A recent ruling from the 10th Circuit Court that opened the door for the Osage Nation to potentially pursue damages from a controversial energy project is now being challenged.

Citing an 11th hour intervention attempt by the Osage Minerals Council, attorneys for Osage Wind and its parent entities, Enel Kansas and Enel Green Energy North America, filed a petition Monday requesting a rehearing for the appeal stemming from a civil complaint over a wind farm development near Burbank, Okla.

In the companies’ appeal, attorney Ryan Ray questioned the definition of mining proffered by the three-judge panel, noting that it basically gives the Bureau of Indian Affairs and the Osage Minerals Council carte blanche to control any and all construction efforts within Osage County.

“Thus, the court has essentially given the BIA and OMC a veto power, one it certainly would have exercised here, over certain – maybe even all – surface construction (including all likely commercial construction in any event) on any land as to which the Osage Nation owns the underlying minerals, in direct contravention of the intent of the Osage Allotment Act,” he wrote.

As of Friday, no action has been taken on the petition.

In a unanimous decision issued in mid-September, a three-judge panel reversed and remanded a September 2015 summary judgment from the Northern District Court of Oklahoma that allowed Osage Wind to conduct excavation work in order to set up 84 wind turbines across 8,400 acres in western Osage County without a mining permit from the Bureau of Indian Affairs or approval from the Osage Minerals Council.

In an effort to install the turbine foundations, Osage Wind dug pits measuring 60 feet wide and 30 feet deep. In the process, it excavated more than 60,000 cubic yards of limestone, dolomite and other minerals, ran the smaller chunks through a rock crusher, then returned them to the earth, thus prompting a debate on the definition of “mining.”

Under federal statute, any mining activity conducted in Osage County requires a permit from the BIA. Neither Enel Green Power North America nor its subsidiary, Enel Kansas, obtained one.

The decision also granted a motion from the Osage Minerals Council to intervene in the proceedings despite not initially being listed as a party to the lawsuit. The council filed its motion electronically after the close of business on the deadline day after receiving late notification that the Department of Interior would not challenge the initial district court ruling. 

“The Osage Nation, acting through OMC [Osage Minerals Council] in fact owns the beneficial interest in the mineral estate that is the subject to the appeal,” Judge David Ebel wrote in the initial 27-page decision. “The district court’s decision forced OMC to watch from the sidelines as Osage Wind disrupted the mineral estate…”