In United States v. Osage Wind LLC a federal court in Oklahoma awarded permanent injunctive relief against a developer in the form of ejectment of a wind turbine farm after finding a continuing trespass.

The history

Beginning in 2010 Osage Wind leased 8400 acres of surface land in Osage County, Oklahoma. The Osage Nation sued to block construction on the basis that the project unlawfully deprived the Nation of access to the right to develop the mineral estate. That suit was dismissed on the merits. Defendants began construction soon after that. The wind farm began operating in 2015 and consists of 84 turbines and associated infrastructure.

The construction consisted of excavating holes to accommodate cement foundations measuring 10 by 60 feet. The developer sorted rocks, crushed them into smaller rocks, and used the smaller rocks as backfill for structural support for each turbine tower.  

In the first suit the federal 10th Circuit concluded that the defendants’ extraction, storing and crushing of rocks that were then used as backfill for support of wind towers constituted mineral development under federal regulations. 

After the first suit, the United States sued for judgment declaring that the excavation and construction activities constituted unauthorized mining of the mineral estate without first obtaining a lease and. Osage Wind continued its construction. The Osage Nation intervened.

The allegation in the second suit was that the developers’ continued presence on the land constituted a continuing trespass. The court evaluated whether the trespass was continuing or temporary.

The distinction between a temporary and continuing trespass is the ongoing nature of the access. The court determined that operation of the entire wind farm constituted a continuing trespass.

The 10th Circuit’s ruling seems at first to be an overly broad interpretation of “mineral development”, but the trial court here relied on a canon of interpretation that requires the court to liberally construe ambiguity in laws intended to benefit Indians in favor of Indians.

The US’s allegations involved activities encompassing the entire windfarm project, not only the foundations for the wind towers. The size of the mining setback created by the presence of each wind tower would be a relatively small percentage of the leased surface estate. That factor did not constitute a continuing trespass.

Irreparable harm

The court relied on the Tribe’s traditional and undisputed power to exclude persons from tribal land gives it the power to set conditions on entry to the land. The defendants were advised by the BIA and the Osage Mineral Counsel on multiple occasions that the project required a lease related to the mineral estate but the developers never attempted to obtain a mineral or mining lease (Why not? the uninformed onlooker might ask). The 10th Circuit held in 2017 that the defendants were actively avoiding the leasing requirement. The trial court in this case concluded that the defendants’ continued refusal to obtain a lease constitutes an offense to the sovereignty of the Osage Nation and was sufficient to constitute irreparable injury.

A trial will be held to assess damages.

RIP Mark Evans. “Who”, you ask? One of a legion of writers of great and popular songs who go unnoticed beyond the close confines of the music industry. He wrote this one, and this one, and others.