TULSA, Okla. — More than four years after its initial request, the Osage Minerals Council has been allowed to intervene in the Northern District of Oklahoma in the lawsuit against Enel Green Power North America.
On April 13, Judge Gregory Frizzell formally granted the Minerals Council’s motion to intervene. In an order issued the next day, Judge Frizzell denied a request from federal attorneys to file a second amended complaint in the ongoing litigation against Enel Green Power North America and its subsidiaries over the Osage Wind project near Burbank.
Additionally, since the federal government did not appeal the original 2015 district court decision that allowed Enel to proceed with construction, Judge Frizzell also barred the United States from further participation in the lawsuit.
“Intervenor Osage Minerals Council appealed the judgment (sic) and obtained a reversal by the Tenth Circuit Court of Appeals and it alone may proceed as a party plaintiff in this action,” Frizzell wrote.
With the federal government no longer a plaintiff to the litigation, attorneys for the Osage Minerals Council filed a five-count complaint on April 15 in the Northern District of Oklahoma, including one count each of trespass and continuing trespass.
The complaint also asks for an unspecified amount in damages, a permanent injunction barring Enel from conducting work in the Osage mineral estate without a permit from the Bureau of Indian Affairs and a court-ordered accounting of all Enel revenue generated from both the Osage Wind project and all of its excavation work conducted within the county.
“When they trespass against us, they’re going to have to learn how to deal with us,” Osage Minerals Council Chairman Everett Waller said, announcing the court’s ruling at the council’s April 15 meeting.
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, thus opening the door for the Minerals Council to seek damages.