The Osage Nation, its Mineral Council, and the federal government have been in a fight to prevent the erection of turbines in Osage County. The battle has been on for the past 10 years.
So when U.S. Court of International Trade Judge Jennifer Choe-Groves issued a ruling ordering the removal of a wind farm. It was celebrated as a big win.
The judge’s ruling came in Tulsa federal court against Osage Wind LLC, Enel Kansas LLC, and Enel Green Power North America Inc. It grants the United States and the Osage Nation permanent injunctive relief through its Minerals Council via “ejectment of the wind turbine farm for continuing trespass.”
The Minerals Council is an arm of the Osage Nation. It manages the Osage Minerals Estate. The ruling follows a 2017 appellate court ruling stipulating that the wind farm’s construction involves mining.
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It also requires a lease from the Osage Nation’s Minerals Council. Unfortunately, the defendants were unable to obtain it.
“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.”
Osage Minerals Council Chairman Everett Waller is happy with the outcome. However, he has also confessed that the ruling still has him “stunned.”
“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.”
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The legal saga has been active for over a decade. At one point, it even reached the U.S. Supreme Court. The Osage Nation filed a federal lawsuit in October 2011. They wanted to halt the erection of the wind farm, alleging that the project unlawfully deprived the Osage Nation of the right to develop the mineral estate.
The claims and the case were dismissed on merits. The defendants started leasing surface rights for the project two years later.
The wind farm comprises 84 turbines spread across 8,400 acres of leased surface rights in Osage County, underground lines, overhead transmission lines, meteorological towers, and access roads.
Construction on the wind towers kicked off in October 2013. The excavation for the towers started in September 2014.
The federal government filed a federal lawsuit in November 2014, pointing out that the defendants were involved in unauthorized mining and excavation in the Osage Mineral Estate.
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The U.S. Department of the Interior administers the Osage Nation’s mineral rights. Federal law demands that developers 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. But the 10th U.S. Circuit Court of Appeals in Denver reversed that decision in a 2017 ruling.
Before arriving at her decision to issue a permanent injunction, Choe-Groves considered several factors. And she, however, found none enough to make her consider going against the public interest.
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