Osage Nation secures landmark decision in dispute over construction of wind farm

Monday, September 18, 2017

A landmark decision from a federal appeals court clears the way for the Osage Nation to recover damages from the operators of a contested wind farm in Oklahoma.

The unanimous ruling from the 10th Circuit Court of Appeals does not halt operations of the 8,400-acre Osage Wind project. But a three-judge panel on Monday sided with the tribe on a critical issue regarding the farm.

The developers engaged in "mining" activities during construction of the facility in Osage County, Judge David M. Ebel wrote for the court. Yet they failed to secure approval from the Bureau of Indian Affairs for the work, the decision stated.

Approval from the BIA was required because the tribe owns the mineral estate in the county, Ebel noted. Installation of 84 wind turbines resulted in "large-scale mineral excavation work" of rock and soil owned by the tribe, the decision read.

The problem is that the Osage Mineral Council, which handles activities affecting the estate, never had a say in those efforts, the court said.

"The Osage Nation (acting through OMC) in fact owns the beneficial interest in the mineral estate that is the subject of this appeal," Ebel wrote in the 27-page ruling. "The district court’s decision effectively forced OMC to watch from the sidelines as Osage Wind disrupted the mineral estate, which is owned by OMC’s tribe."

The Don Quixote in me was out in full force yesterday.
Posted by Jerry Rhodes on Sunday, August 14, 2016

Jerry Rhodes on Facebook: Osage Wind Farm in Oklahoma

The proceedings have been unusual in that the lawsuit was originally filed by the federal government, acting as the trustee for the tribe. But after the district court ruled for Osage Wind, the Department of Justice waited until "final day of the appeal deadline" to inform the tribe it wasn't going to take the case to the 10th Circuit, according to the decision.

So while the Osage Mineral Council wasn't an original party to the lawsuit and hadn't intervened in the case, the 10th Circuit said its participation was warranted. The tribe has a "unique interest in this matter" because it owns the mineral estate, the decision read.

Still, by the time the case had reached the decision phase, Osage Wind had already completed development of the farm. According to the firm's website, the project now produces enough power for 45,000 homes in Oklahoma.

But the matter is far from over over. With the critical issue of "mining" having been resolved by the court, the federal government can seek damages from Osage Wind for disturbing the tribe's mineral estate.

"By placement of the turbine foundation and other materials, defendants trespassed on the Osage mineral estate, in violation of law and, in doing so, caused damage to the estate," the federal government alleged in an amended complaint for damages. "The insertion and placement of materials or structures in the mineral estate is a continuing trespass and diminishes the estate or diminishes the use and enjoyment of the mineral estate."

The decision marks yet another instance in Oklahoma where the developer of an infrastructure project has engaged in activities without the consent of the Indian owners. In Caddo County, a judge has ordered the removal of a natural gas pipeline from an Indian allotment because the owners haven't been paid in nearly two decades.

These kinds of disputes aren't unique to Oklahoma either. In neighboring New Mexico, a utility company continues to operate a transmission line on the Navajo Nation even though the Indian owners haven't been paid since signing the original agreement more than 50 years ago.

Developers can avoid these kinds of issues by consulting with tribes throughout the process, attorney Troy Eid wrote in an essay for North American Shale, an industry publication. During the Bush administration, Eid was the first sitting U.S. Attorney to support the recognition of tribal jurisdiction over certain criminal matters.

"Companies should monitor the process and encourage individualized interaction with tribal officials—not group informational meetings, mass-mailings or unfocused 'outreach,'' Eid wrote this month.

Osage Wind became operational in the summer of 2015, according to the developer. A second project in the county, known as Mustang Run, is moving forward over the tribe's objections.

In addition to raising concerns about its mineral estate, the tribe believes the wind farms cause harm to its religious practices. The turbines can kill bald eagles, which are used for spiritual purposes.

Turtle Talk has posted documents from the case, U.S. v. Osage Wind LLC.

10th Circuit Court of Appeals Decision:
United States v. Osage Wind LLC (September 18, 2017)