Description: Tulsa, Oklahoma Indian Law lawyers represented the Defendants accused for damaging Osage Nation mineral rights.

The United States and the Osage Nation have litigated against the private developers of a wind turbine farm in Osage County, Oklahoma for more than ten years. For the reasons discussed below, the Court will award permanent injunctive relief to the Osage Nation and the United States in the form of ejectment of the wind turbine farm for continuing trespass. The Court will hold a damages trial to assess the amount of monetary damages for trespass and conversion.

The U.S. Court of Appeals for the Tenth Circuit (“Tenth Circuit Court of Appeals”) determined that construction of the wind farm project constituted mining and required a lease under 25 C.F.R. §§ 211 and 214. United States v. Osage Wind, LLC, 871 F.3d 1078 (10th Cir. 2017). The developers failed to acquire a mining lease during or after construction, as well as after issuance of the Tenth Circuit Court of Appeals' decision holding that a mining lease was required. This case presents questions of whether the wind farm developers' continued lack of a lease and presence of the wind farm constitute continuing trespass and whether permanent injunctive relief and damages are appropriate.

Plaintiff United States (“Plaintiff”) asserts five counts in its Amended Complaint: (1) violation of 25 C.F.R. § 211; (2) violation of 25 C.F.R. § 214; (3) trespass; (4) continuing trespass; and (5) conversion. Pl.'s Am. Compl. [Doc. 20]. Plaintiff-Intervenor Osage Mineral Council (“Plaintiff-Intervenor”) alleges the same first four counts but does not raise a claim for conversion in its Amended Complaint in Intervention. Pl.-Interv.'s Am. Compl. Interv. (“Pl.-Interv.'s Am. Compl.”) [Doc. 164].

Before the Court are motions for summary judgment filed by Plaintiff, Plaintiff-Intervenor, and Defendants Osage Wind, LLC, Enel Kansas, LLC, and Enel Green Power North America, Inc. (collectively, “Defendants”). Pl.-Interv.'s Mot. Summary J. [Doc. 294]; Defs.' Mot. Part. Summary J. Opening Br. (“Defs.' Br.”) [Doc. 297]; Pl.'s Mot. Summary J. (“Pl.'s Br.”) [Doc. 300]. Plaintiff and Plaintiff-Intervenor ask the Court to declare that Defendants violated 25 C.F.R. §§ 211 and 214; find Defendants jointly and severally liable for damages for tortious trespass and conversion; award permanent injunctive relief in the form of ejectment of Defendants' wind turbines, or alternatively, monetary damages, for Defendants' continuing trespass; find that Defendants did not reasonably rely on the advice of counsel in good faith to mitigate damages; and award attorneys' fees. Pl.-Interv.'s Mot. Summary J.; Pl.-Interv.'s Br. Supp. Pl.-Interv.'s Mot. Summary J. (“Pl.-Interv.'s Br.”) [Doc. 294-1]; Pl.'s Br. Defendants' Motion for Partial Summary Judgment asks the Court to deny the claim of continuing trespass and not order removal of the wind turbines.

Outcome: 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.

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Defendant's Experts:

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