U.S. Supreme Court invites Solicitor General to submit brief in Osage Wind case

WASHINGTON — The U.S. Supreme Court is one step closer to hearing oral arguments in a challenge to a 10th Circuit Court ruling stemming from a controversial wind farm in Osage County. 

On Monday morning, the court formally invited the Office of the Solicitor General to submit a brief on behalf of the federal government in Osage Wind LLC v. Osage Minerals Council.

In a unanimous decision issued in mid-September and upheld in October, a three-judge panel with the 10th Circuit Court of Appeals 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 maintained in their initial appeal to the Supreme Court 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. 

The American Wind Energy Association and 15 agricultural organizations, led by Osage County Farm Bureau and the Oklahoma Farm Bureau Legal Foundation, have filed motions with the Supreme Court requesting permission to submit amicus briefs in support of Enel.

The Supreme Court case number is 17-1237.