WIND:

Interior ignored tribal concerns about wind farm impacts -- lawsuit

An American Indian tribe has filed a federal lawsuit against the Interior Department in an effort to stop what would become California's largest wind farm on public land.

The lawsuit filed late yesterday in U.S. District Court for the Southern District of California in San Diego by the Quechan Tribe of the Fort Yuma Indian Reservation says the proposed wind project's 112 turbines would cause "irreparable injury" by destroying "culturally and visually significant lands and resources." It accuses the Bureau of Land Management of essentially ignoring the tribe's concerns.

The lawsuit comes just days after Interior Secretary Ken Salazar signed a record of decision (ROD) authorizing San Francisco-based Pattern Energy Group LP to build the Ocotillo Express Wind Energy Facility on more than 10,000 acres of BLM land in Southern California's Imperial County (Greenwire, May 14).

The Quechan Tribe, which wants a federal judge to throw out the ROD and to order a temporary injunction blocking construction until the lawsuit is resolved, has scheduled a news conference today in front of Pattern Energy Group's offices in La Jolla, Calif., to announce their action.

The ROD Salazar signed Friday approved a scaled-down version of the project proposal that proponents say sought to avoid culturally significant landmarks. BLM consulted with as many as 14 area American Indian tribes and cut more than 2,200 acres from the project boundaries after an extensive archaeological and cultural survey uncovered numerous ancient tribal artifacts and sacred locations.

The Quechan Tribe, which has about 3,500 members in California and Arizona, was among those consulted by BLM. But according to the 33-page 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."

The tribe had expressed numerous concerns to BLM in the months leading up to Salazar signing the ROD, according to the lawsuit, which says 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."

Ronda Aguerro, the Quechan Tribe's vice president, wrote in a Dec. 9 letter to BLM California State Director Jim Kenna that the project area "holds tremendous spiritual essence for the Quechan Tribe." And Aguerro pointed to the project's location near Carrizo Mountain, an area "recounted and held sacred in our Creation Story, songs, and other oral traditions."

"To allow a project of such magnitude to be erected next to one of our sacred sites -- which helps form our identity as Quechan -- would be a desecration of our culture and way of life," she wrote.

John Bathke, the tribe's historic preservation officer in Yuma, Ariz., said in an interview that despite the religious and spiritual significance of the site, BLM never made any serious attempt to address the tribe's concerns.

"BLM did consult, but what the federal law and the directives have asked for is meaningful consultation. We met with them, but they didn't listen to our concerns," Bathke said. "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."

Erin Curtis, a BLM spokeswoman in Sacramento, Calif., said the agency does not discuss pending litigation and declined to comment.

Pattern Energy Group plans to begin construction of the Ocotillo Express project this month with a goal of bringing the wind power plant online by year's end. It is not clear how the lawsuit will affect those plans.

Matt Dallas, a Pattern Energy Group spokesman, said the company would not discuss the lawsuit or how it could affect the project.

But in an emailed statement sent today to Greenwire, Pattern Energy Group CEO Mike Garland said the company stands by the project, calling it "a major step towards both implementation of the President's renewable energy agenda and fulfillment of California's Renewable Portfolio Standard."

Garland added that "the reduced project size and footprint illustrates Pattern's commitment to not only listen to the concerns of the local community and Native American Tribes, but to also take concrete steps to address those concerns through revisions to the project plans, even to the extent of significantly reducing the project size."

Renewables challenges

The Quechan Tribe lawsuit is the latest legal challenge targeting a number of already-approved renewable power projects on BLM land in Southern California.

Indeed, the Quechan Tribe in late 2010 filed a federal lawsuit challenging Interior's approval of Tessera Solar's Imperial Valley Solar Project near El Centro, Calif., citing damage to cultural resources and allegations that federal regulators ignored the tribe's concerns.

The latest Quechan lawsuit comes at a time when the Obama administration is making a concerted effort to improve consultation between Interior agencies and American Indian tribal leaders -- in part because of the legal challenges from tribal activists (Land Letter, Feb. 23).

In the last two years, BLM has approved eight solar projects in Southern California that collectively would cover more than 31,000 acres and, if built, would be capable of producing 4,000 megawatts of electricity -- enough to power 1.2 million homes.

But most of those solar projects are now the subject of federal lawsuits filed by American Indian activist groups concerned about the projects' effects on cultural sites and desert ecosystems.

In December 2010, a group of activists called the La Cuna de Aztlán Sacred Sites Protection Circle Advisory Committee joined a federal lawsuit in U.S. District Court for the Southern District of California. The lawsuit claims BLM and Interior failed to properly examine damage to sacred cultural sites in approving six large-scale solar projects -- including the 1,000-megawatt Blythe Solar Power Project and the 370-megawatt Ivanpah Solar Electric Generating System (Greenwire, Jan. 3).

And La Cuna de Aztlán in January joined several other groups in another federal lawsuit filed in U.S. District Court for the Central District of California. In it, the groups are challenging the use of BLM land to connect the 150 MW Rice Solar Energy Project, which lies on private land, to the power grid operated by the Western Area Power Administration.

In December 2011, Salazar allowed Santa Monica, Calif.-based SolarReserve LLC to use 150 acres of BLM land to connect the Rice Solar plant to the power grid (Land Letter, Dec. 15, 2011).

Among the allegations in the second lawsuit is that Interior failed to properly consult with the tribes as required under the National Historic Preservation Act.

The Quechan Tribe's lawsuit filed yesterday also includes references to correspondence between top federal and state regulators, some of whom express concern about the Ocotillo Express project's impacts to cultural resources.

Among them is an April 24 memo to Kenna, the BLM state director, from the California State Historic Preservation Officer in which he wrote that he was "concerned and troubled with the process being followed [by BLM] to approve renewable energy undertakings in California," according to the lawsuit.

That same day last month, according to the lawsuit, the Advisory Council on Historic Preservation wrote Kenna that it also had concerns with the Ocotillo Express project, describing BLM's schedule for tribal consultation as "aggressive."

The lawsuit also questions BLM's efforts to "fast track" the project, stating that "Interior arbitrarily set a project approval deadline of May 2012 and unlawfully rushed [the project review] process to meet that goal, failing to adequately evaluate the impacts associated with" the project "in order to reach a pre-determined approval decision."

Bathke, the Quechan Tribe's historic preservation officer, said the group is not against renewable energy, noting that the use of so-called green energy "is in line with traditional Indian values in terms of having a harmonious relationship with the Earth. It's just the manner of siting and environmental review, and this project lacked both proper siting and the appropriate environmental review."

Click here to read the federal lawsuit.

Streater writes from Colorado Springs, Colo.