Judge orders removal of wind farm opposed by Osage Nation 

A judge has ordered the removal of a wind farm in Osage County and set a trial for damages in a win for the Osage Nation and its Mineral Council, which, along with the federal government, have been fighting the erection of the turbines for more than 10 years.

U.S. Court of International Trade Judge Jennifer Choe-Groves issued the ruling Wednesday in Tulsa federal court against Osage Wind LLC, Enel Kansas LLC and Enel Green Power North America Inc.

The ruling grants the United States and the Osage Nation through its Minerals Council permanent injunctive relief via “ejectment of the wind turbine farm for continuing trespass.”

The Minerals Council is an arm of the Osage Nation that manages the Osage Minerals Estate.

The ruling follows a 2017 appellate court ruling that determined that construction of the wind farm constituted mining and required a lease from the Osage Nation’s Minerals Council, which the defendants failed to obtain.

“The developers failed to acquire a mining lease during or after construction, as well as after issuance of the 10th Circuit Court of Appeals’ decision holding that a mining lease was required,” Choe-Groves said.

“On the record before the Court, it is clear the Defendants are actively avoiding the leasing requirement,” Choe-Groves said. “Permitting such behavior would create the prospect for future interference with the Osage Mineral Council’s authority by Defendants or others wishing to develop the mineral lease.

“The Court concludes that Defendants’ past and continued refusal to obtain a lease constitutes interference with the sovereignty of the Osage Nation and is sufficient to constitute irreparable injury.”

Osage Minerals Council Chairman Everett Waller said in an interview Thursday morning that he was still “stunned” by the ruling.

“I hope no other tribe has to do what we had to do,” Waller said, referring to the long court battle.

“This is a win not only for the Osage Minerals Council; this is a win for Indian Country,” Waller said.

“There are a lot of smaller tribes that couldn’t have battled this long, but that’s why we’re Osages,” Waller said. “We’re here, and this is our homeland, and we are going to protect it at all costs.”

Osage Wind, for its part, claimed that while an appeals court found that it had “mined without a lease in 2014, it did not hold that Osage Wind was obligated to obtain a lease for that completed mining or for any other ongoing purposes.”

The legal saga has been ongoing for more than a decade, at one point reaching the U.S. Supreme Court.

The Osage Nation filed a federal lawsuit in October 2011 seeking to halt the construction of the wind farm, alleging that the project unlawfully deprived the Osage Nation of access to and the right to develop the mineral estate.

The nation’s claims were denied, and the case was dismissed on merits.

The defendants began leasing surface rights for the project in 2013, according to the ruling.

The wind farm includes 84 turbines spread across 8,400 acres of leased surface rights in Osage County, underground lines, overhead transmission lines, meteorological towers and access roads, the ruling said.

Construction on the wind towers began in October 2013, with excavation for the towers beginning in September 2014.

The federal government filed a federal lawsuit in November 2014, seeking a declaratory judgment that the defendants engaged in unauthorized mining and excavation in the Osage Mineral Estate, according to the ruling.

The U.S. Department of the Interior administers the Osage Nation’s mineral rights, which include ownership of rocks and minerals below the ground’s surface. Federal law requires developers to obtain a permit from the tribe’s Minerals Council to engage in any mining activity in the county.

A federal district judge initially ruled in favor of the wind farm project in 2015, finding that excavation of the rock for the wind turbine concrete foundation did not constitute mining.

But the 10th U.S. Circuit Court of Appeals in Denver reversed that decision in a 2017 ruling.

The appellate 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.

The U.S. Supreme Court rejected a request by Osage Wind to review the appeals court decision.

In considering whether to issue a permanent injunction, Choe-Groves weighed several factors, including balancing the tribe’s claim that the unleased wind farm damages its sovereignty against Osage Wind’s claim that it would suffer the inevitable loss of hundreds of millions of dollars if the wind towers were removed.

Osage Wind also claimed that removal of the wind turbines would result in a loss of revenue from two local schools, jobs, income for the surface estate owners and renewable energy for 50,000 homes.

But Choe-Groves was not persuaded by Osage Wind’s claims of the harm that would occur if the turbines were removed.

“Even if negative effects were to result, including the significant monetary impact of hundreds of millions of dollars, such effects would not negate the public interest in private entities abiding by the law and respecting government sovereignty and the decision of courts,” the judge wrote.

A spokesman for Osage Wind could not be reached for comment on the decision.