Judge orders Enel to remove Osage County wind farm, pay damages 

The Osage Minerals Council, an arm of the Osage Nation, sued the owner of the Osage Wind farm in 2014, claiming that the proper permits were never obtained. The ruling will cost its owner, Enel, $263 million, including the cost of removing all 84 turbines.

A federal judge has ordered the owner of an Osage County wind farm to pay over $300,000 in damages and millions of dollars in attorney fees and to remove the 84 turbines and supporting structures by December 2025.

U.S. Court of International Trade Judge Jennifer Choe-Groves issued the opinion and order Wednesday in a Tulsa federal court civil lawsuit that has bounced among judges and courts for more than 10 years.

“This case demonstrates our commitment to preserving and defending tribal sovereignty,” said U.S. Attorney Clint Johnson. “As Judge Choe-Groves emphasized, injury to the Osage sovereignty cannot be condoned or suffered. The Defendants disregarded cease-and-desist instructions with willful and wrongful intent.”

Choe-Groves, sitting by designation after being assigned the case in February 2023, issued the ruling against Osage Wind LLC, Enel Kansas LLC and Enel Green Power North America Inc. following a trial earlier this year.

The federal government and the Osage Minerals Council, the latter an arm of the Osage Nation that owns and manages all the mineral rights in Osage County, sued the wind farm owners in 2014, claiming that the operator never obtained the proper permits.

Choe-Groves ruled Dec. 20, 2023, that granting permanent injunctive relief by ordering the removal of the wind farm for continuing trespass was warranted. But she did not formally grant the injunction at that time. Rather, she requested a plan and schedule to remove the turbines.

In May, the judge held a bench trial to determine the amount of damages owed by Enel. After several days of testimony that month, the trial recessed until July, when both sides presented closing arguments.

After settlement negotiations this year failed, Choe-Groves finalized her decision that the wind farm should be removed.

“Therefore, the Court holds that Defendants shall remove the wind farm from the Osage Mineral Estate and return the Osage Mineral Estate to its pre-trespass condition on or before December 1, 2025,” Choe-Groves wrote in her Wednesday ruling.

Osage Minerals Council Chairman Myron Red Eagle said in an interview that it is good to finally have a conclusion to the case.

“It’s been going on a long time,” Red Eagle said. “Pretty much everybody is satisfied with the ruling.”

Choe-Groves also ordered Enel to pay the U.S. government the royalty value of the minerals excavated from the earth to build the tower foundations, estimated to be $242,652.28.

“Defendants’ extraction of minerals from the mineral estate and subsequent use of the minerals as backfill during construction of the wind farm constituted an act of conversion,” Choe-Groves wrote in her ruling. “Plaintiff is entitled to the recovery of the market value, or replacement cost, of the converted property.”

She also ordered Enel to pay $66,780 in trespass damages to the federal government.

In addition to an order to pay damages, Choe-Groves awarded $1,943,666.17 in attorney fees to the U.S. government and $1,822,575.85 in attorney fees to the Osage Minerals Council.

She also awarded $32,554.08 in court costs and expenses to the federal government and $88,891 in court costs and expenses the Osage Minerals Council.

The judge rejected a request by the government that Enel reimburse it for $591,595 in expert testimony expenses.

All told, including the estimated $259 million in tower-removal costs, the ruling will cost Enel $263,197,119.38.

Choe-Groves rejected Enel’s claim that it was only following the advice of its attorneys when it ignored demands from the federal government and Osage Minerals Council that it obtain the proper permits before it began construction of the wind farm.

“Based on the testimony of Defendants’ representative and the evidence presented at trial, it is clear that Defendants’ decision to move forward with construction of the wind farm was motivated by financial interests and not a legitimate belief in the legality of their actions,” Choe-Groves wrote.

The case has taken a circuitous path to its final conclusion.

It was filed in 2014, and a federal judge initially ruled that the blasting of the rock to build the turbine foundations did not constitute mining and thus did not require a permit or lease from the Council. The federal government and the Osage Minerals Council appealed the ruling.

In a decision that was later upheld by the U.S. Supreme Court, the 10th U.S. Circuit Court of Appeals in 2017 ruled for the federal and tribal governments’ claim in their appeal that the use of subsurface rock and dirt for wind farm tower support did constitute mining and required a lease from the Minerals Council.

A spokesperson for Enel could not be reached for comment.