Oklahoma supports Enel’s appeal to keep wind turbines operating

Written By: Allison Herrera

(OKLAHOMA) Oklahoma says they have an interest in people being able to use their surface lands under the laws of the state. That’s why Oklahoma’s Solicitor General Garry M. Gaskins is backing Enel and its subsidiary companies bid to undo a multimillion-dollar ruling that said they must remove their 84-turbine wind farm.

Read this story on Osage News here. 

Oklahoma’s amicus brief was filed on April 25, 2025.

“Here, Oklahoma has an interest in seeing its property laws applied uniformly throughout the

State. Moreover, because Oklahoma owns land in Osage County, it has direct interest in protecting the rights of surface estate owners in Osage County,” Gaskins wrote.

Last year, US District Judge Jennifer Choe-Groves ordered Enel to remove the wind turbines and pay for damages related to trespass and conversion for using the subsurface materials to buttress the structures. Her ruling ended 10 years of litigation.

“This case demonstrates our commitment to preserving and defending tribal sovereignty,” said U.S. Attorney Clint Johnson in a press release last year.

“As Judge Choe-Groves emphasized, injury to Osage sovereignty cannot be condoned or suffered. The Defendants disregarded cease-and-desist instructions with willful and wrongful intent.”

Choe-Groves also awarded the Minerals Council $4 million in monetary damages for both conversion, trespass and attorney fees.

Enel appealed the ruling to the 10th Circuit Court of Appeals, where they argued and lost in 2017 on the issue of mining. The issue they’re arguing this time around: what is the effect of that mining? Does the effect of that mining really constitute a trespass order?

In their brief in support of Enel, Oklahoma states that, “Appellants’ failure to obtain

a mining lease prior to excavating and processing minerals from the Osage Mineral Estate rendered Appellants liable for trespass and conversion.” Meaning they had lost on the issue of failing to obtain a lease, crushing rock and had trespassed by using those materials. But, they argued, this wasn’t mining.

“However, Appellants have not excavated or processed minerals from the Osage Mineral Estate in more than a decade. And the passive use of previously converted minerals as backfill does not render the subsequent operation of the wind farm itself ‘mining.’ Thus, Appellants’

presence on the surface estate is not a continuing trespass into the Osage Mineral Estate,” the Oklahoma brief stated.

Osage News reached out to Rollie Wilson of the law firm Skenandore and Wilson LLP, which represents the Osage Minerals Council. He said the Council isn’t willing to comment on the issue at this time.

In early March, Enel was successful in getting a stay on the injunction to remove the wind turbines and pay the monetary damages. Choe-Groves granted the stay pending their appeal. Enel did have to post a more than $10 million bond.

Enel pleaded to the court that it would suffer irreparable monetary damage to the tune of $163.5 million. This includes the cost to dismantle the wind turbines, tax revenue promised to the community, loss to surface owners and future revenue.

Oklahoma listed the loss of tax revenue to the state in its friend of the court brief to the 10th Circuit as one of the reasons it’s backing Enel.

“The permanent injunction is inappropriate because it unquestionably harms the public interest. In weighing the public interest,” Gaskins wrote in his brief.

Oklahoma says that what Enel is doing doesn’t constitute mining. They also believe that the court erred when it applied what’s known as the Indian Canon of Construction, a set of legal rules that applies to tribal nations that says that laws and treaties must be interpreted to favor tribal nations and that the injunction ordered by Choe-Groves is inappropriate.

“The district court brushed aside the loss of employment for Oklahomans, the loss of tax revenue for Oklahoma’s public schools, and the loss of a sustainable source of electricity for tens of thousands of homes.”

Shidler Public Schools, which said they would lose half of a million dollars if the wind farms were to be dismantled, filed their own amicus brief in support of Enel.

Arguments before the 10th Circuit Court of Appeals are pending.

Author