DENVER — A three-judge panel with the 10th Circuit Court of Appeals has opened the door for the Osage Nation to collect damages from a controversial wind farm project.
In a unanimous decision issued Monday, the panel reversed and remanded a September 2015 summary judgment from the Northern District Court of Oklahoma that allowed Osage Wind and its parent company, Enel, to conduct excavation work in order to set up 84 wind turbines across 8,400 acres in western Osage County without a mining permit from the Bureau of Indian Affairs or approval from the Osage Minerals Council.“The Osage Nation, acting through OMC [Osage Minerals Council] in fact owns the beneficial interest in the mineral estate that is the subject to the appeal,” Judge David Ebel wrote in the panel’s 27-page decision. “The district court’s decision forced OMC to watch from the sidelines as Osage Wind disrupted the mineral estate…”
In an effort to install the turbine foundations near Burbank, Oklahoma, Osage Wind dug pits measuring 60 feet wide and 30 feet deep. In the process, it excavated more than 60,000 cubic yards of limestone, dolomite and other minerals, ran the smaller chunks through a rock crusher, then returned them to the earth, thus prompting a debate on the definition of “mining.”
Under federal statute, any mining activity conducted in Osage County requires a permit from the BIA. Enel Energy, the parent company for Osage Wind, did not obtain one, prompting the United States to bring litigation forward in 2014 on behalf of the Osage Minerals Council.
Acting on behalf of the Osage Minerals Council, the United States brought the litigation forward in 2014, contending that the company was appraised of that requirement but ignored it anyway and at one point, sped up construction in an effort to finish its work before a federal court could issue a ruling.
Attorneys for Enel and Osage Wind had maintained that their clients’ dig sites were not mining because the rock was left where they found it, just in a different form, an argument dismissed by the panel.
“On the merits, we hold that Osage Wind’s extraction, sorting, crushing and use of minerals as part of its excavation work constituted ‘mineral development,’ thereby requiring a federally approved lease, which Osage Wind failed to obtain,” Judge Ebel wrote.
With Monday’s decision, the federal government and the Osage Minerals Council can seek damages for the unauthorized mining activity conducted within the county.