudicate the jurisdictional issue without involving the merits of appellant's challenges.

         ¶14 Some motions may be made orally pursuant to 12 O.S. § 2007. [16] Applying a similar procedural rule in federal courts allows an oral motion when the substance of a motion and its context show that advance notice of the motion should not be required. [17]

         ¶15 A photocopy of the docket in No. CV-2014-36 shows no filings for either a motion to dismiss or a response to a motion to dismiss. The Board of Adjustment record transmitted to the District Court contains no motion to dismiss or other document challenging the appellant's petition to vacate. On the record before us, a request for dismissal was made during the trial court hearing by oral argument applying mandatory statutory language for a timely appeal to a District Court.

         ¶16 The record on appeal in CV-2014-36 includes the transcript of the District Court hearing, the Notice of Appeal filed in the District Court with photocopies of documents filed with the Board of Adjustment, and the judgment of the District Court. The District Court granted an oral motion to dismiss the appeal, that is, to dismiss the petition to vacate filed with the Board of Adjustment then pending before the trial court for de novo review. This petition does not appear in any form in the appellate record for Okla. Sup. Ct. No.113, 415. The trial transcript in the appellate record shows participation by counsel for appellant at the hearing with no objection to the procedure used by the trial court.

         ¶17 First, matters not first presented to the trial court for resolution are generally not considered on appeal. [18] Secondly, issues relating to lack of notice are usually considered to be waived when a party participates in the trial court proceedings without objecting or asking for a continuance. [19] Thirdly, this appeal is prosecuted pursuant to Rule 1.36 which provides for the trial court filings to serve as the briefs on appeal, no legal authority in support of appellant's argument is part of the appellate record except that made in the trial court hearing, no Rule 1.36(g) motion for leave to submit appellate briefs was made, and propositions relating to trial court error are deemed waived when unsupported by authority on appeal. [20]

         ¶18 These three principles apply to all of appellant's assignments of error on this appeal which involve objections to the trial court procedure, none of which was raised in the trial court hearing according to the partial transcript provided to us, and thus none is preserved in the appellate record in this Court.

         ¶19 Appellant's Notice of Appeal, Board of Adjustment filings, and the trial transcript are sufficient to facially show the existence of a 2014 proceeding before the Board of Adjustment with a subsequent 2014 appeal to the District Court which came too late to appeal a decision by the Board three years earlier, 19 O.S. § 866.24. The District Court's dismissal of the 2014 appeal as an appeal from the 2011 decision is affirmed.

         ¶20 Plaintiffs also argued their proceeding before the Board of Adjustment and subsequent District Court appeal was in the nature of a timely petition to the Board to vacate its earlier decision and not simply an appeal of the three-year-old permit. In the hearing, plaintiffs argued that they could seek a petition to vacate before the board because (1) no county board of adjustment possessed statutory power to issue a conditional use permit and the previously issued permit was void for this reason, (2) certain sections of the Osage County Zoning ordinances were alleged to be invalid, and (3) filing a petition to vacate with a board of adjustment was authorized in Texas by an unnamed appellate opinion from that State. Appellant's assignments of error including those relating to challenges to zoning ordinances and the role of a board of adjustment are not subject to review in this appeal as we now explain.

         ¶21 In an appeal from a board of adjustment to a District Court, the record before the board is transmitted to the clerk of the District Court and the cause is tried de novo in the District Court where that court "shall have the same power and authority as the County Board of Adjustment, together with all other powers of the District Court in law or in equity." [21] This trial de novo is a complete examination of law and fact utilizing, at a minimum, the record presented to the board of adjustment that is transmitted and filed in the District Court. Appellant's assignments of error address the role and authority of a board of adjustment. An appellate record showing the facts presented to the board and then the District Court is important for appellate review because (1) a board of adjustment's exercise of quasi-judicial power does not include a challenge to the constitutional validity of a zoning ordinance, but the reasonableness of a property owner's request based upon the evidence before the board; [22] and (2) the nature of a District Court appeal being a trial de novo in the nature of an equitable proceeding will often be based upon the factual circumstances presented to the court. [23]

         ¶22 The District Court granted a motion to dismiss, a motion which tests the law that governs the claims in the petition. [24] This adjudication of an issue of law requires facts to be present in a certain form, a pleading, which is part of an appellate record and reviewed in an appeal from the dismissal order. The typical standard for reviewing a judgment granting a motion to dismiss requires the appellate court to perform the following.

... the court examines only the controlling law, not the facts. Thus, the court must take as true all of the challenged pleading's allegations together with all reasonable inferences that can be drawn from them. Motions to dismiss are generally disfavored and granted only when there are no facts consistent with the allegations under any cognizable legal theory or there are insufficient facts under a cognizable legal theory.

American Natural Resources, LLC v. Eagle Rock Energy Partners, LP, 2016 OK 67, ¶ 6, 374 P.3d 766, 769 (emphasis added), citing Darrow v. Integris Health, Inc., 2008 OK 1, ¶ 7, 176 P.3d 1204, 1208.

         Appellate review of an order granting a motion to dismiss as described in American Natural Resources, requires an appellate court to examine the allegations of the pleadings.

         ¶23 In this appeal, the Court does not have any document from the 2014 Board of Adjustment proceeding except for the Notice of Appeal. Two post-permit documents appear in the Board of Adjustment record that was submitted to this Court. One is a letter from the Pawhuska Osage County Area Planning Commission stating the project is outside any designated flood hazard areas. The second is a letter dated October 25, 2013, sent to the Pawhuska Osage County Area Planning Commission from Osage Wind. The letter states construction work has commenced on-site following a transmission network upgrade and on an electrical substation for the project, and that the total amount spent on this work to date exceeded fifty-three million dollars ($53, 000, 000.).

         ¶24 Appellant's petition to vacate filed with the Board of Adjustment and the Board's decision on that petition are not in the appellant's record provided to this Court. The appellate record in appeal No. 113, 415 contains no formal pleading filed in the District Court in CV-2014-36, except a notice of appeal and certain documents marked "File # 1 from the Osage County Board of Adjustment." The Court has no document before it in appeal No. 113, 415 to assess either (1) the sufficiency of any pleadings, petition or otherwise, or (2) the legal sufficiency of non-incorporated evidential materials if the judgment in CV-2014-36 had the legal effect of an order granting summary judgment. [25]

         ¶25 These circumstances require us to deny appellate review on issues which require examination of documents that are not in the appellate record. Legal error may not be presumed from a silent appellate record, and absent a record affirmatively showing error this Court presumes that the trial court did not err. [26] Appellant does not appear to suffer any prejudice by this result because the substance of the allegations raised in the petition to vacate appears to have been raised by appellant in CV-2014-41, and the District Court's disposition of the substance of those claims is before us in the companion appeal from CV-2014-41, No. 113, 414. [27]

         ¶26 The judgment of the District Court in Osage County No. CV-2014-36, the appeal from the Board of Adjustment, is affirmed.

         II. Okla. Sup. Ct. No. 113, 414, Petition for Declaratory and Injunctive Relief (No. CV-2014-41).

         A. Injunctive Relief and Laches

         ¶27 The District Court's judgment states the face of appellant's petition shows Osage Wind had already begun constructing the wind energy project and Plaintiffs' request for relief was brought nearly three years after the project was approved by the Board of Adjustment. The petition states the County has issued permits and/or authorizations for the construction of the wind energy facility.

         ¶28 Appellant filed a petition naming as defendants the Board of County Commissioners, Board of Adjustment and Osage Wind, LLC. Appellant sought both declaratory and injunctive relief. The petition alleges the Osage County Wind Energy Ordinance cannot be used as a basis to issue a conditional use permit, and any permit issued pursuant to the ordinance is void and has no effect. The petition alleges the conditional use permit is in violation of the zoning laws of Osage County. The petition did not request any immediate relief for halting construction of the project prior to its completion or during the litigation. The petition sought injunctive relief "against each of the Defendants permanently enjoining and restraining them from permitting, authorizing, constructing and using a Wind Energy Facility on the property listed in the Application of Osage Wind based upon the approval of CUP 2012-1."

         ¶29 The trial court stated that the claims in CV-2014-41 were barred by laches. Laches is an equitable defense to bar stale claims in equity. [28] Defendants also challenged the standing of the Osage Nation, and we assume it did possess standing for the purpose of this opinion and application of the laches defense. We address first the claims for injunctive relief and whether they are barred by laches.

         ¶30 The petition was filed June 25, 2014, and alleges: (1) the Board of Adjustment held a hearing on August 11, 2011, on Osage Wind's application for a conditional use permit, and the Plaintiffs testified at that hearing against approval of Osage Wind's project; (2) the Board of Adjustment approved the application at the conclusion of the public hearing; (3) a conditional use permit had been issued to Osage Wind to construct a "utility-scale wind energy project" or facility; (4) Osage Wind has conducted excavation activities and "already entered" the Osage Mineral Estate for each turbine foundation and for the miles of underground collection lines; (5) each turbine foundation was ten feet deep, fifty feet wide underground, and seventy feet wide at the surface; (6) "[i]mmediately after learning" Osage Wind began construction plaintiffs filed a petition with the Board of Adjustment to rescind Osage Wind's permit, and the petition was denied by the Board on May 5, 2014; and (7) "Osage Wind is in the process of constructing the Wind Energy Facility;" (8) the facility is to be located on thirty-one tracts of land in seventeen sections of land containing approximately 8, 000 acres; [29] (9) the petition's incorporated Exhibit 6, the partial application for a permit by Osage Wind, shows a map with 94 proposed wind turbine locations; and (10) Exhibit 5 shows the Osage County Wind Energy Ordinance setting forth the requirements for a wind energy project, such as access roads to the turbines must be "private roads" locked and inaccessible to the public, and Exhibit 6 shows these required private access roads to each of the 94 turbine locations.

         ¶31 Osage Nation argues the defense of laches may not be invoked by a motion to dismiss challenging a plaintiff's petition. Osage Nation cites an opinion for the concept laches is discretionary depending on the facts and circumstances of each case. [30] Osage Nation concludes laches is a fact-based defense which is not proper to support a motion to dismiss testing the legal sufficiency of a petition.

         ¶32 This Court and federal courts have held for many years that laches may be sufficiently raised as a defense when the grounds for the defense appear on the face of a state-court petition or federal complaint. [31] We must examine the elements of a laches defense and measure them against plaintiffs' petition with its attached exhibits.

         ¶33 Generally, the equitable defense of laches bars a claim where delay in bringing or prosecuting the claim is unreasonable, and the defendant has been materially prejudiced by the delay. [32] Other courts have determined a plaintiff's inexcusable delay in challenging a building permit issued to another party may be used to support a defense of laches when the plaintiff seeks an injunction.

         ¶34 In a 2012 Massachusetts case, [33] plaintiff knew for five years a building permit had been issued and for two years she watched construction of the building project before she raised the issue of a zoning violation. [34] During this time significant resources in the project were being invested and the court characterized the plaintiff's conduct as "unjustified, unreasonable, and prejudicial." The court concluded as a matter of equity, the doctrine of laches justified rejection of plaintiff's request for an injunction.

         ¶35 In a 2008 New York case, [35] plaintiff sought to challenge a building permit issued to a neighbor. The permit was issued in June 2006, construction commenced the following month and it was finished three months later. Soon after construction was complete an action was commenced the petitioner sought an injunction. The court explained the petitioner had knowledge of the permit, the intended use of the property, and the construction. The court concluded laches was a bar to issuing an injunction because petitioner delayed in seeking to protect her interests. [36]

         ¶36 Courts have applied the same elements to a defense of laches when concluding laches was not present because a party promptly asserted an objection to a building permit and the opposing party had not incurred significant development and construction expenses. [37] We have used a similar analysis in our opinions where we have examined the date a building permit was issued, when legal action was instituted to enjoin construction, and whether construction had commenced. [38]

         ¶37 In the present matter, the petition shows plaintiffs testified against the conditional use permit in August 2011, and they knew at that time the permit had been issued. They did not bring their action in the District Court for an injunction until June 25, 2014, almost three years later. Plaintiffs objected as procedurally improper Osage Wind's statement in support of its motion to dismiss that it had expended two hundred and twenty million dollars ($220, 000, 000) in various costs. We need not consider that statement in concluding that laches apply and plaintiffs' claims are barred on the face of the petition.

         ¶38 The petition alleges the facility is a "utility-scale" construction project, construction had commenced prior to filing the petition, and this construction included at least the foundations for the wind turbines and construction for miles of underground collection lines according to the petition. This "utility scale" of the project was disclosed in Osage Wind's 2011 public application, and plaintiffs had knowledge of the scale of the project at that time. The admitted attribute of "utility scale" and the project application used by plaintiffs in their petition are sufficient to indicate the expenditure of a large amount of money for construction in this zoning dispute.

         ¶39 The petition seeks relief in the form of a "permanent injunction." The petition acknowledges ongoing construction of the project, but seeks no temporary halt to the construction pending the litigation. Laches jurisprudence involving improper building permits or improper application of zoning laws shows that a non-governmental plaintiff's claim may not be disassociated from the practical economic consequences of a defendant engaged in an ongoing construction project and incurring expenses, even if the construction is contrary to a zoning law or permit. Laches requires reasonable conduct on the part of a plaintiff in taking legal efforts to stop or prevent alleged wrongful construction prior to an injury arising from economic damage occasioned by the project, thus minimizing economic damage flowing from alleged wrongful construction. Placing a duty on a plaintiff to take reasonable actions to minimize economic damage from a defendant's conduct is not a principle unique to laches jurisprudence. [39]

         ¶40 We need not analyze two issues raised by the Osage Nation's claims for injunctive relief and Osage Wind's motion because we agree with the trial court in applying laches to bar injunctive relief. First, we need not analyze the Osage Nation's participation at the 2011 Board of Adjustment hearing and the doctrine requiring a party to exhaust remedies. The petition states the plaintiffs, the Osage Nation and the Osage Minerals Council, appeared and testified when the board granted the permit. Plaintiffs did not timely appeal the board's decision to the District Court, and an appeal to the District Court may be brought from "any decision" of a county board of adjustment by any person or persons, firm or corporation, aggrieved thereby. [40]

         ¶41 Generally, the existence of an adequate alternative remedy, including an appeal, precludes equitable relief such as issuance of an injunction, [41] unless the injunction is a concurrent remedy. [42] In O'Rourke v. City of Tulsa, we explained a property owner aggrieved by a zoning ordinance could (1) in a District Court attack an ordinance directly as unconstitutional, and (2) seek an exception or variance; and the property owner was not required to seek an exception or variance before attacking the ordinance directly. [43] Attacking the ordinance directly is a District Court challenge to an exercise of legislative power by the entity creating the zoning ordinance, [44] but a county board's decision for an exception or conditional use permit is an exercise of quasi-judicial power, [45] with a subsequent statutory remedy by an appeal. Clear and adequate statutory remedies may be sufficient to foreclose injunctive relief [46] in circumstances where either quasi-judicial [47] or judicial power is exercised. [48] We need not determine the legal effect of the Osage Nation's participation at the 2011 permit hearing or the adequacy of a remedy by appeal from the board's decision granting the permit. [49]

         ¶42 Secondly, we need not adjudicate whether the Osage Nation's failure to seek temporary relief to halt construction pending the litigation requires application of the maxim vigilantibus et non dormienibus jura subveniunt, "The laws aid those who are vigilant, not those who sleep on their rights." [50] More than a century ago a court noted this maxim when a plaintiff failed to seek a temporary injunction to prevent the construction of railway track during litigation and the suit turned into a mandatory injunction to destroy and remove a completed track. [51] Application of this maxim is similar to our opinions dismissing requests for a preventative or prohibitory injunction due to mootness. [52] Some requests by the Osage Nation seek preventive relief and some seek mandatory relief in the form of restoring property to its original condition. [53] We need not adjudicate whether the Osage Nation could preserve a request for preventative injunctive relief or maintain its proceeding in equity to halt and remove construction to real property without also seeking a temporary injunction pending the litigation to preserve the status quo.

         ¶43 Plaintiffs brought their action almost three years after a permit was issued by the governmental agency authorizing the location of the project and after construction had commenced on a utility scale construction project. Plaintiff had knowledge of the scale and location of the project during that three-year period. We affirm the District Court's order dismissing plaintiff's petition against Osage Wind upon application of laches.

         ¶44 Plaintiffs also argued their request for injunctive relief could not be barred by laches because laches does not apply against the state when acting in its sovereign capacity, and by extension laches may not apply against the Board of Commissioners and the Board of Adjustment as governmental entities. This argument has three components which must be addressed.

         ¶45 First, they argue laches may not be invoked against Osage Nation in its claim against the government entities to compel them to perform their alleged governmental duty in rescinding Osage Wind's permit. Secondly, they are seeking an injunction to compel government entities to rescind the conditional use permit by Osage Wind, and argue Osage Wind may not use laches against the county government entities when those entities seek to rescind Osage Wind's permit and also require Osage Wind to cease producing electricity and additional construction. In other words, plaintiffs' reasoning is that Osage Wind would not have the same rights to raise defenses such as laches in an action brought by county government entities to revoke their permit as Osage Wind would have in an action brought against it by an entity such as the Osage Nation. Thirdly, the state and its subdivisions cannot be estopped from protecting public rights when public officials have acted erroneously or failed to act. [54] As we explain herein, our prior opinions show laches is proper to prevent both the Osage Nation and the governmental entities in a zoning action against Osage Wind on the face of the petition, but laches will not prevent a declaratory judgment request on the challenge to the legality of the Osage Wind Ordinance.

         ¶46 A mandatory injunction is an extraordinary remedial process and seeks relief in the form of commanding the performance of a positive act. [55] An action seeking a mandatory injunction against a public official to compel the enforcement of law is usually considered to be in the nature of mandamus. [56] While an injunction and mandamus are not identical in all contexts, the elements of both are identical in some respects [57] and laches may apply to bar a petition for either injunction or mandamus when the action is brought by a private party against a government official to compel performance by that official. [58] Generally, equitable proceeding defenses such as laches and estoppel are not available against the state and its agencies acting in a sovereign capacity, [59] unless application would further a principle of public policy or interest. [60] The public policy or public interest present in a controversy determines whether laches may apply, and not the mere fact a governmental entity is a party.

         ¶47 In 1929, this Court recognized a permit issued by mistake or in violation of an ordinance could be revoked, " where the permittee has not substantially changed his position by reason of such permit." [61] In 1994, this Court expressly rejected a party's argument that an estoppel could not be applied against a governmental entity in a controversy involving issuance of a conditional use permit. [62]

         ¶48 A part of plaintiffs' reasoning is Osage Wind could not reasonably rely upon the good faith of the officials constituting the Board of County Commissioners when creating the Osage Wind Energy Ordinance or the members of the Board of Adjustment when issuing Osage Wind a permit for the facility. We have explained an entity relying on representations of a public official does so at its peril--such reliance is not sufficient to excuse ignorance of the law as it actually exists when, for example, the party relies upon oral or written representations by an official. [63]

         ¶49 In the present case, Osage Wind is relying on a legislative act, the Osage County Wind Energy Ordinance, which states "A wind energy facility may be constructed as provided in this ordinance...." Osage Wind is relying on the application of that ordinance by the Board of Adjustment when exercising a quasi-judicial power in issuing a permit after public notice; and when that exercise of quasi-judicial power was upon a record subject to an appeal to a District Court and no party, private or governmental, brought a timely appeal for de novo review. Osage Wind's reliance is based on a general presumption of validity which attaches to legislative acts, [64] including municipal ordinances, [65] and when the existence of necessary facts to sustain the validity of a municipal ordinance is presumed with an ordinance regular on its face as to approval. [66] Osage Wind (1) relied in good faith, (2) upon an act of the government facially appropriate for the construction it sought, [67] (3) incurring extensive expenses and investments it would be highly inequitable and unjust to destroy, and (4) that reliance, act of the government, and expenses in construction were public and known by both the plaintiffs and the government parties to this litigation at a time when Osage Wind's reliance and expenses of development and construction could have been greatly lessened, or avoided, by plaintiffs' timely pursuit of their claims in a proper forum.

         ¶50 Plaintiffs delayed from 2011 to 2014 to bring an action in a District Court. Laches has been described as an acquiescence involving a quiet submission or compliance with acts from which assent can reasonably be inferred. [68] Approximately two and one-half years prior to the Osage Nation's 2014 litigation in the District Court for Osage County, the Osage Nation brought a federal court suit against Osage Wind. That suit was decided against the Osage Nation in December 2011. [69] Due to the time intervening from that date and the 2014 District Court proceedings in 2014 and the laches-based factors discussed herein, we need not adjudicate the impact of the federal suit on a laches defense.

         ¶51 We agree with the trial court's decision applying laches to bar (1) all claims against Osage Wind for injunctive relief brought by plaintiffs and (2) all claims against Osage Wind brought indirectly against Osage Wind by plaintiffs requesting relief against the Board of County Commissioners and Board of Adjustment. The order dismissing with prejudice plaintiffs' petition against Osage Wind on all injunctive relief claims due to laches is affirmed.

         ¶52 All claims for injunctive relief in the petition against the Osage County Board of Commissioners and the Board of Adjustment of Osage County are tied to permitting, authorizing, and allowing Osage Wind's permit and facility. The order dismissing with prejudice plaintiffs' petition against the Osage County Board of Commissioners and the Board of Adjustment of Osage County is affirmed as to all claims for injunctive relief. All claims in plaintiffs' petition for injunctive relief are barred by laches.

         B. Declaratory Relief and Standing

         ¶53 The petition sought a declaratory judgment stating (1) the wind energy facility could not be permitted by the zoning laws, the Board of Adjustment had no power to approve a conditional use permit; (2) the permit issued to Osage Wind was not authorized, (3) a wind energy facility was not authorized in an agriculture district; (4) a wind energy facility does not conform to certain zoning regulations is in violation thereof; (5) section 6.5.2 of the Osage County Zoning Ordinance was an unauthorized delegation of power from the Board of County Commissioners to the Board of Adjustment to issue a conditional use permit for a wind energy facility; (6) the Board of Adjustment had no power to issue a conditional use permit; (7) the permit issued to Osage Wind is void; (8) section 3.4 of the Wind Energy Ordinance does not give power to the Board of Adjustment to issue a conditional use permit or variance of the Zoning Ordinance for a wind energy facility; and (9) approval of a permit or variance by the Board pursuant to section 3.4 of the Osage County Wind Energy Ordinance is void.

         ¶54 Part of plaintiffs' cause of action for a declaratory judgment raises the statutory authority for a board of adjustment to issue a conditional use permit. This issue was decided against the Osage Nation in Mustang Run Wind Project, LLC v. Osage County Board of Adjustment, 2016 OK 113, 387 P.3d 333, and that part of the trial court's order herein dismissing this claim as a matter of law is affirmed.

         ¶55 Plaintiffs' requests in the petition for a declaratory judgment raise the issue whether they should be treated as a cause of action separate from the requests for injunctive relief. [70] A suit for declaratory judgment pursuant to 12 O.S. § 1651 is neither strictly legal nor equitable, but assumes the nature of the controversy at issue. [71] Many of plaintiffs' requests for a declaratory judgment are linked in the ...


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