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Federal judge rules in favor of Osage County wind development

Wind developments in Osage County do not violate tribal mineral rights, according to a federal court ruling Wednesday, rejecting arguments from both the Osage Nation and the U.S. Department of the Interior.

In a lawsuit field last November, federal and tribal officials claimed that developers should have applied for permits from the Osage Nation before digging pits for the construction of wind turbine foundations, removing limestone and other natural resources that belong to the tribe under federal law. Each pit measures as much as 60 feet wide and 30 feet deep, excavating more than 60,000 cubic yards of minerals across the entire Osage Wind development west of Pawhuska, according to the lawsuit.

That amounted to a “mining” operation, according to the Interior Department and the Osage Nation. But U.S. District Judge James Payne rejected that logic, ruling that federal statutes use the term “mining” literally when describing what kind of activities require a permit.

“A broader reading would mean that any time a surface owner digs a hole on his or her land that would disturb any quantity of common minerals, he or she would have to obtain either a permit or a lease for any digging and backfilling,” the ruling says. “A broader reading would also mean that every proposed construction project in Osage County that requires digging and backfilling, including building a single-family home, multi-family apartment building, commercial building, or septic tank, would be subject to approval by the Osage Nation.”

The Osage Nation has long opposed wind development across the county, arguing that it mars the natural beauty of the prairie and could potentially destroy burial sites. The tribe also lost a previous court case arguing that wind development would interfere with oil production.

Tribal officials couldn’t be reached for comment Wednesday.

The Osage Wind project includes 84 turbines spread across 8,400 acres, plus various transmission lines, substations and access roads. Officials with Italy-based Enel Green Power, which owns the project, could not be reached for comment.