U.S. Tenth Circuit - The FindLaw 10th Circuit Court of Appeals Opinion Summaries Blog

Tribe Wins Appeal Over Wind Farm Development Mineral Rights

The Osage Nation won a rather significant battle in the Tenth Circuit Court of Appeals. The fight was over the mineral rights to the land where wind turbines were built.

The tribe owns the rights to the land and the mining rights. However, it was not consulted when the land was leased to the wind farm developers. After losing at the district court level, the federal government, which was representing the tribe, advised the tribe on the last day to file an appeal that it would not do so. Fortunately for the tribe, the circuit still accepted the appeal and ruled in its favor.

What Happened Here?

This whole case seems to have been the result of an oversight. The wind farm developers sought to put their turbines on the land. It was not anticipated that there would be much excavation of the land by the U.S. government which granted the wind farm developer permission. But, the wind turbines are rather large, and as such, require large foundations, which require rather extensive excavation of the land. The tribe objected to the excavation as the right to mine and excavate the land is held by the tribe.

Unfortunately for the tribe, they were unable to stop the wind farm from being built, and the court has not ordered the wind farm to cease operations and remove their turbines. But, the win at the Tenth Circuit clears the way to seek damages for the violation of the tribe's mining rights.

What Can the Tribe Get?

The Osage Nation can now seeks damages related to the value of the mining rights of the land that was excavated without their permission. Valuing this claim may be rather difficult, however, as part of the value to the tribe is not based on the value of the mineral deposits on the open market, but rather as part of a cultural connection to the land, which may defy valuation.

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