A federal judge in Oklahoma late last year (Dec. 20) ordered removal of a large wind farm that violates both federal mineral rights and Osage tribal land. The case, United States v. Osage Wind, LLC, has been in litigation for more than a decade.
Judge Jennifer Choe-Groves, sitting in the U.S District Court for the Northern District of Oklahoma, awarded “permanent injunctive relief to the Osage Nation and the United States in the form of ejectment of the wind turbine farm for continuing trespass.” She added that the court will “hold a damages trial to assess the amount of monetary damages for trespass and conversion.”
Osage Wind, a subsidiary of Italian energy company Enel, in 2010 leased 8,400 acres of land in Osage County and erected “84 wind turbines, underground electrical lines, an overhead transmission line, meteorological towers, and access roads,” with the wind pylons sitting on reinforced concrete foundations, using local rocks dug up on the territory and crushed for backfill around the foundations. Osage Wind did not get a lease for the minerals on the tribal land.
In 2011, the Osage Nation sued to stop the project but lost and construction began in 2013. In 2014, the federal government brought suit against the project, along with the tribe. The suit charged that the developers were performing unauthorized mining. In 1906, Congress severed the federal mineral rights and gave them to the tribe through the Osage Allotment Act.
In 2017 in a related case brought by the Interior Department’s Bureau of Indian Affairs the 10th Circuit Court of Appeals in Denver ruled that Enel’s activities constituted mining and required a minerals lease from the tribe.
The case decided in December focused on whether the rock mining constituted a temporary activity that ceased when the wind towers were erected, while the U.S. and the Osage argued it was a continuing violation. In arguments last September, Enel argued the damages came to $68,993 and taking the wind turbines down would be too expensive. The plaintiffs said the damage was continuing and came to $247,979.42.
“The developers failed to acquire a mining lease during or after construction, as well as after issuance of the Tenth Circuit Court of Appeals’ decision holding that a mining lease was required.” Judge Jennifer Choe-Grove
In her opinion, Choe-Groves found, “The developers failed to acquire a mining lease during or after construction, as well as after issuance of the Tenth Circuit Court of Appeals’ decision holding that a mining lease was required. This case presents questions of whether the wind farm developers’ continued lack of a lease and presence of the wind farm constitute continuing trespass and whether permanent injunctive relief and damages are appropriate.”
Choe-Grove, a Republican, is a judge on the U.S. Court of International Trade, on loan to the Oklahoma federal court. A concert pianist as well as a lawyer, she was an Obama appointment to the federal trade court. She has private sector expertise in mineral law.
Commenting on the case, Bart Kempf and Thomas Warburton of the Bradley law firm on Monday (Jan. 29) observed, “The harsh result in Osage Wind demonstrates the importance of understanding use restrictions on land early in development of any project. Renewable projects are often built on land that is subject to varying state and federal regulatory regimes or include protected habitats or wildlife. The significant scale of civil site development work like excavation, grading, and erosion control on renewable projects likely increases the risk of unauthorized use or damage to protected environments versus more typical construction projects.
“This decision also underscores the importance of community engagement and support on any renewable project. Absent the opposition of the Osage Nation to the project, the need for a mineral rights lease for the project may never have been litigated.”
–Kennedy Maize