By Janice M. Schneider and Andrea M. Hogan

On February 27, 2013, the U.S. District Court for the Southern District of California rejected the Quechan Tribe of the Fort Yuma Indian Reservation’s (“Quechan Tribe”) suit challenging the Ocotillo Wind Energy Facility Project (the “Project”), a wind energy project in the Sonoran Desert in California.  See Quechan Tribe of Fort Yuma Indian Reservation v. U.S. Department of Interior, et al., 2013 U.S. Dist. LEXIS 27069 (S.D. Cal. Feb. 27, 2013).  The Quechan Tribe alleged that BLM’s approval of a Record of Decision (“ROD”) allowing an approximately 10,000 acre right-of-way over federal land for the construction of 112 wind turbines, violated the National Historic Preservation Act (“NHPA”), Federal Land Policy and Management Act (“FLPMA”), and the National Environmental Policy Act (“NEPA”), among other laws.

The Quechan Tribe’s NHPA claim alleged that BLM (1) failed to adequately identify all the historic properties prior to ROD approval, and (2) failed to adequately consult the Tribe.  As to the first argument, the court found based on the administrative record that archaeological surveys were conducted in the area of direct impact, including the wind turbine construction areas, and that tribal monitors were invited to participate and did participate in the surveys.  Id. at *14-19.  The court also rejected the Quechan Tribe’s failure to consult claim and found instead that “the administrative record reveals many attempts, starting regularly in 2010, were made by BLM to engage the Tribe in Section 106 government to government consultation.”  Id. at *5.  This case stands in sharp contrast to the Quechan Tribe’s successful challenge against the Imperial Valley solar project,[1] where that project was enjoined based upon the Tribe’s argument that the BLM failed to adequately consult with it.  This new decision is instructive in that it details the process by which tribal participation occurred and was documented by the environmental consultants handling the cultural resources work, as well as the degree of oversight provided by BLM.  Id. at *12-19; see also id. at *19-27 (documenting the Section 106 process and distinguishing Quechan I). 

The Tribe’s FLPMA claims alleged that the Project does not comply with the Class L (limited use) designation included in the California Desert Conservation Area (“CDCA”) Plan, violates the Visual Resource Management (“VRM”) standards and will result in the unnecessary and undue degradation of public lands.  Id. at *27-48.  Again, the court rejected these claims finding that the Tribe did not demonstrate that the Project will “significantly diminish” sensitive resources values, pointing to the mitigation measures in the ROD, a reduction in the number of turbines authorized (from 155 proposed to 112 approved) and the small footprint of the project.  Id. at *28-35.  The court further found that BLM’s decision to change the VRM class from interim Class III (in which the level of change to the characteristic landscape should be moderate) to a final interim Class IV (in which the level of change to the characteristic landscape can be high) in the final Environmental Impact Statement (“EIS”) was not arbitrary or capricious because the prior designation was interim and could be changed.  The court also held that BLM’s conclusion that the Project would not result in the unnecessary or unduly degradation of public lands was not arbitrary and capricious, particularly in light of the ROD’s numerous mitigation measures.  Id. at *35-48. 

Finally, the court rejected the Tribe’s NEPA claim that BLM was required to analyze six “priority” renewable energy projects planned for the CDCA in a single EIS because under the “independent utility” test the Tribe failed to show how all of the projects were connected.  Id. at *50-53.  The court similarly rejected the Quechan Tribe’s other NEPA claims, finding that BLM’s cumulative impacts  and growth inducing effects analyses were not arbitrary, capricious or an abuse of discretion, and that the BLM adequately analyzed the Project’s consistency with local laws.  Id. at *54-68. 

[1]  Quechan Tribe of Fort Yuma Indian Reservation v. U.S. Dept. of Interior, 755 F. Supp. 2d 1104 (S.D. Cal. 2010) (Quechan I).