Community , Government , Legal

Solicitor General urges Supreme Court to let 10th Circuit ruling stand in wind case

Photo caption: Employees for Osage Wind work on a base of a wind turbine along Highway 60, just west of Pawhuska. Osage Wind dug pits measuring 60 feet wide and 30 feet deep. Osage News 2014 File Photo

The Office of the Solicitor General has recommended that the U.S. Supreme Court not hear arguments challenging a 10th Circuit Court ruling stemming from a controversial wind farm in Osage County.

On behalf of the federal government, the Solicitor General’s office filed an amicus curiae brief with the U.S. Supreme Court on Dec. 4, almost seven months after the high court asked for one in Osage Wind LLC vs. Osage Minerals Council.

In the brief, Solicitor General Noel Francisco dismissed questions over the Minerals Council’s legal standing in the matter. The council filed a last-minute intervention after its federal trustee, the Department of Interior, did not challenge a lower court’s ruling.

“In general, only parties may appeal an adverse judgment, but this court [10th Circuit Court] has recognized an exception for certain nonparties bound by the judgment,” he wrote. “Respondent [Osage Minerals Council] …who sought to appeal a binding decision regarding the tribe’s own property, satisfies that narrow exception. There is no conflict in the courts of appeals on whether a nonparty may appeal under those unique facts.”

In a unanimous decision issued in mid-September 2017 and upheld the following month, 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, 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. Neither Enel Green Power North America nor its subsidiary, Enel Kansas, obtained one on the grounds that they thought it was not needed.

In the brief, Francisco agreed with the 10th Circuit Court’s interpretation of the federal mining statutes and noted that the total size of the wind project far exceeded the exceptions listed in the Code of Federal Regulations. 

“The court of appeals’ interpretation of the word ‘mining’ in Interior’s regulations governing mineral leases on Indian lands likewise does not warrant this court’s review,” Francisco wrote.

With the filing, the onus is back on the U.S. Supreme Court to decide whether to hear arguments. Should the court agree with the Office of the Solicitor General, then the 10th Circuit Court’s ruling would stand. 

The Supreme Court case number is 17-1237.