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Trump administration asks Supreme Court to avoid Osage wind farm case
Credit: By Justin Wingerter | The Oklahoman | December 9, 2018 | newsok.com ~~
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Siding with the Osage Nation, the Trump administration is urging the U.S. Supreme Court not to consider the case of a wind farm in northern Oklahoma, saying the matter is “not worthy of this court’s attention.”
In 2010, a company now known as Osage Wind leased rights to 8,400 acres of private land to install 84 wind turbines and began digging large holes in Osage County. The Osage Nation, through its Osage Mineral Council, tried and failed to stop the project.
The federal government later joined the legal battle on behalf of the tribe, claiming the excavation work was mining and therefore required a lease. It lost its original case but won in the 10th Circuit Court of Appeals, which found Osage Wind was engaged in mining without a lease.
Osage Wind asked the Supreme Court to take the case and the court asked the solicitor general, who represents the federal government before the Supreme Court, to weigh in before it goes any further.
The tribe, represented by a Colorado-based law firm, believes Supreme Court review is unnecessary and has urged the Supreme Court to allow the 10th Circuit decision to stand.
Osage Wind challenged the 10th Circuit’s opinion on two grounds. It said the tribe should not have been allowed to appeal to the 10th Circuit because it was not a party in the original case. Osage Wind also claimed it was not engaged in mining.
“The 10th Circuit contorted a regulatory definition of ‘mining’ to reach the activity of digging holes, crushing portions of the removed material and placing that material back in the holes – not because the court found any indication that that is what Congress intended, but because that construction would provide the maximum financial benefit to an Indian tribe,” wrote the company’s attorney, Sarah Harrington, in March.
The solicitor general’s office disagreed, arguing the tribe was well within its rights to appeal a lower court’s ruling and the 10th Circuit rightly defined mining.
“The court of appeals’ conclusion that petitioners’ activities constituted ‘mining’ turned on the further fact that (Osage Wind) not only removed minerals to lay the wind turbines’ foundations, but also sorted and crushed the rocks and then used the crushed rocks as structural support for the wind turbines,” the solicitor general’s office wrote.
The Supreme Court will now consider whether to hear the case, Osage Wind LLC v. Osage Mineral Council. If it chooses to do so, it will schedule a date for oral arguments next year. If it chooses not to hear the case, the 10th Circuit ruling in favor of the tribe will stand.
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