Osage Nation drops appeal in wind farm case

The Osage Nation, through the Osage Minerals Council, dropped its appeal of the wind farm trial verdict Feb. 22. The appeal was filed to prevent a 94-turbine project from being built in western Osage County.

In court papers filed Feb. 22, the Nation notified the federal 10th Circuit Court of Appeals of its request to dismiss its appeal in its case against project builder Wind Capital Group. A Tulsa federal judge denied the Nation’s injunction request against the St. Louis company in December, leading to the appeal sought by the Nation (which filed suit through the Osage Minerals Council).

In announcing the appeal drop, the Nation stated it remains opposed to any wind farm construction in Osage County. The Nation filed its appeal to the Denver-based 10th Circuit Court on Jan. 19.

Chris White, executive director of governmental affairs for Chief Red Eagle’s office, said in a news release: “The tribe remains steadfastly opposed to the siting of industrial wind energy projects in Osage County.”

The Nation filed suit arguing that the wind farm construction would harm its oil and gas drilling efforts and would impede access to those drill sites. Presiding federal Judge Gregory Frizzell ruled against the Nation following an expedited two-day nonjury December trial, stating: “Much of the plaintiff’s case is built on speculative concern.”

“The Osage Nation has pursued and will continue to pursue several other avenues to prevent construction from going forward,” White said of the wind farm. He would not elaborate on what other efforts the Nation is pursuing to oppose the project, adding the Nation dropped the appeal after consulting with legal counsel.

“When our attorneys filed the appeal, it was done in what we believed were the best interests of the Osage Nation,” White said. “In dismissing the appeal, our attorneys again believe it is the Nation's best interests.”

The timeline for the Wind Capital Group project remains unknown. The company successfully motioned for the U.S. District Court to expedite the case for a December trial stating that the project must be completed by year’s end to qualify for federal tax credits. A Wind Capital Group official testified during trial that the lawsuit’s presence was affecting the company’s efforts to secure financing from lenders for the 94-turbine project.

Wind Capital Group spokesman Tony Wyche said the company has no comment on the appeal dismissal and “as for the project, we continue with pre-construction activities.” Construction on the wind farm is estimated to take nine to 12 months.

Last summer, the company successfully obtained a rezoning request for 8,500 privately owned acres from the county so it could begin construction. The Nation opposes the project and argued the project construction and operations will impede access to the Osage Minerals Estate for oil and gas drilling. The Bureau of Indian Affairs, which holds the Minerals Estate in trust for the shareholders, issued a similar concern to Wind Capital Group last year.

The Minerals Council, which manages the Minerals Estate affairs for the shareholders, has leases with four energy companies to drill in the project’s vicinity. One of those companies, Orion Exploration, has a lease for drilling rights on 19,680 acres with less than 2,500 acres overlapping with the wind farm project area, according to court documents.

Frizzell ruled the Nation did not provide an existing or threatened violation of federal or state law to prove the wind farm project would “deprive its lessees from having reasonable use of so much of the surface as may be reasonable for their oil and gas operations and marketing.” The ruling came after the two-day trial included testimony from Orion Exploration officials who testified the company (which has a three-year lease to drill on the land at issue) has not finalized its drill site locations in the wind farm area.

In his ruling Frizzell also ordered the Nation to pay Wind Capital Group’s court costs, which the company quotes as $9,241.12 for subpoena fees, transcripts and material copies.

In a Feb. 2 filing, the Nation objects to the bill amount and requests the court reduce that amount to “an appropriate award of $5,097.18.” The Nation successfully requested an extension to challenge the court bill of costs. A hearing on the bill of costs is scheduled for March 6 in Tulsa.