Osage Minerals Council votes to appeal wind farm case

An appeal is on the horizon to keep a proposed 94-turbine wind farm out of Osage County, which the Nation argues will harm the Minerals Estate.

Last month a federal judge ruled against the Osage Nation in U.S. District Court, which filed suit through the Minerals Council, to stop the project to be built by Wind Capital Group on approximately 8,500 acres near Burbank.

The OMC argued the wind farm project would interfere with the Osage Minerals Estate, but the presiding judge disagreed and opined: “The Court concludes the Tribe has failed to establish irreparable harm. Much of (the tribe’s) case is built upon speculative concern that unreasonable interference may occur.”

Now the OMC plans to seek an appeal in the case. Appeals in the federal court’s Northern Oklahoma District are heard at the 10th Circuit Court of Appeals in Denver.

The OMC voted unanimously to appeal the verdict during its Dec. 21 meeting following an executive session held that same day. The motion called for OMC Chairman Galen Crum to contact Washington, D.C.-based law firm Akin & Gump to discuss starting the appeal process.

Councilman Dudley Whitehorn motioned for Crum “to contact Akin & Gump to represent us in the appeal” of the wind farm case which was decided on Dec. 14 following a two-day non-jury trial in Tulsa.

The motion passed 8-0.

The motion leaves Roger Wiley, who represented the OMC in this case, out of the appeal events. Wiley is an associate with Rosette L.L.P., which is a Native American-owned law firm with several offices nationwide.

Crum told the Osage News he contacted Akin & Gump during the week after Christmas and was waiting to hear back from those who would be working with the OMC on an appeal.

The appeal decision comes at a crucial point for the wind farm project, which must be completed by the end of 2012. Wind Capital Group has said it is seeking a federal tax credit to help finance the project with construction expected to take nine to 12 months.

The OMC and its legal counsel have 30 days to file a notice of appeal of the case. Civil cases (where the government is not a party) have the 30-day window to appeal after the judgment has been entered, according to a guide on the 10th Circuit Court’s Web site.

News of the appeal comes shortly after presiding U.S. District Court Judge Gregory Frizzell filed his written judgment in the case on Dec. 20. Frizzell’s judgment rules in favor of Wind Capital Group and orders the Nation to pay Wind Capital Group’s court costs.

Wind Capital Group is seeking $9,241 in court expenses, according to documents filed by Tulsa-based attorney Craig Fitzgerald who represented the company in the case.

The expenses cover costs for photocopied materials, subpoena fees for serving two testifying witnesses, court reporter fees and transcript costs.

A hearing on the bill of costs has been scheduled for Jan. 31 in the U.S. District Court Clerk’s office in Tulsa.

Frizzell’s ruling came after the two-day trial with testimony coming from witnesses for both sides in the case including Tulsa-based Orion Exploration, which has a lease agreement with the OMC to drill in the wind farm project vicinity.

According to court documents, the OMC signed a lease acquisition and exploration agreement with Orion, which received approval from the Bureau of Indian Affairs on Sept. 23. According to the agreement, Orion has agreed to drill the first five wells (of 18) by Nov. 4, 2012. The lease covers 19,680 acres with 2,500 of those acres overlapping in the wind farm project area.

Frizzell noted in his decision that Orion is not required to drill within the wind farm project area and noted that Orion has not finalized its well locations so its unknown if a drill site will be built near a proposed turbine site.

The next scheduled OMC meeting is Jan. 13.