Damage trial underway in Osage County and tribal wind farm fight



A Federal Judge who ordered wind energy company Enel Green to remove 84 wind turbines and towers from the Osage Indian Reservation in Oklahoma, was scheduled this week to begin hearing arguments in a trial on damages in the case.

U.S. District Court Judge Jennifer Choe-Groves, of the U.S. Court of International Trade, ruled last December that Enel Green had to remove the wind turbine farm that became operational in 2015 because it did not obtain a lease from the tribe and continued to trespass all these years. She also ordered that a damages trial would be held to assess the amount of damages to be awarded for trespass and conversion.

The trial was scheduled to begin at 10 a.m. on Tuesday. JudgeChoe-Groves’ ruling came after several years of legal battle waged by the federal government and the tribe against Osage Wind, LLC, Enel Kansas, LLC, and Enel Green Power North America, Inc.

Enel argues that the cost alone in removing the turbines and towers will be an estimated $300 million. It also maintained that the removal will take nearly 18 months.

In her December 2023 decision, the Judge pointed out that the three defendants were advised “on multiple occasions” by the Bureau of Indian Affairs and the Osage Mineral Council that the wind farm project required a lease related to the mineral estate. The estate constituted the digging of the ground to locate the individual wind towers. As the Judge noted, the defendants failed to obtain a required lease and the Tenth Circuit Court of Appeals held in 2017 that a lease was required.

She came down hard against Enel Green, despite the pleas of the renewable energy company.

“Defendants’ claim that Osage Wind would suffer the inevitable loss of hundreds of millions of dollars if the wind towers were removed….Though the significant loss of money might be sufficient to outweigh a property owner’s interests in a more common case of trespass, this case involves an infringement on
the self-governance of Indian lands.”

The Judge suggested the actions of Enel Green only supported her conclusion.

“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.”

She further concluded that the tribe and the government “are entitled to damages on their claims for trespass and conversion.” But the parties disagreed as to the amount. The Osage Mineral Council and the federal government wanted $25,969,607 as calculated by an expert. The Enel Green parties came up with two different figures calculated by two of its experts—$247,979.42 and $68,993.

“Because disputes of material fact exist regarding a monetary award, summary judgment cannot be granted and a trial shall be set to determine damages,” wrote the Judge in the December 2023 decision.