Photo caption: Wind turbines dot the landscape on the way to Pawhuska on Highway 60. Osage News File Photo
TULSA — Despite COVID-related delays, a lawsuit over an Osage County wind farm is still winding its way through the federal court system.
In a July 24 response to claims from the Osage Minerals Council and the federal government, attorneys for Osage Wind, Enel Green Power North America and Enel Kansas acknowledged in a filing with the Northern District of Oklahoma that some of the allegations against their clients could be addressed monetarily.
However, they pushed back against trespassing claims from the Osage Minerals Council.
“The trespass and continued trespass claims fail because no such claims are provided for by Act of Congress or exist in federal law,” Enel attorney Ryan Ray wrote.
Attorneys for the energy companies also requested that the value of damages incurred by the mineral estate from the Osage Wind farm project near Burbank be limited to the definitions of “mining” and “mineral development” offered by the 10th Circuit Court of Appeals.
In 2017, the 10th Circuit Court of Appeals held that the extraction, sorting and crushing of 1.6 million cubic yards of minerals conducted as part of the efforts to dig 84 wind turbine foundation pits constituted mineral development.
The Osage Minerals Council and federal attorneys had previously sought a full accounting of the wind farm’s revenue as well, but were denied by Judge Gregory Frizzell on July 1.
Meanwhile, legal counsel with both the U.S. Attorney’s Office and the Osage Minerals Council continues to seek a permanent injunction against Enel, as well as an order to have the turbines removed and monetary damages paid.
“The public interest will be served by a permanent injunction that prohibits defendants’ continued trespass because compliance with federal laws serves a significant public interest,” attorney Mary Kathryn Nagle wrote in a July 10 amended complaint from the Osage Minerals Council. “Defendants failed to comply with federal law when they refused to follow the BIA’s instructions and obtain the requisite permit, and they failed to comply with federal law when they instead entered and disrupted the Osage Minerals Estate and unlawfully excavated minerals therefrom in violation of 25 C.F.R. [Code of Federal Regulations]…”
As per a scheduling order issued July 15 by Judge Gregory Frizzell, the discovery deadline for all parties has been extended to Dec. 18 due to the ongoing pandemic. Dispositive motions, or motions to dismiss, are due by Jan. 22, 2021. A trial date has not been set and is projected to take up to 10 days should the case proceed that far.