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Enel’s trespass on the tribe’s mineral estate echoes themes in Killers Of The Flower Moon
The Osage Nation won a massive ruling in Tulsa federal court on Wednesday that requires Enel to dismantle a 150-megawatt wind project it built in Osage County despite the tribe’s repeated objections. The tribe’s fight against Rome-based Enel began in 2011 and is the longest-running legal battle over wind energy in American history.
As reported by Curtis Killman in the Tulsa World on Thursday, the ruling grants the United States, the Osage Nation, and Osage Minerals Council permanent injunctive relief via “ejectment of the wind turbine farm for continuing trespass.”
The decision by U.S. Court of International Trade Judge Jennifer Choe-Graves is the culmination of 12 years of litigation that pitted the tribe and federal authorities against Enel. During the construction of the project, the company illegally mined rock owned by the tribe, and it continued to do so even after being ordered by the Bureau of Indian Affairs to stop. Instead of halting work, the company sped up construction. Enel must now remove the 84 turbines that it built on 8,400 acres of the Tallgrass Prairie located between Pawhuska and Fairfax. Removing the turbines will cost Enel some $300 million.
Under the Osage Allotment Act of 1906, the tribe owns the rights to the minerals beneath the land it bought from the Cherokee Nation in the late 1800s. Those mineral rights include oil, natural gas, and the rocks that Enel mined and crushed for the wind project. By mining without permission, the company violated the tribe’s sovereignty. Choe-Graves concluded that Enel “failed to acquire a mining lease during or after construction, as well as after issuance of the 10th Circuit Court of Appeals’ decision holding that a mining lease was required” in 2017. She continued, saying the company’s “past and continued refusal to obtain a lease constitutes interference with the sovereignty of the Osage Nation and is sufficient to constitute irreparable injury.”
The court victory comes at the same time that the Osage Nation is getting massive media attention due to the October release of Martin Scorsese’s epic film, Killers Of The Flower Moon, which is still being shown in theaters. Last week, Richard Brody, the film critic at the New Yorker, declared that Killers is the best movie of 2023. The movie is also racking up accolades and nominations for numerous awards. For instance, Lily Gladstone, who stars in the film as Mollie Burkhart, has been nominated for a Golden Globe for Best Actress.
Judge Choe-Graves’ decision is a huge win for tribal members like Tommy Daniels, who have long pushed for the removal of the wind turbines. “If I had the power, boom!, they’d be gone,” Daniels said in an interview I did with him last year in Fairfax. Daniels is one of the last full-blood Osages. The wind project “kills birds, like eagles, I don’t like that,” he added.
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Daniels and other Osage tribal members opposed the project because of its potential intrusion on sacred burial sites, as well as the 420-foot-high turbines’ deadly impact on eagles. In 2021, I interviewed Joe Conner, a tribal member and publisher of The Fairfax Chief. Conner, who passed away on September 12, 2023, told me, “Many tribal members have objections because of the fear of damaging the environment, sacred birds, particularly eagles, that would be caught up in the turbine blades.”
The interviews with Daniels, Conner, and other tribal members are featured in my upcoming docuseries, Juice: Power, Politics, And The Grid. That five-part docuseries, directed by my colleague, Tyson Culver, will be released on YouTube beginning January 31, 2024. (The docuseries includes more than 30 interviews with top thought leaders. Tyson has done an amazing job putting the episodes together. More details to come in early January.)
By thrashing Enel in court, the Osage tribe not only stands to collect millions of dollars in damages and the removal of the loathsome turbines, it also has handed Big Wind the biggest public relations debacle in its history. It’s not just that the wind industry lost; it lost to a Native American tribe. That’s a particularly bad look when it comes to the branding of wind energy as “clean,” “green,” “sustainable,” and, of course, “renewable.”
The tribe’s victory will be costly for Enel. But it’s also an embarrassing loss for Big Wind and its allies. For years, big business, big banks, big law firms, academics from elite universities, and big NGOs, have been siding with the wind industry as it tried to steamroll rural landowners and governments. Further, while the industry has dealt with scattered instances where a handful of wind turbines have been torn down due to opposition, such as the removal of two turbines last year in Falmouth, Massachusetts, it has never faced a loss of this magnitude.
Getting rid of two wind turbines in Falmouth can be ignored. Removing 84 turbines? That is unprecedented.
The Osage tribe’s victory over Enel provides more proof of the increasing opposition to wind energy from rural residents all over the world. Earlier this month, a French court ordered a wind project in southern France to be dismantled. That project faced years of complaints from residents about noise pollution. (More on that in a future Substack.) Indeed, the Osage tribe’s victory shows — yet again — that all across rural America, local people are fighting to preserve their neighborhoods against the landscape-, viewshed-, and wildlife-destroying impact of massive wind turbines. That is particularly true for members of the Osage tribe, who believe in the sacredness of the place where the earth meets the sky.
The extent of rural resistance to Big Wind and Big Solar is evident in the Renewable Rejection Database. Since 2015, there have been 417 rejections or restrictions of wind energy in the U.S. and those rejections have occurred from Maine to Hawaii. So far this year, there have been 50 rejections or restrictions of wind energy and 68 solar rejections. Actually, come to think of it, Wednesday’s court ruling brings the total to 51 rejections of wind energy in 2023.
The tribe’s court victory shows that Killers Of The Flower Moon is not ancient history. Scorsese’s film, (it’s terrific, by the way), based on the remarkable book of the same name by David Grann, shows, in sometimes-too-graphic detail, how outsiders took advantage of the Osage tribe and its oil wealth by murdering dozens of tribal members. But the effort to exploit the tribe’s minerals didn’t end in the 1920s. It continues to this day.
In its pursuit of the wind project, Enel displayed a staggering amount of arrogance and greed. It repeatedly ignored the federal government’s warnings that it must not violate the tribe’s mineral rights. Why was Enel in a rush? The answer is obvious. Just as Bill Hale (the “King of the Osage Hills”), his nephew, Earnest Burkhart, and many other whites conspired to murder wealthy Osage tribal members during the Reign of Terror a century ago, Enel did it for the money.
By ignoring the tribe and attempting to take its minerals, Enel aimed to collect tens of millions of dollars in federal tax credits. As Conner explained it, Enel “completely dismissed us as anything they needed to take seriously.” He continued, saying the Italian company was among “a long line of exploiters, if you will, who decided this is something they can do, and not have to pay much for, and make, you know, lots and lots of money.”
In 2011, according to an article by Benny Polacca of the Osage News, the superintendent of the Bureau of Indian Affairs in Pawhuska wrote a letter to the tribe four days after the Osage County Board of Adjustment approved a variance request for the wind project. The BIA official warned that the project “may have to be removed or relocated” if it interferes with the tribe’s mineral estate. Despite that warning, Enel began building the wind project in 2013. As seen below, on October 9, 2014, the BIA sent a letter to Enel telling it to “refrain from any further excavation of minerals” for the wind project “until such time that you have obtained a Sandy Soil Permit through the Osage Agency. Failure to comply may result in this matter being forwarded to the Office of the Field Solicitor for further action.”
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In 2014, the federal government filed a lawsuit seeking a judgment that Enel had engaged in unauthorized mining. That still didn’t stop the company, which commissioned the wind project in 2015. Since then, Enel, by my calculations, has been collecting about $10 million per year in federal tax credits. And remember, the company has been getting that $10 million per year before it sells any of the juice from the project.
I made two attempts to get a comment from Enel about the ruling, including a phone call and email to their Oklahoma City-based spokesman. Enel did not reply.
Enel has repeatedly trumpeted itself as a “clean energy leader.” On its website, Enel North America says it is “advancing a just transition to 100% renewable electricity.” In addition, the CEO of Enel Green Power North America, Paolo Romanacci, sits on the board of directors at the American Clean Power Association, the lobby group that spends about $32 million per year promoting the interests of Big Solar and Big Wind.
Wednesday’s court ruling may also prove embarrassing (and costly) to some of Osage County’s most prominent people, including the Chief Justice of the Oklahoma Supreme Court, M. John Kane IV. Property records show that a large portion of the Enel wind project was built on land owned or controlled by Kane’s family. Kane was appointed to the state’s highest court in 2019 by Governor Kevin Stitt, who has been antagonizing Oklahoma’s tribes ever since he took office. Kane became chief justice earlier this year. On Monday, I called Kane’s office to ask about the Osage tribe’s litigation against Enel. His assistant, Kinsey Hicks, told me that Kane would not comment because justices are “not allowed to talk about things involving pending litigation.”
After the ruling, the Tulsa World quoted Osage Minerals Council Chairman Everett Waller saying, “This is a win not only for the Osage Minerals Council; this is a win for Indian Country.” He continued, “There are a lot of smaller tribes that couldn’t have battled this long, but that’s why we’re Osages…We’re here, and this is our homeland, and we are going to protect it at all costs.”
On Friday morning, I talked to Scott Lohah, an Osage tribal member who has been a longtime opponent of the Enel wind project. (Lohah is also featured in our docuseries.) When I asked him about the court ruling, he said, “Everyone in the tribe is ecstatic.”
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The Osage should insist that the foundations for the turbines be removed, as well, restore the land to it’s original state.
That was my question. Removing the bird-choppers is not going to cost as much as breaking up the foundations and removing them and then restoring the site to its pre-windmill condition.
A very-well-done to The Osage Nation for winning in the Tulsa Federal C in its action against Enel and its monstrous, ugly, and quite unnecessary 150-megawatt wind project in Osage County. Winning such a long struggle, since 2011, against the well-funded Enel Group is a monument to environmentalism and a blow against Eco-Vandalism in the name of ‘Climate Change’.
Missing from this story is how a windmill gets erected on somebody else’s land, or how the Osage have jurisdiction over somebody else’s land?
Although I applaud the tearing down of any eagle shredding grid disrupting eyesore, I’d like to understand when and how property rights were trampled in this case.
The land isn’t owned by the tribe but individuals who are free to sell if they want to, although the Osage keep the mineral rights to the land. That’s what happened in this case – the land is privately owned and the land owner gave Enel the right to build on it but, because it was within the Osage reservation, neither the land owner nor Enel had the mineral rights.
Surface and mining rights are separable. Apparently the Osage retained mining rights.
So how does excavating for foundations become mining and taking of minerals. Seems like an odd legal detour to take . Then have it adjudicated not the local Federal District Court but instead The DC Court of International Trade even odder
Read the story. The aggregate for the foundations was mined on the site.
Holes were dug for foundations , not ‘mined’
The large reinforced concrete slab was poured in the 10ft deep and roughly 60 ft diameter excavation. The excavated material was put on above the slab to return the natural ground level.
You cant just use any old aggregate for RC foundations
Osage Wind dug large holes in the ground. This
process involved the extraction of
so
Larger rock pieces were then positioned ne
I guarantee that’s what the company believed! It’s actually a very reasonable position.
I’m happy to see the company lose their a** but the legal ruling struck me as weird. Is it possible that “rocks” were anticipated to be included as “mineral rights.” Where does that end? If you crush some rock to build the foundation for your house on your own land, did you violate the tribe’s mineral rights? How about when you build a patio?
And if this were an honest ruling, the penalty would be to compensate for “minerals” that were taken. Rich Davis nailed it. Someone didn’t pay off the tribal elders. That’s how the system works.
Did you even bother to read what you are commening on?
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Yes I read the transcript of the court case where the Judge summarises the factual side.
The rock excavated/mined wasnt used in the concrete base just the hard fill added on top. yes they seemed to crush the material to give some uniformity . But it all remained at each site excavated
The facts regarding whether the excavations constituted “mining”, were adjudicated all the way to the Supreme Court of the United States many years ago.
The 10th Circuit Court of Appeals in Denver overturned a local federal court ruling:
“A federal district judge initially ruled in favor of the wind farm project in 2015, finding that excavation of the rock for the wind turbine concrete foundation did not constitute mining.
But the 10th U.S. Circuit Court of Appeals in Denver reversed that decision in a 2017 ruling.
The appellate court held that Osage Wind’s extraction, sorting, crushing and use of minerals as part of its excavation work constituted mineral development, thereby requiring a federally approved lease that was not obtained. It disputed the district judge’s interpretation that the definition of mining required the sale of minerals.
The U.S. Supreme Court rejected a request by Osage Wind to review the appeals court decision.”
Therefore, the facts of the case are and have been since 2017 beyond dispute.
“Extraction, sorting, crushing, and use of minerals”, was found to be de facto mining, and an appeal to the SCOTUS was not successful.
This recent ruling was regarding whether permanent injunctive relief would be granted, IOW whether the turbines would be ordered permanently removed.
At this point, a trial date for damages has been set and will go forward.
Judge orders removal of wind farm opposed by Osage Nation (tulsaworld.com)
Duker
T Boone Pickens famously said without the federal subsidy there was no point in investing in wind energy.
My wife and I just listened to the audio book on the trip to Tucson and coincidentally heard the news about the law suit on the radio as we finished.
The Federal government forced the Osage to move several times and when they sold their land in Kansas they bought new land in Oklahoma and the deed specifically mentions the purchase included the mineral rights. Discovery of oil in the 19th century eventually brought the tribe members with “head rights” vast wealth. These payouts continue to this day averaging about $10k per three months per person. The income is from royalties for extracting something below the surface. Private ownership of the allotments on the surface doesn’t include subsurface rights which belong to the tribe as a group although it is complicated by there being some members who were or were not “allotted”.
The complaint was that the aggregate for the concrete was excavated from Osage tribal land. The tribe demanded the company approach the tribe for a licence which they have a right to demand and which they said they would deny. The company said they didn’t need a mining licence to dig and crush stone because they did not dig and then sell it, which is of course a lie. The sale was included in the capital cost of producing electricity. But sale was not the issue, it was the extraction. For example you cannot take oil for free just because you run your transport business with it.
Mining includes extracting anything of value below the surface including “abstracting water” from underground. It was the intention of the Osage to block the project by denying the licence to take the stone.
All gravel pits have to have a mining licence. I reviewed a sale of private farmland that had a working gravel pit with the mining rights included so it is the norm.
The long history of the exploitation of the Osage by shady, crooked and abusive outsiders is just extraordinary, often with the collusion or even instigation of the government. Their abuse goes back nearly 200 years, as documented in “Killers”.
Some aspects of the murders remain uninvestigated, one of which is the extent to which the exploitation and murders in the 20’s were coordinated by the local chapter of the Freemasons. Are they still untouchable? The book hints twice in this direction but goes no further.
Yallop’s book “In the name of God” pulls no punches in his investigation into the collapse of Banco Ambrosiano. (Get the second edition.) It could still happen I suppose. There was an awful lot of strange coordination with business, police and the judiciary. It is a gaping hole in the FBI’s investigation.
William Hale openly flaunted his membership and influence and even after his conviction assumed he could use his influence with politicians and judges to get away with it. And it worked, until it didn’t.
The same attitude seems to permeate the turbine company – that the resource is there for the exploiting and the rabble living there a mere pin prick. As they did indeed mine the stone they should have to pay for that, plus penalties.
Crispin really in Tucson
It’s kind of ridiculous reasoning used here but it worked to shut down another wind farm which is a good thing.
The article explains exactly how that becomes the case:
Enel excavated lime rock and ground it up to use as part of the foundation for the pads.
Limestone is a mineral, and digging it up and using it constitutes mining.
Its still an obtuse legal ruling. Excavation and refilling a hole is mining?
What about road works where much the same is done . Cut and fill is standard procedure , does that require a lease from the mineral rights owner if different from the surface owner.
In my work plenty of houses required pile excavations down 5m or more
Another factor is the sheer intransigence of the wind power company. They flat out ignored the court ruling in 2017, even after appealing it all the way to the SCOTUS, and then did nothing to come into compliance.
To this day they have refused to seek to obtain the required permits and/or leases the courts ruled they must have.
So it becomes about ignoring regulations, court orders, legal precedents, etc.
From the 10th circuit ruling and the language therein used, it was not just digging a hole. They excavated, sorted, crushed, and utilized lime rock, which is a mineral, no matter how you slice it. Limestone, pulverized lime, gravel…these are things that are mined and sold.
Mining laws have been settled since the late 1800s regarding what constitutes mineral rights or what constitutes mining.
Digging a grave by hand then filling it in isn’t mining.
Using heavy equipment to dig a pit, sort or crush and use/sell the material is mining.
The first court’s decision for Enel was in error. The appeals court that reversed that decision likely found many examples of precedent. SCOTUS simply affirmed.
If all they did was refill the hole they might have had a case, but the judge found that they also sorted and processed the rock that was extracted for use. If it had been mainly clay or mica it would not have been used as the base for the windmills. The fact they were able to source and process the material on site and use it for their current project doesn’t mean they didn’t take all the same steps as a mining company would for selling the material off-site.
Here in Florida (I do not know about other places), mineral rights are separate from land ownership.
Without knowing anything about any of this, a person might naturally believe that if they buy land, they are buying anything under the ground as well, but that is not always the case.
That is the situation for every state of which I am aware with perhaps the only possible exception being Hawaii.
Here in Virginia, a relative was approached by an oil company seeking to purchase a lease to drill and withdraw oil from beneath their orchard lands.
In fact the whole valley got involved with many folks believing they were going to be not poor or possibly affluent from monthly oil payments.
Only a few actually received offers from the oil company. The rest thought that just owning, renting or leasing their property would get them oil payments.
Turns out, the oil company had seriously researched who actually had the mineral rights and only made offers to those people. Even then, they only made serious offers to folks who lands showed promise of oil/natural gas beneath them.
Many suburban/urban developments only sell/rent or lease the surface rights while the developer, town, city or others keep the mineral rights.
Uh-OH! Someone at Enel forgot to pay-off the tribal elders! So, the tribal elders played the “sacred burial” card. I wonder just how many of these “sacred burial” sites are there? They sure seem to pop up all the time whenever it is convenient. This puts Liberals in an awkward position. Two of their pet causes, windmills and oppressed Indians at odds with each other. How is a good card-carrying Liberal supposed to virtue signal if he/she/it can’t decide which side is more virtuous?
It is also that Enel violated the mining rights the tribe held, separate from the surface rights. The sand and aggregate were mined on land the Osage held rights to, and Enel did not pay the tribe for mining rights.
Yes, I got that, but that implies that either Enel trespassed on nearby land to steal the minerals and use them on their own land or that Enel had rights to erect windmills on Osage land through some contract with the tribe but exceeded the terms of that agreement by stealing minerals.
If it’s the latter, that seriously undercuts the tribe’s case. How can they say that the windmills are objectionable if they previously agreed to lease the land for that purpose?
If minerals were stolen, typically there would be financial compensation due to the damaged party. If my contractor built my house with stolen lumber I don’t think any court would demand that my house be torn down.
Anybody who recognizes my name here knows how worthless I think windmills are, but something sounds fishy in this story.
From the story, Enel had permission from the land owner, who did not have, however, the mining rights.
Real estate and mining law is a bit opaque.
When does a foundation become a mine. The wind towers need heavy duty high strength concrete normally made in a commercial concrete batching plant and trucked to site
Yes, I missed that point, but then I think the analogy of a contractor building a house with a proper building permit but using stolen lumber would be the applicable analogy. What court would order that the house be torn down to compensate the lumber yard?
Considering that bird-shredders are sacred to the Greens and many millions of dollars are involved, it seems that this shaky ruling is unlikely to stand. The remedy doesn’t even address the alleged damages.
They havent stolen anything, the excavated material in the 10ft deep by 60 ft diameter hole is returned to the ground to level it up. No need to take it anywhere. They have leased the land for the wind turbine structures from the legal owners . Apparently around 1906 the Osage reservation land was divided into mineral rights which remained with the tribal nation and and the surface was divided into individual title which was allocated to tribal individuals. Much has been onsold since then but the mineral rights held under Trust by the US for the tribal nation remain.
Golly, maybe you should have filed a brief to share your understanding of the relevant issues with the court, and set them straight before they embarrassed themselves by ignoring what is readily “apparent” to you.
As usual on WUWT the authors leave out a lot of facts I checked with the court ruling in favour of the tribe to understand more of the factual side.
Im not a lawyer so many decisions seem to fly against common sense The first judge in the earlier court decision agreed with me , and the Trustee for the mineral rights didnt appeal so its not an open and shut case. For some obscure legal reasons the Tribe itself was able to intervene at a late stage to secure an appeal even though they werent the applicant ( US government was) in the original case against the wind power company.
Then there is this court – an international trade court which is strangest of all. The foreign investor has US subsidiaries to be sued not the HQ overseas .
They excavated far deeper than ten feet in order to bury concrete that was ten feet thick. They then processed the rock they excavated in order to add to the structural stability of the concrete base. They did not merely refill the holes with material taken from the hole, they sorted and processed the material to be used as part of the construction.
There was a 10th circuit court of appeals ruling that a required permit had not been obtained all the way back in 2017, which was ignored.
Most companies that are subjected to expensive civil court rulings wind up appealing the verdicts against them, but your reasoning seems shakier than the ruling.
Rich, To tweak your analogy, they didn’t steal lumber from a yard. They had a contract and permits that said they could build in a forest as long as the house wasn’t visible from the neighbor’s property and had no other effect on that property. They proceeded to cut down the neighbor’s mature black walnut trees and mill them on site, using them to build the house right on the property line. Tearing down the house would be just a part of the judgement against the builders, along with financial compensation.
Maybe try reading the article?
The issue you are opining on was explained.
Besides for that, the entire case has already been the subject of a trial and a verdict.
So what you are declaring from your limited knowledge of the case is moot.
“Choe-Graves concluded that Enel “failed to acquire a mining lease during or after construction, as well as after issuance of the 10th Circuit Court of Appeals’ decision holding that a mining lease was required” in 2017. She continued, saying the company’s “past and continued refusal to obtain a lease constitutes interference with the sovereignty of the Osage Nation and is sufficient to constitute irreparable injury.” “
I did read the article Nick and my point is that they have venue shopped themselves to an untenable position not much different from how Trump is being excluded from the ballot in Colorado.
It’s not that I lament the decision, it’s that I regret it’s highly unlikely to stand.
Note the wording: “the Osage tribe, who believe in the sacredness of the place where the earth meets the sky“
So it is not about burials, although on land once occupied by tribes there are numerous burial places with just a couple dozen graves.
There is a Yakama Nation site — still active — just one mile north of me.
That is really disrespectful and ignorant – did you even read what the article said? About the mining rights?
I wouldn’t need to have my kin buried on my land to have an excuse to shoo criminals off my property!
The land owners gave permission.
Mining and surface rights are separable. The Osage had mining rights.
Yes. But ‘mining’ in this sense is just a figure of speech as it was an excavation to 10 ft for a large concrete foundation and the material excavated was returned to beneath the tower to give a similar ground contour
This is what the first District Court case found when US as trustee for the Osage Mineral rights holder – the tribe- went to court.
The first court case agaisnt the Wind project wasnt about mining at all, but that the construction of the towers would limit the extraction of oil and gas – this is OK after all- which was a pretty thincase as the towers only occupy a tiny part of the land leased by the wind project. They lost that augment.
At the core of the case the Osage just want a cut of the revenue, just like they do from oil and gas that they are happy to get This particular reservation was bought originally from the Cherokee nation by the Osage
No subsurface rights means no subsurface rights, period.
It is galling that some foreign company can come to the US and ignore the laws and regulations, ignore court orders, and just do whatever the hell they feel like, to make a profit from our tax dollars.
Maybe rulings like this will have more of them thinking twice before doing so.
I wonder if anticipation of this ruling had anything to do with recent cancellations of offshore projects off the east coast?
In one of those cases, the company that cancelled a project they had bid on and agreed to build, has refused to pay the cancellation fee built into the contract.
I think it is way past time the American people decided we are tired of being fleeced by all comers.
“…But ‘mining’ in this sense is just a figure of speech as it was an excavation to 10 ft for a large concrete foundation…”
Why are you are making up your own numbers for the depth of the excavation, that are a fraction of what was observed and reported in government documents many years ago, and which were ruled on at the level of a federal appeals court back in 2017?
30 feet is not 10 feet.
They removed minerals and crushed them up and used them as part of the construction.
They ignored court orders, ignored repeated warnings that they were in need of permits that they had failed to secure.
The facts have now been adjudicated.
Appeals are limited to errors of law or procedure.
I used the numbers decision for the applicants.
United States v. Osage Wind, No. 15-5121
https://law.justia.com/cases/federal/appellate-courts/ca10/15-5121/15-5121-2017-09-18.html
The depth isnt significant , its the rocks arent used in the concrete nor are they removed permanently but returned the ground or around it
Regardless of such arguments, the case was heard, ruled on, appealed, reversed, and then appealed all the way to the SCOTUS.
Throughout the entire process before and after the court ruling, the wind company has refused to comply with regulations, ignored warnings, ignored court orders, and even after losing, failed to act on the court findings.
Ignoring a federal court order is never going to end well.
Ignoring it even after spending the time and the money for a Supreme Court appeal is just baffling.
From the language of the recent ruling, the defendants have to this day refused to even try to get the leases and permits that the courts ruled were required.
It became an issue of sovereignty, among other things.
I have no idea how damages will be calculated, but if there are punitive damages awarded, which is common in civil cases, it seems likely to be an amount that will hurt.
The wind company would have been well advised to make good faith efforts to comply with the previous rulings, even if they did not agree with them.
The Osage had no control over how the US Government approached the first case. In fact, the Osage could not legally enter a suit on any other grounds while the US Government was representing their interest. It was only after the Trustee let them know that they would not appeal the first ruling that it became possible for them to file suit on any grounds.
So two greenie climate smucks make an anti-oil film, sure you know who I am talking about. But in the end, they will have how many wind turbines shoved up their …s in the disposal process.
“If I had the power, boom!, they’d be gone,”
ME, TOO! 😀
Bwah, ha, ha, ha, ha, ha, haaaaaaaaaaa!
Go, Osage People!
YAY!!!! Oh, yay! So happy. 😊
Tremendous news.
re: “Rome-based Enel”
‘Rome’ where?
Rome Italy, _Jim.
https://www.enelgreenpower.com/
Regards,
Bob
The Enel arrogance is staggering. Typical for EU greens. A just comeuppance victory for the Osage and their sacred eagles.
Will Enel be able to successfully appeal this decision ?
Seems probable to me. You can’t build a house or grow crops without disturbing the surface. So if they’re claiming that the foundation constitutes a mine or trespass, that just doesn’t pass the smell test. It renders land (surface) rights moot.
If the damages done are limited to the value of stolen gravel used to mix concrete, the remedy of removing the otherwise-authorized bird shredder doesn’t address the damage done. The tribe has no ownership to the sacred space where the earth meets the sky.
Obviously I’d prefer to see the abominations torn down.
I disagree.
Appeals courts most commonly give a huge amount of deference to a lower court’s finding of facts. After all, the lower court is where all of the evidence was presented, in many cases, and specifically in this case, over many years and in great detail:
“The appellate court will typically be deferential to the lower court’s findings of fact (such as whether a defendant committed a particular act), unless clearly erroneous, and so will focus on the court’s application of the law to those facts (such as whether the act found by the court to have occurred fits a legal definition at issue).”
84 Wind turbines must be removed! Where are they going to put all of that trash?
Regards,
Bob
They’re not trash, just second turbines. Surely it’s possible to move them to another location, how about Cambridge, MA or Sacramento, CA?
on the MIT campus would be perfect- well half, and the other half in “Hah-vid Yard”
I suggest an addition location in HAA- VUHD SQUAA.
Both MIT and The SQUAA are excellent locations.
Here is a great view from the Square
I believe this was the law firm that represented Enel.
The Firm only hires Havard Law School graduates.
A friend studied law in Northeastern. He said a higher % of his class passed the bar than those from Hah-vid. Of course the Hah-vid crowd has better connections- which is apparently very important in “the law”.
As close to the dorms and library as possible.
My wife drug me along to a store that sold high end bathroom Vanities to get ideas about remolding the bathroom. They had a wind turbine at the far end of the parking lot. Within 15 minutes of being there the whoosh, woosh, gave me a splitting headache.
Maybe it was the “drug” your wife gave you.
They’re old, small inefficient 2MW jobs from 10 years ago. Those 84 pinwheels could be replaced with 9 of the last-n-greatest (heard an 18MW turbine is ongoing testing).
In what way is a wind turbine of any output “inefficient”?
1) When the LCOE it produces is a factor of 2–5 times higher than that available from fossil fuel power plants.
2) When it provides electricity on a intermittent, unreliable basis 24/7/365.
3) When it actively kills large numbers of birds and bats, which is not its stated primary purpose.
4) When its large acoustic energy output is a clear indication of turbulence (i.e., aerodynamic inefficiency) being associated with its functioning.
Next question.
5. When the total annual power required to operate all equipment inside the nacelle and used to generate power is greater than 50% of the gross power generated by the WT. Typically this would be greater than 15% of Name Plate rating.
When the costs to maintain it are a large fraction of what is earned by selling the power that is produced?
Can anyone point out any instances of turbines being removed from one location and reinstalled someplace else?
These things are not exactly new.
In my experience, there is very little market for salvaged capital equipment. In the case of these wind turbines, where more than half the cost of the finished project goes to things other than reusable capital equipment, i.e., the excavation, the concrete base, the equipment and labor to deliver and erect those monstrosities, etc… and then the actual price received is typically less than $0.10 on the $1.00 for just the part(s) that can be recovered, the final recovered cost isn’t worth pursuing.
Obviously in somebody else’s back yard.
My top suggestions for re-location locations:
1) the lawn of the White House, and/or
2) dispersed among the green lawns and reflecting pool of the the National Mall, from the Lincoln Memorial to the Washington Monument.
Such emplacements of all 84 wind turbines would both provide intermittent energy to the US Capitol as well as be a constant in-your-face reminder that virtue signaling often has noticeable visual and auditory impacts to those it is forced upon.
“it also has handed Big Wind the biggest public relations debacle in its history”
let’s see if this story makes it to the MSM
The score:
Tribes 1, Tax Credit Miners -1, Climate Change Scams 0
Make them dismantle the wind farm without using equipment with CO2 emissions. Also, monitor and report on the disposal plan.
We saw an eagle the other day, could just make out the whites and browns soaring in the distance, like icing on a chocolate cake. Magnificent, just like this story.
Let FREEDOM (i.e., free market determining what energy we use) ring! 😀
A remembrance. My Wisconsin dairy farm is less than 5 miles from the lower Wisconsin river. It never freezes fully over because of the swirls from its many sand bars. So the Missisippi Fly Way bald eagles tend to congregate there along the lower Wisconsin in dead winter, for good fishing after the Missippiee freezes over.
So, one very cold January weekend I am out by the heated Richie next to the winter horse shed, grooming our horses. They got skitisch for no reason. I looked up, and there was a mature Bald Eagle looking down from the big burr oak adjacent to the Ritchie.
Now, eagles do not prey on horses, even babies. But horses always worry about anything that might maybe prey on them. Is horse nature, taught me by my very horse whisperer. who learned from the original.
btw, if you have not seen the movie, go do. Yes it is Hollywood, but horse whisperers exist for real. I learned a lot from one. See that ear twitch. See that flank twitch. Now go up and hug gently. You will then be able to slip a halter over her neck because she now accepts you into her space!
I took a 3-year old to a “Buck” Brannaman week of training. Then went to a few of his other events. Buck was the horse person that worked on that movie.
The moving true story of Buck Brannaman, Robert Redford’s horse whisperer, is a surprise hit at the American box office | Movies | The Guardian
He has a good story. It’s still out there on Youtube.
Yup – there are eagle watching sites in Prairie du Sac just below the hydroelectric dam where dozens of bald eagles congregate and fish all winter. The sites have binoculars and telescopes set up and are often manned by volunteer enthusiasts who are happy to answer questions about these magnificent birds.
Wait, swirls from sandbars can prevent water from freezing?
How does that work?
A location would be nice for the eagle sighting.
I live in cattle country and when calving season begins
I often see 3 to 7 eagles per day. This is northeast of
Ellensburg, Washington State.
White’s and browns? Like the one in my backyard eating a squirrel? Just another boring old day in Hamilton Ontario.
They should eat your extraneous apostrophes.
That’s not a bald eagle. I can’t tell, from this pic, what it is exactly, probably some kind of hawk, but it’s not a bald eagle of any age.
Look to Enel to now declare bankruptcy to avoid the cost of removing these hideous contraptions.
Dumping the cost of the US taxpayer.
Nope, the $149 billion corp may drop to $148 billion.
I am confused. The complaints of the Osage people interviewed said they were mad about the eagles being killed. I wonder where they got all those nice feathers for the headdresses we see in old photos. Yet, they kicked out the windpower company based on illegal mining activity, which certainly is odd since they weren’t mining this area. Was there evidence they sold minerals or oil from this area? Not mentioned. All in all, another peculiar outcome in court.
They mined the sand and aggregate for the foundations on land the Osage had all mining rights to.
Even Native Americans cannot just purchase eagle feathers from a vendor. There’s a national wildlife refuge where dead eagles are sent. With the proper forms, a tribe can request feathers for ceremonies and certain garments.
Most “eagle feathers” you see are artificial. Even if an eagle were killed by a turbine on their land, they would still have to have the carcass removed and it would be sent to this refuge.
The hypocrisy from the green crowd on this issue is amazing. This is our national symbol. Eagles are rare and protected. If you’ve ever seen one flying in the wild, it’s a memorable sight – one I hope future generations will enjoy.
Yet the greens don’t care one bit that their preferred source of temporary energy causes so much harm to the eagle population. We wouldn’t think of allowing hunting again. Yet they want a free pass because otherwise turbines might be banned entirely.
Yeah, it’s outrageous.
I also found the article a bit confusing.
Were the wind turbines built on land for which the tribe held the mineral rights, but had sometime in the past sold the surface rights?
I don’t believe that wind farms have any power of imminent domain for the emplacement of turbines, so they must have had the permission of the surface owners?
If ENEL did have the correct surface rights, then they are just plain stupid to commit a trespass on the mineral rights! Aggregate is not an expensive item in Oklahoma. Even if not available in the immediate vicinity, it is easily shipped in mass quantity by rail.
Stupid AND greedy is a poor way to run a business. Sure hope it bites them in the wallet!
What is peculiar about your post is that you think that Indian tribes (indeed any US citizen) retain rights to exclusive use of their property only if they are actively exercising some/all of the rights inherent with such ownership.
Obviously, you’ve never owned any vacant land for very long.
Why remove them if the complaint is illegal mining? That is over and done with. Why not give the tribe a cut from the wind farm revenues? This seems really dumb, like blowing up dams.
The Osage want the bird Cuisinarts gone. The minor little fact Enel violated property rights to build them is the rationale.
Why remove a homeless person who has sent up a tent on the front porch or lawn of your home . . . that is over and done with (your words).
Come to Florida, build anything without obtaining the correct permits, then cite your reasoning when they tell you to dismantle it.
The ignored multiple court orders and official warnings to cease and desist.
There is every reason to not let people who ignore laws and the rights of others from being able to profit from their obstinance and lawlessness.
“Why remove them if the complaint is illegal mining?”
Here is why:
“On the record before the Court, it is clear the Defendants are actively avoiding the leasing requirement,” Choe-Groves said. “Permitting such behavior would create the prospect for future interference with the Osage Mineral Council’s authority by Defendants or others wishing to develop the mineral lease.
“The Court concludes that Defendants’ past and continued refusal to obtain a lease constitutes interference with the sovereignty of the Osage Nation and is sufficient to constitute irreparable injury.””
And this:
“In considering whether to issue a permanent injunction, Choe-Groves weighed several factors, including balancing the tribe’s claim that the unleased wind farm damages its sovereignty against Osage Wind’s claim that it would suffer the inevitable loss of hundreds of millions of dollars if the wind towers were removed.
Osage Wind also claimed that removal of the wind turbines would result in a loss of revenue from two local schools, jobs, income for the surface estate owners and renewable energy for 50,000 homes.
But Choe-Groves was not persuaded by Osage Wind’s claims of the harm that would occur if the turbines were removed.
“Even if negative effects were to result, including the significant monetary impact of hundreds of millions of dollars, such effects would not negate the public interest in private entities abiding by the law and respecting government sovereignty and the decision of courts,” the judge wrote.”
In short, they are being forced to remove them as punishment for ignoring the law.
Sort of like why we lock people up who hurt other people, even though locking them up will not undo the hurt.
Failure to do so will tend to incentivize others to commit similar offenses.
Plus, people who break the law should be punished for breaking the law, which is a separate and wholly legitimate public interest, which sits alongside the public interest of disincentivizing others from doing the same thing, or the same person or persons from doing the same thing over again.
+42 credits!
I’m confused.
Did Enel have permission to build the turbines but not permission to dig up a little limestone to construct the bases? It sounds like the Osage nation didn’t want the wind farm, so how did Enel get approval to build it?
Enel built it on private land within the reservation boundary so had permission to build on the private land. However, because that private land was entirely within the reservation boundary, they still needed mining permits to dig up the rock for the foundations and were still subject to tribal rulings and regulations.
I’d guess the tribe didn’t own the land, just the mineral rights as it referred to the lawyer whose family owned the surface rights and cashed in. My sister in law owns some oil holding property and the laws around mineral rights are confusing and frequently litigated.
That’s about right I think. After the various tribes got relocated to the ‘Indian Territory’ they owned all the land and rights to each reservation. Some of the smaller tribes that were within a larger tribes reservation bought the land and full rights, becoming a reservation within a reservation – I think the Osage bought their reservation from the Cherokee. Most tribes divided the land between their people to own but kept the mineral rights, for example. Some time after that, parcels of land may have been sold outside the tribe as families moved away or married outside the tribe, but the mineral rights always stayed with the tribe.
What may have been most damaging to any case the defendants may have had, was their continued ignoring of warnings and court orders that what they were doing was illegal.
In particular, the 10th Circuit Court of Appeals ruling in 2017 being ignored seems very stupid.
The proper thing to do would have been to halt construction activity, and settle all the legal issues before proceeding.
Courts and the federal government do not like it when people ignore their authority.
The Osage tribe’s victory over Enel provides more proof of the increasing opposition to wind energy from rural residents all over the world.
THAT’S an ambitious claim! The ‘proof’ wouldn’t exist if the Osage Nation were not a legally-favored body. Where else have local owners successfully sued in Federal courts to evict 84 sacred (to non-Indians) windmills?
Most of the time the wind farm developers are prevented from building due to local objections. Here the local objections were completely ignored in favour of the developer resulting in them having no choice but to sue for removal.
12 years, using the start of the legal fight as an indicator–would these turbines be near end-of-life anyway?
No. Although Enel started building and mining before that, the turbines were only put up in 2014/15 – they were commissioned in 2015, so only 8 or 9 years old.
They’ve collected their 10 years of production tax credits, which probably explains why it got drug out so long.
Now that what Enel did has been determined to be cause for removal can the citizens sue to get the tax credits clawed back?
Interesting question.
The trail date for damages has been set. But I think it is only regarding damages to the plaintiff, which is not the US federal government.
Too bad there are no longer any groups looking out for taxpayers.
“drug out”
Don’t know if drugs were involved.
Justice doesn’t take twelve (12) years, only Fascist cronyism does (and the hockey stick).
If only, here in the UK, we had an indigenous population who could fight for their rights in this way. Hang on though ….
Shush, stop talking right now. The closest thing in England to an indigenous population are the descendants of the Romano-British people that were mostly conquered by the Saxons.
Today they’re called ‘the Welsh’ – do you really want open that can of worms? ☺
Not so. Welsh have a genetic background largely similar to english. Some original celtic mixed with invaders and migrants. The Normans had conquered Wales like the rest of England. Having an older language doesnt make you ‘a tribe or clan’
Celts were not ‘original’ in the UK they moved in and supplanted the earlier inhabitants, probably during the European Bronze age or just before. The genetic makeup of individual Welsh people is largely irrelevant – enough time has passed for them to be mixed up. I was referring to what we know of the Welsh, the history of the people through the Saxon invasion and afterwards. As an example, do you know why the Welsh are called ‘welsh’? Because it is the Saxon word for ‘foreigner’, which is what they were to the Saxons when they encountered them.
Your claim –closest thing in England to an indigenous population are the descendants of the Romano-British people that were mostly conquered by the Saxons.Today they’re called ‘the Welsh’ – doesnt even match what you are saying now .
They arent indigenous, its a language thats remained not the people. What passes for the culture outside the language is mostly made up . Scottish culture being a good example. Thats their choice, but lets not make it something its not
I’m waiting for Neanderthals to start suing. But then the Australopithecines will sue them…
For half the $100m price tag Enei could
buy off the tribepurchase the mining rights.If they agreed to sell.
They would be paid . Land rights have a stronger cultural association than mineral rights …this is Oklahoma where the mineral rights to oil and gas have been sold for over century.
If the turbines are removed at considerable cost the tribe has nothing. Since the surface land isnt theirs already they are just getting a novel legal argument that excavations are mining unless the contractor did dig a local gravel pit
Malarkey.
Why are you lying about the facts of this case and this ruling?
A trial date for damages has now been set.
This ruling was to affirm “permanent injunctive relief”, i.e. the removal of the turbines.
The issue was down to whether the company could be allowed to ignore the law and the courts, and do whatever it wanted, and get away with merely having to pay some money. Enel has lost that argument now.
They will likely be forced to pay a lot of money in punitive damages, court costs for over 12 years of litigation, etc…in addition to the cost of removing the turbines and maybe even restoring the 8400 acre site to it’s original condition. I did not find anything regarding site restoration, but the ruling is clear…they will not be allowed to retain the turbines.
They are being punished for their ongoing refusal to obtain required permits, even after losing a ruling by the 10th circuit that was appealed to the SCOTUS.
IOW, even after they lost the part of the case regarding whether what they did was in fact “mining”, they continued to refuse to even attempt to obtain the required permits and leases.
They appealed all the way to the SCOTUS, lost, and then ignored what the courts had ordered them to do.
The judge in this case had little choice but to rule as she did, since this company was attempting do what they wanted and completely disregard the laws regarding mineral rights and mining leases.
The first court case by the Tribe over loss of acess to the oil and gas extraction was lost.
The second case of the foundation excavations being mining rights was lost too. However they won on appeal
Its complicated by the Tribe not being the actual mineral rights holder . Its the US government as Trustee for the beneficial owners the Osage Nation as a legal entity
Now the Trustee will decide to get a revenue stream from the Wind power company ( who have no further legal avenues to contest the decision) to benefit the Osage nation. That way the removal wont happen, as of course no one benefits
Its crazy as Government lawyers are running the court action as they are the Trustees . I suppose they will get first bites on the revenue when a commercial settlement is made as well
All that may seem reasonable, but it is the opposite of what the court ruling has determined will happen: The turbines will be removed.
Why do you keep saying that they will not be removed?
As Kipling said, “East is east and west is west and never the twain shall meet”. In the US and other Anglo-thought places, the damages to the Osage are rectified monetarily. This is almost always the case when the offending party has the money required. The offending management could be fired but that’s not the normal outcome.
In the Orient, the decision-makers in such a situation are incarcerated as well. We see a parallel in the US with Bernile Madoff, Sam Bankman-Freid and Elizabeth Holmes. These three and others wouldn’t be faced with prison if they had the financial means for restitution. In China, Korea and Japan elite corruption means both restitution and prison. Enel president Venturini would already be in the joint if he’d pulled this kind of scam in an Asian country. Money is more important than good faith and honesty in the US.
Those windmills must be supplying someone with electricity. What happens to those customers? Maybe they can put up a natural gas plant as a substitute.
Windmills intermittent. Gas plants continuous. Your choice.
I’ll take a natural gas plant anytime over a windmill! 🙂
Since intermittents always require backup, their “replacement” is already in place.
Wow . . . you’re telling me, per the above article, that there is a chance—maybe just a slim one, but a chance nonetheless—that the “rule of law” may yet prevail over the “rule of money” in the United States?
Just WOW!