By REBEKAH KEARN, Courthouse News Service | www.courthousenews.com 30 May 2012
A Native American tribe cannot block the construction of a wind farm on their land because there is no evidence that the project will irreparably harm the environment or cultural resources, a federal judge ruled.
Ocotillo Express, a wholly owned subsidiary of Pattern Energy Group, is developing a wind farm in the far southeastern region of California, 5 miles west of Ocotillo. It will stretch across roughly 10,000 acres of public land and generate 315 megawatts of electricity with 112 wind turbines, according to data from the Bureau of Land Management.
The Ocotillo Wind Energy Facility will be part of the California Desert Conservation Area plan (CDCA), which the Department of the Interior approved in 1980 to develop and protect more than 12 million acres of public land.
Before approving the project on May 11, the Department of the Interior consulted with local Native American tribes, prepared an environmental impact report and promised several conservation groups that the project would minimally affect “cultural resources.”
But the Quechan Tribe of the Fort Yuma Indian Reservation demanded an injunction, claiming the project would irreparably harm “their culture, history, tradition, and religion,” according to the ruling.
The Quechan say that the project site includes almost 300 culturally significant archeological areas and numerous historical artifacts, including “geoglyphs, petroglyphs, sleeping circles, milling features, agave roasting pits, ceramics,” and other rare artifacts such as anvil and crescentic. They also say the land includes segments of 24 prehistoric trails and at least six known burial sites.
In addition to claiming that the project violates the conservation plan and the National Environmental Policy Act, the tribe also says it did not have enough time to study the project.
But the federal agencies say their two-year study included four site visits with tribal representatives, dozens of tribal consultation meetings, two meetings with the Quechan Tribe’s Cultural Committee, and other forms of outreach.
Claiming that it offered to hold monthly meetings with the tribe and take comments on an archeological resources survey, the government says the Quechan Tribe was “nonresponsive.”
The agencies also dispute whether the wind farm would irreparably damage sacred tribal areas, saying they addressed that issue with their promise to conservationists.
“Federal defendants contend that the Memorandum of Agreement protects against irreparable injury by requiring archaeological artifacts to be identified and avoided, allowing tribal access to the area, and creating a protocol for the discovery of additional artifacts or burial sites which includes cessation of ground disturbance,” U.S. District Judge William Hayes wrote.
In considering whether to grant a restraining order, Hayes weighed the alleged threat to irreplaceable cultural artifacts against the promise of creating renewable energy, jobs and new tax revenue.
Ultimately, he sided with the government.
“Federal defendants and intervenor-defendant Ocotillo have submitted the memorandum of agreement which is specifically aimed at avoiding identified archaeological locations, providing protective measures and treatment plans for the discovery of new traditional cultural property or burial remains, and providing for monitoring of the construction of the OWEF project site,” Hayes wrote.
“Plaintiff has not submitted any evidence that the procedures provided by the memorandum of agreement for newly discovered cultural and burial items are not adequate to guard against irreparable injury to items discovered on public land,” he added.
“The court finds that plaintiff has failed to make a sufficient showing of likelihood of ‘actual and irreparable injury’ to support the extraordinary remedy of a temporary restraining order to a consideration of the merits. […] Plaintiff has failed to show that the balance of hardships tips sharply in its favor.”
If the parties want to schedule expedited motions for preliminary injunction or summary judgment, they can contact the magistrate judge.
The Quechan Tribe is represented by Bryan Snyder of San Diego. Frank Jozwiak and Thane Somerville of Morisset Schlosser Jozwiak and McGaw of Seattle also served as pro hac vice counsel on the case.
Calls and emails seeking comment were not returned.
URL to article: https://www.wind-watch.org/news/2012/05/30/imperial-county-wind-farm-project-advances/