In a brief filed in federal court last week, the three companies presented a proposal to federal judge Jennifer Choe-Groves that would allow them to keep their wind farm in business.
Enel Green Power North America, Osage Wind LLC and Enel Kansas laid out two options: Remove the wind farm completely as federal Judge Jennifer Choe-Groves ordered last December or, replace the rocks and soil they removed from the mineral estate from the foundation to keep the wind farms operable.
The 12-page filing comes more than two months after Choe-Groves ordered ejectment of the wind farm on land north of Pawhuska on the Burbank field saying that the wind farm companies lacked a permit and that using the rocks and soil to buttress the turbines amounts to “continued trespass.” The ruling came after more than a decade-long court battle from the Osage Nation and the Osage Minerals Council to rid the reservation of the structures.
“The developers failed to acquire a mining lease during or after construction, as well as after issuance of the Tenth Circuit Court of Appeals’ decision holding that a mining lease was required,” wrote Choe-Groves who presided over a hearing last September.
The three wind farm companies say ejectment of the 84 wind turbines will cause economic harm to area schools, surface owners in Osage County and will impact the renewable energy they provide to 50,000 households.
The companies also want a temporary injunction on the ruling and the upcoming hearing to determine damages that’s scheduled for May 21 at the federal court in Tulsa.
In a Tulsa World front-page article, Shidler Public School officials said the tax income from the wind farm is important to get new facilities and improvements.
Osage News reached out to Osage Minerals Council chairman Everett Waller about this latest brief but was told he could not comment on the advice of their legal counsel. Waller told Osage News that they would be discussing the issue at an upcoming Minerals Council meeting.
In a press release dated Dec. 20, 2023, Waller released a statement saying he was pleased with the ruling.
“The Council fights every day to provide for our headright holders. We will defend the Mineral Estate against anyone that does not comply with the law and tries to take our lands and resources,” said Waller. “We are open for business and we look forward to working with anyone who negotiates with us in good faith.”
The Minerals Council said “The Council plans to use the full effect of the law to ensure that headright holders are properly compensated for the illegal trespass and improper use of the Osage Mineral Estate. “
The Council is represented by Patterson, Earnhart Real Bird & Wilson, LLP (Native Law Group) in this case.
Replacement or Demolition?
The three wind companies say a lengthy and expensive process of obtaining the proper permits, expanding local roads to transport oversized equipment and the use of explosives will be required to remove the 84 turbines north of Pawhuska. Completing the demolition of the turbines will take 18 months.
The blades would be removed manually and the companies would detonate what remains. They say it will take six months to complete the initial permitting process to move forward with removal.
The concrete foundation for the turbines would have to be partly removed and the wind companies would, “excavate around the foundation. The large holes resulting from the excavation would be backfilled with soil, and any left-over surface debris would be removed.”
Lawyers for the defendants say that some of the specialists needed to complete the removal work are in high demand and could delay the process.
“Defendants will need to apply for and obtain a number of local permits—including local building permits, transportation permits, and permits for the controlled use of explosives—and may also need additional environmental surveys or permits to comply with state or federal law, and to formally withdraw permits previously obtained from the Federal Aviation Administration,” according to the three companies.
They say the replacement option is better and more in line with the court’s “narrow 2023” ruling.
The defendants said the replacement option would take less time than the demolition option. This involves removing the current rocks and soil that provide the foundation for each turbine by using “alternative backfill.” Osage News reached out to Enel Green Power North America to ask what that is but have not received a response.
“Of the two proposals outlined herein, Defendants submit that the Replacement Option is superior because it would fully remedy the ‘continuing trespass’ found by the Court, without the substantial collateral damage that would result from removal of the wind turbines.”
They also reiterated that keeping the turbines operating would benefit the two local schools, the landowners and, “It employs a number of local technicians and managers and generates lease payments that are a substantial source of income to Osage County landowners and their families.”
The defendants say the replacement option would take less time than the demolition option by 3-4 months.
Once the existing backfill is removed, the defendants say that they will simply give it back to the Osage Nation.
“Defendants will distribute the backfill that was previously derived from the mineral estate
either across the surrounding land or, upon request, deliver it to the OMC or other Osage Representative.”
The filing doesn’t include any details about monetary damages that would be paid for the use of those materials.
An order filed on Feb. 8 by Judge Choe-Groves told the defendants to submit a plan for removal of the wind farm and rehabilitation of the land. She also ordered the Osage Minerals Council to come up with a response to the defendants’ proposal by March 7.
A pretrial status conference is scheduled for March 13 at 9:30 a.m. at the Page Belcher Federal Building in Tulsa. A trial is set for May 21 at 10 a.m. at the Page Belcher Federal Building.
