Federal Court Rejects Challenge to Development of Wind Farm

Friday, October 30, 2015

A Modrall Sperling team successfully defended Enel Green Power North America in a suit brought by the federal government on behalf of the Osage Nation, a tribal nation in northeastern Oklahoma, challenging the construction of a wind farm in Osage County, Oklahoma.  The Osage Wind Farm Project involves 84 turbines and 8,400 acres of privately owned fee surface estate lands.   The suit claimed that the excavation required for installation of wind towers interfered with the Osage Nation's reserved mineral rights under the Osage Allotment Act and federal regulations that require mining leases.

In the dispute over the Oklahoma wind farm project, the Honorable James H. Payne, judge for the United States District Court for the Northern District of Oklahoma, rejected claims that surface construction requires a mineral lease with the Osage Nation and sign-off from the Bureau of Indian Affairs.  Judge Payne found that the excavation work to build foundations for turbines does not constitute mining as described under federal regulations and therefor does not require a tribal permit or lease.  The court rejected the position the United States advocated, ruling that the United States' position "would mean that any time a surface owner digs a hole in his or her land that would disturb any quantity of common materials, he or she would have to obtain a permit or lease for any digging and backfilling." Osage Wind is represented by Lynn H. Slade, William C. Scott, Deana M. Bennett, Sarah M. Stevenson, and Spencer L. Edelman, of Modrall Sperling and Joel L. Wohlgemuth and Ryan A. Ray of Norman Wohlgemuth Chandler Jeter Barnett & Ray PC, Tulsa, Oklahoma.

The case is USA v. Osage Wind LLC, et. al., case number 14-CV-704-JHP-TLW in the U.S. District Court for the Northern District of Oklahoma.