Federal Judge Sides With Osage Nation, Orders Removal Of 84 Wind Turbines
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.”
Lily Gladstone (second from left) stars in Killers Of The Flower Moon, the epic new Martin Scorsese film about the murders of Osage tribal members during the Reign of Terror in the 1920s. Credit: Melinda Sue Gordon.
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.
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.”
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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