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Federal judge orders removal of wind turbines from Osage Mineral Estate

OMC Chairman Everett Waller: “We will defend the Mineral Estate against anyone that does not comply with the law and tries to take our lands and resources”

A nearly decade-long case that wound its way through state and federal courts could be over after a federal judge ruled the wind turbines on the Osage Reservation constituted continued trespass.

U.S. District Court Judge Jennifer Choe-Graves ordered wind turbines located north of Pawhuska on the Burbank Field to be removed and said their continued presence on the Osage Mineral Estate amounted to continued trespass – one of the issues argued before the Northern District of Oklahoma at a hearing on Sept. 20.

A trial will be held to assess further damages for the past 10 years.

It’s only the third time nationally a judge has ordered the teardown and removal of wind turbines and a first for Oklahoma. The Osage Minerals Council said in a statement they were more than pleased with the outcome.

“The Council fights every day to provide for our headright holders. We will defend the Mineral Estate against anyone that does not comply with the law and tries to take our lands and resources,” said Chairman Everett Waller.  “We are open for business and we look forward to working with anyone who negotiates with us in good faith.”

The United States argued the Council is entitled to “an accounting of the profits [Enel] received from the unlawful and unauthorized use of the Osage Mineral Estate.”

The court determined that a project of this magnitude required a lease under the Code of Federal Regulations under Title 25, sections 211 and 214.

The developers – Osage Wind, Enel Kansas and Green Power Energy LLC – never obtained such a lease. The question of whether they needed a lease went before the 10th Circuit Court of Appeals in 2019 in which the defendants lost. They attempted to re-argue portions of that case earlier this year when a question of continued trespass came before the Northern District.

Osage Wind admitted they did not have a permit but said what they did doesn’t amount to continued trespass. Yes, they pulled rock from the ground in order to buttress the large turbines but said it was a one-time trespass and they should not be held liable for any further damages – only a one-time damage payment.

More than 10 years ago, Enel obtained leases from surface owners to construct a wind farm over about 8,400 acres and erected more than 84 wind turbines, transmission lines, and more.

The Court held all these actions illegally used the Osage Mineral Estate. The Court found “It is undisputed [Enel] physically invaded the Osage Mineral Estate without the permission of the Osage Minerals Council … during the construction of the Osage Wind project.”

25 C.F.R. Part 214 regulates the leasing of resources other than oil and gas in the mineral estate. It says, “[n]o mining or work of any nature will be permitted upon any tract of land until a lease covering such tract shall have been approved by the Secretary of the Interior and delivered to the lessee.”

The Council filed its first lawsuit to halt the construction of wind turbines in 2011.

They said the project unlawfully deprived them of access to and the right to develop the mineral estate. The Council lost that case. Construction went forth in 2013.

The Council filed another lawsuit in 2014, U.S. District Court Judge James H. Payne ruled Enel wasn’t illegally mining limestone and other minerals that belonged to the Osage Nation when erecting the turbines.

Two years later Payne was overruled by the U.S. Court of Appeals, which said the activity was mining because Enel gathered rock, crushed it, and then used it for a commercial purpose: building the base for the turbines with rock. Enel appealed that decision to the U.S. Supreme Court. They declined to hear the case.

Osage Wind, Enel Kansas and Enel Green Power North American could appeal their case again to the 10th Circuit, but according to legal experts who spoke with Osage News about the case said an appeal is unlikely since the wind developers’ argument of whether they needed a lease failed before that court.

The OMC says they are going to, “use the full effect of the law to ensure that headright holders are properly compensated for the illegal trespass and improper use of the Osage Mineral Estate.”

“Well, everybody’s happy,” OMC 2nd Chair Myron Red Eagle said. “You know, we’ve been waiting for this for a long time. And we finally got a judge that, you know, kind of went along with us and got to see what was really going on.”

Thomas McCormack, attorney for Osage Wind, declined comment for this story.

Editor’s Note: This article was clarified on Dec. 22, 2023.

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Allison Herrera
Allison Herrerahttps://osagenews.org
Title: Freelance Reporter
Email: aherrera@osagenation-nsn.gov
Languages spoken: English

Allison Herrera is a radio and print journalist who's worked for PRX's The World, Colorado Public Radio as the climate and environment editor and as a freelance reporter for High Country News’ Indigenous Affairs Desk.

Herrera recently worked on Bloomberg and iHeart Media's In Trust with Rachel Adams-Heard, an investigative podcast about Osage Headrights.

She currently works for KOSU as their Indigenous Affairs Reporter. Herrera’s Native ties are from her Xolon Salinan tribal heritage.

In her free time, she likes buying fancy earrings, running and spending time with her daughter.

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