BLM made 'significant' efforts to reduce wind project's impacts, says judge

Posted: Mar 5, 2013

Written by

SCOTT STREATER, E&E
Imperial County

A federal court has sided with the Bureau of Land Management and a San Francisco-based wind energy developer, rejecting two lawsuits attempting to stop what would become one of California's largest wind farms on public land.

In the first lawsuit ruling, U.S. District Court Judge Gonzalo Curiel in San Diego this week issued a 36-page decision striking down claims in a lawsuit by the Quechan Tribe of the Fort Yuma Indian Reservation that argued the wind project's 112 turbines would cause "irreparable injury" by destroying "cultural and visually significant lands and resources." It also accused BLM of ignoring the tribe's concerns by not properly identifying historic and cultural resources.

The Quechan Tribe filed the federal lawsuit in U.S. District Court for the Southern District of California just days after Interior Secretary Ken Salazar signed a record of decision (ROD) authorizing Pattern Energy Group LP to build the wind farm on more than 10,000 acres of BLM land in Southern California's Imperial County (Greenwire, May 15, 2012).

Curiel wrote that although the tribe "alleges that BLM did not properly identify all historic properties, the record reveals that BLM hired an archaeological consultant and it began conducting an archaeological survey in September 2010, with a draft Survey issued in May 2011, and a final report issued in March 2012. The identification efforts were significant."

He also struck down the tribe's arguments that BLM ignored its concerns, writing that "the administrative record reveals many attempts, starting regularly in 2010, were made by BLM to engage the Tribe" in consultation.

In the second, 35-page ruling involving a separate lawsuit against the Ocotillo Express project, Curiel rejected claims led by the nonprofit Desert Protective Council that challenged the "scientific integrity" of BLM's environmental impact statement (EIS) process and sought a court order "requiring the BLM to avoid the killing of any raptor or owl" for the project.

"As it relates to the issues in this case, the BLM conducted a thorough review of the potential impacts on birds, bats and golden eagles," Curiel wrote. "Based on an in-depth review of the administrative record and the parties' briefs, the Court finds that the BLM's decision to grant the [right of way] and approve the ROD was reasonable as it considered all relevant factors and provided an analysis that presented a rational connection between the facts found and the conclusions it made based on relevant law."

Both the Quechan Tribe and the Desert Protective Council lawsuits were filed in May 2012.

"We are pleased with the federal court's decisions," said Mike Garland, the CEO for Pattern Energy, which intervened in the lawsuit on behalf of the Interior Department.

So is BLM, which has long maintained it 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.

The ROD that Salazar signed in May 2012 was to approve a scaled-down version of the Ocotillo Express project proposal that proponents said sought to avoid culturally significant landmarks.

The Obama administration has committed in recent years to improve consultation between Interior agencies and American Indian tribal leaders -- in part because of the legal challenges from tribal activists that can delay projects.

"The president has called for America to keep going all in on clean energy, and we think our 'smart from the start' is helping us do that the right way" said David Quick, a BLM spokesman in Washington, D.C. "We're glad this project can go forward for completion this spring."

Ocotillo Express is one of six commercial-scale wind farms approved by BLM since 2009. Those six approved projects, if all are built, would cover more than 200,000 acres of public land and have the capacity to produce enough electricity to power more than a million homes, according to federal statistics.

"The Quechan Tribe is disappointed with Judge Curiel's decision denying our motion for summary judgment," said Ronda Aguerro, the tribe's vice president. "This jeopardizes our culture, our heritage. These sacred sites are not something you can create, these are given to us by our ancestors. When they are destroyed they are gone."

Terry Weiner, conservation coordinator for the San Diego-based Desert Protective Council, could not be reached for comment.

Meanwhile, Pattern Energy has already begun construction on the 265-megawatt wind farm, which when completed this spring will have the capacity to produce enough electricity to power 125,000 homes.

The company has already installed 94 turbines that are pumping electricity to San Diego Gas & Electric through the new 117-mile Sunrise Powerlink transmission line connecting San Diego and Imperial Valley. The remaining 18 turbines will be installed this spring, said Matt Dallas, a Pattern Energy spokesman.

"These rulings confirmed that we and the BLM followed the rules, working with Native American tribes, community groups and local residents during the development process," said Garland, the Pattern Energy CEO. "We remain committed to building a renewable energy project responsive to the concerns of the local community and respectful of the environment and local cultural resources."



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