Wind challenge blown away

Mike ErwinJournal-Capital

One legal challenge to Osage County wind-energy developments was blown out of court last week by the ruling of a federal judge in Tulsa.

The judge rejected claims the United States Department of the Interior had made against developers of Osage Wind LLC, a now-operational facility west of Pawhuska. DOI argued that Osage Wind developers had violated Osage Nation mineral rights in the construction of the wind project, which covers approximately 8,400 privately-leased acres. The complaint said developer should be required to obtain a mining permit through the Osage Minerals Council.

In a ruling issued Wednesday, U.S. District Judge James Payne ruled that excavations made during construction of Osage Wind did not constitute mining, as claimed in the suit and contended by tribal officials officials. The complaint was made last November in an attempt to halt construction of the 84-turbine facility near Burbank. Payne said allowing a more inclusive interpretation of mining could have a stifling effect on any type of construction.

“A broader reading would mean that any time a surface owner digs a hole…that would disturb any quantity of common materials, he or she would have to either obtain a permit or a lease for any digging or backfilling,” the judge stated in his ruling.

Payne said “mining or work of any nature is limited to mining operations and mining-related activities” which are specifically referred to in the mineral lease.

Officials with Enel Green Power North America, the developer of the project, said the company had obtained all necessary permits as it proceeded with the project.

Osage Wind was originally approved for construction in 2011 but was not begun until 2014. Completed in June, it is the first wind-energy farm in the county, as well as in northeast Oklahoma. Another facility, Mustang Run, is planned alongside of the existing project. Mustang Run is designed as a 68-turbine operation and will occupy around 9,000 acres.

Excavations at a wind-energy development west of Pawhuska did not constitute “mining” activity, as contended by the Osage Nation. Tribal officials complained after the wind farm developers excavated rock and other materials used in building foundations for the 900-foot-high towers which support the turbine generators.

Work is continuing on the Mustang Run project, which developers are hoping to complete by the end of 2016. Another Osage County wind-energy facility has been proposed by a Massachusetts company, Clear Sky Energy. A request connected with Clear Sky Wind Project is expected to be considered at the Oct. 13 meeting of the Board of Osage County Commissioners.

Tribal officials said the rock and materials excavated by the wind farm developer constituted subsurface estate which belongs to tribal members. The Osage Mineral Estate is held in trust by the U.S. government and regulated by the DOI’s Bureau of Indian Affairs.