A Colorado federal judge has vacated a key permit for Nebraska Public Power District’s R-Project transmission line, citing its potential impact on a key Oregon Trail landmark in Lincoln County as one reason.
The ruling Wednesday by U.S. District Judge William J. Martinez of Denver overturns a June 12, 2019, “incidental take permit” issued to NPPD regarding the 225-mile-long line’s potential impact on the endangered American burying beetle.
It cites three reasons, the first being that the U.S. Fish and Wildlife Service – which issued the permit – “inadequately considered the effects of the R-Project on the O’Fallon’s Bluff segment of the Oregon and California Trail” near Sutherland.
The judge also said the agency failed to analyze “potential wind-turbine development” in Antelope County, near the line’s proposed eastern end.
He also found fault with the language of an April 2019 “programmatic agreement” covering that matter and other issues.
Friday’s Telegraph will feature reactions from various parties involved in the R-Project dispute.
Barring an appeal, Wednesday’s order throws the R-Project back to Fish and Wildlife, which took local testimony including the R-Project’s likely impact on O’Fallon’s Bluff at a July 2018 public hearing in North Platte.
Lincoln County historians and tourism groups urged Fish and Wildlife then to require an alternate route that went away from – instead of directly over – “swale” ruts carved into O’Fallon’s Bluff by thousands of wagons between 1843 and 1866.
Though Martinez’s order doesn’t permanently forbid construction of the R-Project, it found enough merit in the challenge filed by the Oregon-California Trails Association, the Western Nebraska Resources Council and the Hanging H East and Whitetail Farms East ranches between Paxton and Sutherland.
The main thrust of NPPD’s “incidental take permit” request addresses its plans to minimize construction-related losses of burying beetles, notably development of an alternative habitat in Blaine County.
But the challengers’ lawsuit, filed last July 5, said Fish and Wildlife’s granting of the “incidental take permit” didn’t fully address the project’s compliance with all relevant federal laws.
They include not only environmental laws and regulations but also the R-Project’s potential to impact historic landmarks, Martinez wrote.
In a 116-page opinion, the judge rejected most of the challengers’ allegations while criticizing both sides for the quality of their arguments.
“Many are of the underdeveloped, ‘see what sticks’ variety; many are inexcusably belated … and there are a surprising number of seemingly relevant arguments not made,” Martinez wrote.
But he agreed that Fish and Wildlife needed to look again at the R-Project’s potential to interfere with the historic appreciation of O’Fallon’s Bluff.
The judge cited a March 2016 email from the National Park Service warning Fish and Wildlife that the R-Project’s opening miles north from NPPD’s Gerald Gentleman Station “would cross the Mormon Pioneer, California, Oregon and Pony Express National Historic Trails at a particularly sensitive location.”
In addition to O’Fallon’s Bluff near the South Platte River, the line would cross similar Mormon Trail swales north of the North Platte River. Those were acknowledged in but not directly related to Wednesday’s ruling.
The Park Service encouraged an alternate route that “would cross the trail corridor in places where the trail and its setting already have been compromised or destroyed,” Martinez wrote, quoting its email.
But Fish and Wildlife’s final “environmental impact statement” said it was too late for major route changes, though it said the R-Project would have “a long-term, high-intensity indirect (visual, auditory and atmospheric) effect” on O’Fallon’s Bluff.
The July lawsuit said Fish and Wildlife had “fail(ed) to analyze (or adopt) a route” that would have run east from Gerald Gentleman “and thus avoided most (if not all) of the affected historic resources located directly north of the substation,” meaning O’Fallon’s Bluff.
“Neither the (Fish and Wildlife) Service nor the (Nebraska Public) Power District responds to this argument,” the judge wrote. Their “silence on this point appears to implicitly concede error, and the court finds error regardless.”
Federal historic preservation law requires other federal agencies to “stop, look and listen” before granting permits “when their action will affect national historical assets,” Martinez wrote, quoting an earlier federal court decision.
“Thus, after gathering useful information on a proposed permit, an agency could legitimately conclude, ‘We see your need for this project but you have not persuaded us that you need to build the project precisely there; permit denied.’
“Yet the (Fish and Wildlife) Service seems not to have considered this possibility, and at the very least said nothing indicating that it understood this alternative was available to it.”
Several of the more than 100 people attending the agency’s lengthy North Platte hearing on July 25, 2018, urged precisely that alternative.
They included two Nebraska members of the Oregon-California Trails Association, Sutherland trail historian Linda Tacey and – via letter – North Platte/Lincoln County Visitors Bureau executives Lisa Burke and Muriel Clark.
“The only acceptable solution is to avoid the adverse effects altogether” and move the line, Burke wrote in her letter.
“All this (risk) could be eliminated by moving the route a little bit,” Jim Hoaglund, who owns the land containing the O’Fallon’s Bluff trail ruts, told Fish and Wildlife officials that night.
“I don’t know why we have to keep tearing up American history.”
Martinez’s order refused to let Fish and Wildlife’s permit remain in place while it reconsiders the burying-beetle permit.
“If this court were to allow the permit to remain in place pending that decision, then construction could go forward in the meantime and perhaps cause the very harms the avoidance of which would otherwise have prompted the (Fish and Wildlife) Service to deny the permit,” the judge wrote.