Minerals Council

Osage Wind files objection to claims by federal government in district court

Osage Wind and its parent companies are pushing back against a request from the United States to amend its lawsuit over a controversial wind farm.  

Citing delays on the federal government’s part, attorneys for Osage Wind, Enel Kansas and Enel Green Power North America filed an objection on Jan. 6 to a request from the United States to amend its complaint regarding a wind farm in western Osage County.  

Among the specific changes, federal attorneys are wanting to make include a request for a complete accounting of Osage Wind’s revenue and requiring the three companies relinquish any revenue generated by the wind farm.

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, 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.

In January 2019, the U.S. Supreme Court declined to grant the case certiorari. In the objection, the wind companies’ attorneys claim that the federal government did not communicate with them about the case or that U.S. Supreme Court decision until a Dec. 11 status conference.   

“The Motion to Amend offers no explanation for these delays, nor was any given at the Dec. 11, 2019, status conference. These significant and unexplained delays would operate to the substantial prejudice of Osage Wind, especially if the United States were allowed to press equitable remedies that seek to capture all of the project’s revenue or force its removal, altering the status quo that has existed for years,” Enel attorney Ryan Ray wrote.

A status conference is scheduled for May 15 before Judge Gregory Frizzell.

At the Osage Minerals Council’s Jan. 3 meeting, Chairman Everett Waller acknowledged the ongoing litigation. Officially, the minerals council is listed as an intervenor in the case rather than a plaintiff.

“The Osage has stayed with this long enough that we are going to be taking care of the protection of our sovereignty,” he said. “They don’t have any respect for us and we’re going to earn it again.”