The U.S. Supreme Court will start 2019 by weighing whether to take up an appeal tied to a controversial Osage County wind farm project.
According to court records, Osage Wind LLC v. Osage Minerals Council has been officially scheduled for consideration as part of the Supreme Court’s Jan. 4, 2019, conference.
If at least four justices vote at the conference to grant certiorari, then the case will be scheduled to go before the full Supreme Court.
The conference scheduling order comes one day after attorneys for Osage Wind, Enel Kansas and Enel Green Power North America filed their response to an amicus brief from the Office of the Solicitor General.
Earlier in the month, the U.S. Solicitor General’s office filed an amicus brief siding with the Osage Minerals Council and rejecting claims that the council had no standing to intervene in the case. The council filed a last-minute intervention after its federal trustee, the Department of Interior, did not challenge a lower court’s ruling allowing for turbine construction to proceed.
In their response, attorneys representing Osage Wind, Enel Kansas and Enel Green Power North America reiterated their argument that the Minerals Council could have stepped in earlier rather than just rely on the Department of Interior to speak on its behalf.
“OMC could have moved for permissive intervention or could have filed an amicus brief asserting its views,” the attorneys wrote. “OMC could also have moved to intervene in a timely fashion after the adverse judgment when the United States was unwilling to give it assurances that it would proceed with an appeal.”
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.
The Supreme Court case number is 17-1237.