September 19, 2017

Appeals court reverses judge’s decision allowing wind developers to dig on Osage land

Appellate court reverses 2015 ruling that protected Osage Wind project | By Kyle Hinchey | Tulsa World | Sep 18, 2017 |

A U.S. appellate court sided with the Osage Nation in a years-long dispute regarding whether the development of a wind farm on tribal land violated federal mineral regulations.

The Denver-based 10th District Court of Appeals issued an order Monday reversing a 2015 court ruling that protected the Osage Wind project, which includes 84 turbines spread across about 8,400 acres in Osage County.

The Osage Nation has long opposed the development, arguing that wind farming spoils the prairie’s natural beauty and could destroy historic burial sites.

The U.S. Department of the Interior administers the tribe’s mineral estate and filed a lawsuit in 2014 to halt extraction work, arguing that the act of digging large pits for turbine foundations is considered mining.

Doing so, attorneys argued, violated the Osage Nation’s mineral rights, which include ownership of rocks and minerals below the surface. Federal law requires developers to acquire a permit from the tribe to engage in any mining activity in the county.

The Bureau of Indian Affairs has defined “mining” as the “science, technique and business of mineral development.”

After discovering excavation had been completed, the Interior Department withdrew its request for an injunction and filed an amended complaint seeking damages based on the alleged unauthorized extraction of minerals.

U.S. District Judge James Payne struck down the argument the following year, concluding that the excavation work did not constitute mining and therefore didn’t trigger the lease requirement.

The Interior Department waited until the final day of the 60-day appeal deadline to inform the tribe’s Minerals Council that it did not intend to fight the ruling.

The council scrambled to file a motion to intervene in the case but was denied by the district court due to lack of jurisdiction. The council then filed with the appellate court.

In its order released Monday, the court ruled that the Minerals Council is a “proper party to this appeal without having formally intervened in the district court.”

Further, the court held that Osage Wind’s extraction, sorting, crushing and use of minerals as part of its excavation work constituted mineral development, thereby requiring a federally approved lease that was not obtained. It disputed the district judge’s interpretation that the definition of mining required the sale of minerals.

“While the definition of mining certainly includes commercial mineral extractions and even offsite relocation of minerals, the district court’s limitation of ‘mineral development’ to those contexts is overly restrictive,” the order states.

The court reversed the judge’s former ruling and remanded for further proceedings consistent with the appellate court’s opinion.

Attorney Jeffrey Rasmussen, who has represented the Osage Nation during the appeal process, said the order is a significant win for the tribe and serves as a cautionary tale to companies looking to excavate in the area.

“(Osage Wind) didn’t have the Minerals Council’s consent for this, and now they’ve invested millions of dollars when it’s fairly obvious they needed a lease,” Rasmussen said. “That’s something I think they should have known beforehand. Other companies who are doing projects a little closer to this dividing line of what’s acceptable and what isn’t acceptable need to be careful about this, because you don’t want to get in the situation these guys are in.”

The next step will be for the case to return to district court, where Rasmussen hopes an agreement can be worked out between the two sides.

A message left Monday with Enel Green Power, the company that owns the Osage Wind development, was not immediately returned.

URL to article: