FEDS CHANGE LEGAL TACTICS IN BATTLE WITH DEVELOPER

Mike ErwinJournal-Capital
FEDS CHANGE LEGAL TACTICS IN BATTLE WITH DEVELOPER

TULSA — After learning the excavations they deemed “improper” had already been finished, federal attorneys have withdrawn their request for an injunction that would have temporarily halted construction at an Osage County wind farm development.

According to documents filed Friday in United States District Court of Northern Oklahoma, excavations for the foundations of all 84 wind turbines at the Osage Wind site are “100% completed.”

U.S. officials are continuing with legal efforts to have the wind farm development shut down due to the claims that construction on the turbine foundations was unlawful. Documents filed this month allege the project developer — Enel Green Power North America, Inc. — did not obtain requisite permits and lease approvals that were needed for the excavation work, thereby violating provisions of government’s mineral lease agreement with the Osage Nation.

In addition to asking that the request for a preliminary injunction be withdrawn, the federal notice asks that the motion hearing set for Tuesday, Dec. 16, be stricken.

“(I)t appears that there would be nothing for this court to address in the context of a preliminary injunction,” the motion states.

The federal attorneys said they found out the work had been “completed in a hurry-up fashion” within seven days of their Dec. 2 filing of the federal complaint against the Osage County wind energy development.

Major construction work has been going since late this fall at the Osage Wind site, which is located on 8,400 acres of leased prairie land approximately 17 to 20 miles west of Pawhuska. The wind farm project is being built adjacent to U.S. Highway 60 on a stretch of the federal roadway designated as “The Osage Scenic Byway.”

U.S. Attorney Danny C. Williams Sr. maintains the excavations constitute “mining” and therefore are infringing on the federally-protected mineral estate of the Osage Nation.

Officials of the Pawhuska-based Indian tribe have been fighting a legal battle to stop construction of the wind development near Burbank since before it was initially approved by the county in August 2011. Osage Nation officials have expressed opposition to the wind energy project on economic and cultural grounds, as well as over potential threats the development would pose to wildlife in the area — especially eagles, which are considered sacred by the Osages and many other Native Americans.

The federal attorneys also filed an amended complaint Friday which seeks a declaratory judgment related to damages connected with the company’s alleged illegal mining of rock, as well as “excavating, severing, converting, and crushing minerals” from the subsurface Osage mineral estate “which has been reserved by Congress for the benefit of the Tribe.”

In its complaint, the government asks the federal court to find the developers “responsible for an ongoing and continuing trespass” and further states that “structures or materials placed, without authorization, in the mineral estate must be removed.”