Judge Orders Wind Turbines Removed From Osage Nation

A federal judge in Oklahoma has ordered the removal of an 84-turbine wind farm spread across 8,400 acres in Osage County with a final ruling that ends a decade-long legal battle over illegal mining on the Osage Reservation. The cost for removal of the turbines is estimated at $300 million.

The ruling in Tulsa federal court by U.S. Court of International Trade Judge Jennifer Choe-Groves was against Osage Wind LLC, Enel Kansas LLC and Enel Green Power North America Inc. The order grants the United States and the Osage Nation through its Minerals Council permanent injunctive relief via “ejectment of the wind turbine farm for continuing trespass.”

The Osage Allotment Act of 1906 states that the Osage Nation owns the subsurface rights to minerals in the area. The Minerals Council is an arm of the Osage Nation that manages the Osage Minerals Estate.

A trial date for damages due to the tribe has not been set, but a spokesman for the Osage Minerals Council said the tribe would expect at least the value of damage to the land, all lawyer fees, profits and tax incentives Enel received as a result of the installation.

At issue in the case was whether a mining permit was required to construct the wind farm, located in tallgrass prairie between Pawhuska and Fairfax. The defendants began leasing surface rights from private landowners for the project in 2013, and construction on the wind towers began in October 2013, with excavation for the towers beginning in September 2014.

A 2017 appellate court decision determined the construction of the wind farm constituted mining and therefore a lease from the Osage Nation’s Minerals Council was required.

“The developers failed to acquire a mining lease during or after construction, as well as after issuance of the 10th Circuit Court of Appeals’ decision holding that a mining lease was required,” Choe-Groves said.

“On the record before the Court, it is clear the Defendants are actively avoiding the leasing requirement,” Choe-Groves said. “Permitting such behavior would create the prospect for future interference with the Osage Mineral Council’s authority by Defendants or others wishing to develop the mineral lease. The Court concludes that Defendants’ past and continued refusal to obtain a lease constitutes interference with the sovereignty of the Osage Nation and is sufficient to constitute irreparable injury.”