Turbines at the Blue Grass Ridge Wind Farm in Gentry, Missouri, a previous project of developer Wind Capital

California Tribes Suing to Halt Construction of Wind Factory on Sacred Land

Gale Courey Toensing
5/29/12

The Interior Department’s Bureau of Land Management has the following warning on its web page regarding Southern California’s Coyote Mountain: “Removal, disturbance, or attempting to remove archaeological materials is a felony. Selling, receiving, purchasing, transporting, exchanging or offering to do so is prohibited by law.”

Even though the Interior Department has acknowledged Coyote Mountain as an established archaeological site and the pre-historic and historic presence there of the Quechan Tribe of the Fort Yuma Indian Reservation, on May 11 Secretary Ken Salazar signed the Record of Decision (ROD)—the official approval—for construction of the Ocotillo Express Wind Facility, a massive industrial wind factory of 112 turbines, each standing 450 feet tall, across more than 10,150 acres of public land that is sacred to the Quechan, Kumeyaay and Cocopah Nations. The land is approximately 90 miles east of San Diego. In addition to the turbines, the project includes a 12-acre concrete batch plant lay-down area, a 3.4-acre site for an operations-and-maintenance facility, a 2.1-acre substation, a 23.5-acre interconnection switchyard, up to three permanent meteorological towers, and around 42 miles of new access roads.

Three days after Interior’s approval, the Quechan Tribe filed a lawsuit against the Interior Department and its officials in U.S. District Court seeking a temporary restraining order to stop the project. Coyote Mountain and the Ocotillo Desert that surrounds it hold tremendous spiritual importance for the Quechan Tribe. “The importance of that mountain is recounted and held sacred in our Creation story, songs and other oral traditions,” Quechan Vice President Ronda Aguerro wrote in a December 2011, letter to James Kenna, the state director of the Bureau of Land Management, which is cited in court documents. “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.”

The lawsuit was filed on the grounds that a temporary restraining order is necessary to prevent imminent and irreparable harm to the tribe. The tribe says Interior’s approval of the project unlawfully violates the Administrative Procedures Act, the Federal Land and Policy management Act and the California Desert Conservation Area (CDCA) plan; that the project lands are sacred and designated as protected public lands according to the CDCA; and that they are located within a large traditional cultural property eligible for inclusion in the National Register of Historic Places due to the presence of nearly 300 known archaeological sites that contain tens of thousands of artifacts, ceremonial areas, pre-historic trails, scenic and culturally significant view sheds, and cremation and burial sites.

“How would you feel if the President proposed a wind project on top of your ancestors’ graves, or on top of Arlington National Cemetery?” Keeny Escalanti, president of the Quechan Tribe asked at a press conference in La Jolla May 15 outside the corporate towers of Pattern Energy, the project developer. The Viejas Tribe, environmentalists and area residents joined Escalanti in denouncing the federal government’s fast-tracking of this and other massive projects on public lands and called on President Obama to meet with tribal leaders and halt the destruction of sacred sites. “This is nothing more than a public land grab for private profit,” said Robert Scheid, Viejas communications director, according to East County Magazine. “The BLM is literally giving this away to corporations… This may be out in the desert today, but tomorrow it could be in your backyard.” Scheid said more than a dozen projects have already been proposed in San Diego and Imperial counties.

The Ocotillo Express Wind Facility could be called “Cape Wind West” for its similarities in scale and process to the controversial Cape Wind project in Nantucket Sound. The Cape Wind project, which has been in the works for more than a dozen years, is still getting vigorous opposition from the Aquinnah and Mashpee Wampanoag tribes on Martha’s Vineyard and Cape Cod, and dozens of elected officials, towns and counties, environmental organizations – all under the umbrella of the Alliance to Protect Nantucket Sound. The project owners are battling nine legal challenges against the project.

The sacred lands and the natural, scenic and cultural resources that make the Coyote Mountain area lands eligible for National Historic Preservation Act protection will be degraded or destroyed if the project moves forward, court papers say. According to East County Magazine, by May 14 heavy equipment had already started grading and ripping up the site, “and breaking hearts of the many people who love this desert land.”

Escalanti assured everyone at the press conference that the tribal council is not opposed to renewable energy. “We believe that the fundamental value underlying renewable energy, such as developing a harmonious relationship with the earth, is in agreement with own traditional values. We are primarily opposed to projects such as this one that is unnecessarily leading to the destruction of our cultural resources. Our people regard Ocotillo Valley as a sacred landscape,” he said.

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In issuing the ROD, Salazar said the decision to approve the project “is based on full public disclosure and involvement, government-to-government consultations with affected Indian tribes, and comprehensive analyses prepared by highly qualified technical experts regarding the potential effects of the Project and its alternatives, as reflected in the Final EIS/EIR [Environmental Impact Statement/Environmental Impact Report],” which was issued in 2008, and on other documents from state and federal agencies charged with reviewing and approving the project. However, the ROD concedes that, even after implementing mitigation measures required in a Memorandum of Agreement with those agencies, the project “will still have an unmitigated adverse effect on resources that are spiritually and culturally significant to the affected tribes.”

Salazar says the Bureau of Land Management “sought meaningful consultation with affected tribes, both on a Section 106 and a government-to-government basis and that the “Refined Project,” which eliminated 43 of the originally proposed 155 turbines, was developed in response to the tribes’ concerns about the spiritual and cultural significance of the project site and its surrounding area. But in the end the negative effects don’t count. “Ultimately the existence of unresolved adverse effects does not require the DOl or the BLM to deny the ... application or otherwise prohibit the Project from proceeding,” the ROD says.

Quechan refutes Salazar’s assertion that proper consultation took place. The consultation with BLM was not meaningful; it was just a formality,” Escalanti says. “There are tens of thousands of important artifacts and hundreds of sites of cultural significance. This is our history.”  The area is so rich that archaeologists from the State Historic Preservation Office have designated the project area as a “mega-site.” “BLM is not listening to our concerns,” Escalanti said. “BLM has fast tracked the project. We’ve asked for additional studies. The EIS does not even begin to state the significance this area has for our people. It does not contain our voices.”

The tribe was so doubtful about the Pattern Energy survey of the site’s cultural resources that it sent in its own experts with trained forensic dogs who did a quick and cursory survey and found an additional six burial/cremation sites, for a total of 12 cremation sites in this particular area, Escalanti says. The tribe still practices the sacred rite of cremation, as their tribal ancestors did before them, according to court documents.

Escalanti says the tribe has asked to meet with the decision-makers. One of the questions raised is whether Interior Deputy Secretary David Hayes was among the decision-makers. Until 2006, Hayes worked for the firm Latham & Watkins and was personally registered as a lobbyist for San Diego Gas and Electric, according to the New York Times.

John Bathke, Quechan’s Tribal Historic Preservation Officer (THPO), said in a court declaration that the tribe is unique in that it has remained on part of its vast traditional territory, which included parts of Arizona and California. “The tribe was not moved or conquered by Spain, Mexico, early Yuma settlers, or the United States, although the tribe’s original land base has been significantly diminished,” Bathke said. In 1884, President Chester A. Arthur set aside around 46,000 acres of the Quechan Tribe’s traditional land within the state of California as a reservation. “The protection of the tribe’s historic, cultural, and spiritual resources, both inside the boundaries of the Fort Yuma Indian Reservation and within its broader traditional territory is a sovereign prerogative and priority of the Tribe,” Bathke said in his declaration.

This not the first time that Quechan has fought legal battles to protect its cultural resources. Bathke cites the tribe’s successful efforts to protect a sacred area from a massive mining project in Glamis Gold, Ltd. v. United States, and its win against a proposed transfer of public lands containing large numbers tribal cultural artifacts to a private entity who wanted to build a large oil refinery in the area (Quechan Tribe v. U.S. Department of the Interior).

But the tribe’s interests in protecting the sacred landscape are not limited to concern for its cultural resources, he says. “The tribe and its members are also interested in preserving the quality of the land, water and air within its traditional territory, within and outside of the Reservation.” These goals are in keeping with the United Nations Declaration on the Rights of Indigenous Peoples.

Bathke says the Ocotillo Express Wind Project is part of the Obama administration’s push to make renewable energy part of his campaign for re-election. ”They have several projects that have been fast-tracked to the point that their environmental reviews don’t include a complete analysis not only on cultural resources, but also on impacts to plant and animal life, and their consultation with Native American nations as required by federal law has not been meaningful,” he says.

He adds that it was clear throughout the process that approval of the project was never in doubt. “Project timeline documents established a May 2012 deadline for project approval. Speed of approval, not analysis of impacts or concerns of Native American values, appeared to be the top priority,” he explains.

In an 11-page ruling May 22, District Judge William Q. Hayes weighed every claim by the Quechan Tribe against every counterclaim by Interior and denied Quechan’s motion, concluding that the "Plaintiff has failed to show that the balance of hardships tips sharply in its favor." Everyone was disappointed, Bathke said. “I think the common sentiment was we couldn’t understanding how the court could come to the conclusion that there wouldn’t be irreparable harm. BLM said, ‘We weighed everything but for the greater good we’re going to do this anyway,’ and when they use that argument Indians will lose all the time and it’s pathetic.”  Bathke said the tribe will pursue every option available. "As I understand, the council will go for an expedited motion for summary judgment, That will take about six weeks or so,” Bathke said. "Unfortunately, it doesn’t put a halt to the construction." Meanwhile, the elders are planning a ceremonial action to honor the cremation sites, Bathke said.

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