November 3, 2011
Oklahoma

Osage Nation sues to block wind farm

By ICTMN Staff, Indian Country Today Media Network, indiancountrytodaymedianetwork.com 2 November 2011

The Osage Nation has filed a lawsuit to block a proposed wind farm on land west of Pawhuska, Oklahoma, near the town of Burbank.

In August, the Osage County Board of Adjustment voted unanimously to allow the project, which comprises 94 wind turbines, each about 400 feet in height, but now the tribe is saying that their construction would interfere with its plans to extract and sell oil and natural gas that has been discovered beneath the same land, to which the tribe owns mineral rights.

In the complaint filed by the Osage Nation through the Osage Minerals Council, the tribe asserts that it owns all minerals “in and under” Osage County, a “mineral estate” that contains “marketable amounts of oil and natural gas.” Extracting the oil and gas will entail construction of flow lines, something that the lawsuit contends would be inhibited by electrical lines, roads and other necessary elements of the wind farm complex.

The sticky issue is that, while the tribe owns rights to the minerals in the land, it does not actually own the surface of the land. In its complaint, however, the tribe noted that it is guaranteed by federal regulations “the right to use so much of the surface above the mineral estate as may be reasonable for operations and marketing.”

While the Osage Nation fully admits its main opposition comes from the conflict between the wind farm’s footprint and that of possible oil and gas operations, the tribe also objects to the project on environmental grounds, resulting in a situation where, as described in a NewsOn6.com report, “both sides are trying to wave the ‘green’ flag.” Many local ranchers side with the Osage Nation, believing that the wind farm will affect their livelihood by harming lands they use for cattle farming. Rancher Jason Reed told NewsOn6.com that the turbines would prevent aerial spraying of sericea lespedeza, which he described as “a terrible noxious weed that’s come into this country [that will] take over the grasslands.” Osage Nation Chief John D. Red Eagle released a statement saying that the wind farm would “have an adverse impact upon the overall ecosystem of the Tallgrass Prairie, a true national treasure.” Bob Hamilton, of the Nature Conservancy, which runs the Tallgrass prairie reserve, said that the wind farm could scare away the Greater Prairie Chicken and other species that live in the reserve. “The bigger concern is kind of the fragmentation effect that it brings to the landscape, especially for some of our native wildlife species, like our grassland birds,” he said.

On Wednesday, October 26, a federal judge scheduled a preliminary injunction hearing for December 14-15.

According to an article in Tulsa World, Craig Fitzgerald, defense attorney for Wind Capital Group, Osage Wind and WC investment Management, stated that the timing of the court case jeopardizes the entire project, which had been slated to begin on November 19. In order to receive a crucial tax credit, the project must be completed and the wind farm in operation before the end of 2012, and to make that deadline it must begin no later than December 15. A lingering lawsuit, he said, “makes lenders think twice,” and that anything but a ruling for the defense by that date “probably kills this project.”