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Judge orders wind farm on tribal lands removed in mining dispute

Jan 18

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A wind farm spanning 8,400 acres of land in Oklahoma is now set to be dismantled after a federal judge’s ruling in a legal battle stretching over a decade. The Osage Nation — on whose tribal lands the turbines were built — has been engaged in a multi-year fight for their removal, citing concerns related to their ability to utilize the surrounding underground resources.

“We’re tired of this,” Osage Nation Principal Chief Geoffrey Standing Bear said. “We’ve been tired of this. My father’s generation was tired of it, my grandfather and great grandparents. What is the value of intruding on our sovereign property that we’ve kept and fought for and kept all these years?”

The Osage Nation wants access to the minerals, natural gas and oil that lay beneath the renewable energy facility, which has been dubbed the Osage Wind Farm. Each of the project’s 84 turbines — built and operated by Enel Energy — required individual underground bases, each more than 10 feet deep and 50 feet wide. The tribe has argued this activity impacted its ability to utilize the subterranean resources in the area.

The recent federal court decision comes after an appellate court’s earlier determination that the construction of the turbines amounted to mining, for which a lease from the Osage Minerals Council was never obtained. While Enel did secure surface rights for the wind farm project in 2013, the lack of a mining lease for the underground activities became a pivotal point in the legal dispute.

“It is clear the Defendants are actively avoiding the leasing requirement,” U.S. Court of International Trade Judge Jennifer Choe-Groves said in her ruling. “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.”

Choe-Groves’ order for Enel to deconstruct the wind farm will cost the energy company over $300 million and result in the loss of renewable energy for approximately 50,000 homes. The federal judge concluded that the failure to obtain a mining lease constituted “interference with the sovereignty” of the Osage Nation and is “sufficient to constitute irreparable injury.”

“Osage Wind never intended to mine minerals owned by the Osage Nation nor impose on their sovereignty and acted in the genuine belief that its actions were consistent with applicable legal requirements,” Enel responded in a statement.

The Osage Mineral Council reportedly anticipates full compliance from Enel in removing the wind farm per the court’s order. Representatives with Enel have indicated the company’s intentions to pursue further legal action.

“Enel and its Osage Wind project respect the judicial process regarding Osage Wind, and while it disagrees with the decision of the Federal District Court of Oklahoma issued on Dec. 20, it will continue to act in good faith to operate the project in accordance with the law until the outcome of this matter is finally determined,” Enel stated. “Osage Wind will seek appellate review of the decision in due time, consistent with its legal rights.”

Regardless of whether an appeal is filed, both parties are already expected to return to court next fall for additional litigation on the matter. The tribe’s government plans to seek damages, including compensation for harm done to the land, legal fees and all profits and tax incentives received from the state.

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[JACK AYLMER]

THIS WIND FARM IN OKLAHOMA STRETCHES ACROSS MORE THAN 8,000 ACRES OF LAND.

BUT SOON, IT COULD ALL BE GONE.

THESE TURBINES WERE BUILT ON TRIBAL LANDS, AND NOW THE OH-SAGE NATIVE AMERICAN NATION WANTS THEM REMOVED.  

[Geoffrey Standing Bear, Principal Chief of the Osage Nation]

“We’re tired of this. Just we’ve been tired of this. My father’s generation was tired of it. My grandparents, my great grandparents. And here we are. So we’re gonna keep pushing.”

[JACK AYLMER]

IT’S WHAT’S BELOW THE GROUND THAT HAS BECOME A SOURCE OF CONFLICT.

FOLLOWING A more than decades-long LEGAL FIGHT, A FEDERAL JUDGE HAS ORDERED ENERGY COMPANY ENEL TO DISMANTLE THE WIND FARM.

IT’S A REMOVAL PROJECT WITH A $300-MILLION COST AND WILL RESULT IN THE LOSS OF RENEWABLE ENERGY FOR ABOUT 50,000 HOMES.

THE RULING IS A RESULT OF AN APPELLATE COURT’S PREVIOUS DECISION. THE COURT DETERMINED  BUILDING THE TURBINES WAS A FORM OF MINING, AND A LEASE FOR THAT WORK WAS NEVER OBTAINED FROM THE OSAGE MINERALS COUNCIL.

WHILE THE WIND FARM’S DEVELOPERS DID BEGIN LEASING SURFACE RIGHTS FOR THE PROJECT BACK IN 2013, BUILDING EACH OF THE FACILITY’S 84 TURBINES REQUIRED INDIVIDUAL UNDERGROUND BASES – TEN FEET DEEP AND 50 FEET WIDE.

THE OSAGE NATION ARGUED THIS ACTIVITY IMPACTED THE TRIBES ABILITY TO UTILIZE THE SUBTERRANEAN RESOURCES THEY’RE ENTITLED TO, INCLUDING MINERALS, NATURAL GAS AND OIL.

ULTIMATELY A FEDERAL JUDGE AGREED WITH THE TRIBE – SAYING THAT WITHOUT A MINING LEASE – THE ENERGY COMPANY WOULD NEED TO UPROOT. 

THE JUDGE CONCLUDING ENEL’S ACTIONS AMOUNTED TO INTERFERENCE WITH THE SOVEREIGNTY OF THE OSAGE NATION.      

THE TRIBE’S MINERAL COUNCIL SAYS IT EXPECTS ENEL TO FULLY COMPLY WITH THE COURT’S SUBSEQUENT ORDER TO COMPLETELY REMOVE THE WIND FARM.

THE TWO SIDES HOWEVER WILL LIKELY BE BACK IN FRONT OF A JUDGE NEXT FALL.

THAT’S WHEN THE OSAGE NATION PLANS TO PURSUE DAMAGES, SUCH AS COMPENSATION FOR HARM DONE TO THE LAND, LEGAL FEES AND ALL PROFITS AND TAX INCENTIVES FROM THE STATE.