An Oklahoma federal judge has ordered the removal of a wind turbine farm on the Osage Reservation in Oklahoma, ruling the wind farm committed continued trespass. The ruling ends a decade-long battle between the Osage Nation and an 84-turbine wind farm spanning 8,400 acres in Osage County.
On Dec. 20, District Judge Jennifer Choe-Groves ruled that Osage Wind LLC, Enel Kansas LLC and Enel Green Power North America Inc. failed to acquire a mining lease for the project and therefore committed trespass, conversion and continuing trespass on the land.
Since the developers mined and crushed rocks during the wind farm construction more than 10 years earlier, they violated the Osage Allotment Act of 1906, which grants mineral rights to the Osage Nation, the court ruled.
“There is no genuine dispute of material fact that the construction of the wind towers involved entering the mineral estate, extracting minerals, and using the extracted minerals without first obtaining the necessary lease,” Choe-Groves wrote.
The court ordered the defendants to remove the wind turbine farm as remedy for continuing trespass and ordered a damages trial to assess the amount of damages to be awarded for trespass and conversion.
Removing the wind turbines, transmission lines and other equipment is expected to total several hundred million dollars.
“Even if negative effects were to result, including the significant monetary impact of hundreds of millions of dollars, such effects would not negate the public interest in private entities abiding by the law and respecting government sovereignty and the decisions of courts,” Choe-Groves said.
Background
The wind farm owners began leasing surface rights in 2010, according to court documents. In 2011, the Osage Nation expressed concern that the project would block access to the mineral estate and interfere with oil and gas production. The Tribal nation filed suit in the fall of 2011, which was dismissed by the court.
The wind farm began construction on the wind towers in the fall of 2013 and excavating in the fall of 2014. The Osage Nation contended that the excavations constituted unauthorized mining and excavation. The court found that a lease was not required. The Tribal nation appealed the decision, which was then reversed by the 10th Circuit Court of Appeals.
The 10th Circuit Court of Appeals held in 2017 that the wind farm was required to obtain a mining lease and the Supreme Court denied the appeal of the 10th Circuit’s decision in 2019. Therefore, the wind farm failed to obtain a lease in violation of the court’s order from at least 2019-23, Choe-Groves said.
“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 Osage Minerals Council Chairman Everett Waller in a statement. “We are open for business, and we look forward to working with anyone who negotiates with us in good faith.” — Anna Miller, WLJ managing editor
