Osage Nation clears another hurdle in long-running fight with wind farm in Oklahoma

Tuesday, October 24, 2017

The Osage Nation has cleared another hurdle its long-running dispute with a wind farm in Oklahoma but the battle is far from over.

The tribe secured a landmark victory in September, when the 10th Circuit Court of Appeals ruled that the developers of Osage Wind engaged in "mining" activities in Osage County in Oklahoma. But since the tribe -- which owns the mineral estate in the county -- didn't agree to the disturbance of its trust assets and wasn't compensated, the unanimous ruling cleared the way for the recovery of damages.

"This decision is an important victory for the OMC with expansive precedential effect for tribes regarding control over their lands, natural resources, and development of the two," the Osage Minerals Council (OMC), which oversees the tribe's estate, said in a statement.

The Osage Wind developers subsequently asked the 10th Circuit to rehear the case. The request was denied on October 17 but the court went ahead and granted a "stay" of its final mandate in the case on Monday, before the Osage Minerals Council even had a chance to fully express its views.

Osage Wind asked for a stay because they are preparing to take the dispute to the U.S. Supreme Court. A motion filed on October 20 positions the case as one with "far- reaching consequences" for developers in Indian Country.

According to the document, "the questions to be presented by Osage Wind in its petition for writ of certiorari qualify as substantial."

There is no guarantee that Osage Wind will submit a petition for writ of certiorari to the Supreme Court. It would be due January 18, according to the firm.

But if the developers follow through, it would heighten an already unusual level of litigation regarding contested energy infrastructure in Indian Country. In a separate case in Oklahoma, a federal 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.

In neighboring New Mexico, which also falls within the 10th Circuit, the Navajo Nation won a major ruling that prevents a public utility company from condemning allotments on the reservation. The Public Service Company of New Mexico is also planning to appeal to the Supreme Court even though it could negotiate a new agreement to compensate the landowners for operating a transmission line on their properties.

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)