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BIA and Osage Minerals Council prepare to fight wind farm project

Osage Minerals Council approves $100,000 for litigation against project; BIA recommends sending project proposals, agreements for agency review
Courtesy Photo

The federal Bureau of Indian Affairs is considering court action to halt construction of a 94-turbine wind farm in western Osage County if the parties involved cannot prove its operations will not interfere with the Osage Minerals Estate.

On Sept. 14 the BIA issued a letter to the Osage County Commission, which passed a wind farm ordinance earlier this year, raising issue with the project’s location near oil and gas producing sites in the Burbank vicinity. In August, the county’s Board of Adjustment passed a conditional use permit sought by St. Louis-based Wind Capital Group to build the wind farm on 8,300 privately owned acres zoned for agriculture use.

“Both this office and the Osage Nation are considering litigation to prohibit placement of such (turbine) installations until it can be shown that such installation does not unreasonably interfere with the operations of the Osage Minerals Estate,” wrote Acting BIA Superintendent Floyd S. Waters in the letter.

“We are particularly concerned, not only in the actual turbine towers themselves, but also to road and electrical line infrastructure that will be required to connect any such power generation to the grid,” the letter states. “Such a network of buried and pole mounted electric lines may seriously impede our continued oil development of the Osage Minerals Estate.”     

The letter notes state courts have previously ruled the Minerals Estate is the dominant estate while the land surface is the subservient estate. The BIA also said reasonable access to the Minerals Estate (held in trust) cannot be denied access to develop and produce the minerals.

While the wind farm project is favored by county officials and most non-Osage residents who attended the Aug. 11 public meeting for Wind Capital Group’s conditional use permit, Osage Nation and Osage Minerals Council officials are opposing the project. Osage and non-Osage opponents of the wind farm have also raised concerns that the region’s wildlife habitat will be disrupted, as well as property values, any unmarked graves and tourism to areas including the Tallgrass Prairie Preserve north of Pawhuska.  

Principal Chief John Red Eagle issued an executive message on the Nation’s www.osagetribe.com Web site on Sept. 14 criticizing Wind Capital Group’s planning for its Osage County project. “Things work differently in Osage County than they do in the rest of the state,” he said.

“Wind Capital Group has a duty to research and discover what oil lines and wells are already in the area where they plan to establish the wind farm,” said Chief Red Eagle. “We have asked (Tom Green, a senior manager for Wind Capital Group) if he has researched the area to determine where the existing oil infrastructure is located. He says that he has, but whether or not the company has conducted an adequate search is unclear.”

Minerals Estate

“The BIA does not have a record of Wind Capital Group representatives visiting its offices to look at the relevant maps during 2011,” said Chief Red Eagle in an executive message posted to the Nation’s Web site. “If Wind Capital Group were looking to build wind farms outside Osage County, they could probably obtain the mapping information they needed from the Oklahoma Corporation Commission. However, accurate mapping which describes the oil wells and lines for Osage County can only be found in one place – the offices of the BIA.”

Chris White, executive director of governmental affairs for Chief Red Eagle’s office, said plans are underway to pursue legal action to stop the wind farm project before construction starts. Wind Capital Group officials have previously said the wind farm would take nine to 12 months to build.

“Let me be clear. The Osage Nation will not wait until the damage is done to the Tallgrass Prairie by this industrial wind project to take legal action,” White said. “The Osage Minerals Council has a legal team in place and preparation is nearly complete to file against the proper parties in this matter. The Nation would prefer to not have to take legal action, but the commissioners and wind developers have left us no choice.”

The Osage Minerals Council is leading litigation efforts on behalf of the shareholders. At its Sept. 21 meeting, the Minerals Council approved a resolution to appropriate $100,000 for litigation against the wind farm project. The council also voted to hire law firm Rosette, LLP to represent the entity in any wind farm-related litigation matters.

An Osage Nation Congressional bill (ONCA 11-81 sponsored by Congressman Geoffrey Standing Bear) to establish a $50,000 revolving fund for litigation against the wind farm was tabled during a Sept. 22 Congressional Committee on Government Operations meeting.

OMC Chairman Galen Crum informed the Congressional committee of the council’s plans to pursue litigation with its $100,000 approval for legal fees. “We plan on going ahead with it, we want to do things in a coordinated effort but who knows what we’re going to need down the line,” he said.

Councilwoman Cynthia Boone, who also attended the committee meeting said she believes the issue is a Minerals Council matter and preferred to spend council money as a shareholder. After further discussion, the revolving fund bill was tabled.    

Waters, of the BIA, closes his letter stating: “In order to reduce the possibility of litigation, we recommend that any wind power proposals or agreements be submitted to this office for review prior to construction, so we may all work together to minimize conflict between the various parties, and to ensure that all Federal statutory requirements are being met.”

White, of Chief Red Eagle’s office said Wind Capital Group and two other wind farm companies considering Osage County for future projects also received a copy of the BIA letter.

In a prepared statement, Wind Capital spokesman Tony Wyche said: “Osage County Wind (Wind Capital Group’s project name) understands, and is committed to meet, our obligations under the law. Osage County Wind also looks forward to a continued dialogue with the tribal leadership to confirm our commitment to meeting our legal obligations and clarify the limited use of the surface of the land, which we do not believe limits the reasonable use of the surface by the Tribe to develop minerals.”

“We have been engaged in conversations and we continue to be open to and strongly encourage communication with all parties to address those issues as we move forward toward construction,” Wyche said. “We understand that a full outreach effort includes an ongoing responsibility to the community to address questions and concerns about the actual impact of Osage County Wind. We continue to appreciate the vocal support we have received from across the County, including members of the Osage Nation community.”

White also says a coalition appears to be forming in Osage County. Non-Osage rancher Ford Drummond spoke in opposition of the project at the Aug. 11 meeting on Wind Capital Group’s conditional use permit. Drummond, who owns 1,200 acres adjacent to the proposed wind farm, cited environmental concerns, as well as lower property values, as reasons he opposes the project.  

“Ranchers, oil and gas producers, conservationists, concerned citizens and the Osage Nation are banding together with one common interest, and have become stronger in the overall effort to put a halt to this project,” White said.

Location

Osage Nation
627 Grandview
Pawhuska, OK
United States