Minerals Council , Legal

Wind companies appeal to U.S. Supreme Court after 10th Circuit rules in favor of the Osage

Photo Caption: Workers for Osage Wind LLC, Enel Kansas LLC and Enel Green Power North America construct a base for a wind turbine and mining into the Osage Mineral Estate west of Pawhuska, Okla. Osage News 2014 File Photo

WASHINGTON — A 10th Circuit Court decision that opened the door for the Osage Minerals Council to potentially pursue damages from wind farm work is being challenged yet again.

On March 2, attorneys for Osage Wind LLC, Enel Kansas LLC and Enel Green Power North America filed a petition with the U.S. Supreme Court. The three companies are challenging the 10th Circuit Court’s fall 2017 ruling that overturned a Northern District of Oklahoma ruling and allowed the Osage Minerals Council to file a last-minute intervention in a wind farm lawsuit after its federal trustee, the Department of Interior, did not act.

“The 10th Circuit’s decision encourages free riders with an interest in litigation to sit back and rely on other litigants rather than taking advantage of the tool provided by the federal rules: intervention,” attorney Sarah Harrington wrote on behalf of the three wind companies.

In a unanimous decision issued in mid-September and upheld in October, a three-judge panel reversed and remanded a 2015 summary judgment from the Northern District Court of Oklahoma that allowed Osage Wind to conduct excavation work in order to set up 84 wind turbines across 8,400 acres without a mining permit from the Bureau of Indian Affairs or approval from the Osage Minerals Council.

In an effort to install the turbine foundations, 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, dolemite 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. Neither Enel Green Power North America nor its subsidiary, Enel Kansas, obtained one, prompting the United States to bring litigation forward in 2014 on behalf of the Osage Minerals Council.

The council filed its motion to intervene electronically after the close of business on the deadline day after receiving late notification that the Department of Interior would not challenge the initial district court ruling. 

Attorneys for the three wind energy companies also maintain that the 10th Circuit Court ignored Osage County-specific provisions of the Code of Federal Regulations to the detriment of surface owners when it determined what constitutes mining. 

“Nothing in the text of the regulation at issue … supports the 10th Circuit’s holding that ‘sorting and crushing of rocks to provide structural support’ for on-site construction constitutes mining,” Harrington wrote.

Responses to the wind energy companies’ petition are due April 5. If certiorari is granted, the earliest the court could hear arguments is in October.