Judge Orders Wind Farm Dismantled In Win For Tribal Sovereignty

Authored by Bonner Russell Cohen Via RealClear Wire,

Capping a legal battle that had raged for over a decade, a federal judge in late December handed the Osage Nation a major victory by ordering wind farm developers to dismantle dozens of turbines they had erected on tribal land in northeastern Oklahoma.

By ordering the scuttling of 84 turbines spread over 8,400 acres of land, along with the removal of underground lines, overhead transmission lines, and meteorological towers, U.S. Court of International Trade Judge Jennifer Choe-Groves essentially ruled that the renewable energy project, known as Osage Wind, should never have been constructed in the first place because the developers – Osage Wind LLC, Enel Kansas LLC, and Enel Green Power North America – did not have the required lease from the Osage Minerals Council.

“The developers failed to acquire a mining lease during or after construction, as well as after issuance of the 10th Court of Appeals’ decision hold that a mining lease was required,” Choe-Groves ruled, according to Tulsa World (Dec. 22). 

“On the record before the Court, it is clear that Defendants are actively avoiding the leasing requirement,” Choe-Groves said. “Permitting such behavior would create the prospect for further interference with the Osage Mineral Council’s authority by Defendants or others wishing to develop the minerals lease.

“The Court concludes that Defendants’ past and present refusal to obtain a lease constitutes interference with the sovereignty of the Osage Nation and is sufficient to constitute irreparable injury.”

The reference to minerals is key to understanding the case. Wind turbines not only soar into the air from the surface of the land. Their construction also requires the subsurface smashing of rocks and other excavation necessary to ground the turbines.  The Osage Nation and its Minerals Council have claimed for years that this subsurface excavation activity constitutes mining and is covered by the tribe’s mineral rights.  And for that the developers needed a lease from the Osage Mining Council which they never sought. The developers began leasing the surface rights in 2013 but never bothered to acquire the subsurface mineral rights.  In the end, that was their undoing.

“A Win for Indian Country”

Still, the long, and expensive, court battle took its toll on the ultimately victorious Osage Nation.

“I hope no other tribe has to do what we had to do,” Osage Minerals Council Chairman Everett Walker to Tulsa World in an interview. “This is a win not only for the Osage Minerals Council; this is a win for Indian Country.”

“There are a lot of smaller tribes that couldn’t have battled this long, but that’s why we’re Osages,” Walker added. “We’re here, and this is our homeland, and we are going to protect it at all costs.”

The battle between the Osage Nation and the wind-farm developers got underway in 2011 and has lasted through the Obama, Trump, and Biden administrations.  Throughout the litigation, the Interior Department, which administers the tribe’s mineral rights, has supported the Osages’ claims. Even the Biden administration, whose political appointees at Interior have enthusiastically greenlighted wind and solar projects on federal land, stuck with the tribe on the question of mineral rights.

While seeing 84 giant wind turbines disappear will be a bitter pill to swallow for Biden climate crusaders at Interior, they appear to have concluded that this was the wrong fight under the wrong circumstances.

Bonner Russell Cohen, Ph. D., is a senior policy analyst with CFACT.