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HomeLegalU.S. and Osage Minerals Council scoff at wind companies' alternative to ejectment

U.S. and Osage Minerals Council scoff at wind companies’ alternative to ejectment

Attorneys for the United States and the OMC accuse wind companies of “delay, delay, delay,” and ask the court to proceed with the damages trial as scheduled for May 20, 2024.

Attorneys for the U.S. government hit back at a proposal filed by three wind companies involved in a more than decades-old lawsuit saying their tactics amount to delaying the case even further.

The U.S. Attorney for the Northern District of Oklahoma’s March 7 brief was in response to a Feb. 22 filing by Osage Wind LLC, Enel Green Power North America and Enel Kansas. In their brief they sought to further a replacement option for the 84 wind turbines.

“Every day the wind farm remains in operation is another day Defendants generate income,” wrote Nolan Fields, the Assistant U.S. Attorney for the Northern District of Oklahoma.

Fields said every day defendants generate income from the wind farm is a day they can pay off those with a financial interest in the project without a lease and is, “another day that the Osage headright holders are willfully ignored.”

In a 12-page filing last month, the wind companies floated the option of replacing the rocks and soil that currently hold up the turbines with “alternative backfill.” They say this option of keeping the wind farms operable would be beneficial to the local school districts, landowners and said that removing them completely would require additional expenses.

In response to their February brief, the U.S. Attorney’s office scoffed.

“That ship has sailed,” Fields wrote.

Jeffrey Rasmussen, the attorney representing the Osage Minerals Council from the Native Law Group, noted that Judge Jennifer Choe-Groves only asked the companies for a plan for ejectment and not an alternative.

He wrote that any consideration as an alternative to ejectment of the 84 wind turbines as ordered, must be rejected.

“Defendants’ attempt to belatedly argue for a ‘more targeted injunction’ is not respectful. It is, instead, an untimely attempt to raise issues that they waived when they chose not to raise them in opposition to Plaintiffs’ requests for ejectment,” wrote Rasmussen.

In his brief, Fields cited court transcripts from a Sept. 20 hearing where the defendants were asked by Judge Choe-Groves about a replacement option:

“… In terms of factually whether that could actually occur and what the consequences would be … And as I sit here right now, I can’t answer the question of whether it’s feasible or not,” lawyers for the defendants said in their September hearing.

In their brief, the OMC listed what they wanted to happen to the wind turbines after Judge Choe-Groves issued her Dec. 20 opinion last year:

  • Within 24 hours of the issuance of the order, Defendants shall cease use of the turbines.
  • Defendants must remove the wind farm and all foundations within six months from the Court’s order unless Defendants obtain a lease for a longer period of time, which would then permit Defendants to proceed at the leisurely pace that they propose.
  • Defendants shall not alter or move any of the OMC’s minerals beyond any minimal amounts of movement needed to remove the wind farm.

Rasmussen of the Native Law Group said it’s been six years since the wind farm companies’ arguments were rejected by the U.S. Supreme Court after the 10th Circuit Court of Appeals ruled they were operating without a lease. Instead of correcting it, “they have continued to have the windfarm operate without the lease that the 10th Circuit held was required,” he wrote.

The U.S. Attorney for the Northern District also asked Judge Choe-Groves to, “deny Defendants’ request for a series of stays and relief aimed at avoiding the wind farm’s ejectment, delaying the damages trial, and circumventing an appellate bond.”

The wind farm companies asked for a temporary injunction on the ruling and the upcoming hearing to determine damages scheduled for May 20 at the federal court in Tulsa.

Fields said the request for an injunction before the damages trial only serves one purpose: allowing the defendants to “delay, delay, delay.”

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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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