Osage Wind farm stirs legal battles

Nathan Thompson |

Rising over the treeless, rolling prairie and ranch lands, 15 miles west of the vibrant Osage County town of Pawhuska, drivers along U.S. Highway 60 notice the sudden appearance of 84 wind farm towers, reaching hundreds of feet into the blue sky.

Instead of the sounds of birds singing a summer’s song or a south breeze sweeping the bluestem grass, travelers will hear a slow, steady whirring noise, as the giant blades rotate in the relentless wind on the prairie, attached to turbines to generate electricity.

At night, the slow, steady red blinking lights attached to the top of the turbine towers can be seen from a 30-mile radius.

The massive wind farm is part of Osage Wind, a project of Tradewind Energy and its parent company, Enel North America. The sprawling complex covers 8,400 acres on the Osage Nation Reservation and generates 150 megawatts of power — enough to generate electricity for 45,000 Oklahomans.

Since first beginning operations in 2015, Osage Wind has been the subject of several lawsuits in state and federal court filed by the Osage Nation and the Osage Minerals Council, claiming the environmental consequences and the lack of a mining permit violated tribal, state and federal law.

The Osage Nation Reservation was first granted in 1870, when the tribe purchased the land that now covers all of Osage County. After statehood in 1907, the tribe retained the mineral rights to the land. When oil was discovered in the rocky soil of the county, royalty and mineral benefits made the Osage Nation the richest tribe in the United States.

Now in the 21st century, as oil discovery slowed, companies looked to other ways to generate electricity rather than coal and natural gas fired power plants. Wind energy has boomed, including in Osage County.

But the Osage Nation opposes this new form of energy, and has filed suits to stop the wind development on its tribal lands.

Osage Nation Principal Chief Geoffrey Standing Bear wrote a column for the Tulsa World in April regarding the tribe’s opposition to industrial wind farms. Standing Bear said it is not only an assault of the Osage Nation’s sovereignty to mineral rights, but also there are health, environmental and spiritual consequences to these massive projects.

“Over a century ago, our tribe chose to live where the Tallgrass Prairie is today,” Standing Bear wrote. “The land was untouched and inhabited with animals and indigenous plants. My ancestors coexisted with nature as intended, and that harmony was at the forefront of our meaning of life.

“Today, the people of the Osage Nation cohabitate the same, but the land has been greatly changed with the addition of many machines. We have lost that harmony that we hold so important. You see, for the Osage, our perception of the world is through all five senses of the human body, and this drastic change from nature to machine literally takes away part of our lives.”

In 2014, the U.S. government on behalf of the Osage Nation sued Enel Green Power, the main developer of the Osage Wind project. In the lawsuit, the U.S. Department of Interior claims the company is breaking the law by damaging and destroying rocks that belong to the Osage Nation. Since the tribe owns mineral rights, the U.S. Department of Interior asserts those rights include limestone, sand and gravel.

The court documents said the company is excavating sand, soil and rock, then crushing some of the materials to use as reinforcement for the concrete turbine foundations.

In an effort to install the turbine foundations, Osage Wind dug pits measuring 60 feet wide and 30 feet deep, Osage News reported. In the process, it excavated more than 60,000 cubic yards of limestone, dolemite and other minerals, ran the smaller chunks through a rock crusher, then returned them to the earth, thus prompting a debate on the definition of “mining,” the Osage News report said.

After several decisions against the assertion, the Osage Nation and U.S. Department of Interior finally saw the argument upheld in September, when a unanimous judgment was issued by the U.S. 10th Circuit Court reversing a lower court’s ruling that allowed Osage Wind to continue excavation work to build the wind towers.

Additionally, the court denied a motion from Osage Wind, Enel North America to rehear litigation among the companies, the federal government and the Osage Minerals Council and remanded everything to the lower court in the Northern District of Oklahoma.

A hearing date in the lower court has not yet been set, but Standing Bear said the Osage Nation will continue to fight any infringement to the tribe’s mineral rights and environmental heath.

“The Osage Nation will oppose wind farms forever based upon these reasons,” he wrote in his column. “We will show our opposition in every way possible, including public statements, advocacy and by legal means if necessary.”

If the ruling remains in effect, the federal government and the Osage Minerals Council can now potentially seek damages for the unauthorized mining activity conducted within the county.