OSAGE WINDS PUSHING BACK HARD
Arrogance, contempt, brazen disrespect, sovereignty and tribal rights are at the heart of the Osage Tribe’s efforts to remove a wind farm from its reservation in northeastern Oklahoma.
Note From Author: We want to thank Robert Bryce for his distinguished leadership and reporting on this matter. Robert has been one of the few national voices covering this consequential story.
OVERVIEW
On December 20th, 2023, the Osage Tribe won a landmark ruling in U. S. District Court, Tulsa, Oklahoma (“District Court”) which requires Italian wind developer Osage Power, LLC, Enel Green Power North America, Inc. and Enel Kansas, LLC (herein collectively called “Enel”) to completely dismantle a 150-megawatt wind farm project in Osage County, located in northeastern Oklahoma. For those who have not been following the story, below is a brief history of the Osage Tribe, a summary of the events which led up to this consequential ruling and an analysis of the legal foundations of the case.
BRIEF HISTORY OF OSAGE TRIBE
Paleolithic hunter-gatherers from Siberia entered North America via the Beringia land bridge during the last Glacial Maximum (approximately 24,000 to 17,000 BCE). Indigenous people spread across the Americas and evolved into many distinct tribes and bands. What might be recognized as the early Osage Tribe (sometimes called Southern Sioux) was present in the Ohio and Mississippi river Basins as early as 700 BCE. Sometime after 1200 CE, the people now known as the Osage Tribe migrated west, settling primarily near the confluence of the Missouri and Mississippi rivers, in what is present day Missouri, Northern Arkansas and Southern Iowa. The Osage Tribe ranged from northern Louisiana to southern Iowa and from Kentucky to eastern Colorado. During the 18th century, European encroachment and dwindling buffalo herds gradually pushed the Osage Tribe westward. The Treaties of 1808 and 1825 forced the Osage Tribe to further condense its historical tribal lands to the Osage Diminished Reservation in southeastern Kansas.
Between the years of 1821 and 1834, seven Protestant Missions were established on the Osage Reservation; however, according to Osage Historian Louis Burns, “these missionaries cared more about converting the Osage to Christianity than they did about giving the Osage an education.” The Protestant missions ultimately failed; nevertheless, according to Burns, “they accomplished a very difficult feat. They exposed the Osages to a part of Euro-American culture that had never before been seen by the Osages.”
Because many of the marriages of French fur traders to Osage women were historically performed by Jesuit priests, the Osage had been familiar with the Jesuits, whom they called “Black Robes.” Ten years after the Protestant missionaries failed, the Osages decided they would like to have the Black Robes as their teachers and made this request to the U. S. Superintendent. As a result of the Jesuits, many Osage became highly educated, while fiercely maintaining their traditional values and independence. In the Treaty of 1870, the Osage Tribe was forced to sell the Osage Diminished Reservation in Kansas to the U. S. government. With part of the money derived from the sale of their Kansas reservation, in 1872 the Osage Tribe purchased their own reservation in Indian Territory (now known as Osage County, Oklahoma) from the Cherokee Tribe.
Map courtesy of Louis F. Burns.
The Osage Tribe was one of the last tribes to be relocated to Indian Territory. By the time of their relocation to present day Oklahoma, the Osage people increasingly recognized that being well educated would help them negotiate with the U. S. government. In 1879, some of the money received from the sale of the Osage Diminished Reservation in Kansas was used to fund the creation of the Carlisle Indian Industrial School in Pennsylvania to educate Indian children. Admittedly, many Native American children from other tribes were forcibly sent to Indian schools across the nation. However, the Osage embraced the educational opportunity that the Carlisle School provided and from 1885 to 1910, more than 100 Osage children voluntarily attended to the Carlisle Indian Industrial School.
Osage students at the Carlisle Indian Industrial School
As it happens, the train ride from Oklahoma to Pennsylvania took the Osage children and their accompanying parents through the developing oil fields of western Pennsylvania. Observation of the emerging oil boom in Pennsylvania inspired the Osage elders to fight hard to retain sovereignty over their mineral rights in Osage County. The first oil well on the Osage Reservation began producing in 1897.
At the end of the 19th century, the U. S. government began the paternal process of setting the terms of allotment for the Osage Tribe. The purpose of allotment was to end tribal control and allot tribal lands directly to individual Osage Tribal members in exchange for U. S. Citizenship. For a decade, the Osage Tribe fought for the best possible allotment terms. Buoyed by their education and skills of negotiation, the Osage Tribe obtained better allotment terms than most other tribes.
In 1906, the U. S. Congress enacted the Osage Allotment Act which divided and allotted the 1.47 million surface acres of the land on the Osage Reservation between the 2229 members of the Osage Tribe. However, pursuant to the 1906 Osage Allotment Act, the mineral rights were severed from the surface rights. 100% of the mineral rights underlying all of the lands in Osage County, including crude oil, natural gas, gravel, sand and rock were reserved in perpetuity to the Osage Tribe for the benefit of the members of the Tribe who were alive in 1906 and their heirs and successors. In other words, the mineral rights were never allotted to individual tribal members.
Over time, many members of the Osage Tribe sold portions of the surface on the reservation to individuals who were not members of the Tribe. However, all of the mineral rights in Osage County (including the minerals underlying surface tracts owned by non-Osage) remained reserved by the Osage Tribe for the collective benefit of the members of the Tribe in 1906 and their descendants and successors. Accordingly, even today, the minerals in Osage County cannot be owned, sold, traded or leased by anyone except the Osage Tribe.
“Cuis est solum, euis est ad coelum et an inferno.” Latin for “Wherever is the soil, it is theirs all the way to heaven and all the way to hell.”
Common Law Doctrine
PRELUDE TO CONSTRUCTION OF THE OSAGE WIND FARM
As early as 2009, there were whispers that companies were looking at Osage County as the site for prospective wind farms. In 2010, Wind Capital Group (predecessor to Enel) started acquiring surface leases for the right to construct wind turbines and details of a proposed wind farm began to publicly emerge. In all, Enel’s predecessor acquired surface leases from two members of the Osage Tribe and four surface leases from non-Osage owners. However, none of the surface owners had the authority to lease the mineral rights underlying the surface leases.
Many members of the Osage Tribe immediately began to push back and overtly oppose the wind farm project. Some members of the Tribe opposed wind farm development because of its possible effects on bald eagles and other wildlife, considered sacred, while others opposed the wind farm based on the belief that it might hinder economic development of oil, gas and other minerals.
Still other tribal members were averse to wind farm development based on the belief that the wind farm would infringe on sacred grounds and burial sites. The Osage believe that there are “Sky People” and “Earth People.” The horizon is considered the sacred spot where the sky meet the Earth. Therefore, many Osage opposed the wind farm development because it would spoil the “sacred horizon” and endanger the tall grass prairie vistas. The largest remaining tall grass prairie in the United States is partially located on the Osage Reservation.
In the words of Osage tribal member Joe Conner, “Fighting the wind farm was about preserving our cultural, spiritual and sacred heritage.” Suffice it to say, the Osage Tribal Council and most of its tribal members opposed the wind farm long before Enel commenced construction.
“Defending our minerals would become the sharp point of the long lance of Osage Concerns”
Dr. Joe Conner, Osage Tribal Member & Former Publisher of Fairfax Chief
Notwithstanding broad Tribal opposition to the wind project, in 2011 Wind Capital Group proceeded to submit permit applications to the Osage County Commissioners and the Osage County Board of Adjustment for local governmental approval of the wind project. Frustrated by the increasingly likely possibility that a wind farm would be constructed, in October, 2011 the Osage Tribe filed a federal lawsuit in the District Court seeking an injunction against Wind Capital Group to prohibit construction of the wind farm based on the myriad reasons cited above. However, almost immediately a Federal Judge ruled against the Osage Tribe, finding that none of the cited reasons constituted a legitimate basis for an injunction to prohibit construction of the wind farm. Wind Capital/Enel ultimately obtained approved permits from the Osage County Commissioners and Osage County Board of Adjustment. However, Enel never sought or obtained a mining lease or mining permit from the subsurface mineral owner, the Osage Tribe.
ENEL’s ARROGANT & DEFIANT CONSTRUCTION DEBACLE
In 2013, Enel commenced construction of its Osage Wind Power Plant over the vocal objections of the Osage Tribe. Construction of a wind project entailed (i) the construction of a pad site and sub-terranean foundation for each of the wind turbines; (ii) construction of roads to access each of the wind turbine pad sites; and (iii) overhead and underground power infrastructure to connect the electricity generated by the wind farm to the power grid.
“Creating shared value is Enel Green Power North America’s sustainability framework that incorporates social and community issues. Creating shared value is not just about being a good neighbor, it’s about earning and sustaining our social license to operate and by doing so, through listening and partnering w/ local community partners”
Enel Promotional Video
Excavation for the subsurface support foundations for the massive wind turbines began in 2014. On each pad site, a significant hole was excavated (10’ deep and 60 ‘ in diameter) for a subsurface foundation constructed with concrete and steel. For each turbine, Enel also opened separate mining pits measuring more than 60’ wide and 30’ deep to extract limestone rock, gravel and other materials owned by the Tribe for the construction of its wind turbine project.
Photo courtesy of Osage News
Typically, wind developers use construction materials and concrete procured from off-site to construct the pads, roads and foundations. If a wind developer wants to use rock, gravel and other materials available underlying the lands covered by the surface lease, it would be normal business practice for the wind developer and the mineral owner to negotiate the right to use such materials either within the terms of the wind farm lease agreement or by separate mining contract.
Enel determined that the rock underlying the Osage Wind Farm were suitable to use for the construction of the pads and foundations. Enel had negotiated and obtained a lease permitting them to construct a wind farm on the surface; however, Enel never obtained a lease to mine rock, gravel and other minerals from the Osage Tribe. Enel excavated rock, loaded such rock onto trucks and transported it to a nearby rock processing facility, where it was crushed, refined and sorted into usable construction materials. The processed rock was subsequently used to construct Enel’s wind turbine facilities.
After Enel began construction of the wind farm, the Osage Tribe immediately recognized that Enel was mining and using the Tribe’s rock and minerals without a permit or mining lease. The Tribe immediately notified Enel that they did not have the right to mine and use the Tribe’s minerals without a permit from the Tribe. At that moment in time, Enel should have stopped construction and sought a mining permit from the Tribe. However, Enel ignored the Tribe and continued mining, processing and using materials without a permit. Enel actually could have continued to legally construction of the wind farm without the use of the Osage Tribe’s materials; however, apparently, Enel preferred to use illegally mined rock which was cost free, rather than using legally acquired construction materials procured from off-site, which is the customary practice of other wind developers.
Feeling rebuffed and disrespected, the Osage Tribe contacted the U. S. Bureau of Indian Affairs (“BIA”) and asked them to intervene on their behalf. The BIA evaluated the Tribe’s claims and likewise concluded that Enel was illegally mining the Osage Tribe’s minerals. On October 9, 2014, BIA sent a letter to Enel stating that Enel was “to refrain from any further excavation of minerals until such time that you have obtained a Sandy Soil Permit through the Osage Agency.”
Upon Enel’s receipt of the letter from the BIA, Enel could have stopped illegally mining the Osage Tribe’s rock and nevertheless continued constructing the project by simply choosing to use rock and construction materials acquired from other legal sources. However, instead of heeding BIA’s order to cease construction, Enel arrogantly ignored the Osage Tribe and the BIA and continued illegally mining rock from the Osage reservation.
In fact, after Enel received BIA’s cease and desist letter, Enel appears to have accelerated their construction of the wind farm, so as to expedite completion of the project. Osage Tribal member Dannette Daniels said that “following BIA’s notice to refrain from any further excavation of minerals, Enel accelerated construction of the wind turbines by working 24-hours a day in an obvious attempt to finish the wind farm project as quickly as possible.” Enel’s actions seem to indicate that Enel may have believed that if they could just hurry-up and finish constructing the wind farm, then it would be too late and too difficult for anyone to halt the project. The Osage Wind Project was placed into commercial operation in 2015.
LEGAL ACTION FOR TRESSPASS & ILLEGAL MINING
As you can imagine, Enel’s defiant actions and belligerent attitude deeply offended the Osage Tribe and the Bureau of Indian Affairs. Because Enel had flaunted the law and brazenly disrespected Osage Tribal Sovereignty, members of the Tribe started to call for the complete removal of the wind turbines. On November 21, 2014, the United States of America filed suit against Enel on behalf of the aggrieved Osage Nation. This lawsuit has been ongoing in the federal courts for almost a decade at great expense to all parties. Author and film producer Robert Bryce has been reporting on alt-energy land-use conflicts since 2010. In the Renewable Rejection Database, he has documented some 640 rejections or restrictions of wind and solar across the U. S. Bryce, a native of Tulsa, says “the Osage tribe’s fight with Enel is the longest-running legal battle over wind energy in U. S. history.”
Initially, the District Court found that Enel’s actions did not constitute illegal commercial mining or trespass. However, in 2017 the U. S. Court of Appeals for the Tenth Circuit (10th Circuit Court) reversed the District Court’s decision and determined “that construction of the wind farm project constituted mining and required a lease [from the Osage tribe] under 25 CFR.” The U. S. Supreme Court rejected a request by Enel to review the 10th Circuit Court’s decision. Finally, after almost a decade of court proceedings, on December 20, 2023, the District Court granted the Osage Tribe injunctive relief and set a date to award monetary damages.
Many expected the Federal Court to reprimand Enel and perhaps award modest damages to the Osage Tribe. However, many were surprised that the District Court ordered Enel to immediately cease operating the wind farm. Apparently because of Enel’s arrogance, contempt, and brazen disrespect, the District Court also ordered Enel remove all the 84 wind turbines, pads and roads and restore the lands to their original condition. This is a harsh result for Enel, but undoubtedly a result inuring from Enel’s perpetual disregard and disrespect for the Osage Tribe and the Bureau of Indian Affairs.
LEGAL ANALYSIS
When I was attending the University of Oklahoma, students in the Petroleum Land Management Program were required to take a class about Indian Law. There are generally considered to be three types of Indian Law in Oklahoma. First, is the law relating to the so-called “Civilized Tribes*” (Cherokee, Choctaw, Chickasaw, Creek and Seminole Tribes) who, in the 19th century, were believed to be educated sufficiently to deal independently with their own real property. Second, is the law relating to the so-called “Wild Tribes*” (Apache, Comanche, Kiowa Tribes, etc.) who, in the 19th century, were believed by the U. S. government (correctly or incorrectly) not to be educated sufficiently to deal independently with their own modern real property. Third, is the law relating to the Osage Tribe. Suffice it to say that Osage Tribal law is unique.
*The terms “Civilized Tribes” and “Wild Tribes” are legal words of art and not the Author’s characterizations.
Surface rights and mineral rights vary widely by State. In some States, surface owners are considered to own certain types of rock, gravel and water located near the surface. Such is not the case in Osage County, Oklahoma. It is imperative for developers of oil, gas, coal, wind, solar, hydro and geothermal projects to understand the applicable surface and mineral rights at the specific locations where their projects are being sited and developed.
In virtually all jurisdictions, the surface owner has the right to use a “reasonable amount of the subsurface” for the enjoyment of the surface estate. For example, if someone owning a surface tract of land wanted to construct a house, the surface owner would have the right to dig down into the subsurface to construct a concrete foundation, basement or a swimming pool. In most U. S. jurisdictions, the mere excavation of a home foundation, basement or a swimming pool would not constitute a trespass of the mineral estate.
Likewise, the District Court confirmed that Enel’s ownership of surface leases in Osage County granted them the right to excavate and construct subsurface foundations for the wind turbines. The Court also determined that merely excavating a hole in which to pour a concrete foundation did not constitute commercial mining or a trespass of the mineral estate. However, once Enel transported the excavated rock, processed and sorted it into commercial grade materials for construction of the wind farm, the 10th Circuit Court held that these actions indeed constituted mineral development and mining requiring a permit from the Osage Tribe. Furthermore, the court determined that Enel opened quarries on the lands to mine additional rock, over and above the material excavated from the wind turbine footings. Under any interpretation of the applicable mining laws, opening quarries on the Osage lands would be considered illegal without a permit from the Osage Tribe.
Photo of open pit quarry next to a wind turbine.
Since the Osage Tribe and BIA had warned Enel, Enel and its attorneys almost certainly knew that what they were doing was illegal at the time. If Enel did not know, they should have known and ignorance of the law is never a valid defense. It is entirely possible that Enel’s attorneys advised Enel that their actions constituted illegal mining, but Enel just chose to ignore their lawyer’s advice?
If Enel had exhibited any manner of remorse or contrition for its actions, they might have only received a slap on the wrist and a modest fine from the District Court; however, Enel’s utter contempt and brazen disrespect for the Osage Tribe, the Bureau of Indian Affairs and the Federal Courts did not sit well with the District Court Judge. Enel’s dis-respect for Tribal Sovereignty and the BIA likely underpins the reason that Enel has now been ordered to completely tear-down the wind farm.
NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) VIOLATION?
Another corollary issue which has not been widely reported is Enel’s possible violation of National Environmental Policy Act (NEPA). Anytime that there is Federal nexus, a windfarm developer (or any energy developer) must comply with the terms of the NEPA. The Bureau of Indian Affairs has confirmed that prior to any mining operations on the Osage Reservation, the party intending to mine such minerals must perform an Environmental Assessment pursuant to NEPA regulations. Inasmuch as Enel continuously (and incorrectly) asserted that they were not engaged in mining operations, it seems likely that Enel did feel obligated to perform an Environmental Assessment of the wind turbine sites as required by NEPA prior to construction of the wind farm. However, the 10th Circuit Court determined that Enel was, in fact, mining; thus, it seems that Enel was legally required to comply with the NEPA regulations. Failure to comply with NEPA is a serious matter.
It is tradition for Osage to bury their deceased on top of ridges. As you might expect, many of Enel’s wind turbines were constructed on top of ridges. This is exactly why it as so important to comply with NEPA regulations prior to commencement of excavations on Tribal lands. Unsurprisingly, this is a huge concern for members of the Osage Tribe and one of the principal reasons that the Osage Tribe, and most of the tribal members, did not want the wind farm constructed at the outset. Tribal members were rightfully concerned that wind turbine excavations could disturb historical burial sites of their deceased ancestors. Enel might argue that they were unaware of the NEPA obligation; however, failure to know the regulations is not an acceptable excuse. It would not be surprising if Enel undergoes some future scrutiny for its alleged failure to comply with the NEPA regulations.
WIND INDUSTRY RESPONSE
The wind industry has been mostly silent following the December court ruling. Part of that silence may be a result of a general lack of media coverage. Furthermore, Enel’s actions obviously do not reflect well on the wind industry; hence, the wind industry may have made the calculated determination that it was better not to discuss or shine any light upon Enel’s imprudent and reckless behavior.
Nevertheless, there has been some unfair commentary about the Osage Wind Farm case from some factions in the wind energy community. The harsh and unfounded responses from the wind industry appear to be based on lack of an intimate understanding of the facts of the case and mis-conceptions about the consequences of the Court ruling. Below is a sampling of comments made by the wind energy community about the court’s rulings in the Enel case:
· “The courts don’t understand what they have done”
· “Are we [the wind energy industry] going to run into this problem again, again and again?”
· “The Osage are extorting Enel and I understand why they [Enel] don’t want to pay!”
· “If they [Osage] had just been up front, none of this would have happened!”
These statements are unfair and ignorant. These uninformed statements imply that they believe that the court’s actions have set broad and far-reaching precedents that could devastate existing and future wind farm projects in the United States.
On the contrary, the facts of the Osage Wind Project case are very specific to Enel’s ill-advised actions and the court ruling has not set a broad precedent that would likely affect other wind farm projects. In other words, this ruling is not going to cause a domino effect of future rulings against other wind developers. The accusations that the Osage Tribe is greedy or acted inappropriately are completely unfounded and deeply unfair, asserted by people who are obviously not knowledgeable about the history of the case. We hope that our friends in the wind industry will use the information in this article as a tool for better land stewardship in the future.
FINAL OBSERVATIONS
Enel’s actions are all the more ironic given its public facing statements about partnering with communities and sustaining a social license to operate. In an Enel promotional video, a representative of Enel states “Creating shared value is Enel Green Power North America’s sustainability framework that incorporates social and community issues. Creating shared value is not just about being a good neighbor, it’s about earning and sustaining our social license to operate and by doing so, through listening and partnering w/ local community partners.” Enel’s actions in Osage County are utterly inconsistent with the statement in their promotional video.
The ruling in this case is an embarrassment for Enel and to some degree for so-called “Big Wind.” The Osage Wind Project debacle should be a cautionary tale for all energy developers. Heath Lovell, renewable energy developer stated “Energy development projects of all types are predicated on determining the surface and subsurface (mineral) ownership of the site where the project will be located and obtaining all of the necessary leases and permits to legally undertake the project. Over the past century, oil and gas companies have become very professional and proficient at these important tasks. However, some of the new renewable energy developers (especially the foreign owned companies) have failed to grasp the importance of diligent and competent land and regulatory work. If a company undertakes an energy development project without the necessary leases and regulatory permits, an entire project can be undermined.”
It is also important to respect the sovereignty and authority of Indian Tribes, local governments and all other organizations, agencies and authorities having jurisdiction. It is important for all energy developers to engage with and respect the local communities in which energy development occurs. It is never acceptable for an energy developer to flaunt its social license to operate merely in pursuit of profits.
It is unclear whether or not Enel has actually learned its lesson. Enel is receiving about ten million dollars a year in Federal production tax credits, not including the value received from the sale of the electricity generated from the Osage Wind Project. As of the writing of this article, Enel continues to brashly defy the court order to stop operating the Osage Wind Project. Nevertheless, Enel’s action should be a sober lesson for the remainder of the energy industry. The Osage Wind court case is a huge win for the Osage Tribe, Tribal Sovereignty and property rights. Next week, we may learn what additional punitive damages might be assessed by the District Court against Enel. Stay tuned!
Author’s Final Note: The author has been a professional “landman” for over 40 years. A professional landman is someone who negotiates to acquire surface and mineral land rights for the development of oil & gas, wind, solar, hydro, geothermal and carbon capture projects. The first job of a professional landman is to understand the law and know how to determine the ownership of land at a particular location. This Osage Wind Farm story is of particular interest to the author because of the fascinating and complicated land rights issues visited by this case.
Final Acknowledgements: Robert Bryce and the kind members of the Osage Tribe have inspired us to write this story. This is a story of significant consequence to the energy industry and to Native American Tribes everywhere. Unfortunately, as Robert Bryce has repeatedly pointed out, this story has received very little coverage by the legacy national media, presumably because they are loathe to cover any story that might shed any bad light on the renewable energy industry. This story is about one rogue company that acted poorly and should not be a reflection on honest and fair-minded companies who conduct their businesses with integrity. We would like to acknowledge the following individuals who helped make this article possible:
· Robert Bryce
· Joe Conner, posthumously (although deceased, the body of reporting and research previously performed by Joe made this article possible)
· Carol Conner
· Danette Daniels
· Louise Redcorn
· Luella Nabors
· Jeff Carlson