December 2, 2015
Oklahoma

Osage Nation seeks to intervene in wind lawsuit

By MICHAEL OVERALL, World Staff Writer | Tulsa World | December 2, 2015 | www.tulsaworld.com

Frustrated that federal officials haven’t pursued the case further, the Osage Nation wants to appeal a court ruling that allows wind developers to dig large pits for turbine foundations in Osage County.

The tribe’s Minerals Council has argued that the pits, measuring as much as 60 feet wide and 30 feet deep, amount to “mining” and violate the tribe’s mineral rights, which includes ownership of rocks and minerals below the surface. The Osage Wind development west of Pawhuska has destroyed more than 60,000 cubic yards of minerals, according to the lawsuit.

But U.S. District Judge James Payne shot down that argument in September when he ruled that a broad interpretation of mining would “mean that every proposed construction project in Osage County that requires digging and backfilling, including building a single-family home, multifamily apartment building, commercial building, or septic tank, would be subject to approval by the Osage Nation.”

The lawsuit was originally filed last year by the U.S. Department of the Interior, which administers the mineral estate on behalf of the tribe. But after losing in the lower court, federal officials have not shown interest in appealing the case, so the Minerals Council is asking the court for permission to intervene.

“The Osage Minerals Council has not sought to intervene in this case previously because it appeared that the United States adequately represented its interests,” the council wrote in a court filing this week. “That situation has now changed.”

The legal argument revolves around the definition of “mining,” since federal law would require any mining activity in Osage County to have a permit from the tribe. If a developer would need a permit to dig one large pit to remove 60,000 cubic yards of rock, a developer should need a permit to dig several smaller pits that add up to 60,000 cubic yards, according to the tribe’s argument.

September’s court ruling allows a “significant invasion of the Osage Mineral Council’s estate so long as the invading party is not selling the minerals,” according the tribe’s motion to intervene in the case.

Enel Green Power, the Italian company that owns the Osage Wind development, argues that turbines are surface developments, not unlike buildings or houses, and have nothing to do with the mineral estate.

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

The Osage Wind project includes 84 turbines spread across 8,400 acres, plus various transmission lines, substations and access roads.