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Nation sets hopes on case in Oklahoma Supreme Court to oust wind farms

After a federal judge ruled on Sept. 30 that Osage Wind’s construction of 84 turbines in the Osage Minerals Estate did not need approval from the Osage Minerals Council, the Nation is setting its hopes on a case currently in the Oklahoma Supreme Court.

“The Osage Nation is required to follow federal law, including federal court decisions. Any remaining legal issues are being handled by the Minerals Council attorneys,” Standing Bear said. “There is one last chance in an appeal of an Osage County decision being handled through the Osage [attorney general]. Outside of this, the solutions are political, and outside the court system.”

The Osage Nation first filed a case against Osage Wind, LLC, in federal court on Oct. 18, 2011. The nation lost that case in December of 2011. Then in November of 2014 the United States filed the case against Osage Wind, LLC, in federal court for itself and the Osage Minerals Council, which was just lost.

The argument made by the United States was that Osage Wind needed a permit from the OMC to conduct “mining” and other activities within the mineral estate before digging the foundations of the turbines. The turbine foundations are made of concrete and measure approximately 10 feet deep and are between 50 and 60 feet in diameter. Workers were digging up limestone and other minerals, crushing it and using it as backfill for the foundations.

U.S. District Judge James Payne disagreed that Osage Wind was “mining” the minerals estate because the definition of mining in the Code of Federal Regulations states mining only occurs when there is “mineral development” for profit, not when a company “incidentally encounters minerals in connection with surface construction …”

“The excavated soil, sand, and rock were not used for any purpose other than to return them to the hole from which they came,” according to the ruling. Payne also said, “In other words, a commercial mineral development purpose is required to invoke the leasing requirements” of the CFR’s and the actions of Osage Wind did not qualify.

Once the Osage Wind Farm Project is completed it will consist of 84 wind turbines, underground collection lines, a substation, one overhead transmission line, two permanent meteorological towers, access roads, all covering approximately 1.5 percent of 8,400 acres of leased property, according to the ruling.

The United States can appeal the decision to the 10th Circuit Court in Denver but would need instruction from the Osage Minerals Council. According to OMC Chairman Everett Waller, the OMC is meeting with U.S. Attorneys to discuss future options.

Oklahoma Supreme Court

The Nation’s hopes now rest in the Oklahoma Supreme Court. The Nation is challenging the Osage County Board of Commissioners legislative authority to adopt a zoning ordinance giving the Osage County Board of Adjustment the power to approve a conditional use permit.

The Board of Adjustment denied Mustang Run Wind Project, LLC, a conditional use permit, but only after they approved the same permit for Osage Wind, LLC. Mustang Run appealed the denial in district court and the judge presiding in the case ordered the board of adjustment to issue the permit to Mustang Run, allowing for the company to begin construction.

The Mustang Run project consists of 68 wind turbines along Highway 60, about 10 miles north of Fairfax. Representing the Nation is Tulsa-based attorney John Moody and ON Attorney General Holli Wells.

The Nation argued in the past the Mustang Run project will hurt the Tallgrass Prairie Preserve, hurt the habitat of the greater prairie chicken, the turbines will kill bald eagles, property values will drop, damage will occur to the ON Heritage Trail, to ON Cultural Resources, and existing oil and gas leases of the Osage. The Nation also made the argument that the Shidler School District “would actually lose ad valorem taxes for schools that Mustang Run said would increase,” according to the lawsuit.

 

Mustang Run Court Case Timeline:

2014

  • March 7: Mustang Run Wind Project, LLC, files for a conditional use permit from the Osage county Board of Adjustment to use approximately 9,453 acres of land in Osage County zoned Agricultural for a wind energy facility.
  • May 8: Osage County Board of Adjustment denies Mustang Run conditional use permit.
  • May 15: Mustang Run Wind Project, LLC, files a petition and appeal to the Osage County District Court for the denial. Case assigned to Judge Dynda Post in Rogers County.
  • May 28: Board of Adjustment files its answer to Mustang Run, denying the board wrongfully denied the application. Asks the judge to dismiss the case.
  • June 18: Judge Post sets status conference for June 25, requires parties to provide the Osage Nation with a copy of the order.
  • June 23: Board of Adjustment files response to petition.
  • June 25: Osage Nation and Osage Minerals Council files motion to Intervene and Brief in Support.
  • June 27: Judge Post orders that a list of evidence be submitted for a Trial De Novo on Aug. 13.
  • July 7: Mustang Run and Board of Adjustment file a joint list of evidence. Osage Nation was not notified to submit their list of evidence, despite having given a list to the Board of Adjustment on May 7, it was not included in the joint list.
  • July 15: Nation files Motion to Supplement Joint Submission of List of Evidence and Record for the trial. The list is subsequently accepted.
  • Aug. 4: Judge Post recuses herself from the case.
  • Aug. 4: Nation files motion to Continue Trial De Novo, Motion for Extension of Time to File Trial Brief, and Request for Scheduling Conference because Judge Post had not ruled on their Motion to Intervene before her recusal. (The Nation also had a second case in District Court against the Osage County Board of County Commissioners, the Osage County Board of Adjustment and Osage Wind, LLC, challenging the legislative authority and jurisdiction of the Board of Adjustment to issue a conditional use permit to Osage Wind.)
  • Aug. 8: All cases, including the Nation’s first case against the County Commissioners, Board of Adjustment and Osage Wind, were assigned to Judge Robert Haney of Ottawa and Delaware Counties.
  • Aug. 22: Judge Haney orders a Order of Setting hearing for Aug. 28.
  • Aug. 27: Mustang Run files a trial brief.
  • Aug. 28: Judge Haney dismisses both Osage County District Court Cases brought by the Nation, but not the Mustang Run appeal. Judge Haney permits Nation to intervene and file a trial brief in the case and allows the Board of Adjustment to file its trial brief.
  • Sept. 10: Nation files trial brief, challenging the authority of the Board of Commissioner and Board of Adjustment to authorize and approve conditional use permits.
  • Sept. 10: Board of Adjustment files trial brief.
  • Oct. 23: Trial De Novo is held. Judge Haney states he had never before heard of boards of adjustment because they didn’t exist in Ottawa or Delaware counties and that all Osage County is good for is drilling oil wells or raising cattle. He also says, “And I fail to see how a wind turbine is going to affect and cause some cow to go off her feed because the wind turbine is there.”
  • Nov. 12: Judge Haney issues order for the Osage County Board of Adjustment to issue a conditional use permit to Mustang Run.

 

2015

  • Nation appeals ruling to Oklahoma Supreme Court. Nation argues the District Court had no legislative authority or jurisdiction under Oklahoma statute to issue a conditional use permit and the order of Judge Haney is void.

By

Shannon Shaw Duty


Original Publish Date: 2015-10-16 00:00:00

Author

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Shannon Shaw Duty
Shannon Shaw Dutyhttps://osagenews.org

Title: Editor

Email: sshaw@osagenation-nsn.gov

Twitter: @dutyshaw

Topic Expertise: Columnist, Culture, Community

Languages spoken: English, Osage (intermediate), Spanish (beginner)

Shannon Shaw Duty, Osage from the Grayhorse District, is the editor of the award-winning Osage News, the official independent media of the Osage Nation. She is a graduate of the University of Oklahoma with a bachelor’s degree in Journalism and a master’s degree in Legal Studies with an emphasis in Indigenous Peoples Law. She currently sits on the Freedom of Information Committee for the Society of Professional Journalists. She has served as a board member for LION Publishers, as Vice President for the Pawhuska Public Schools Board of Education, on the Board of Directors for the Native American Journalists Association (now Indigenous Journalists Association) and served as a board member and Chairwoman for the Pawhuska Johnson O’Malley Parent Committee. She is a Chips Quinn Scholar, a former instructor for the Freedom Forum’s Native American Journalism Career Conference and the Freedom Forum’s American Indian Journalism Institute. She is a former reporter for The Santa Fe New Mexican. She is a 2012 recipient of the Native American 40 Under 40 from the National Center for American Indian Enterprise Development. In 2014 she helped lead the Osage News to receive NAJA's Elias Boudinot Free Press Award. The Osage News won Best Newspaper from the SPJ-Oklahoma Chapter in their division 2018-2022. Her award-winning work has been published in Indian Country Today, The Washington Post, the Center for Public Integrity, NPR, the Associated Press, Tulsa World and others. She currently resides in Pawhuska, Okla., with her husband and together they share six children, two dogs and two cats.
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