Last month when the U.S. government filed a federal lawsuit against a wind development near Pawhuska, the Osage Nation complained that it wouldn’t stop construction in time.
With wind turbines already rising and power generation scheduled to start next summer, the case probably wouldn’t be heard before the Osage Wind project was finished, tribal officials said.
So this week, federal authorities are seeking a court order to stop construction immediately.
Each turbine will stand more than 400 feet high. And the foundation requires a hole 50 feet wide and 10 to 30 feet deep, according to court records.
With more than 90 turbines planned, construction will remove more than 60,000 cubic yards of limestone and other rocks that, under federal law, belong to the tribe, according to arguments filed Tuesday in federal court.
This new request for a preliminary injunction, if granted, would “put an immediate halt to the unauthorized mining activities now taking place,” according to a statement from the tribe.
The developers have argued that building a turbine foundation doesn’t count as “mining activity.” The construction is on private property and the owners have lease agreements with Enel Green Power North America, part of Italian utility giant Enel.
Under the federal Osage Allotment Act of 1906, however, the tribe retains ownership of minerals beneath the surface in Osage County. Federal regulations allow the “incidental” use of up to 5,000 cubic yards of rock before a surface owner needs a permit, according to court records. But the wind-farm construction, with at least seven turbine foundations completed, has already exceeded that limit, according to the lawsuit.
Federal authorities warned the developers in early October to stop the work, but “they apparently elected to pursue a beat-the-clock strategy and have intensified excavation activities,” according to the lawsuit.
Meanwhile, in a separate legal battle against a second wind development near Pawhuska, the Osage County Board of Adjustment will appeal a recent district court ruling in favor of the wind developers. The second project, called Mustang Run, would add 68 more turbines on land adjacent to the wind farm now under construction.
With citizens complaining, in part, that wind turbines were destroying the scenic beauty of the open prairie, the board voted earlier this year to deny a permit for Mustang Run. But District Judge Robert Haney criticized the board for denying a permit for a second development after approving the earlier wind project.
“It seems inconsistent,” Haney wrote, demanding that the project be allowed to proceed. Ironically, it puts the five-member Board of Adjustment on both sides of the legal battles – defending its approval of Osage Wind in previous lawsuits and now defending its rejection of Mustang Run.
But it simply shows that the board considered each project separately, said Tom Hillis, a Tulsa attorney who represents the board.
“They’re doing their job,” Hillis said. “The board is the local authority with the discretion to make these decisions.”
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