United States v. Osage Wind, LLC
871 F.3d 1078
| 10th Cir. | 2017Background
- The Osage Nation retained beneficial ownership of a reserved mineral estate beneath allotted surface lands; the United States holds legal title in trust. The Osage Act and DOI regulations require BIA-approved leases for mining activity on the Osage mineral estate.
- Osage Wind leased surface rights to ~8,400 acres to build an 84-turbine wind farm; construction required large excavations for concrete foundations that removed, sorted, crushed, and reused limestone/dolomite from the sites.
- The United States sued, alleging Osage Wind’s excavation and on-site processing of common-variety minerals constituted “mining” under 25 C.F.R. § 211.3 and therefore required an approved mineral lease under 25 C.F.R. § 214.7.
- The district court granted summary judgment to Osage Wind, finding the work was not “mining.” OMC (Osage Mineral Council) was not a formal party below, sought late intervention and then appealed after the government declined to continue the appeal.
- The Tenth Circuit (majority, Judge Ebel) held OMC had a sufficiently unique interest to appeal despite not having intervened earlier; it reversed summary judgment, ruling that sorting, crushing, and using excavated rock as backfill constituted “mineral development” and therefore mining requiring a federally approved lease.
Issues
| Issue | Plaintiff's Argument (OMC/U.S.) | Defendant's Argument (Osage Wind) | Held |
|---|---|---|---|
| Whether OMC could appeal without having intervened below | OMC has a unique, particularized interest in the mineral estate and acted promptly once the U.S. declined to appeal | Only formal parties may appeal; OMC delayed and failed to intervene timely | OMC has a "unique interest" permitting appeal without prior intervention; appeal allowed |
| Whether res judicata bars OMC’s claim (could it have been raised in 2011 suit) | Prior suit (2011) concerned oil-and-gas surface-use; the mining claim was not ripe in 2011 because excavation had not yet occurred | OMC could have raised all related claims in the 2011 litigation; claim preclusion should apply | Res judicata not established; Osage Wind failed to meet its burden to show the claim could have been raised earlier |
| Whether DOI/BLM informal guidance controls interpretation of "mining" | Agency materials suggest large-scale excavation, separation, crushing, and use require authorization/lease | Agency materials either do not apply or lack persuasive authority for Osage lands | BLM guidance not authoritative here (different regime); no deference to the informal "Sandy Soil Lease" evidence; analysis based on the text of BIA regulations |
| Whether Osage Wind’s excavation, sorting, crushing, and on-site use of rock constituted "mining" under 25 C.F.R. § 211.3 | Such activity amounted to "mineral development" because Osage Wind altered and exploited minerals (sorting/crushing/backfill) beyond mere incidental disturbance | "Mining" should be limited to commercialization or offsite removal of minerals; mere construction-related disturbance is not mining | Held that "mineral development" includes action upon minerals to exploit them on-site; Osage Wind’s sorting/crushing/backfilling constituted "mining," so a federal lease was required |
Key Cases Cited
- Marino v. Ortiz, 484 U.S. 301 (party status required to appeal except narrow exceptions)
- Devlin v. Scardelletti, 536 U.S. 1 (nonnamed class members may appeal without intervening when they have a unique, protectable interest)
- Plain v. Murphy Family Farms, 296 F.3d 975 (10th Cir.) (extends Devlin rationale to nonparty appellants with particularized interests)
- Southern Utah Wilderness Alliance v. Kempthorne, 525 F.3d 966 (10th Cir.) (limits nonparty appeals where interest is not sufficiently unique)
- Millsap v. Andrus, 717 F.2d 1326 (10th Cir.) (Indian-law canon: ambiguities construed in favor of Indians)
- Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324 (10th Cir.) (laches and timing considerations in Indian mineral claims)
- Osage Nation v. Irby, 597 F.3d 1117 (10th Cir.) (describing Osage Nation’s retained beneficial interest and federal trust relationship)