In a cautionary tale for renewable energy developers operating on split estates, the United States v. Osage Wind, LLC litigation continues to carry significant legal and practical implications. In late 2023, the U.S. District Court for the Northern District of Oklahoma issued a permanent injunction directing Osage Wind, LLC (“Osage Wind”) to dismantle its wind farm in Osage County, Oklahoma, after more than a decade of litigation.[1] In March 2025, Osage Wind obtained a temporary stay of that order while it challenges the decision on appeal.[2] Although the stay temporarily delays enforcement and the court’s findings remain subject to appeal, the case reinforces the legal risks that wind developers face when seeking to develop projects involving split surface and mineral estates.
Background: Surface Development and Mineral Rights Conflict
In 2010, Osage Wind and the affiliated Enel entities leased 8,400 acres in Osage County, Oklahoma for the construction of the Osage Wind Farm, which includes 84 turbines, underground and overhead transmission lines, and access roads.[3] The leases used for the Osage Wind Farm covered only the surface estate and did not include any mineral rights.[4] Under the Osage Allotment Act of 1906, Congress severed the mineral estate in Osage County and reserved it for the Osage Nation, to be held in trust by the United States.[5] As such, any mineral development (including excavation or use of minerals) requires a federal lease under 25 C.F.R. §§ 211 and 214.[6]
During construction, Osage Wind excavated subsurface materials, then crushed and reused the excavated rock as structural backfill for turbine foundations.[7] The Osage Minerals Council and the Bureau of Indian Affairs warned the company that these activities required a lease related to the mineral estate, but Osage Wind did not obtain such lease.[8]
Litigation followed after Osage Wind failed to obtain a mineral lease.[9] The district court initially ruled in favor of Osage Wind,[10] but in 2016, the Tenth Circuit reversed and held that Osage Wind’s excavation and reuse of minerals as foundation backfill qualified as “unauthorized mining and excavation” and that Osage Wind was required to obtain a lease under 25 C.F.R. 211 and 214.[11] On remand, the district court granted summary judgment for the United States and the Osage Minerals Council, finding Osage Wind liable for unauthorized mining, trespass, conversion, and continuing trespass.[12] In 2023, the court awarded $242,652.28 in damages for conversion, and $66,780.00 for trespass, and granted equitable relief for continuing trespass, citing the ongoing use of mineral materials beneath the turbines.[13] As part of that relief, the court issued a permanent injunction requiring Osage Wind to remove all 84 wind turbines and restore the land to its pre-construction condition.[14]
Temporary Stay Granted
In March 2025, the U.S. District Court for the Northern District of Oklahoma granted Osage Wind’s motion to stay enforcement of both the permanent injunction and the monetary judgment.[15] The court acknowledged that Osage Wind had not shown a strong likelihood of success on the merits of its appeal, but nonetheless found that forcing the company to remove the wind farm before appellate review could result in irreparable economic harm.[16] Osage Wind argued that dismantling the turbines would cost $36,000,000, jeopardize existing tax equity arrangements, result in damages and expenses related to the termination of the surface lease and other agreements, and eliminate ongoing revenue from the project, all of which are harms that could not be undone if the company ultimately prevailed on appeal.[17] To obtain the stay, the court required Osage Wind to post a supersedeas bond in the amount of $10,036,500 to cover the damages award, potential interest, and related costs during the appeal.[18]
Key Takeaways for Energy Developers
The Osage Wind litigation underscores the importance of understanding the legal framework governing severed mineral estates. Developers should recognize that even incidental use of subsurface materials, such as crushing and reusing excavated rock for turbine foundations, may constitute mineral development and trigger leasing and permitting requirements.[19] In addition, remedies for unauthorized mineral use may extend beyond monetary damages to include removal of infrastructure, especially if courts find continuing trespass or ongoing interference with the mineral estate. These considerations are particularly relevant in co-location or multi-use energy projects, where surface development may conflict with underlying mineral rights.
Osage Wind’s appeal of the district court’s ruling is pending. Although the injunction and payment of damages have been temporarily stayed, the court’s broader legal conclusions remain in effect. These include the finding that excavation and reuse of minerals on the site constituted mineral development requiring a federal lease. The case continues to serve as a reference point for energy developers, permitting authorities, and investors navigating the legal complexities of developing and operating on split estates.
[1] U.S. v. Osage Wind, LLC, No. 4:14-cv-00704-JCG-JFJ, 2024 U.S. Dist. LEXIS 228482, at *4 (N.D. Okla. Dec. 18, 2024).
[2] U.S. v. Osage Wind, LLC, No. 4:14-cv-00704-JCG-JFJ, 2025 U.S. Dist. LEXIS 37050, at *3 (N.D. Okla. Mar. 3, 2025).
[3] Osage Wind, 2024 U.S. Dist. LEXIS 228482, at *4.
[4] Id.
[5] Id.
[6] U.S. v. Osage Wind, LLC, 710 F. Supp. 3d 1018, *1038 (N.D. Okla. 2023).
[7] Osage Wind, 2024 U.S. Dist. LEXIS 228482, at *5.
[8] Osage Wind, LLC, 710 F. Supp. 3d at *1040.
[9] Id.
[10] Osage Wind, LLC, 2024 U.S. Dist. LEXIS 228482, at *5.
[11] Id.
[12] Osage Wind, 2024 U.S. Dist. LEXIS 228482, at *107-08.
[13] Id. at *107.
[14] Id.
[15] Osage Wind, 2025 U.S. Dist. LEXIS 37050, at *5.
[16] Id. at *17.
[17] Id. at *19.
[18] Id. at *27.
[19] U.S. v. Osage Wind, 2024 U.S. Dist. LEXIS 228482, at *5.