Indian Tribes Sue Department of Interior For Lack of Proper Consultation for Wind Farm Project

In May 2012, the Quechan Tribe of the Fort Yuma Indian Reservation filed a lawsuit against the Department of the Interior (DOI) to stop the development of a large wind farm on public land in California.[1]  The tribe expressed their concerns to the Bureau of Land Management (BLM) in the months leading up to the lawsuit, stating that the project site “contains geoglyphs, petroglyphs, sleeping circles, milling features, agave roasting pits, ceramics and rare artifacts,” and that “construction of the current [project] design without direct impact to sites and artifacts will be impossible.”[2]  The Quechan Tribe’s vice president wrote in a letter to BLM’s California State Director that the project area “holds tremendous spiritual essence for the Quechan Tribe,” and pointed to the project’s location near Carrizo Mountain, an area “recounted and held sacred in our Creation Story, songs, and other oral traditions.”[3]  According to the Quechan Tribe’s complaint, the tribe’s efforts to participate in the permitting process were “impaired by Interior’s failure to exchange and share information with the Tribe, and Interior’s failure to consider or incorporate the Tribe’s comments and concerns in the planning process.”[4]  The tribe argues that the meetings with the federal government have been a mere formality and have not resulted in any meaningful protections of our cultural resources.[5] The Quechan Vice President stated that “BLM did consult, but what the federal law and the directives have asked for is meaningful consultation…. The meetings with the federal government have been a mere formality and have not resulted in any meaningful protections of our cultural resources. It appears the current administration wants to approve this and many other projects as part of their [election] campaign, and basically renewable energy is coming at the expense of Indian culture.”[6]

A group of activists called the La Cuna de Aztlán Sacred Sites Protection Circle Advisory Committee has also joined in a federal lawsuit to block six mammoth solar projects approved by the Department of the Interior.[7]  The lawsuit claims BLM and Interior failed to properly examine damage to sacred cultural sites in approving the solar projects – including the 1,000-megawatt Blythe Solar Power Project and the 370-megawatt Ivanpah Solar Electric Generating System.[8]  As well, the Quechan Tribe filed a previous suit against the Department of the Interior in 2010 to stop the development of a 709 megawatt solar farm planned and won an injunction against the project.[9]  This type of opposition to large-scale renewable projects on public lands is growing among tribes and could prevent or delay many proposed projects.

The project is among the first major industrial energy projects to gain approval using a new “fast tracking” approval process for energy projects on public lands.[10]  A series of statutory directives, Executive Orders and Secretarial Orders beginning in 2005 have spurred renewable energy development on federal lands.[11]  BLM is attempting to permit a select group of “fast-track” projects in order to facilitate numerous renewable generation project groundbreakings before the statutory deadline expires for receipt of loans from the Department of Energy (DOE).[12]  Furthermore, BLM intends to develop a systematic program to permit and authorize future, ongoing renewable development on public lands.[13]  Under both initiatives, proposed projects must comply with applicable public land management laws and must complete environmental impact statements (EISs) required by the National Environmental Policy Act of 1969 (NEPA).[14] 

However, it is unclear whether “fast-tracking” the process may reduce the quality of the consultation process required by NEPA, the Federal Land Policy Management Act (FLPMA), and the National Historic Preservation Act (NHPA).  In light of the present and ongoing lawsuits, the DOI and BLM must consider revising their consultation strategy to adequately consider the tribes’ needs for sacred sites.

 

— Kathy Oprea, Articles Editor


[1] Scott Streater, WIND: Interior ignored tribal concerns about wind farm impacts – lawsuit, E&E News: Greenwire, May 15, 2012, available at http://www.eenews.net/public/Greenwire/2012/05/15/2.

[2] Streater, supra note 1.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Phil Willon and Tiffany Hsu, Lawsuit alleges solar projects would harm sacred Native American sites, Los Angeles Times (Feb. 24, 2011), available at http://articles.latimes.com/2011/feb/24/local/la-me-solar-suit-20110224.

[8] Id.

[9] Quechan Tribe v. U.S. Dep’t of Interior, 755 F. Supp. 2d 1104, 1106-1108 (S.D. Cal. 2010) (hereinafter “Quechan I”).

[10] Miriam Rafterty, Broken Promises: Ocotillo Wind Project Wins Approval Despite Outcry From Tribes, Residents And Environmentalists, East County Magazine, (April 26, 2012) http://eastcountymagazine.org/node/9471.

[11] See Exec. Order No. 13212, 66 Fed. Reg. 28,357 (May 22, 2001), amended by Exec. Order No. 13286, 68 Fed. Reg. 10619 (Mar. 5, 2003) and Exec. Order No. 13302, 68 Fed. Reg. 27429 (May 20, 2003). See generally American Recovery and Reinvestment Act of 2009, 42 U.S.C. § 16516(a) (Supp. III 2009); Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594.

[12] Siobhan Mcintyre & Timothy P. Duane, Water, Work, Wildlife, And Wilderness: The

Collaborative Federal Public Lands Planning Framework For Utility-Scale Solar Energy Development In The Desert Southwest, 41 Lewis & Clark J. Env’l Law 1093, 1098 (citing 42 U.S.C. § 16516(a) (Supp. III 2009); see also U.S. Bureau of Land Mgmt., Dep’t of the Interior, 2011 Renewable Energy Priority Projects, http://www.blm.gov/wo/st/en/prog/energy/renewable_energy/fast-track_renewable.html (last visited Nov. 12, 2011)).

[13] McIntyre & Duane, supra note 12, at 1098 (citing Solar Energy Development Programmatic EIS Information Center, http://solareis.anl.gov/ (last visited Nov. 12, 2011).)

[14] See National Environmental Policy Act of 1969, 42 U.S.C. §§4321-4347 (2006).

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s