Finding that the Bureau of Land Management (BLM) had likely failed to consult adequately with the Quechan Tribe over a large solar project’s potential impacts on historic resources, the Federal District Court for the Southern District of California issued an order on December 15th granting a preliminary injunction that halts development of the project. 

The 709-megawatt-project is planned on 6,500 acres of mostly federally owned land in Imperial County, California.  On October 29, 2010, the Quechan Tribe, a federally recognized tribe with a reservation in Imperial County and Arizona, sued the Department of Interior, BLM to overturn the approvals for the project, alleging that they violated the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), and the Federal Land Policy and Management Act (FLPMA). 

NHPA and its implementing regulations identify certain Indian tribes that the BLM must consult with before approving or spending money on a federally assisted project.  NHPA and its regulations generally require the consultation to “be conducted in a manner sensitive to the concerns and needs of the Indian tribe” and to “recognize the government-to-government relationship between the Federal Government and Indian tribes.”  NHPA’s overall goal is straightforward, but the regulations outlining the required consultations are detailed and complex.  As the court noted:

Section 106’s consulting requirements can be onerous, and would have been particularly so here. Because of the large number of consulting parties (including several tribes), the logistics and expense of consulting would have been incredibly difficult.

Though there were numerous communications between specific tribe members and the BLM and its consultants about the project during the administrative proceedings, the court found that they were likely inadequate under NHPA’s requirements for reasons that included the following:

• BLM sent a number of letters to the Tribe saying that it would be happy to meet and consult, but BLM never actually met with the Tribe’s government until after the project was approved.
• Though the Tribe asked for the information repeatedly, the BLM did not send the Tribe an identification of the affected historical sites until the weeks before BLM approved the project.   
• BLM invited the Tribe to a number of public informational meetings, sent written updates, consulted with individual Tribe members.  But the court found that none of these amounted to the type of “government-to-government” consultations that the regulations require.   

When the court balanced the equities and weighed the public interest of issuing a preliminary injunction, it found that Congress’ failure to exempt renewable energy projects from NHPA was the key factor:

[I]n enacting NHPA Congress has adjudged the preservation of historic properties and the rights of Indian tribes to consultation to be in the public interest. Congress could have, but didn’t, include exemptions for renewable energy projects such as this one.… [B]ecause Congress didn’t do that, and instead made the determination that preservation of historical properties takes priority here, the Court must adopt the same view.

Lessons for clean energy developers:  The court’s ruling was just a preliminary injunction—and it may ultimately be found, at trial, or on appeal, that the BLM complied with NHPA.  Even so, the following lessons can be taken from the case:

• BLM is working on an unprecedented volume of projects, and many of its offices are understaffed.  Private developers of potentially controversial projects on Federal land should engage their own legal counsel throughout the entitlement process, not only to help understand the regulations and shepherd the application, but also to make sure that the entitlements are ultimately defensible in any lawsuits challenging them. 
• Simply writing to Indian tribes that are “consulting parties” under NHPA about general features of a project and with vague invitations to meet may not be enough to comply with NHPA.  As the court noted “[t]he number of letters, reports, meetings, etc. and the size of the various documents doesn’t in itself show the NHPA-required consultation occurred.”