The Osage Nation, along with its Mineral Council and the federal government, have been engaged in a decade-long dispute to block the installation of wind turbines in Osage County.
The ongoing battle came to a head when U.S. Court of International Trade Judge Jennifer Choe-Groves issued a decision mandating the dismantling of a wind farm, which was hailed as a significant victory. In a federal court in Tulsa, the judge issued a ruling against Osage Wind LLC, Enel Kansas LLC, and Enel Green Power North America Inc.
This ruling provides the United States and the Osage Nation with permanent injunctive relief through its Minerals Council by ordering the removal of the wind turbine farm due to ongoing trespass. The Minerals Council, which operates under the Osage Nation, oversees the Osage Minerals Estate.
This ruling stems from a 2017 appellate court decision stating that the construction of the wind farm constitutes mining activities. Additionally, it mandates a lease from the Osage Nation’s Minerals Council, which the defendants were unable to secure.
“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,” she continued. “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.”
While Osage Minerals Council Chairman Everett Waller is pleased with the result, he has also admitted that the ruling has left him feeling “shocked.”
“I hope no other tribe has to do what we had to do,” Waller said about the lengthy court battle. “This is a win not only for the Osage Minerals Council; this is a win for Indian Country.”
This legal battle has spanned more than ten years, with a point where it even made its way to the U.S. Supreme Court.
In October 2011, the Osage Nation initiated a federal lawsuit in an attempt to stop the construction of the wind farm, arguing that the project unlawfully hindered their ability to develop the mineral estate.
The claims and case were ultimately dismissed. However, the defendants began leasing surface rights for the project two years later.
The wind farm consists of 84 turbines spread over 8,400 acres of leased surface rights in Osage County, along with underground lines, overhead transmission lines, meteorological towers, and access roads.
The construction of the wind turbines began in October 2013, with the excavation work for the towers commencing in September 2014.
In November 2014, the federal government filed a lawsuit highlighting that the defendants were conducting unauthorized mining and excavation within the Osage Mineral Estate.
The Osage Nation’s mineral rights are managed by the U.S. Department of the Interior, and federal regulations require developers to obtain a permit from the tribe’s Minerals Council before undertaking any mining operations in the county.
Initially, a federal district judge supported the wind farm project in 2015, but this decision was overturned by the 10th U.S. Circuit Court of Appeals in Denver in a 2017 ruling.
When making the decision to issue a permanent injunction, Choe-Groves took various factors into account. Ultimately, she did not find any compelling reasons to go against the public interest.
