The state of Oklahoma is siding with wind farm developer Enel in its fight with the Osage Indian tribe following a federal judge’s ruling last year that the renewable energy company should tear down the 84 wind turbines it constructed several years ago in Osage County.
The construction led to a 10-year legal battle in which U.S. Judge Jennifer Choe-Groves determined Enel had illegally constructed the wind farm. But as Osage News reported in a story by freelance reporter Allison Herrera, Oklahoma has joined Enel in fighting the immediate destruction of the turbines.
Oklahoma Solicitor General Garry M. Gaskins filed an amicus brief last week declaring that the state has an interest in people being able to use their surface lands under the laws of the state. He also maintained there would be a loss of tax revenue to the state should the wind farm be destroyed.
“The permanent injunction is inappropriate because it unquestionably harms the public interest. In weighing the public interest,” Gaskins wrote in his brief.
““Here, Oklahoma has an interest in seeing its property laws applied uniformly throughout the State. Moreover, because Oklahoma owns land in Osage County, it has direct interest in protecting the rights of surface estate owners in Osage County,” declared Gaskins in his filing.
The Osage Tribe had argued that the earth work for the preparation of the 84 wind towers constituted mining of the minerals it owns throughout the entire county. A Federal Appeals Court in Denver agreed but the Attorney General’s office now contends it wasn’t true mining.
“Appellants’ failure to obtain a mining lease prior to excavating and processing minerals from the Osage Mineral Estate rendered Appellants liable for trespass and conversion. However, Appellants have not excavated or processed minerals from the Osage Mineral Estate in more than a decade. And the passive use of previously converted minerals as backfill does not render the subsequent operation of the wind farm itself ‘mining.’ Thus, Appellants’ presence on the surface estate is not a continuing trespass into the Osage Mineral Estate,” argued Gaskins in his April 25 filing in court.
The Osage News reported the law firm Skenandore and Wilson LLP which represents the Osage Minerals Council responded with a comment.
“The Osage Minerals Council reviewed Oklahoma’s amicus brief in the Enel Wind Farm case. As Oklahoma says in its brief, the Tenth Circuit already ruled against the Wind Farm in 2017. That should have been enough. We expect the court to uphold our treaty and property rights once again.”
Because Federal Judge Choe-Grove granted a stay on her injunction to remove the wind turbines, the removal of the wind farm is on hold pending Enel’s appeal to a higher court.
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