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Recently, in United States v. Osage Wind, LLC, the Northern District of Oklahoma awarded permanent injunctive relief in favor of the Osage Nation and the United States against wind turbine farm developers in the form of ejectment of the wind farm for continuing trespass. A trial to assess the amount of monetary damages due for trespass and conversion will follow.

The case arose from the development of a wind farm in Osage County, Oklahoma in a portion of the county designated as a reservation for the Osage Nation. In 2010, the developers of the project leased 8,400 acres of surface rights in Osage County to construct the wind farm. In 2011, the Osage Nation sued to block the construction of the wind farm but lost. Construction of the farm began in 2013. The district court described excavation and construction on the turbine foundations as follows:

Defendants excavated holes to accommodate cement foundations measuring 10 feet by 60 feet for each tower. Smaller excavated rocks were crushed and used as backfill for the cement foundations. Larger rocks were positioned near the holes from which they were removed.

In 2014, the United States initiated the present lawsuit seeking declaratory judgment that the developers’ excavation and construction activities constituted unauthorized mining of the mineral estate on the land where the project was constructed. Congress severed the surface estate from the mineral estate in 1906 with the surface estate allotted to members of the Osage Nation. The mineral estate was reserved for the benefit of the Osage Nation who was authorized to issue leases for all oil, gas, and other minerals. 25 C.F.R. Part 214 regulates the leasing of resources other than oil and gas and provides that no mining or work of any nature will be permitted upon any tract of land until a lease is granted.

In a related appeal, the 10th Circuit previously concluded that “altering the natural size and shape of rocks in order to use the rocks for structural purposes in the construction of wind turbines constituted mineral development and mining” under pertinent federal regulations, thus, requiring the issuance of a lease. However, the developers of the project failed to acquire a mining lease during or after construction. The district court took up the question of whether the wind farm developers’ lack of a lease and continued presence of the wind farm on the land constituted a continuing trespass. The United States moved for summary judgment on its claims, and the district court found partially in its favor concluding that the developers violated federal law and “committed trespass, conversion, and continuing trespass.”

To decide what relief to grant, the district court evaluated, in part, whether the trespass was temporary or continuing: “The relevant distinction between a temporary and continuing trespass is that the ongoing nature of a continuing trespass necessitates the need for equitable relief.” In its motion, the United States asserted that the entire wind farm — not just the turbine foundations — constituted a continuing trespass and presented the court three separate theories of continuing trespass: (1) The continued presence of the wind towers and ancillary structures constituted a continuing trespass, (2) the presence of the wind towers creates a mining setback and inhibits the development of the mineral estate within a certain radius around the structures, and (3) the support provided for each wind tower by the surrounding mineral estate and the backfill created from extracted rocks is a continuing trespass.

The court rejected each of these theories except for the last one, finding that the use of the backfill created from extracted rocks did constitute a continuing trespass. The court relied substantially on the 10th Circuit’s earlier holding that the alteration of the excavated rocks and re-use of the crushed rocks to support the foundation constituted unauthorized mining. The court further noted that its broad interpretation of “mineral development” was supported by the “Indian canon of interpretation that requires the Court to liberally construe ambiguity in laws intended to benefit Indians in favor of Indians.” In granting the harsh relief of ejectment of the wind farm, the court seemed particularly persuaded by the developers’ continuing refusal to obtain a mineral rights lease even after the 2019 10th Circuit ruling that the developers’ practices constituted unauthorized mining of the land. To protect the sovereignty of the Osage Nation, the court ordered the removal of the wind towers.

The harsh result in Osage Wind demonstrates the importance of understanding use restrictions on land early in development of any project. Renewable projects are often built on land that is subject to varying state and federal regulatory regimes or include protected habitats or wildlife. The significant scale of civil site development work like excavation, grading, and erosion control on renewable projects likely increases the risk of unauthorized use or damage to protected environments versus more typical construction projects. This decision also underscores the importance of community engagement and support on any renewable project. Absent the opposition of the Osage Nation to the project, the need for a mineral rights lease for the project may never have been litigated. If you have any questions regarding environmental or other use restrictions or mineral rights litigation in general, please do not hesitate to contact Bart Kempf or Tom Warburton