Justices ask feds to weigh in on tribal wind case

Source: Ellen M. Gilmer and Amanda Reilly, E&E News reporters • Posted: Tuesday, May 15, 2018

The Supreme Court wants the Trump administration’s take on an unusual legal fight over wind development on tribal land in Oklahoma.

In orders released this morning, the justices invited Solicitor General Noel Francisco to file a brief expressing the federal government’s view on a dispute between the Osage Nation and an Italian wind energy developer.

At issue is whether Enel SpA subsidiary Osage Wind LLC violated federal law when it built an 8,400-acre, 84-turbine wind farm in Osage County without permission from the tribe.

Osage Wind secured a lease for the surface estate from individual landowners in 2010. But the Osage Nation, a federally recognized tribe, says the developer also needed “mineral development” approval from the Osage Minerals Council and a federal permit from the Bureau of Indian Affairs because the wind company effectively engaged in mining when it dug up rocks and used them to fill in excavated sites around wind turbines.

The 10th U.S. Circuit Court of Appeals sided with the tribe last year, writing the issue was ambiguous but that legal precedent guides courts to construe federal American Indian law in tribes’ favor. Though the wind farm has already been constructed, the 10th Circuit’s decision gives the tribe a chance to recover damages from the company (Energywire, Sept. 19, 2017).

The federal government brought the initial lawsuit against Osage Wind in federal district court but lost and declined to appeal. The tribal mineral council stepped in and took the case to the 10th Circuit.

Osage Wind is challenging that swap, along with the substantive issue of whether wind farm construction should count as mining. Company lawyers say the 10th Circuit should not have taken up the tribal council’s appeal because it was never involved in the initial district court proceedings (Energywire, March 8).

Fredericks Peebles & Morgan LLP attorney Jeffrey Rasmussen said in an email this morning that the court appears to want the federal government’s position on the wind company’s argument that the mineral council’s 10th Circuit appeal amounted to an “override” of the solicitor general’s decision not to appeal.

Enel did not immediately respond to a request for comment.

Property rights

Separately, the high court today declined to take up another case involving mineral rights that asked justices to decide the extent to which a federal court decision can count as a taking of private property.

Plaintiff Petro-Hunt LLC alleged that a 5th U.S. Circuit Court of Appeals decision resulted in an uncompensated taking of mineral rights beneath Kisatchie National Forest in northern Louisiana. The U.S. Court of Appeals for the Federal Circuit, which hears monetary claims against the government, upheld a lower-court decision dismissing the company’s takings claims.

The Supreme Court in 2010 issued a fractured opinion on state court decisions and the Takings Clause. Petro-Hunt had encouraged justices to take up the question for federal court decisions to clear up what it called “a series of irreconcilable opinions” issued by the Federal Circuit on the subject.

It takes the votes of four justices for the Supreme Court to hear a case.