## Facts

- In 1906, Congress enacted the Osage Allotment Act, severing ownership of Osage Reservation lands in Osage County, Oklahoma: surface estates were deeded to individual Osage citizens, and the mineral estate was reserved to the Osage Nation and held in trust by the United States for the Nation’s benefit.
- Over time, many surface estates were sold or transferred to non-Indian owners, while the Osage mineral estate remained in trust for the Nation.
- Wind Capital Group, LLC and Osage Wind, LLC (and a related entity involved in development) leased approximately 8,500 acres from the owners of seven contiguous surface estates.
- Defendants planned to build a commercial wind-energy facility consisting of about 94 turbines, access roads, and associated infrastructure, including underground electrical collection lines buried roughly four feet below the surface.
- The record reflected the project’s physical footprint would occupy less than 2% of the leased acreage and was expected to generate electricity for about 50,000 households and create roughly a dozen permanent jobs.
- The Osage Nation sued in federal district court seeking to stop construction, alleging the project would interfere with the Nation’s ability to access, explore, and develop oil and gas under the reserved mineral estate.
- In support of emergency relief, the Nation offered testimony (including from a technical witness) that construction activity would affect oil-and-gas operations, that the greatest effects would occur during the year of construction, and that after completion the facility “might, possibly” unreasonably interfere with mineral development.
- The decision at 2011 WL 6371384 addressed the Nation’s request for a preliminary injunction halting construction while the case proceeded.

## Issues

1. Did the Osage Nation satisfy the federal requirements for a preliminary injunction to stop construction of the wind facility, including showing a substantial likelihood of success on claims of unlawful or unreasonable interference with the Osage mineral estate and a likelihood of irreparable harm without immediate relief?

## Decision

- The court denied the Osage Nation’s motion for a preliminary injunction.
- The court concluded the Nation had not made the required showing of a substantial likelihood of success on the merits based on the record presented at the injunction stage.
- The court found the Nation’s evidence of post-construction interference was uncertain and conditional, including testimony that the completed facility “might, possibly” unreasonably interfere with mineral development.
- The court determined the Nation did not establish irreparable harm warranting extraordinary, pretrial relief, particularly where the asserted harms were largely tied to construction impacts and where longer-term interference was not shown with sufficient certainty.
- The court weighed equities and the public interest, noting the limited surface footprint asserted for the project and the claimed economic and energy benefits, and declined to halt the project on the preliminary record.

## Legal Principles

- A preliminary injunction is an extraordinary remedy; the moving party must show (1) a substantial likelihood of success on the merits, (2) irreparable harm absent an injunction, (3) that the balance of harms favors the movant, and (4) that the injunction is not adverse to the public interest.
- When surface and mineral estates are severed, the mineral owner generally has a right to use the surface as reasonably necessary to develop the minerals, while the surface owner may make uses of the surface that do not unreasonably interfere with mineral development.
- At the preliminary-injunction stage, speculation or conditional predictions about future interference are insufficient; the movant must present concrete evidence of likely, non-compensable harm.
- Temporary impacts associated with construction, without a strong showing of lasting impairment to mineral access or development, may weigh against a finding of irreparable injury.
- Courts may consider the scale and footprint of the challenged surface activity, along with third-party and public effects, when weighing equities and public interest.

## Conclusion

The court refused to issue preliminary injunctive relief because, on the record presented, the Osage Nation did not show a substantial likelihood of proving that the wind-farm project would unlawfully or unreasonably interfere with development of the Osage mineral estate, and it did not demonstrate likely irreparable harm; with uncertain evidence of long-term interference and countervailing equities and public considerations, construction was allowed to proceed while the case continued.


Osage Nation v. Wind Capital Group, LLC, 2011 WL 6371384 (2011)