Oklahoma Judge Orders Immediate Removal of Wind Farms in Osage County

U.S. Court of International Trade Judge Jennifer Choe-Groves, sitting by designation, issued the ruling Wednesday in Tulsa federal court against Osage Wind LLC, Enel Kansas LLC, and Enel Green Power North America Inc.

The defendants failed to obtain this lease before installing the farms in the Osage Nation.

Choe-Groves continued: “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,” Choe-Groves noted.

The 1906 Osage Allotment Act transferred the ownership of the Osage Reservation surface lands to individual Osages, including the Osage Mineral Estate so that oil, gas, and other minerals under the ground so that Osages would receive the proceeds from any production on the land.

Directed by Martin Scorsese, Killers of the Flower Moon was a film released last year about the Osage people who got rich from the proceeds of oil development under this law and the white men who responded with violence.

The horizon itself is also considered a sacred space by the Osages which the windfarms impeded on. According to NPR, many Osages believe that their ancestors are buried on the high ridges of the prairie, where most of the wind turbines are due to the strong winds.

Tommy Daniels, an Osage living on the reservation, had also pushed for the removal of the wind turbines. “If I had the power, boom! They’d be gone,” he told New Geography. He said that the project killed “birds, like eagles, I don’t like that”.

“I hope no other tribe has to do what we had to do,” Waller said about the lengthy court battle. “This is a win not only for the Osage Minerals Council; this is a win for Indian Country.”

The argument posed in the lawsuit stated that the project unlawfully hindered the Osage Nation’s ability to develop the mineral estate.

Construction of the wind towers began in October 2013, with excavation for the towers starting in September 2014.

In November 2014, the federal government filed a lawsuit seeking a declaratory judgment that the defendants engaged in unauthorized mining and excavation in the Osage Mineral Estate.

Before engaging in any mining activity in the county, developers must obtain a permit from the tribe’s Minerals Council under federal law.

However, in a 2017 ruling, the 10th U.S. Circuit Court of Appeals in Denver reversed that decision, stating that Osage Wind’s extraction, sorting, crushing, and dusting of minerals as part of its excavation work constituted mineral development, and required a federally approved lease.

The hearing has granted the federal US government, the Osage Nation, and the Osage Minerals Council permanent injunctive relief. This means they won “the ejectment of the wind turbine farm for continuing trespass”.

Although the National Historic Preservation Act was introduced in 1966, many of the regulations around it were only codified in 1999 and brought into effect in 2004. Indigenous tribes also have access to more legal tools and funding resources to afford lengthy legal battles.

Osage Wind also claimed that the removal of the wind turbines would result in the loss of revenue for two local schools, jobs, income for surface estate owners, and renewable energy for 50,000 homes.

“That is what’s wrong. It’s not about wind energy itself. It’s about – we violated the nation’s rights in doing this,” Conner told NPR.

Pilar Thomas, attorney and former deputy director of the Office for Indian Energy Police and Programs for the Department of Energy told The Oklahoman: “I think tribes are starting to see that they have more leverage than they thought.”

Tallman told The Oklahoman that investors don’t like uncertainty, therefore “if you’re going to develop energy in the U.S., you’ve got to do it with the support of tribal communities”. If developers do not abide by indigenous rights, costs of a project could exponentially skyrocket.

It is clear that efficient and effective renewable infrastructure cannot go ahead without thorough consultation and consent from native tribes if green energy development is to take place on indigenous lands.

“They have this feeling that because they bring up something good, something green, that they are automatically a good thing,” Rose added. Ignoring indigenous sovereignty may not only make development projects more lengthy and costly, but renewable energy is not an excuse to break the law.

“I hope no other tribe has to do what we had to do,” Waller said, referring to the long court battle. “There are a lot of smaller tribes that couldn’t have battled this long, but that’s why we’re Osages. We’re here, and this is our homeland, and we are going to protect it at all costs.”

Osage Minerals Council chair, Everett Waller, told the Financial Times, “whatever issue falls on Indian country, now you have a case for which you can fall back on”.