Nation awaits 10th Circuit Court ruling in Wind Farm case

The briefs are all in and a federal appeals court will hear arguments next month challenging a lower court decision to allow Osage Wind to conduct excavation work in Osage County without a permit from the Bureau of Indian Affairs.

At 9 a.m. on Nov. 16, an as-yet unnamed panel of judges with the Tenth Circuit Court in Denver will consider overturning a September 2015 ruling from the Northern District of Oklahoma in which U.S. District Judge James Payne held that Osage Wind and its parent companies, Enel Green Power North America and Enel Kansas, do not need a mining permit to dig pits for wind turbine foundations.

“Without an appeal of the district court’s decision, the OMC has no ability to preserve its sovereign and statutory right to develop its mineral estate and the district court decision would deprive Osage headright owners of their valuable trust property,” Osage Minerals Council attorney Jeffrey Rasmussen wrote.

In an effort to install foundations for 84 wind turbines across 8,400 acres near Burbank, Okla., Osage Wind dug pits measuring 60 feet wide and 30 feet deep. In the process, it excavated more than 60,000 cubic yards of limestone, dolemite and other minerals, ran the smaller chunks through a rock crusher, then returned them to the earth, thus prompting a debate on the definition of “mining.”

Under federal statute, any mining activity conducted in Osage County requires a permit from the BIA.

Acting on behalf of the Osage Minerals Council, the United States brought the litigation forward in 2014, contending that the company was appraised of that requirement but ignored it anyway and at one point, sped up construction in an effort to finish its work before a federal court could issue a ruling.

Attorneys for Enel and Osage Wind have maintained that their clients’ dig sites were not mining because the rock was left where they found it, just in a different form.

However, in his ruling, Payne dismissed the mining definition proffered by the federal government and the Osage Nation, calling it too broad and compared the wind farm construction to a private homeowner’s do-it-yourself project.

“A broader reading would mean that any time a surface owner digs a hole on his or her land that would disturb any quantity of common minerals, he or she would have to obtain either a permit or a lease for any digging and backfilling,” he wrote. “A broader reading would also mean that every proposed construction project in Osage County that requires digging and backfilling, including building a single-family home, multi-family apartment building, commercial building, or septic tank, would be subject to approval by the Osage Nation.”

Along with the Osage Minerals Council’s appeal, the three-judge panel will consider a challenge from Enel as to whether the body even has sufficient standing to intervene in the case. The Osage Minerals Council’s attorneys electronically filed their initial motion after 5 p.m. on Nov. 30, 2015, the last day to appeal.

In previous court filings, the council’s attorneys have contended that the delay was caused by uncertainty on whether the U.S. Attorney’s Office would go to the Tenth Circuit or allow Payne’s ruling to stand, a notion Enel’s attorneys scoffed at.

“The OMC could have taken many actions in lieu of waiting until the last minute,” Enel attorney Deana Bennett wrote. “By way of example, the OMC could have informed the United States that if the United States did not appeal, it would, and have requested a decision by a date certain.

“The OMC caused its own predicament and should not be allowed to now blame the United States or the district court for its failures.”