Key Takeaways
The Osage Indian Nation recently won a federal court decision which requires Italy-based Enel to dismantle and remove 84 wind turbines from their land that the court found were illegally constructed.
Removal of the turbines, wiring, roads and other accessories to the wind turbines is estimated to cost $300 million.
Enel collected federal subsidies for wind produced from the turbines despite years of litigation pursued by the Osage.
The judgment results in the largest removal of an existing renewable energy project to date, and comes as public concerns over such projects are increasing both here and abroad.
The Osage Nation recently won a massive ruling in federal court that requires Italian wind builder Enel and its associates to dismantle a 150-megawatt wind project it built in Osage County. U.S. Court of International Trade Judge Jennifer Choe-Groves ruled that the Osage Nation’s rights had been ignored and trampled on by a wind farm company that did not get the required permission to build its massive wind farm. During the construction of the project, Enel illegally mined rock owned by the tribe, crushed it and used it as a base for its wind turbines. It continued to do so even after being ordered by the Bureau of Indian Affairs to stop. Enel must now remove the 84 turbines that it built on 8,400 acres of the Tallgrass Prairie for a cost of some $300 million. According to the ruling, the wind farm not only includes the 84 turbines, but underground lines, overhead transmission lines, meteorological towers and access roads. The Osage tribe’s fight against Rome-based Enel began in 2011 and is the longest-running legal battle over wind energy in American history.
Despite needing to get a mining lease from the Osage Nation’s Minerals Council, Osage Wind LLC, Enel Kansas LLC, and Enel Green Power North America moved onto Osage lands over ten years ago and began construction of the wind turbine facility. A 2017 appellate court ruling determined that construction of the wind farm constituted mining and required a lease from the Osage Nation’s Minerals Council, which the companies failed to obtain. The company still refuses to request a lease after more than a decade. It claims that while an appeals court found that it had “mined without a lease in 2014, it did not hold that Osage Wind was obligated to obtain a lease for that completed mining or for any other ongoing purposes.”
Under the Osage Allotment Act of 1906, the tribe owns the rights to the minerals beneath the land it bought from the Cherokee Nation in the late 1800s. Those mineral rights include oil, natural gas, and the rocks that Enel mined and crushed for the wind project. By mining without permission, the company violated the tribe’s sovereignty. The Osage tribe opposed the project because of its potential intrusion on sacred burial sites, as well as the 420-foot-high turbines’ deadly impact on eagles.
The Osage tribe stands to collect millions of dollars in damages as well as the removal of the turbines and has handed Big Wind its biggest public relations loss in its history. For years, businesses, banks, law firms, academics, and NGOs, have been siding with the wind industry as it tried to steamroll rural landowners and local governments and collect millions in federal tax credits. Since 2015, Enel, has been collecting about $10 million per year in federal tax credits even before it sold any of the power from the project.
The Osage tribe’s victory over Enel provides more proof of the increasing opposition to wind energy from rural residents all over the world. For example, a French court ordered a wind project in southern France to be dismantled because of complaints from residents about noise pollution and bird deaths. Since 2015, there have been 417 rejections or restrictions of wind energy in the United States and those rejections have occurred from Maine to Hawaii.
Background
In 2011, the superintendent of the Bureau of Indian Affairs in Pawhuska wrote a letter to the tribe four days after the Osage County Board of Adjustment approved a variance request for the wind project that warned that the project “may have to be removed or relocated” if it interferes with the tribe’s mineral estate. Despite that warning, Enel began building the wind project in 2013. On October 9, 2014, the BIA sent a letter to Enel telling it to “refrain from any further excavation of minerals” for the wind project “until such time that you have obtained a Sandy Soil Permit through the Osage Agency. Failure to comply may result in this matter being forwarded to the Office of the Field Solicitor for further action.”
In 2014, the federal government filed a lawsuit seeking a judgment that Enel had engaged in unauthorized mining. A federal district judge initially ruled in favor of the wind farm project in 2015, finding that excavation of the rock for the wind turbine concrete foundation did not constitute mining. In 2017, the 10th U.S. Circuit Court of Appeals in Denver reversed that decision. The appellate court held that Osage Wind’s extraction, sorting, crushing and use of minerals as part of its excavation work constituted mineral development, thereby requiring a federally approved lease that was not obtained. It disputed the district judge’s interpretation that the definition of mining required the sale of minerals. The U.S. Supreme Court rejected a request by Osage Wind to review the appeals court decision.
In considering whether to issue a permanent injunction, Judge Choe-Groves weighed several factors, including balancing the tribe’s claim that the unleased wind farm damages its sovereignty against Osage Wind’s claim that it would suffer the inevitable loss of hundreds of millions of dollars if the wind towers were removed. Osage Wind also claimed that removal of the wind turbines would result in a loss of revenue from two local schools, jobs, income for the surface estate owners and renewable energy for 50,000 homes. But Choe-Groves was not persuaded by Osage Wind’s claims of the harm that would occur if the turbines were removed. The Judge wrote, “Even if negative effects were to result, including the significant monetary impact of hundreds of millions of dollars, such effects would not negate the public interest in private entities abiding by the law and respecting government sovereignty and the decision of courts.”
Conclusion
The Osage tribe in Oklahoma battled over the construction of a wind project that Rome-based Enel built by violating the tribe’s sovereignty. A federal court judge in Tulsa ordered Enel to remove the 84 turbines that it built in Osage County as it did not get permission to mine on tribal land. The loss is an enormous embarrassment for Big Wind and Enel and a huge win for the Osage tribe, tribal lands, and American people’s property rights.
