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Tribe sues to stop Wind Capital

The Osage Nation filed a complaint in U.S. District Court on Tuesday asking that the proposed wind farm on the tallgrass prairie, saying it violates federal law and will interfere with the tribe’s access to its mineral estate.

Wind Capital Group’s 94-turbine development in the Burbank oilfield “will interfere with the right of surface access, which will in turn cause serious and immediate harm to the Osage Nation, including canceled leases, inability to attract future lessees, and the inability to benefit fully from the mineral estate through the use of new technologies,” says the the complaint, assigned to U.S. District Court Judge Gregory K. Frizzell.

“Because the construction of a massive industrial wind farm on the land above the Osage nation’s mineral estate will interfere with access to the mineral estate, this Court should declare that the Osage County Wind Project on the surface above the Osage Nation’s mineral estate violates federal law.”

Neither Wind Capital nor the tribe had any comment on the suit.

Bob Gum, an Oklahoma City attorney who deals with wind and oil and gas interests, said that the mix of wind farms and oil exploration is a new frontier.

“The oil boom is generating a lot of conflict,” Gum said recently. “Wind energy is not regulated at all; they answer to nobody at the state level… but most wind energy people are pretty sensitive and want to work through this stuff. They’d like to accommodate oil and gas where they can and avoid conflict.”

The problem, Gum said, is that wind companies know from the outset of a project where they want to build turbines and transmission lines, where as oil developers don’t have that luxury. “Oilmen don’t know until they drill a well,” Gum said. “They can’t just plan out an eight-well field.

“And once a a wind company gets the field covered up with their stuff that leaves the oil company in the dark.

“It’s like a dog in the manger. The dog can’t eat the hay in the manger but they keep the cow out anyway.”

The Osage Nation’s complaint says that technological advances have led to the discovery of marketable amounts of oil and natural gas that will require flow and transmission lines to extract and market, construction that will be thwarted by the win farm’s own network of 400-foot-tall turbines, high voltage underground electric transmission lines, meteorological towers, substations, roads and storage yards plunk on top of the most active oilfield in the Osage.

That will harm the tribe financially in an amount “so substantial” that the damages “would far exceed any amount that the defendants would be capable of paying in a suit for money damages,” the complaint says.

No dates have been set for hearings in the case, nor has Wind Capital Group of St. Louis been served with the suit yet.

The tribe has not been the only detractor of the proposed wind farm, on which construction is supposed to begin soon. A group of ranchers has also formed a coalition to stop the development, claiming it will cause property values to diminish, cause the spread of noxious weeds by hindering aerial spraying, damage the ecology of the tallgrass prairie, and other harm.

The suit by the tribe is the first legal action taken to stop the wind factory, as the ranchers have called the development. A delay caused by the court action could prove devastating: Construction is expected to take about 10 months and the wind facility has to be operating by the end of 2012 to take advantage of lucrative federal wind tax credits that are set to expire but could be extended by Congress.