Renewable energy vs. cultural preservation - Solar, Wind and Land: Conflicts in Renewable Energy Development - page 125

developers and tribes. Federal laws in the United States require BLM
officials contemplating development projects on public lands to “consult”
with any American Indian tribes that “attach [...] religious or cultural
significance” to the lands involved. 31 Unfortunately, disagreement regarding
what these laws require can sometimes leave tribes unsatisfied with devel-
opers' consultation efforts, and costly lawsuits can follow.
Clashes over tribe consultation requirements in the southwest United States
Multiple Indian tribes in the United States have opposed proposals for
renewable energy projects on public lands in efforts to protect their cultural
resources. One example of such opposition involves the Quechan Tribe of
the Fort Yuma Reservation (Quechan Tribe) in southern California. Over
the course of only a few years, the Quechan Tribe challenged two different
renewable energy projects based on claims that BLM officials failed to
adequately consult with them as required under Section 106 of the National
Historic Preservation Act (NHPA) and its accompanying regulations. 32
The Quechan Tribe's first major clash with federal officials over the
NHPA's consultation requirements arose in 2010, when the BLM approved
a large solar energy project on roughly 6,500 acres of mostly public
lands in the California Desert Conservation Area in Imperial County,
California. 33 The proposed 700+ MW project involved land that was home
to 459 identified cultural resources of various kinds. 34 At least 300 of these
resources were “locations of prehistoric use or settlement,” including arche-
ological and burial sites. Many resources falling within this category were
culturally significant to the Quechan Tribe, whose ancestral lands included
portions of the proposed project area. 35
Cognizant of its obligations under the NHPA, the BLM held town hall
meetings and consultations with individual tribal members and provided
written updates to the Quechan Tribe about the solar energy project. 36
However, the project was moving forward at an unusually rapid pace in
order to meet a critical deadline necessary to qualify for certain federal
stimulus funds. Resenting what it felt was a cursory approach to the
consultation process in this rush to meet these deadlines, the tribe filed suit
against the BLM and sought to enjoin the project's construction on the
ground that the BLM's consultation efforts were inadequate.
In December of 2010, a federal district court in California issued an
opinion that largely agreed with the Quechan Tribe's criticisms of the consul-
tation process for the project. The court held that the BLM's interactions
with the tribe did not “amount to the type of 'government-to-government'
consultation required by federal law.” 37 In explaining its holding, the court
gave some guidance regarding what federal officials must do to comply with
NHPA's consultation requirement in connection with renewable energy
projects on public lands. Among other things, federal officials must “begin
early” in consulting with tribes about large energy projects on public lands