Renewable energy vs. cultural preservation - Solar, Wind and Land: Conflicts in Renewable Energy Development - page 126

to ensure that tribes have “adequate information and time” to investigate
the project and its potential impacts on cultural resources. 38 The court's
decision was a significant victory for the tribe, offering hope that siting
consultations with federal officials would be more collaborative on future
projects.
Shortly after prevailing in court against this solar energy project, the
Quechan Tribe filed suit seeking to enjoin the development of a wind
energy project within its ancestral lands on similar grounds. Pattern Energy
Group's Ocotillo Express Wind project was initially designed to involve 155
commercial-scale wind turbines covering roughly 13,000 acres of public
land in Imperial County, California. 39 The BLM and Pattern Energy Group
were surely aware of the tribe's lawsuit against the solar project, which may
have motivated them to be extra cautious and thorough in the consultation
process. They ultimately trimmed back the project to just 112 turbines
covering about 10,000 acres in response to input and information gathered
through consultations with tribes and environmental review. 40 Among other
things, these changes to the project plans were aimed at avoiding the siting
of turbines where they might disrupt certain viewsheds that were significant
to the several tribes that were consulted about the proposal. 41
Dissatisfied with Pattern Energy Group's revisions to the project plans,
the Quechan Tribe filed a claim in federal court in May of 2012 seeking to
enjoin the project. The primary legal argument in the tribe's claim mirrored
that of its prior lawsuit: that the BLM had failed to adequately consult the
tribe. According to the complaint, the project area contained “hundreds
of archeological sites (containing tens of thousands of individual artifacts)
eligible and potentially eligible for inclusion in the National Register of
Historic Places” and held “tremendous spiritual essence for the Quechan
Tribe.” 42
Unfortunately for the Quechan Tribe, the court was less sympathetic
to its arguments this time around. The court dismissed the tribe's claim,
finding that the BLM's administrative record evidenced that the agency had
made “many attempts, starting regularly in 2010 … to engage the Tribe
in Section 106 government-to-government consultation.” 43 According to
the court, the tribe “did not accept these repeated requests until December
2011, towards the end of the approval process,” at which point its fair
opportunity to challenge the project had passed. 44
After the court issued its opinion, construction on the Ocotillo Express
Wind Project proceeded. However, as of late 2013, the legal fight over the
Ocotillo Express Wind Project was not entirely over. The Quechan Tribe
appealed its case and, in April of 2013, the California Native American
Heritage Commission declared the entire project area to be a sacred Native
American site. 45 The tribe has also challenged even more renewable energy
projects in the area based on inadequate consultations. 46
The Quechan Tribe is by no means the only Indian tribe that has questioned
the adequacy of BLM consultation efforts in recent years. Another example