“Geography blended with time equals destiny.”
– Joseph Brodsky
Humans are visual beings. We understand and take in the world primarily by what we can see. Many memories are recorded as either photographs or videos, but a visual recollection regardless. Many popular aphorisms are rooted in the notion that what you see is determinative – “seeing is believing,” “I have to see it to believe it,” etc. This affects our relationship with the land by giving an undue share of importance to what is present on the surface of the land as opposed to what lies or occurs beneath. We can see the pump jacks, wind turbines, solar panel arrays, port gantries, and the other countless myriad of buildings, fixtures, and structures placed on the surface of the land. They are tangible and present in our consciousness. We assign value to them, perhaps often an outsized value. Because of this what is on the surface of the land often takes on a certain precedence in our thinking and planning.
In many ways, we accord what we cannot see a lesser share of our collective imagination. We take for granted the dirt we stand on and do not think much about it. Sure, we know to bury our foundations deep and our roots deeper, but most find it hard to conceive that there is much value in what lies beneath. Another useful and applicable aphorism here – “out of sight, out of mind.” Indeed, when planning projects many never pay the subsurface much regard beyond utilizing it as a suitable footing for whatever grand plans exist for the surface. To the ill-informed, site layout and engineering design take precedence over the intricacies of the many strata below whether you wish to emplace a home, a chicken coop, an irrigation pump station, a fence line, or, in the case of the eventual subject of this blog post, a utility-scale wind turbine.
Unfortunately, for the overly ambitious surface developers among us, those owning the mineral rights beneath the surface, and long-evolved laws that favor their ownership status, take the opposite approach. In many areas of the nation, it is possible to sever the minerals from the surface and in almost all such cases the law has deemed the mineral estate to be dominant over the surface estate. Often the exploration and production of minerals will afford the various taxing entities the highest and most reliable source of revenue and so such activities will naturally be protected. Over the preceding century both enacted legislation and common law precedence have safeguarded a mineral owner’s ability to access, produce, and remove their minerals even to the detriment of the surface owner through and over whose property such activity must necessarily violate. While there are certainly some safeguards and accommodations commonly recognized to ease the burden on the surface owner, there is rarely doubt as to which side will prevail when the matter is pressed in court.
This brings us, finally, to the subject of this blog post. Late in 2023 U.S. District Court Judge Jennifer Choe-Graves ordered that utility-scale wind turbines that had been erected on the Osage Reservation in northern Oklahoma be torn down and removed for having violated the tribe’s right to negotiate and lease their mineral estate under the 1906 Osage Allotment Act. Their construction and existence were eventually deemed to constitute a continuing trespass against the tribe and their mineral rights. A separate hearing would eventually be held to determine the extent and magnitude of the trespass and the resulting damages owed.
This wind farm was jointly developed by Osage Wind, Enel Kansas, and Enel Green Power North America Energy, LLC. Over a period of several years, the developers negotiated and executed leases with existing surface owners and then constructed a wind farm on that land containing more than eighty-four (84) wind turbines along with the associated transmission lines, access roads, and other required infrastructure for such a project. All told the entire leased area on which the wind farm was situated comprised over 8,400 acres. The developers properly negotiated and executed surface leases with the surface owners but did not feel it necessary to negotiate or execute mineral leases with the Osage Mineral Council as the only infrastructure or structures to be erected and placed on the subject tracts of land were designed to be on the surface of the land. The developers did not anticipate that their activities would produce, affect, or in any way take the minerals owned by the Osage Mineral Estate.
During the course of situating and constructing the individual wind turbines the developers routinely removed limestone rock and other overburden from the locations in which they intended to site a turbine, crushed this debris into smaller-sized and more usable aggregate, and then used it to buttress the foundations for each turbine. The common method used by the developers to remove the limestone and overburden from each site was to blast it with explosives. Video recordings of the blasting process were eventually shown as evidence in the subsequent court cases. The developers did not remove from the affected tracks any of the soil or aggregate.
In 2011, prior to the construction of the wind farm, The Osage Mineral Council brought suit against the developers in federal court claiming that their activity in effect constituted an illegal taking of and from their mineral estate. The Council was unsuccessful in this initial case and construction of the wind farm commenced in 2013. The Council filed a second suit in 2014 claiming that the project as constructed effectively and unlawfully deprived them of their access, ability, and right to develop their mineral estate. The Council was once again unsuccessful in this action as well. However, following an appeal of that later case, the U.S. 10th Circuit Court of Appeals held that the developer’s activity was in fact mining because Enel gathered rock, crushed it, and then used it for a commercial purpose: building the base for the turbines with rock.” A subsequent further appeal by the developers to the United States Supreme Court was unsuccessful with that court declining to hear the case. At present, the controlling ruling in this matter is still the holding as put forth by the 10th Circuit.
The developers estimate that it might cost as much as $300 million to remove the turbines and then there is still the matter of potential damages owed to the Osage Minerals Council for the destruction and use of the rock now a part of the turbine foundations. At the hearing to determine damages owed, the developers argued that their liability should be held between $68,993 and $247,979. The Osage Mineral Council contends that they are instead owed between $12.5 million and $18.6 million in damages. Further, the Council is relying on an Oklahoma State Statute 23 Section 71 that imposes treble damages, “for forcibly ejecting or excluding a person from the possession of real property the measure of damages is three times such a sum as would compensate for the detriment calls to him by the act complained of.” The tripling of the damage award as mandated by the state statute would, according to the council, bring the amount owed to between $37.5 million and $55.8 million. Presently, the two sides and the court are attempting to determine what eventual damages will be assigned as a proper remedy for this issue.
The issue was somewhat more complex and involved than this. Originally, the Osage nation had sought to prevent the development of a wind farm on the land in question as they held it as sacred ground in which many of their ancestors may have been buried. They further alleged that the developers did not conduct proper environmental and archaeological assessments of the affected tracts. In the end, these concerns would not have been enough to deter the developers seeking to construct a wind farm on the acreage in question. The above mineral case was the firm legal footing, pun intended, on which the council was eventually able to secure their current victory.
This issue could potentially have been avoided had the developers taken a more pragmatic “belts and suspenders” approach during the planning and acquisition stages of their project. They likely had run ownership title on the tracks to be included in their project and were no doubt aware that the mineral estate had been severed from the surface. Common sense would dictate negotiating with all affected parties prior to the commencement of construction to ensure either that all known potential future liabilities have been identified and quantified to the extent possible or in the alternative identified and prevented altogether. A decision was made at some point during the acquisition process to discount or ignore the rights of the mineral owner, and seeing the resulting as yet unquantified liability, this case study should serve as a warning to other developers considering similar endeavors.
This case is interesting as it pits two competing surface concerns, the developers wishing to site wind turbines and the Osage Nation’s wish to preserve the prairie as their ancestors knew it, but the eventual determination as to legal right came down to ownership of the underlying mineral estate. Both parties in this case looked upon the surface of the land and saw two different realities. One saw an ideal location for modern wind turbines generating clean, renewable power able to afford the region and the nation a secure supply of electricity. The other saw an ancestral homeland upon which their ancestors were born, lived, carved out an existence, and would eventually return to. As much as each of these different visions hold weight and value it was the eventual control of the mineral estate that provided the means for one party to triumph over the other.
Whenever a developer is considering any action on the surface of a given tract of land it would be wise to take a moment, step back, and consider what effect and impact those actions may have on the underlying mineral estate. A wise developer will make sure that the rights and needs of those owning what cannot be seen are assuaged before creating their vision on the surface.
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