Osage Tribe Wins Again, Federal Judge Orders “Ejectment” Of 84 Wind Turbines By Next December

Enel must spend $300 million to remove the turbines and pay $36 million in damages and attorney’s fees. Former head of Osage Minerals Council: “I’m so happy I can barely talk.”

Osage Chief James Bigheart. Credit: Visittheosage.com

Somewhere, Chief James Bigheart must be doing a victory dance.

On Wednesday, the Osage Nation prevailed again in federal court in Tulsa, winning a decisive ruling in the longest-running legal battle over wind energy in American history.

In her judgment (I’ve posted it here on Google Drive), US District Court Judge Jennifer Choe-Graves ruled that Enel’s subsidiaries, Osage Wind LLC, Enel Kansas LLC, and Enel Green Power North America, “committed trespass, continuing trespass, and conversion in the construction of a wind farm on Indian land.” She ruled that the plaintiffs in the case, the US Government and the Osage Minerals Council, prevailed on the merits and are “entitled to monetary damages on their conversion trespass claims and equitable relief in the form of ejectment on their continuing trespass claim.”

While the tribe did not succeed in collecting millions of dollars in damages from Enel (Choe-Graves awarded $242,652.28), the tribe did win an award for trespass ($66,780). Choe-Graves, an Obama appointee, also ordered Enel to pay the plaintiff’s attorney’s fees, including those incurred by the US Department of Justice and the Minerals Council, which total more than $36 million.

The key paragraph in her judgment can be found on page two, item four, which says, “Defendants are liable for continuing trespass and shall remove the wind farm from the Osage Minerals Estate and return the Osage Minerals Estate to its pre-trespass condition on or before December 1, 2025.”

It’s difficult to overstate the importance of this ruling. Enel has said that removing the 84 turbines in the Osage wind project would cost the company $300 million. Whatever the cost, the fact that a federal court has ordered the removal of the turbines is unprecedented.

For years, Big Wind has played hardball with rural communities. In some cases, Big Wind has sued rural governments to try to force them to accept wind projects they don’t want. (I’ll be writing more about that soon.) Across the US, only a handful of turbines have ever been taken down due to local opposition. In 2022, two turbines in Falmouth, Massachusetts, were dismantled after numerous complaints from local homeowners about the noise from the turbines and a years-long legal battle.

But an order to remove 84 wind turbines— by a federal judge, no less— is nothing short of gobsmacking. It is a colossal black eye for the wind industry, which has collected tens of billions of dollars in federal tax credits by claiming its landscape-blighting, bird-and-bat-killing, property-value-destroying turbines are an essential part of the effort to avert catastrophic climate change.

It is also a massive, massive win for Native American tribes and their legal rights. On Thursday afternoon, I spoke to Everett Waller, the former chairman of the Osage Minerals Council. He told me, “I’m so happy, I can barely talk.” (I interviewed Waller earlier this year on the Power Hungry Podcast.) “We had to win this case, and we did. It was vital,” he said. Enel came into Osage County, because the company “Planned on running us into the ground. They chose us because they thought we’d be easy,” he said. “They learned that wasn’t the case.”

Waller explained that the tribe first filed suit to stop the wind project in 2011, and has been fighting Enel in court ever since. He told me the Osage’s victory over Enel is due, in large part, to the vision of Chief James Bigheart, who foresaw the value of the minerals beneath Osage lands more than a century ago.

In 1906, Bigheart, the most revered of the storied tribe’s leaders, negotiated the Osage Allotment Act, which assured the tribe would retain collective ownership of the mineral rights under its lands in northeastern Oklahoma. In doing so, Bigheart, who spoke eight languages fluently — Osage, Ponca, Creek, Sioux, Cherokee, French, English, and Latin — assured that the tribe’s members would all share in the massive oil wealth that was later discovered in Osage County. He also set the stage for the tribe’s battle with Enel, the Italian company that repeatedly refused to recognize the tribe’s sovereignty. Choe-Graves refers to the Allotment Act in her decision, noting it “authorized the Osage Nation, with the approval of the Secretary of the Interior, to issue ‘leases for all oil, gas, and other minerals’ in the mineral estate.”

As I explained here last December, when Choe-Graves delivered her first major ruling in favor of the tribe, Enel ignored the tribe’s rights several times. Enel began building the wind project in Osage County without getting a permit from the tribe. As seen above, that led federal authorities to get involved. On October 9, 2014, the Bureau of Indian Affairs 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.” Not only did Enel ignore the BIA, it sped up the work on the wind project and even began using lights so workers could continue working at night.

Still image from our five-part docuseries, Juice: Power, Politics & The Grid. Credit: Tyson Culver

Carol Conner, the editor of the Fairfax Chief newspaper, told me Thursday afternoon, “Chills have run down my spine. I’m just beside myself.” Conner and her late husband, Joe Conner, a member of the Osage tribe, were fierce opponents of the wind project. Joe Conner, who starred in our docuseries, Juice: Power, Politics & The Electric Grid, died on September 12, 2023. Carol Conner told me that she and Joe were married on Christmas Day. That’s particularly poignant for her now, she said, because “This is the only Christmas gift Joe would have wanted.”

Removing the wind turbines will cost Enel handsomely in dollars ($300 million may be a low estimate) and in the court of public opinion. But it should be thankful Choe-Graves didn’t award bigger damages. The Osage Minerals Council was seeking $100 million from Enel. But Choe-Graves (I’ve posted her 92-page opinion here) refused to grant the tribe’s request. That’s a win for Enel. Why? By my calculations, over the decade that Enel has been operating the Osage Wind project, it has collected about $228 million in tax credits and electricity sales. Given that number, the tribe’s $100 million damages request was reasonable.

By whipping Enel in federal court, the Osage tribe has also exposed the staggering hypocrisy of the corporate world’s ESG. On its website, Enel Green Power, a subsidiary of Rome-based Enel, says the company’s strategy is based on “continuous harmonization with environmental, social and governance principles.” It continues, “Our work involves constant interaction with stakeholders and in-depth studies of the socio-economic fabric.” It also claims sustainability is “the pole star guiding our way of doing business — creating shared value wherever we operate.”

You gotta love that “continuous harmonization” with ESG. Right. And, of course, Enel loves to have “Shared value wherever we operate.” So harmonization and shared value are used wherever Enel operates, except when it operates on Indian Lands. Or when it gets a cease and desist order from the BIA.

For all of its pious genuflection in front of the altar of ESG, the hard, obvious truth is that Enel’s behavior toward the Osage Nation has been shameful and appalling.

Waller said Enel’s arrogance was evident throughout its dealings with the tribe. He said the company “could have come to ask us for a permit and we would have worked on it with them. But their greed wouldn’t allow them to do that.”

Enel may appeal Choe-Graves’ decision to try to delay taking down the turbines. But the longer it delays, the larger the legal bills. Enel is represented in the case by a flotilla of lawyers from some of America’s biggest and most expensive law firms. According to a docket sheet, the company has had 36 attorneys work on the Osage case. Fifteen of them are active. The Osage Minerals Council has had nine lawyers, of which four are active. Enel’s legal team includes lawyers from Gibson Dunn, which is based in Los Angeles and has about 1,900 lawyers. It also has lawyers from the mega-firm Norton Rose Fulbright, a global outfit with more than 3,000 lawyers who do a lot of work for solar and wind companies. Retaining that much legal firepower is likely costing Enel hundreds of thousands of dollars per month.

Choe-Graves’ Wednesday ruling affirms that Enel will eventually have to take down the turbines. When that happens, Conner and Waller assured me that they will be on hand to watch the festivities. So will my cousin, Nora, who owns part of an Osage headright. I called her Thursday evening to tell her about the court ruling and how happy her late father (and my great uncle), Ernie Rapp, an Osage tribal member who was born in Fairfax in 1909, would have been to hear that the tribe prevailed.

I told her I would definitely be in Osage County to watch the first turbines come down. She said she would be there, too. “It’s wonderful,” she said. “That’s going to be thrilling.”

Note: Thanks to my friend John Melko, who helped me get the court filings on this case.

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