The long-running case that pits the Osage Minerals Council and the United States government against the Italian utility giant Enel took a slight turn on Feb. 27, when a new judge was assigned to the case.
Off the case: Gregory Frizzell, the chief judge for the U.S. District Court for the Northern District of Oklahoma.
Now presiding: Jennifer Choe-Groves, a visiting judge who serves on the U.S. Court of International Trade based in New York City.
Choe-Groves was appointed to the Court of International Trade by President Barack Obama in 2015 and was confirmed by voice vote by the U.S. Senate in June 2016. She’s a graduate of Princeton University, Rutgers Law School, and has a Master of Laws degree from Columbia University. She started her legal career as an assistant district attorney under Robert Morgenthau in the Manhattan DA’s office. She also served in the Executive Office of the President under Presidents George W. Bush and Obama as Senior Director for Intellectual Property.
In her youth, she was deemed one of the best concert pianists in the New York City area.
The Osage Wind case has been dragging along for almost 10 years and has been at a virtual standstill for the past year. In February 2022, a magistrate judge ruled that Enel, whose subsidiary Osage Wind LLC owns the wind facility near Burbank, must provide financial details about the profitability of the Osage Wind, which claimed it would lose $300 million if it is ordered to remove the 84 turbines from the landscape – as the United States and the Minerals Council have requested.
In October 2022, Frizzell ruled against the United States and the Minerals Council on a request that Osage Wind and Enel be censured or sanctioned for failing to maintain records of the amount of limestone and other minerals that it excavated from the Osage mineral estate when those materials were crushed to create foundations for the turbines.
Since then, it has been crickets until Choe-Groves appointment to the case, giving hope that the case might finally get off high center.
The legal battle over the mineral estate being excavated by Osage Wind has been a long one. Suit was filed in 2014, and the Bureau of Indian Affairs and the U.S. Attorney demanded that the construction of the turbines be stopped while Enel was forced to get a permit to mine. Enel blew off the feds and even appeared to accelerate the speed of construction.
In 2015, District Court Judge James H. Payne threw the case out, ruling that 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.
No hearings are currently scheduled in the case. The value of the minerals that were excavated and used to buttress the turbines has been estimated between $74,000 and $248,000 by defense and government experts, but the United States and the Minerals Council alleged that Enel willfully disregarded the law, opening the door for far greater.