A federal judge has rejected the United States’ request for sanctions against the Italian-owned Osage Wind development north of Fairfax.
The U.S. Attorney’s office had asked Osage Wind and its parent, Enel Green Power North America, be punished for failing – despite promises to do so – to keep records of the amount of limestone and other minerals it excavated from the Osage mineral estate when those materials were blasted to created foundations for the massive wind turbines that now dot the landscape.
Back in 2014, when the court battle over the conversion of Osage-owned minerals began, the wind developers acknowledged monetary damages would be “increasingly difficult to calculate as they continued to ravage the OME [Osage mineral estate]” wrote Assistant U.S. Attorney Cathryn D. McClanahan. “However, Defendants hastened to assure the Court that ‘Osage Wind’s contractor has records of volumes crushed, and larger pieces of rock remain stacked at pertinent foundation site.”
In fact, no such records of the volume of minerals removed and crushed for use in the turbine foundations were ever kept.
But U.S. District Judge Gregory Frizzell ruled Oct. 18 that federal regulations did not require Enel to keep track of the volume of the rock removed, but only to record the location of the holes it did drill or blast – records that do exist.
“Thus … the Court declines … impose an obligation on Osage Wind to create record of excavated materials,” Frizzell wrote. Nor was he willing to impose sanctions requested by the United States.
The legal battle over the mineral estate being excavated by Osage Wind has been a long one. The suit was filed in 2014, and the Bureau of Indian Affairs and the U.S. Attorney’s Office issued pointed letters and court documents demanding the construction of the wind development be stopped while Enel was forced to get a permit to mine. Enel largely thumbed its nose at the feds and even appeared to accelerate the speed of construction.
In 2015, District Court Judge James H. Payne tossed the case, ruling what Enel was doing on the prairie was not, in fact, mining. In 2017, the 10th Circuit Court of Appeals reversed Payne’s ruling, holding that Enel was in fact mining and was indeed required to obtain a federally approved lease, which it had failed to get.
Since then, the case has been meandering along. In February, a magistrate judge ruled Enel must produce financial details about the profitability of the Osage Wind, which claims it would lose $300 million if it had to remove the 94 turbines from the landscape, as the Osage Minerals Council and the United States have requested.
The magistrate also opened what she called “a small door” for Enel to attempt to prove it was acting in good faith when it mined the land, which would mean any damages it could be awarded would be blunted compared to what it might pay of it is found to have willfully disregarded the law.
No hearings have yet to be set on determining damages. The value of the minerals excavated and used to buttress the turbines has been estimated between $74,000 and $248,000 by defense and government experts.