December 23 2024.
TULSA, Okla. – U.S. District Judge Jennifer Choe-Groves of the U.S. Court of International Trade concluded 10 years of litigation by awarding monetary damages for both conversion and trespass. Further, Judge Choe-Groves ordered the Defendants to remove the wind farm from the Osage Mineral Estate and return it to its pre-trespass condition on or before December 1, 2025.
“This case demonstrates our commitment to preserving and defending tribal sovereignty,” said U.S. Attorney Clint Johnson. “As Judge Choe-Groves emphasized, injury to the Osage sovereignty cannot be condoned or suffered. The Defendants disregarded cease-and-desist instructions with willful and wrongful intent.”
The Osage Nation is a federally recognized Indian tribe and the Osage Reservation was originally established in 1872. In 1906, Congress enacted the Osage Act, severing the surface estate from the mineral estate in Osage County. The Osage Mineral Estate was placed in a trust for the benefit of the Osage Nation. With approval from the Secretary of Interior, the Act allowed the Osage Nation to issue leases for all oil, gas, and other minerals with specific regulations applicable to non-oil and gas mining.
As trustee of the Osage Mineral Estate (OME), the United States is charged with its administration and protection, authorized to litigate on behalf of the OME to fulfill its fiduciary responsibilities of protecting its resources and maximizing economic benefit to its beneficiaries.
The Osage Minerals Council (OMC) is an independent agency within the Osage Nation, established by the Osage Nation Constitution. The OMC has several responsibilities, including the negotiation of leases for the development and extraction of minerals from the OME.
Beginning in 2010, Enel leased approximately 8,400 acres of surface rights in Osage County, Oklahoma to construct a wind farm (Osage Wind) ultimately completing 84 wind turbines and associate infrastructure. The excavation for 82 turbine involved explosives to create craters over 10 feet deep and 60 feet wide to install reinforced concrete foundations. Significant amounts of Osage minerals were engineered and used as backfill for, and positioned around, the wind turbine foundations.
In November 2014, the United States commenced this litigation by seeking a declaratory judgment, an injunction, and monetary damages for the unauthorized mining and excavation into the Osage Mineral Estate (OME), without a lease, by Defendants Osage Wind, LLC; Enel Kansas, LLC; and Enel Green Power North America, Inc. (collectively Enel). The United States brought two declaratory judgement claims and additional claims for conversion, trespass, and continuing trespass of the OME.
Judge Choe-Groves found Defendants liable for all five of these claims in December 2023. A non-jury damages trial lasted for eight days in May 2024 regarding monetary damages. As reimbursement for the lengthy prosecution of the case, the United States and the Osage Minerals Council received a substantial judgement for attorneys’ fees and costs.
The case was prosecuted by Assistant U.S. Attorneys Cathryn D. McClanahan, Nolan M. Fields, IV, and attorneys from the U.S. Department of the Interior-Office of the Field Solicitor, Charles R. Babst, Jr., and Stuart P. Ashworth.
