Those wind developers who last month lost a legal fight with the Osage Nation aren’t giving up,. They are asking the Tenth Circuit Court of Appeals in Denver for a rehearing after the court ruled in favor of the Osage Nation and the Osage Minerals Council, a story reported last month by OK Energy Today.
Making the request for the panel or en banc rehearing are Osage Wind LLC, Enel Kansas LLC and Enel Green Power North America Inc. They contend the Osage Nation never had the legal grounds to bring its case.
Attorneys for the developers pointed out that when the tribe and its mineral council went to court in 2011, they asked to stop construction that had not been initiated and did so under Prior Litigation. The Osage Nation and the Minerals Council lost the case and did not appeal. Three years later, the Osage Nation obtained the help of the Bureau of Land Management in bringing a lawsuit which the U.S. government lost and did not appeal.
That’s where the attorneys contend the Tenth Circuit got it wrong, in allowing the Osage Minerals Council to “step into the shoes of the United States in order to prosecute this appeal, despite that the OMC sought and was denied permission to intervene in the district court proceedings.”
In short, the developers say the OMC was never a party to the proceedings.
“The Court has overlooked key facts and law related to the ripeness issue, as it has overlooked Osage Wind’s argument that the OMC could and should have raised the claims in the Prior Litigation, though that construction had not yet begun.”