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U.S. Supreme Court leaves Osage County wind developments in doubt

With the U.S. Supreme Court refusing to hear a case against an 8,400-acre project west of Pawhuska, the future of wind development in Osage County seems clouded.

Five years ago, after previous legal efforts failed to stop construction, the federal government filed a lawsuit arguing that massive wind turbines interfered with the Osage Nation’s mineral rights and that wind developers should have obtained permits from the tribe before building the project.

A federal district court dismissed the lawsuit, ruling that the construction of wind turbines did not equate to the kind of “mining activities” that require tribal permits. U.S. officials decided not to appeal the decision.

Federal courts, however, allowed the tribe itself to take up the case. And the Osage Nation won the argument at the 10th U.S. Circuit Court of Appeals, where the justices ruled that construction of 84 giant turbines, which produce energy powered by the wind, disturbed enough rock and minerals to deprive the tribe of its property rights.

Each turbine foundation requires the excavation of a hole 50 feet wide and at least 10 feet deep, removing a significant amount limestone and other minerals that, under federal law, belong to the tribe, according to court records.

The Supreme Court’s decision this week effectively upholds that ruling.

What now? Nobody seems to know. Or at least nobody will say.

Osage Nation officials did not return messages from the Tulsa World, and the wind development project’s corporate owner, Enel Green Power North America Inc., issued an official “no comment.”

The 10th Circuit has remanded the case back to the local district court to determine “damages,” or what penalties Enel might have to pay, but those proceedings haven’t begun.

Meanwhile, Osage County officials have approved at least two other wind projects that presumably will be affected by the 10th Circuit’s decision. But it’s not clear when or if the tribe will grant permits for any further wind projects.

In 2015, Principal Chief Geoffrey StandingBear told the World that he not only hoped to stop more turbines from being built but also to see the existing turbines taken down.

“This is driving out all our families,” the chief said. “You can’t live among these things. It’s a harsh form of pollution, and it should go away.”