For the Osage Indian Tribe, it’s more like “IMBY if you pay me”.  In the latest interation of United States and Osage Minerals Council v. Osage Wind LLC et al the US District Court for the Eastern District of Oklahoma awarded a judgment for damages against the defendants. Much more important was the order for injunctive relief in the form of a mandate that defendants remove 84 wind towers from Indian lands in Osage County as the remedy for defendants’ continuing trespass over the land. Removal is estimated by defendants to cost a whopping $259 million.   

The takeaway: Asking for forgiveness later rather than asking for permission first is not always the most clever path to action.

The District Court, affirmed on appeal, had already found the defendants liable on the plaintiff United States and intervenor Osage Mineral Council’s claims of conversion, trespass and continuing trespass. We described the underlying facts and the ruling in our report on the first District Court order.

The Court also awarded damages of $242,000+ for conversion of extracted minerals and $66,000+ for trespass for the value of a mineral lease defendants should have obtained before constructing the 84-tower wind farm.

The Court heard from three experts who testified about the value of extracted mineral material, in particular limestone, and the value of the lease that defendants failed to obtain before extracting material from the mineral estate. The defendants found themselves buried in a literal and figurative hole dug by their very own selves when the Court found in the earlier proceeding that the defendants were liable for continuing trespass by failing to obtain a lease despite repeated requests from the Osage Tribe.

The court denied defendants’ request that it order the removal only of backfill and replace it with substitute materials as a more narrowly tailored remedy for trespass. The court noted that the harm resulting from defendants’ continuing trespass is not only the continued use of backfill but also the interference with the Osage Nation’s sovereignty by the presence of the towers. The court referred to this effort as “a backdoor attempt to seek reconsideration of the prior grant of injunctive relief”.

In response to the defendants’ claim that removal would take 18 months the court allowed 12 months, citing provisions in the surface leases that required defendants to remove all wind power facilities within 12 months of the expiration or termination of the surface lease.

The Court agreed with the defendants that it would not be appropriate to award both injunctive and monetary damages for the continuing trespass.

Considering the upcoming “regime change”, your musical interlude.