Judge Orders Wind Farm Dismantled In Win For Tribal Sovereignty
By ordering the scuttling of 84 turbines spread over 8,400 acres of land, along with the removal of underground lines, overhead transmission lines, and meteorological towers, U.S. Court of International Trade Judge Jennifer Choe-Groves essentially ruled that the renewable energy project, known as Osage Wind, should never have been constructed in the first place because the developers – Osage Wind LLC, Enel Kansas LLC, and Enel Green Power North America – did not have the required lease from the Osage Minerals Council.
“The developers failed to acquire a mining lease during or after construction, as well as after issuance of the 10th Court of Appeals’ decision hold that a mining lease was required,” Choe-Groves ruled, according to Tulsa World (Dec. 22).
“On the record before the Court, it is clear that Defendants are actively avoiding the leasing requirement,” Choe-Groves said. “Permitting such behavior would create the prospect for further interference with the Osage Mineral Council’s authority by Defendants or others wishing to develop the minerals lease. […]
The reference to minerals is key to understanding the case. Wind turbines not only soar into the air from the surface of the land. Their construction also requires the subsurface smashing of rocks and other excavation necessary to ground the turbines. The Osage Nation and its Minerals Council have claimed for years that this subsurface excavation activity constitutes mining and is covered by the tribe’s mineral rights. And for that the developers needed a lease from the Osage Mining Council which they never sought. The developers began leasing the surface rights in 2013 but never bothered to acquire the subsurface mineral rights. In the end, that was their undoing.
Interesting angle.