Legal

Hearing set in wind farm case for Feb. 24 in Tulsa

The battle continues for the Osage Nation against the wind companies building turbines along U.S. Highway 60. U.S. District Judge James H. Payne set a scheduling conference at 1:30 p.m., Feb. 24 at the U.S. District Courthouse in downtown Tulsa.

At issue is the latest legal response from the United States on Jan. 22 against the companies Osage Wind, Enel Kansas, and Enel Green Power North America, who have been going back and forth with legal filings since September of last year. The U.S. is asking the court to grant a partial summary judgment against the companies for damages and harm to the Osage Minerals Estate.

“Defendants took mineral reserved to the tribe (like limestone) and sorted useable rocks which they then treated by crushing into optimal size for use as backfill. Had they not mined and used those materials, they would have had to purchase suitable backfill materials,” according to the U.S. “Defendants claim that they needed no lease to do this, that the Superintendent had no authority whatsoever over this appropriation of the reserved mineral estate, and that Defendants owe the Osage tribe nothing. This position is indefensible.”

The wind companies contend that since no one from the Nation or the Bureau of Indian Affairs told them to stop, or notified them in a timely manner after construction began, using the term “laches” for a long delay, they escaped the statute of limitations for the U.S. to sue them for damages to the minerals estate.

“Defendants contend their laches claim is viable because they voiced disagreement as to the need to comply and federal officials did not continue to dialogue with them,” according to the U.S. “It is a well established rule, that without a clear manifestation of Congressional intent, the United States is not bound by state statutes of limitations or subject to the defense of laches in enforcing its rights.”

The U.S.’s argument sites a letter by BIA Superintendent Robin Phillips on Oct. 9 to Francesco Venturini, Enel Green Power North American, Inc., president, notifying him that his company needed a sandy soil permit before continuing construction and that his company was to “refrain from any further excavation.” The U.S. points out that instead of refraining, Enel brought a team of lawyers to bury the Nation and Minerals Council in legal work while they sped up construction.

“Necessary for their wind farm is the placement of wind turbines. To place the turbines, Defendants have invaded, unearthed, altered, and moved tens of thousands of cubic yards of minerals that belong to the Osage mineral estate,” according to the U.S.

The U.S. also pointed out that when the Oklahoma Department of Transportation was able to do roadwork on U.S. Highway 60, they obtained a lease to perform excavation and backfilling, as required by federal law.

 

[Editor's Note: This article was updated to reflect the change in date of the scheduling conference for USA v. Osage Wind.]