October 20, 2011
Oklahoma

Osage Nation files lawsuit in opposition to wind farm

By DAVID HARPER, World Staff Writer, Tulsa World, www.tulsaworld.com 19 October 2011

The Osage Nation filed a lawsuit Tuesday asking a federal judge to bar the construction of a “massive industrial wind farm” that the tribe contends would interfere with its mineral rights.

The complaint, filed in Tulsa federal court, also asks for a declaration that the proposed project on the land above the tribe’s “mineral estate” would violate federal law.

The tribe has come out in opposition to the 8,300-acre development by Wind Capital Group, as has a group of landowners calling themselves Osage Ranchers Against Wind Factories.

The Osage Nation is concerned that 94 wind turbines and their network of electrical lines and roads would interfere with oil production and harm the delicate ecosystem of the tallgrass prairie.

The complaint says each of the turbines would require extensive digging to create deep pits containing concrete foundations similar to those required in the construction of tall buildings.

The lawsuit says the tribe is the owner of all the minerals located “in and under” Osage County and that revenues generated by the mineral estate “provide essential income for Osage citizens who share in the mineral revenue distributions, comprising the sole source of income for some citizens of the Osage Nation.”

The tribe and the Osage Minerals Council claim in the lawsuit that the Osage Nation has discovered marketable amounts of oil and natural gas within the mineral estate it controls.

The lawsuit says developing and marketing the natural gas will require the construction of flow lines and transmission lines, and it alleges that construction and operation of the wind farm will interfere with those lines “to the detriment of the Osage mineral estate and Osage Nation.”

It claims that “access to the surface above the mineral estate is vital to the Osage Nation’s ability to develop and market the newly discovered oil and natural gas.”

In August, the Osage County Board of Adjustment voted 4-0 to grant a variance to Wind Capital Group of St. Louis to erect the wind turbines on land zoned for agriculture west of Pawhuska, near the town of Burbank.

Wind Capital has been planning to start building within a few months. The turbines would stand mostly north of U.S. 60, a federally designated scenic byway, but a few have been planned to flank the highway to the south.

Tony Wyche, a spokesman for Wind Capital Group, had no comment Tuesday about the new lawsuit, which was assigned to U.S. District Judge Gregory Frizzell.

Chris White, the tribe’s director of governmental affairs, has previously said: “The Osage Nation will not wait until the damage is done to the tallgrass prairie by this industrial wind project to take legal action. The nation would prefer to not have to take legal action, but the commissioners and wind developers have left us no choice.”

Floyd Waters, acting superintendent of the U.S. Bureau of Indian Affairs’ Osage Agency, had written in a letter to the Osage County Commission, the tribe and wind developers: “In order to reduce the possibility of litigation, we recommend that any wind power proposals or agreements be submitted to this office for review prior to construction, so we may all work together to minimize conflict between the various parties, and to ensure that all federal statutory requirements are being met.”

The letter says courts have repeatedly ruled that the tribal mineral estate is the dominant estate and that the surface is subservient to it.