winter king (state bar no. 237958) [email protected] … · 2015-06-15 · case no....

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MPA ISO MOTION FOR PI

CASE NO. 5:14-cv-02504-JAK-SP

WINTER KING (State Bar No. 237958) [email protected] HEATHER MINNER (State Bar No. 252676) [email protected] SARA A. CLARK (State Bar No. 273600) [email protected] SHUTE, MIHALY & WEINBERGER LLP 396 Hayes Street San Francisco, California 94102 Telephone: (415) 552-7272 Facsimile: (415) 552-5816 Attorneys for the Colorado River Indian Tribes

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA, EASTERN DIVISION

COLORADO RIVER INDIAN TRIBES, a federally recognized Indian Tribe,

Plaintiff,

v. UNITED STATES DEPARTMENT OF THE INTERIOR, et al.

Defendants.

Case No. 5:14-cv-02504-JAK-SP MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Date: June 1, 2015 Time: 8:30 a.m. Crtrm. 750 Judge: Hon. John A. Kronstadt Action Filed: December 4, 2014

Case 5:14-cv-02504-JAK-SP Document 37-1 Filed 03/16/15 of 31 Page ID #:322

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i MPA ISO MOTION FOR PI CASE NO. 5:14-cv-02504-JAK-SP

TABLE OF CONTENTS Page

INTRODUCTION .......................................................................................................................... 1

STATEMENT OF FACTS ............................................................................................................. 2

I. Ancestors of CRIT Tribal Members Have Used the Project Site Since Time Immemorial. ............................................................................................................. 2

II. In the 1970s and 80s, the United States Limited the Uses of the Project Site and Surrounding Area to Preserve Sensitive Natural and Cultural Resources. ....... 3

III. New Legislation Provided Significant Incentives to Build Utility-Scale Solar Projects in the Desert, Resulting in Devastating Cultural Resource Impacts. ......... 4

IV. In 2010, BLM Approved Blythe I, But the Developer Filed for Bankruptcy and the Project Was Never Built. ............................................................................. 7

V. In 2013, BLM Approved Blythe II. .......................................................................... 8

VI. BLM Authorized Ground-Disturbing Activities Before Preparing Required Cultural Resource Monitoring and Discovery Plans. ............................................. 10

ARGUMENT ................................................................................................................................ 11

I. CRIT Is Entitled to Preliminary Injunctive Relief. ................................................ 11

A. CRIT Will Suffer Irreparable Harm Absent Injunctive Relief. .................. 12

B. CRIT Is Likely to Succeed on the Merits of Its Claims. ............................. 15

1. BLM Violated the NHPA. ............................................................... 15

a. BLM Failed to Consult with CRIT Prior to Approving the Project. ............................................................................ 15

b. BLM Improperly Relied on a Programmatic Agreement to Defer Identification of Historic Resources, Then Allowed Ground-Disturbing Activities to Proceed Before the Required Cultural Resource Monitoring Plans Were in Place. ................................................................................. 17

2. BLM Violated NEPA. ...................................................................... 19

a. BLM Did Not Take a “Hard Look” at the Project’s Potential Impacts to Cultural Resources. .............................. 19

b. The EIS Failed to Discuss an Accurate “No Action” Alternative. ............................................................................ 21

c. The Stated “Purpose and Need” for the Project Were Overly Narrow, Rendering the EIS’s Alternatives Analysis Meaningless. .......................................................... 22

3. BLM Violated FLPMA. ................................................................... 22


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ii MPA ISO MOTION FOR PI CASE NO. 5:14-cv-02504-JAK-SP

a. The Project Is Inconsistent with the Development Standards Set Forth in the CDCA Plan and Established Under BLM’s Visual Resource Management Policy. .......... 22

C. The Balance of the Equities Tips in CRIT’s Favor, and an Injunction Is in the Public Interest. ................................................................................... 23

II. The Court Should Not Require More Than a Nominal Undertaking. .................... 25

CONCLUSION ............................................................................................................................ 25


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iii MPA ISO MOTION FOR PI CASE NO. 5:14-cv-02504-JAK-SP

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) .......................................................................................... 12, 14

Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531 (1987) ................................................................................................................ 12

Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961 (9th Cir. 2003) .................................................................................................. 15

Colorado River Indian Tribes v. Marsh, 605 F. Supp. 1425 (C.D. Cal. 1985) ....................................................................................... 24

Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 623 F.3d 633 (9th Cir. 2010) ............................................................................................ 19, 21

Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752 (2004) ................................................................................................................ 19

Friends of Back Bay v. U.S. Army Corps of Eng’rs, 681 F.3d 581 (4th Cir. 2012) .................................................................................................. 21

Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024 (9th Cir. 2008) ................................................................................................ 21

Governing Council of Pinoleville Indian Cmty. v. Mendocino County, 684 F. Supp. 1042 (N.D. Cal. 1988) ....................................................................................... 25

League of Wilderness Defenders v. Connaughton, 752 F.3d 755 (9th Cir. 2014) .................................................................................................. 21

Los Padres Forestwatch v. U.S. Forest Serv., 776 F. Supp. 2d 1042 (N.D. Cal 2011) ................................................................................... 15

Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693 (2d Cir. 1972) .................................................................................................... 22

Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800 (9th Cir. 1999) .................................................................................................. 17

Nat’l Parks & Conservation Ass’n v. Bureau of Land Management, 606 F.3d 1058 (9th Cir. 2010) ................................................................................................ 22


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iv MPA ISO MOTION FOR PI CASE NO. 5:14-cv-02504-JAK-SP

Or. Natural Res. Council Fund v. Brong, 492 F.3d 1120 (9th Cir. 2007) ................................................................................................ 21

Oregon Natural Res. Council Fund v. Goodman, 505 F.3d 884 (9th Cir. 2007) ............................................................................................ 19, 20

Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768 (9th Cir. 2006) .................................................................................................. 16

Pueblo of Sandia v. United States, 50 F.3d 856 (10th Cir. 1995) .................................................................................................. 16

Quechan Tribe of Fort Yuma Indian Reservation v. U.S. Dep’t of Interior, 755 F. Supp. 2d 1104 (S.D. Cal. 2010) ............................................................................ passim

S. Utah Wilderness Alliance, 144 IBLA 70 (May 20, 1998) ................................................................................................... 4

Sampson v. Murray, 415 U.S. 61 (1974) .................................................................................................................. 12

Te-Moak Tribe v. U.S. Dep’t of Interior, 608 F.3d 592 (9th Cir. 2010) .................................................................................................. 15

People ex rel Van De Kamp v. Tahoe Reg’l Planning Agency, 766 F.2d 1319 (9th Cir. 1985) ................................................................................................ 25

Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) .................................................................................................................... 12

Federal Statutes

16 U.S.C. § 470 et seq. .............................................................................................................................. 8 § 470a(d)(6) ............................................................................................................................. 15

42 U.S.C. § 4332(2)(C) ............................................................................................................................ 19

43 U.S.C. § 1701 .................................................................................................................................... 3, 4 § 1702 ........................................................................................................................................ 4 § 1711 ........................................................................................................................................ 4 § 1712 ........................................................................................................................................ 3 § 1781 .................................................................................................................................... 3, 4


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v MPA ISO MOTION FOR PI CASE NO. 5:14-cv-02504-JAK-SP

Federal Regulations

36 C.F.R. § 800 et seq. ............................................................................................................................ 17 § 800.1 ..................................................................................................................................... 15 § 800.2 ............................................................................................................................... 15, 17 § 800.4 ..................................................................................................................................... 18 § 800.14 ................................................................................................................................... 18

40 C.F.R. § 1501.4 ................................................................................................................................... 19 § 1502.1 ................................................................................................................................... 19 § 1502.14 ........................................................................................................................... 21, 22 § 1508.8 ............................................................................................................................. 12, 19 § 1508.11 ................................................................................................................................. 19

43 C.F.R. § 1610.5-3(a) ........................................................................................................................... 22

California Statutes

Public Resources Code § 25500 et seq. .......................................................................................................................... 7


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1 MPA ISO APPLICATION FOR PI CASE NO.

INTRODUCTION

Plaintiff Colorado River Indian Tribes (“CRIT” or “Tribes”) seeks a preliminary

injunction to stop construction of the Modified Blythe Solar Power Project (“Blythe II” or

“Project”), a large solar energy project approved on federal land near CRIT’s Reservation.

Preliminary injunctive relief is necessary to preserve the status quo pending resolution of

CRIT’s claims, which allege that BLM repeatedly violated federal law in approving the

Project. The Project is located within the ancestral homelands of CRIT’s members and would

dramatically and adversely impact cultural resources held sacred by them. CRIT is informed

that construction is scheduled to begin in April 2015.

Preliminary injunctive relief is appropriate here because CRIT and its members will

suffer substantial, irreparable, and immediate harm if Project construction is allowed to

proceed. CRIT’s members have strong cultural, religious, and historic ties to the Project site

and resources located there. The artifacts that will be affected by the Project belonged to

ancestors of CRIT’s members, who have occupied this area since time immemorial. The

ancient trails that cross the desert in the vicinity of the Project site still play a significant role

in the religious practices of the Tribes’ members. Once these resources are destroyed by

Project construction, they will be lost forever.

CRIT is also likely to succeed on the merits of its claims. BLM plainly violated the

National Historic Preservation Act (“NHPA”) by failing to consult with CRIT before

approving the Project. In fact, BLM did not engage in any meetings that could be considered

government-to-government consultation prior to approving the Project. In addition, BLM

allowed certain pre-construction, ground-disturbing activities to go forward before required

cultural resource monitoring and treatment plans were in place, in direct violation of the

Project’s “programmatic agreement” for protection of historic and cultural resources. BLM

also violated the National Environmental Policy Act (“NEPA”) by approving the Project

without first taking a “hard look” at the impacts to historic and cultural resources; indeed, the

environmental impact statement (“EIS”) for the Project admits that the agency failed to

identify impacted resources prior to Project approval. Finally, the Project is plainly


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2 MPA ISO MOTION FOR PI CASE NO. 5:14-cv-02504-JAK-SP

inconsistent with land use designations adopted by the United States in the 1970s and 80s to

protect the Project site’s fragile desert ecosystem and important cultural resources.

The balance of equities and the public interest also favor preserving the status quo in

this case. Any hardship to BLM caused by a temporary delay in Project development pales in

comparison to the hardship to CRIT caused by the permanent destruction of invaluable

cultural resources. Courts have repeatedly found a compelling public interest in preservation

of tribal and cultural resources.

Given these facts, CRIT respectfully requests that the Court preserve the status quo by

enjoining any further ground-disturbing activities on the Project site until the Court decides

the merits of CRIT’s claims.

STATEMENT OF FACTS

I. Ancestors of CRIT Tribal Members Have Used the Project Site Since Time Immemorial.

CRIT is a federally recognized Indian tribe whose members include Mohave (Aha

Macav), Chemehuevi, Hopi and Navajo peoples. Declaration of Dennis Patch (“Patch

Decl.”) ¶¶ 3-5. Its Reservation begins several miles northeast of the Project site and includes

approximately 300,000 acres. Id. The Tribes’ ancestral homelands, however, sweep across

the Mohave Desert and include the Project site. Id. CRIT’s Mohave and Chemehuevi

members have the closest and oldest ties to the region: their ancestors have occupied these

desert lands since time immemorial, using the trails that run near the Project site and leaving

behind the burial grounds, grindstones, hammerstones, and jewelry that have been found in

the Project vicinity. Patch Decl. ¶ 11; Declaration of David Harper (“Harper Decl.”) ¶¶ 3-10;

Declaration of Amanda Barrera (“Barrera Decl.”) ¶¶ 5-11; Declaration of Amelia Flores

(“Flores Decl.”) ¶¶ 6-10; Declaration of Herman “T.J.” Laffoon (“Laffoon Decl.”) ¶¶ 4-6.

The religion and culture of CRIT’s members remains strongly connected to the

physical environment of the area. To this day, Mohave and Chemehuevi members sing Bird

Songs and Salt Songs, which guide the singer physically and spiritually along the trails that

pass through this sacred landscape. Harper Decl. ¶ 4; Declaration of Winter King (“King


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Decl.), Ex. A4:2602. The objects that were left by their ancestors provide CRIT’s members

with a link to their past and attest to their perseverance over millennia. Patch Decl. ¶ 11;

Harper Decl. ¶¶ 6-9; Flores Decl. ¶ 10. In addition, CRIT’s Mohave members strongly

associate these artifacts with the ancestors who used them. Disturbing them is taboo;

consequently, CRIT’s Mohave members experience significant spiritual harm when such

resources are disturbed or damaged. Patch Decl. ¶ 11; Harper Decl. ¶¶ 6-10.

Unlike the ancestral territories of many other tribes in the United States, CRIT’s

ancestral homelands have largely been spared the impacts of European colonization and

development. With the exception of Interstate 10 and some small, rural outposts, the desert

has remained relatively unchanged for thousands of years. As a result, the remains of CRIT’s

ancestors, as well as the spiritual and cultural landscape of the Mohave desert, have, until

very recently, been left undisturbed.

II. In the 1970s and 80s, the United States Limited the Uses of the Project Site and Surrounding Area to Preserve Sensitive Natural and Cultural Resources.

In recognition of the fragile ecosystem and invaluable cultural resources of this portion

of the California desert, the United States took a series of legislative actions in the 1970s and

80s to protect federal lands in the area from development. First, in 1976, Congress enacted

the Federal Land Policy and Management Act (“FLPMA”), a statute directing the Secretary

of the Interior (“Secretary”) to establish and follow sound planning principles in managing

federal lands. 43 U.S.C. §§ 1701(a), 1712(a). Section 601 of that act created the California

Desert Conservation Area (“CDCA”) and directed the Secretary to “prepare and implement a

comprehensive, long-range plan for the management, use, development, and protection of

the public lands within the [CDCA].” 43 U.S.C. § 1781(d). Such protection was essential,

Congress found, because of the unique, fragile, and irreplaceable resources of the California

desert. 43 U.S.C. § 1781(a). Protecting the archaeological values of the desert was called out

as one of the driving purposes of the CDCA planning requirement. 43 U.S.C. § 1781(a)(6).

In 1980, the Secretary approved the CDCA Plan, which “establishes goals for

protection and for use of the California Desert.” King Decl., Ex. A3:939. The Plan places all


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CDCA land into one of four classes: Controlled (Class C); Limited (Class L); Moderate

(Class M); and Intensive (Class I). The Project area is designated Class L to “protect[ its]

sensitive, natural, scenic, ecological, and cultural resource values.” Id.; King Decl., Ex.

C1:5806. “Public lands designated as Class L are managed to provide for generally lower-

intensity, carefully controlled multiple use of resources, while ensuring that sensitive values

are not significantly diminished.” Id.

CRIT and other area tribes consulted with BLM during the creation of the CDCA

Plan, providing information about specific locations of cultural and Native American

importance in an effort to protect them. See, e.g., King Decl., Exs. C2, C3 (CDCA Plan

Maps from 1980 designating the Native American Element (“concentrated, sensitive areas of

traditional native American secular and religious use”) and the Cultural Resource Element

(“known and predicted [cultural resource] areas of sensitivity and significance which are

most vulnerable to negative impact”)). Unsurprisingly, many of the areas identified by tribes

as containing sensitive cultural resources, including the Project site, were ultimately

designated as Class L, or more restrictive Class C, lands. Compare King Decl., Exs. C2 &

C3 with Ex. C13.

FLPMA also requires BLM to protect scenic values of the area. See 43 U.S.C. §§

1701(a)(8), 1702(c), 1711(a), 1781(a), 1781(d). To do so, BLM established Visual

Resources Management (“VRM”) classifications. Such VRM classifications, ranging from

Class I (highest protection) to Class IV (lowest protection), “set the level of visual change to

the landscape that may be permitted for any surface-disturbing activity.” King Decl., Ex.

A3:1347. Any use permitted within the CDCA must be consistent with these visual

classifications. S. Utah Wilderness Alliance, 144 IBLA 70, 85-86 (May 20, 1998).

III. New Legislation Provided Significant Incentives to Build Utility-Scale Solar Projects in the Desert, Resulting in Devastating Cultural Resource Impacts.

The protective measures contained in FLPMA and the CDCA Plan were put under

pressure in the early 2000s, when both the state and federal governments enacted legislation

providing huge incentives to develop the California desert with utility-scale renewable


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energy projects. California led the way, adopting a Renewables Portfolio Standard that

requires utilities and other electric service providers to buy at least 33 percent of their

electricity from eligible renewable energy resources (including solar) by 2020. See California

Senate Bill 1078 (establishing first RPS); California Senate Bill 107 (2006) (accelerating

schedule); California Senate Bill 2 (2011) (increasing percentage to 33 percent). A few years

later, Congress passed the American Recovery and Reinvestment Act (“ARRA”) (Pub. L.

111-5, 123 Stat. 115), which provided $18 billion in loans and credit subsidies for

development of utility-scale renewable projects, with the vast majority of funding allocated

to utility-scale solar. Federal tax benefits, starting in 2006, increased these incentives. King

Decl., Ex. C8. The Obama Administration’s “All of the Above” energy strategy and “fast-

track” program for renewable energy projects ensured these projects were approved and

“shovel ready” within the funding deadlines set out in the ARRA and the federal tax code.

Id., Exs. C4, C22.

Following this legislation, BLM was inundated with applications to cover the pristine

Mohave desert with millions of reflective mirrors, power towers, transmission lines, and

wind turbines. Since 2009, BLM has approved or is still actively considering ten utility-scale

solar energy projects within 50 miles of the Colorado River Indian Reservation. King Decl.

¶¶ 52; Exs. C26, C27. Together, these projects cover 35,000 acres of CRIT’s ancestral

homeland. Id. Dozens of additional applications are pending review. Id.

To accommodate this solar rush, BLM established a “fast-track” process for evaluating

applications. King Decl., Ex. C4. This process left little or no time for consultation with

affected tribes about the cultural resources that would be impacted by the proposed projects.

Declaration of Douglas F. Bonamici (“Bonamici Decl.”) ¶ 4. To further shorten review

times, BLM typically deferred site-specific analysis of cultural resources until after project

approval by entering “programmatic agreements.” E.g., King Decl., Exs. A1, C5. These

programmatic agreements purport to satisfy BLM’s obligations under the NHPA by

establishing a process for later review of cultural resource harms.

Initially, CRIT signed on to several “programmatic agreements,” which promised to


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continue tribal consultation as the projects moved forward and cultural resource analysis was

prepared. King Decl, Exs. A1, C5. However, CRIT soon learned the hard way that the

protections promised in these agreements did not always materialize.

For example, early in the construction of the Genesis Solar Energy Project (“Genesis

Project”), a “fast-track” project located not far from Blythe, the developer1 began unearthing

large quantities of prehistoric artifacts, including hundreds of manos and metates (grinding

tools used by the ancestors of CRIT’s Mohave members), a stone pendant, and a possible

cremation site. King Decl., Ex. C9:6023-28. As noted above, CRIT’s Mohave members hold

these artifacts sacred, as they are strongly associated with the ancestors who left them

behind, and touching or moving them is taboo. Patch Decl. ¶ 11. Thus, the mass disturbance

caused by wholesale grading of this site caused CRIT’s members substantial emotional,

spiritual, and even physical pain. King Decl., Ex. C9:6020.

When CRIT was finally informed of the discovery, the Tribes immediately demanded

that BLM and the developer comply with protections listed in the project’s programmatic

agreement and related “Historic Properties Treatment Plan.” King Decl., Ex. C9:6024. One

of these protections was the requirement that any unanticipated cultural resources discovered

during construction be avoided if feasible. Id., Ex. C9:6025. Instead of requiring avoidance,

however, BLM authorized the developer to simply pack up the resources unearthed by the

project’s bulldozers and graders, store them in San Diego, and continue with project

construction, a response that did nothing to alleviate the cultural harm experienced by

CRIT’s members. Id., Ex. C9:6027.

Since this experience, CRIT has participated extensively in the administrative review

processes for utility-scale solar projects proposed within the ancestral homelands of its

members. It is the first tribe to ever intervene in a California Energy Commission (“CEC”)

1 The developer of the Genesis Project was Genesis Solar, LLC, another subsidiary of NextEra Energy Resources, LLC.


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proceeding,2 where its members testified about the dire cultural resource impacts of these

projects and the injustice of destroying the sacred landscapes of the Mohave, Chemehuevi,

and other indigenous people to provide “clean” energy to the residents of Los Angeles. King

Decl, Exs. C23, C24; Patch Decl. ¶ 7. Despite the vocal opposition of CRIT and other area

tribes, BLM has told CRIT that the agency will continue to approve renewable energy

projects proposed in the “solar energy zone” located near Blythe, California (Patch Decl. ¶

9); CRIT should simply accept that the entire 147,910-acre-plus area will be converted into

an industrial zone. King Decl. Exs. C12 (the approved Riverside East Solar Energy Zone

designates 147,910 acres as developable), C25 (the draft Desert Renewable Energy

Conservation Plan designates even more acres along the I-10 corridor west of Blythe).

IV. In 2010, BLM Approved Blythe I, But the Developer Filed for Bankruptcy and the Project Was Never Built.

One of these early, fast-tracked solar projects was the Blythe Solar Power Project

(“Blythe I” or “Original Project”). In 2009, Palo Verde Solar I, LLC (“Palo Verde”) applied

to BLM for a right-of-way grant to develop a 1,000 megawatt (“MW”) solar energy

generating plant on approximately 7,000 acres of federal land northwest of the town of

Blythe. King Decl., Ex. A3:666. To generate electricity, Blythe I proposed to use “solar

parabolic trough” technology, which uses arrays of parabolic mirrors to collect energy from

the sun and refocus it on a tube running along the bottom of the mirrors. Id. The tube is filled

with fluid that generates high-pressure steam. This steam is then fed into a steam turbine

generator, which produces electricity. King Decl., Ex. A3:1181.

BLM approved Blythe I in 2010. King Decl., Ex. A3:666. In conjunction with this

approval, BLM entered a programmatic agreement, deferring the agency’s determination of

whether the project would affect historic resources and the development of measures to

mitigate such effects. Id., Ex. A1. The programmatic agreement required BLM to prepare

and implement a plan (called a “Historic Properties Treatment Plan” or “HPTP”) for

2 Many BLM-approved utility-scale solar facilities also require siting approval by the CEC, as they are located at least in part on private land. Pub. Res. Code § 25500 et seq.


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identifying historic resources, mitigating impacts to them, and handling unanticipated

discoveries of cultural resources or historic properties. Id., Ex. A1:26-28; see also 16 U.S.C.

§ 470 et seq. (setting forth requirements for programmatic agreements under the NHPA). It

also required BLM to consult with area tribes, including CRIT, in the preparation and

implementation of the HPTP and related cultural resource plans. King Decl., Ex. A1:26-28.

Under the programmatic agreement, the HPTP had to be finalized before construction could

begin. Id., Ex. A1:26 (§ V(a)(i)(1)).

Following BLM’s approval of the Blythe Project, Palo Verde began installing fencing

and an access road. King Decl., Ex. A3:666.3 Shortly thereafter, however, the company ran

into financial difficulties. Construction ceased and, in 2012, Palo Verde’s parent companies

filed for Chapter 11 bankruptcy. Id.

V. In 2013, BLM Approved Blythe II.

In 2013, NextEra Blythe Solar Energy Center, LLC (“NextEra”) purchased the unbuilt

assets of Blythe I. King Decl., Ex. A5:4172-73. Shortly thereafter, NextEra relinquished

approximately 35 percent of the right-of-way grant area and submitted a new plan to develop

the remaining 65 percent with a photovoltaic, solar energy generation facility (“Blythe II” or

“Project”). Id., Ex. A5:4173. This new project would generate 485 MW of solar electricity

on approximately 4,000 acres of federal land. Id., Ex. A5:4172. Photovoltaic solar generation

utilizes a technology different from the “parabolic trough” technology proposed for Blythe I.

Instead of parabolic mirrors and steam turbines, photovoltaic panels are mounted on

pedestals across the solar field. Id., Ex. A4:2391. These panels convert sunlight directly to

electricity. Id.

BLM issued a draft environmental impact statement (“DEIS”) for Blythe II in early

2014. King Decl., Ex. A3. By this time, CRIT was acutely aware of the threat these large-

scale, industrial developments posed to the Tribes’ cultural resources. In addition to the

3 This preliminary construction activity disturbed only 180.7 acres of the 7,000 acre project site. King Decl., Ex. A5:4172.


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disastrous results of earlier fast-tracked projects (see Section II, supra), construction of new

transmission lines had disturbed a number of burial sites and destroyed a sacred rock circle.

Bonamici Decl., Ex. E1; Declaration of Nancy Jasculca (“Jasculca Decl.”), Ex. D1.

Armed with this experience, CRIT submitted comments on the DEIS for Blythe II,

identifying a number of fundamental flaws. King Decl., Ex. B2. For example, CRIT noted

that the listing of cultural resources affected by Blythe II was woefully incomplete: it did not

even list all of the prehistoric archaeological sites identified by the CEC in its parallel review

of the Project. Id., Ex. B2:5663. Moreover, the DEIS failed to incorporate any of the new

information about cultural resources that had been presented to BLM since Blythe I had been

approved, including new information about buried resources discovered during the

construction of other, similar projects, and historic trails. Id., Ex. B2:5664.

CRIT also objected to the DEIS’s statement that BLM had “consulted” with the Tribes

in preparing the document. King Decl., Exs. B2:5668; A3:1055-56. In fact, there had been

only two meetings between CRIT and BLM where the Project had even been listed for

discussion, and these meetings were general, informational meetings that covered Blythe II

together with at least eight other proposed utility-scale solar projects. E.g., Id., Exs. C16,

C20. CRIT repeatedly requested that BLM conduct true government-to-government

consultation with the Tribes before approving the Project, but such consultation never

occurred. Id., Exs. B2:5663, 5667-68; B3:5680-81; B4.

Finally, CRIT commented that BLM could not approve Blythe II because it conflicted

with land use designations established under FLPMA and the CDCA Plan and designed to

protect the area’s environmental and cultural resources. King Decl., Ex. B2:5670-71. In fact,

the DEIS admitted that Blythe II would “not conform” in various ways to the CDCA Plan’s

requirements. Id., Ex. A3:1028-29.

Without providing any substantive response to CRIT’s comments, BLM issued the

Final EIS (“FEIS”) for the Project in May 2014. King Decl., Ex. A4. CRIT submitted

additional comments on the FEIS, noting that it failed to remedy the flaws identified in

CRIT’s earlier letter. Id., Ex. B3. BLM refused to modify the EIS’s inaccurate “no action”


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alternative, conducted no additional evaluation of known cultural resources, ignored CRIT’s

request for government-to-government consultations, and failed to require modifications that

would bring the Project into conformity with FLPMA and the CDCA Plan. Id.

On August 1, 2014, BLM issued its Record of Decision (“ROD”), approving the

requested right-of-way amendment. King Decl., Ex. A5.

VI. BLM Authorized Ground-Disturbing Activities Before Preparing Required Cultural Resource Monitoring and Discovery Plans.

By August 11, CRIT had learned that BLM had issued the ROD for Blythe II and was

planning to issue a “Limited Notice to Proceed” authorizing NextEra to begin certain

ground-disturbing activities. In a letter to BLM officials, CRIT reiterated its concern that

BLM had never properly consulted with CRIT about the Project. King Decl., Ex. B4:5690-

91. CRIT also noted that it had not received a draft HPTP from BLM and construction could

not begin until this plan was in place. Id.

The very next day, BLM issued a revised right-of-way for the Project; the day after

that, it issued a “Limited Notice to Proceed ” authorizing NextEra to install temporary desert

tortoise fencing, conduct geotechnical investigation activities, reactivate an existing well,

and carry out related staking and surveying. King Decl., Ex. A6; Jasculca Decl., Ex. D5.

Although the Limited Notice to Proceed did not disclose this fact, the desert tortoise fencing

involved disturbance of approximately 2,000 acres. Jasculca Decl., Ex. D6:25.

On August 14, BLM staff met with members of CRIT’s Tribal Council to discuss a

number of concerns the Tribes had with BLM-approved projects. Patch Decl. ¶ 8. On the

agenda were CRIT’s concerns that cultural resource monitoring plans for the neighboring

McCoy Solar Energy Project were not being implemented properly; damage to a known

archaeological site in connection with development of a transmission line designed to serve

these new solar facilities; and a status update on the New Blythe Project. Id., Jasculca Decl.,

Ex. D4. Remarkably, BLM’s lead representative declared he was “not the BLM” and had no

ability to address any of the Tribes’ concerns. Patch Decl. ¶ 9.

By Friday, August 15, BLM provided CRIT with a copy of the “Limited Notice to


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Proceed.” Jasculca Decl., Ex. D5. Shortly thereafter, NextEra contacted CRIT requesting that

the Tribes provide tribal monitors to assist in cultural resource monitoring for the authorized

work.4 Id., Ex. D7. CRIT noted that it still objected to BLM’s approval of the Project—and,

in particular, its failure to consult with the Tribes—but, in the interest of protecting the

Tribes’ cultural resources, CRIT would provide monitors for this work. Id.

By the first week of September, NextEra had finished installing the tortoise fencing.

King Decl., Ex. B5:5724. Concerned that NextEra would be allowed to begin more extensive

construction activities without a final HPTP and monitoring plan in place, CRIT asked BLM

to provide it with drafts of these documents for review and consultation. Id., Ex. B5. On

October 8, BLM informed CRIT that the HPTP and monitoring plans were still not prepared,

but, according to NextEra, construction would likely start in January. Bonamici Decl. ¶¶ 4-5.

On October 9 and November 13, BLM finally mailed CRIT a copy of the draft HPTP and

monitoring plans, none of which had adequate protections for either the known or as-yet

unknown cultural resources on-site. King Decl, Exs. B5, B6, B9. CRIT submitted comments

on the draft HPTP in December; BLM responded with a revised HPTP on January 7, 2015.

Id., Exs. B12, A13. CRIT articulated its concerns again in follow-up comments on the

revised HPTP, and BLM issued a final HPTP in March 2015, which still failed to address

many of CRIT’s concerns regarding cultural resource protections and ignored CRIT’s

requests for consultation. Id., Exs. B14, A16.

Faced with the likelihood that the Project would be built without adequate consultation

or monitoring plans, CRIT filed this lawsuit.

ARGUMENT

I. CRIT Is Entitled to Preliminary Injunctive Relief.

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed

on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief,

4 A settlement agreement related to the Genesis Project required NextEra to hire CRIT tribal monitors for Blythe II, if it received approval. King Decl. ¶ 36.


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that the balance of equities tips in his favor, and that an injunction is in the public interest.”

Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). Following Winter, the Ninth

Circuit has held that “[a] preliminary injunction is appropriate when a plaintiff demonstrates

. . . that serious questions going to the merits were raised and the balance of hardships tips

sharply in the plaintiffs favor,” as long as “the other two elements of the Winter test are also

met.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1132, 1134-35 (9th Cir. 2011)

(internal quotation marks omitted). CRIT satisfies each element of this test.

A. CRIT Will Suffer Irreparable Harm Absent Injunctive Relief.

“Irreparable harm” is an injury that cannot be remedied by money damages and is

permanent or long-lasting. Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987);

see also Sampson v. Murray, 415 U.S. 61, 90 (1974) (noting that “[t]he key word” in

considering whether a plaintiff has shown irreparable injury “is irreparable”) (emphasis

added). Applying this definition, courts have found that environmental harm, including harm

to cultural and other historic resources, is almost always irreparable. Amoco, 480 U.S. at 545;

Alliance for the Wild Rockies, 632 F.3d at 1135; see 40 C.F.R. § 1508.8 (requiring federal

agencies to consider effects on cultural resources in NEPA review).

Here, if construction is allowed to proceed before the merits of CRIT’s claims can be

heard, 4,000 acres of desert land will be permanently converted into an industrial solar

energy facility, destroying, removing or altering all of the cultural and historic resources

found on-site and forever changing the landscape of the area. This harm will be irreparable.

For example, the FEIS admits that Project construction will directly impact scores of

archaeological sites and associated buried artifacts; it will also have indirect impacts on

nearby rock art, trails and other sensitive prehistoric resources. King Decl., Ex. A4:2370,

2372, 2601-03, 2606-10, 2679-80, 3349. Stone tools, quarry sites, thermal cobble features,

and pot shreds will all be exposed to damage from ground-disturbing construction activities.

Id., Ex. A3:1247, 1249-50. Even those artifacts that are preserved for “data recovery” will be

packed up and shipped off-site, separating them from CRIT’s members, who hold the

artifacts sacred as a permanent connection to their past and a physical “footprint” testifying


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to their peoples’ continued existence and persistence in the area. Patch Decl. ¶ 11.

The Project will also impact trails that have been used by the Mohave, Chemehuevi,

and other area tribes for thousands of years. While these trails were once used for travel and

commerce, they continue to play a crucial role in the religious practices of CRIT’s members.

For example, CRIT’s Chemehuevi members sing “Salt Songs” at funerals. These songs guide

the spirit of the departed physically along the Salt Song Trail, which passes through the

Project’s indirect “area of potential effect,” and metaphysically into the afterlife. King Decl.,

Ex. A4:2602; see also Harper Decl. ¶ 5 (describing use of nearby Halichoma trail). Because

of the importance of these trails to Mohave and Chemehuevi history, as well as the religious

importance of the Salt Song Trail to contemporary Chemehuevi religious practices, both the

FEIS and other ethnographic studies have concluded that these trails and associated

“songscapes” may be eligible for National Register of Historic Places listing. Id., Exs.

C15:6213-14; A4:2601-02, 2604, 2606-07; see also id., Ex. B2:5663-64 (CRIT comment

letter identifying additional trails and cultural resources that the EIS failed to recognize);

Patch Decl. ¶ 10, Harper Decl. ¶ 10, Barrera Decl. ¶¶ 12-14 (attesting to the Project’s

impacts to cultural landscape); Flores Decl. ¶¶ 6-9, Laffoon Decl. ¶¶ 4-6 (attesting to recent

visits to Project area).

Developing large solar power facilities on or adjacent to these culturally significant

trails and associated “songscapes” will cause irreparable cultural harm to the Chemehuevi

and Mohave people. As one ethnographer stated when analyzing the impact of utility-scale,

solar energy development nearby:

These sites are still connected to the people today through oral history and some through contemporary use [of] known sacred areas and the plant and animal life that continues as it has for thousands of years. The loss of these lands and resources to the energy fields and transmission lines is incalculable from the standpoint of people whose roots are so deeply entwined with its openness and integrity.

King Decl., Ex. C6:5987; see also Patch Decl. ¶ 11; Harper Decl. ¶¶ 3-10; Barrera Decl. ¶¶

5-12; Flores Decl. ¶¶ 6-10; Laffoon Decl. ¶¶ 4-6. Such development could also diminish the

“integrity” of these resources, a consideration for listing on the NRHP. King Decl., Ex.


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C15:6213-14.

The destruction, removal, and alteration of cultural resources, including prehistoric

trails and buried cultural artifacts, is irreparable harm. Once these resources are damaged or

destroyed, they cannot be restored, and money damages will not remedy the injury. See, e.g.,

Alliance for Wild Rockies, 632 F.3d at 1135 (finding irreparable harm where logging project

would prevent use and enjoyment of portion of national forest). Indeed, the FEIS admits that

“[n]one of the archeological sites or cultural resources, once damaged or destroyed by the . . .

Project . . . can be replaced.” King Decl., Ex. A4:2610.

CRIT will also suffer irreparable procedural harm if an injunction is not issued. As

described below (Section I(C)(1)(a), infra), BLM never properly consulted with CRIT prior

to approving Blythe II. See also Patch Decl. ¶¶ 10-11, Flores Decl. ¶ 16. If project

construction continues, the principal remedy CRIT seeks (i.e., an order requiring BLM to

rescind its approval of the Project unless and until the agency properly consults with CRIT

and prepares an adequate EIR and HPTP) will be largely meaningless. Complaint for

Declaratory and Injunctive Relief.

Presented with nearly identical circumstances—the imminent construction of a utility-

scale solar facility in a region historically occupied by the ancestors of the Quechan people—

the Southern District of California found it “very likely the [Quechan] Tribe will suffer

irreparable harm.” Quechan Tribe of Fort Yuma Indian Reservation v. U.S. Dep’t of Interior,

755 F. Supp. 2d 1104, 1120 (S.D. Cal. 2010). “The parties agree there are hundreds of

known historical sites on the land, and the Tribe attaches cultural and religious significance

to many if not most of these. . . . Damage to or destruction of any of them would constitute

irreparable harm in some degree.” Id.

The court also held that the plaintiff Indian tribe would suffer irreparable procedural

harm if the project were allowed to be built before the court had a chance to review the

tribe’s claim that BLM had failed to adequately consult with it before approving the project,

as required by the NHPA. Id. at 1108. The court stated that government agencies are not free

to “glide over” requirements imposed by congressionally-approved statutes and duly adopted


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regulations. Id. at 1119. If the project continued, the “legally-protected procedural interest”

of adequate consultation would be effectively lost. Id. at 1120; see also Los Padres

Forestwatch v. U.S. Forest Serv., 776 F. Supp. 2d 1042, 1050-51 (N.D. Cal 2011) (finding

procedural injury resulting from agency’s failure to solicit public comment) (citing Citizens

for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 970–71 (9th Cir. 2003)).

Just as the Quechan faced the twin irreparable harms of damaged cultural resources

and the loss of the right to consultation, so, too, CRIT will suffer irreparable harm here if the

Project is built before its claims are heard.

B. CRIT Is Likely to Succeed on the Merits of Its Claims.

1. BLM Violated the NHPA.

BLM’s total disregard for the cultural and historic resources affected by this Project

plainly violated the NHPA. BLM approved the Project without first engaging in government-

to-government consultation with CRIT. The agency then allowed pre-construction ground-

disturbing activities to proceed before any cultural resource monitoring or treatment plans

had been developed or approved, in direct violation of the programmatic agreement and the

NHPA. As a result, CRIT is likely to succeed on the merits of its NHPA claims.

a. BLM Failed to Consult with CRIT Prior to Approving the Project.

Under the NHPA, BLM was required to engage in government-to-government

consultation with Indian tribes, like CRIT, that are affiliated with the cultural resources and

sites that will be affected by the Project. 16 U.S.C. § 470a(d)(6) (“Section 106”); Te-Moak

Tribe v. U.S. Dep’t of Interior, 608 F.3d 592, 609 (9th Cir. 2010) (consultation is required

“to ensure that all types of historic properties and all public interest in such properties are

given due consideration”). “Consultation means the process of seeking, discussing, and

considering the views of other participants, and where feasible, seeking agreement with

them.” 36 C.F.R. § 800.1(f). In consulting with Indian tribes, an agency must commence

consultation early in the process and recognize “the government-to-government relationship

between the Federal Government and Indian tribes.” 36 C.F.R. § 800.2(c)(2)(ii)(A), (C).


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Moreover, consultation must be with the governing body of the tribe (or a designated

representative); merely meeting with staff or individual tribal members does not satisfy the

agency’s obligations to consult. Quechan, 755 F. Supp. 2d at 1119. Failure to comply with

the consultation requirements prior to making a final decision violates the NHPA. Pit River

Tribe v. U.S. Forest Serv., 469 F.3d 768, 787 (9th Cir. 2006).

Here, BLM failed entirely to consult with CRIT about the Project, despite repeated

requests from CRIT for such consultation. According to the EIS, a “consultation” meeting

between BLM and CRIT was held on April 12, 2013. King Decl., Ex. A4:2763. However,

minutes from that meeting show that BLM provided only a brief update on the Project,

primarily noting that NextEra had acquired the Project site. Id., Ex. C16. This information

was presented together with informational updates on eight other pending BLM projects. No

Project impacts were discussed (indeed, the meeting occurred before any environmental

analysis of the Project had been released) and BLM did not seek the Tribes’ input on the

Project’s potential impacts. Such informational meetings do not satisfy BLM’s consultation

obligations under the NHPA. Quechan, 755 F. Supp. 2d at 1118 (holding that “mere pro

forma recitals,” including “professions of good intent and solicitations to consult,” do not

satisfy consultation requirement); see also Pueblo of Sandia v. United States, 50 F.3d 856,

860, 862 (10th Cir. 1995) (Section 106 “mandates an informed consultation.”).5

Moreover, between the approval of Blythe I and NextEra’s application for Blythe II,

CRIT and BLM had learned a tremendous amount about the impacts these utility-scale solar

projects have on cultural resources. CRIT reminded BLM of this new information in its

comments on the EIS for the Project and requested, in plain terms, that BLM consult with it

prior to approving the Project. King Decl., Ex. B2:5664, 5667 (“CRIT requests an in-person

meeting with appropriate BLM officials . . . .”). BLM refused.

Indeed, it was not until after BLM approved the Project that the agency’s Acting Field 5 Blythe II also made it onto the agenda for a December 30, 2013 meeting between Tribal Council and BLM officials. King Decl., Ex. C20. Like the April 2013 meeting, this meeting was an informational, status update meeting covering a large number of pending projects.


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Manager met with Tribal Council members to discuss it in any depth. At this meeting,

however, the Field Manager insisted that he was just an individual staff person and did not

speak for the agency, and was ill-prepared to respond to CRIT’s concerns. Patch. Decl. ¶ 9.

Thus, this post-approval meeting cannot have satisfied BLM’s duty to consult. 36 C.F.R. §

800.2(a) (consultation requires agency official to have approval authority and ability to

commit agency to taking appropriate action in response to consultation); King Decl., Ex.

C7:5993 (“Departmental officials will participate in the consultation process in a manner that

demonstrates a meaningful commitment and ensures continuity in the process.”).

Because BLM failed to consult with CRIT prior to approving Blythe II, CRIT is likely

to succeed on this NHPA claim.

b. BLM Improperly Relied on a Programmatic Agreement to Defer Identification of Historic Resources, Then Allowed Ground-Disturbing Activities to Proceed Before the Required Cultural Resource Monitoring Plans Were in Place.

In addition to requiring adequate tribal consultation, the NHPA also requires BLM to

make a reasonable and good faith effort to identify cultural resources and prehistoric sites

that could be affected by a project, determine whether such resources are eligible for listing

on the National Register, assess the effects of the Project on these resources, and avoid or

mitigate any adverse effects. Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800,

805 (9th Cir. 1999) (citing 36 C.F.R. § 800 et seq.). BLM violated these NHPA provisions in

at least two ways.

First, BLM improperly deferred its analysis of the Project’s impacts to cultural

resources by entering a “programmatic agreement” with the California State Historic

Preservation Officer, the CEC and NextEra.6 Under the NHPA’s implementing regulations, a

federal agency may, in certain circumstances, “phase” the final identification and evaluation

6 The programmatic agreement was executed by Palo Verde for Blythe I. King Decl., Ex. A1. In 2013, BLM modified the agreement to allow it to be transferred to any new project owner (including NextEra). King Decl., Ex. A5:4409-10. The Tribes cannot locate any correspondence in which BLM notified it of this change, even though CRIT is a “concurring” party to the agreement. Id., Ex. A1:50; Bonamici Decl. ¶ 3.


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of historic properties affected by a project by entering a programmatic agreement, provided

the final evaluation occurs before the project is actually developed. See 36 C.F.R. §

800.4(b)(2). However, the regulations only allow use of a programmatic agreement “[w]hen

effects on historic properties cannot be fully determined prior to approval of” the Project. 36

C.F.R. § 800.14(b)(1). (emphasis added). Here, there was no reason why the cultural

resources evaluation required by the NHPA could not be completed before BLM approved

Blythe I or Blythe II. This was hardly one of the “complex project situations” for which the

guidelines contemplate use of a programmatic agreement. Id. Rather, it is an individual

project of defined scope. As a result, BLM’s decision to defer the identification and

evaluation of historic properties until after project approval violated the NHPA.

Second, having entered the programmatic agreement, BLM then promptly violated its

terms. Under the NHPA, if an agency enters a programmatic agreement, it must comply with

the procedures established in it to satisfy the statute’s requirements. 36 C.F.R. §

800.14(b)(2)(iii); see also Quechan Tribe, 755 F. Supp. 2d at 1110 (“merely entering into a

programmatic agreement does not satisfy Section 106’s consultation requirements”). The

programmatic agreement for Blythe II expressly requires NextEra and BLM to prepare an

HPTP prior to beginning ground-disturbing activities. See King Decl., Ex. A5:4264. The

HPTP must include: (a) a list of historic properties determined (or assumed) to be eligible for

listing under the National or California Registers of Historic Properties; (b) the measures

NextEra will take to avoid, minimize, or mitigate adverse effects on these properties; (c) a

plan for monitoring during construction that includes a plan for treating inadvertent

discoveries and the “participation of tribal cultural specialists”; and (d) the procedures for

handling human remains, funerary objects, sacred objects, and objects of cultural patrimony

in accordance with the Native American Graves Protection and Repatriation Act. Id., Ex.

A5:4264, 4291-97. The programmatic agreement also requires BLM to provide CRIT with a

draft of any HPTP for a 30-day review period; if the HPTP addresses “treatment for adverse

effects to historic properties to which Tribes attach religious or cultural significance,” BLM

must also consult with the Tribes about these treatment measures. See King Decl. Ex.


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A5:4264-65.

BLM patently violated these requirements when, on August 13, 2014, it authorized

NextEra to begin ground-disturbing construction activities before the HPTP had been

finalized or even sent to CRIT for review. At that time, none of the required plans were in

place to protect the historic properties and cultural resources on site. Between August and

January, BLM permitted NextEra to install temporary tortoise fencing, conduct geotechnical

investigation, and reactivate an existing groundwater well, all of which included staking and

surveying, even though BLM had not yet finalized plans for handling potentially affected

sites or unanticipated discoveries; indeed, BLM did not issue final plans until March 2015.

Jasculca Decl., Ex. D5; King Decl., Exs. A15, A16. Given this breach of the agency’s

obligations under the NHPA, CRIT is likely to prevail on this NHPA claim.

2. BLM Violated NEPA.

a. BLM Did Not Take a “Hard Look” at the Project’s Potential Impacts to Cultural Resources.

NEPA requires agencies to prepare an EIS for any major federal action that may

significantly affect the environment. 42 U.S.C. § 4332(2)(C), 40 C.F.R. § 1501.4(a)(1). An

EIS is a “detailed written statement” and must “provide [a] full and fair discussion of

significant environmental impacts,” including impacts to cultural resources, of the proposed

action. 40 C.F.R. §§ 1508.8(b), 1508.11, 1502.1. The purpose of an EIS is twofold:

First, [i]t ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts. Second, it guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.

Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 623 F.3d 633, 642 (9th Cir. 2010)

(quoting Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 768 (2004)). To achieve these

objectives, agencies must take a “hard look” at the likely effects of the proposed action by

conducting a “thorough analysis” of environmental impacts. Oregon Natural Res. Council

Fund v. Goodman, 505 F.3d 884, 889 (9th Cir. 2007).

The Project EIS falls far short of this mark. For example, it fails to include or analyze


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new information provided by CRIT demonstrating potentially devastating Project impacts on

historic trails. CRIT’s comments on the EIS included two archeological survey maps

showing prehistoric trails crossing directly through the Project site. Id., Ex. B2:5664, 5673-

74. One of these maps includes information recently gathered by the CEC’s cultural resource

experts for a nearby solar project. Id. Instead of taking a “hard look” at these impacts, the

FEIS states only that trail networks within the area “have not been completely defined nor

formally evaluated for NRHP eligibility. Further research would be needed to determine

their boundaries, periods of significance and contributing resources.” Id., Ex. A4:2601. This

type of deferral is not permitted in a project-specific EIS. Id., Ex. C14:6100, 6115 (agency

may only rely on a programmatic agreement when preparing a “programmatic” EIS that will

be followed by additional environmental review in a project-level Environmental

Assessment or EIS prior to project approvals).

CRIT also informed BLM of five prehistoric or prehistoric-component sites within the

Project boundaries that were identified in the parallel CEC proceeding. King Decl., Ex.

A2:409 (CA-RIV-3419, SMB-P-435, SMB-H-452, SMB-P-454, SMB-H-234). The EIS,

however, fails to identify these sites as being directly impacted by the Project.

Likewise, the potential for the Project to disturb buried cultural resources is left

unanalyzed, even though thousands of resources were unearthed, damaged, and removed

during construction of the neighboring Genesis Project. King Decl., Ex. C9, ¶ 2, 53, 54;

Harper Decl. ¶ 7. Instead, the EIS offers only a vague generalization: “there may also be

currently unknown subsurface resources within the APE.” King Decl., Ex. A4:2606. Such a

statement is true for nearly every construction project; it offers no information about the

specific potential harms of this Project, as NEPA requires.

In fact, in the Final EIS, BLM admits that it is “currently evaluating all resources

located within the Area of Potential Effects for NRHP eligibility, and assessing effects to

NRHP-eligible historic properties.” King Decl., Ex. A4:4118. This evaluation of NRHP-

eligible resources and the impacts of the Project on those resources must occur before a

project is approved. Without this most basic information, the EIS failed to provide the


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requisite “hard look” into the Project’s environmental impacts. League of Wilderness

Defenders v. Connaughton, 752 F.3d 755, 761 (9th Cir. 2014) (“lack of clarity” about a

project’s impacts on elk and elk habitat renders EIS deficient); Or. Natural Res. Council

Fund v. Brong, 492 F.3d 1120, 1134 (9th Cir. 2007) (finding EIS deficient for failing to offer

“quantified or detailed data” about a project’s cumulative impacts).

b. The EIS Failed to Discuss an Accurate “No Action” Alternative.

Under NEPA, an EIS must include a discussion of a “no action” alternative. 40 C.F.R.

§ 1502.14(d). “A no action alternative in an EIS allows policymakers and the public to

compare the environmental consequences of the status quo to the consequences of the

proposed action.” Ctr. for Biological Diversity, 623 F.3d at 642; id. (no action alternative

provides “a baseline against which the action alternative . . . is evaluated”). This comparative

analysis is the “heart” of the EIS, intended to “sharply defin[e] the issues and provid[e] a

clear basis for choice” among alternatives. 40 C.F.R. § 1502.14. Accordingly, courts will

invalidate an EIS when the “no action” alternative includes an untenable “assumption,”

“misapprehension,” or “mischaracterization” of baseline conditions. Friends of Yosemite

Valley v. Kempthorne, 520 F.3d 1024, 1037-38 (9th Cir. 2008); Friends of Back Bay v. U.S.

Army Corps of Eng’rs, 681 F.3d 581, 588 (4th Cir. 2012).

In discussing the “no action” alternative for this Project, the EIS made just such an

untenable assumption when it assumed that the Original Project (Blythe I) would be

developed if BLM denied Blythe II. King Decl., Ex. A4:2406.7 This fundamental EIS

assumption is repeatedly contradicted by the record. The owner of Blythe I filed for Chapter

11 bankruptcy and sold off its assets to NextEra. BLM has admitted that “it is almost

certain” that NextEra will not build Blythe I, a project that utilizes a very different kind of

technology from that proposed for Blythe II. King Decl., Ex. A4:4113. Nor is there any

evidence suggesting that some other company would come in and develop the Original

7 The FEIS does acknowledge the Original Project would need to be built on the right-of-way grant area as modified by the voluntary relinquishment. King Decl., Ex. A4:2406.


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Project. Indeed, the Blythe I technology is likely unavailable to new owners, as such

technologies are typically patent-protected. Id., Ex. C21:6323-27. As a result, BLM violated

NEPA by representing to the public and decisionmakers that Blythe I would be built if the

agency denied Blythe II.

c. The Stated “Purpose and Need” for the Project Were Overly Narrow, Rendering the EIS’s Alternatives Analysis Meaningless.

An EIS’s alternatives analysis accomplishes one of the primary purposes of NEPA:

informing decisionmakers and the public about alternative ways of achieving a project’s

goals with less environmental damage. 40 C.F.R. § 1502.14; Monroe County Conservation

Council, Inc. v. Volpe, 472 F.2d 693, 697-98 (2d Cir. 1972) (describing the alternatives

analysis as the “linchpin” of an EIS). The key first step in any alternatives analysis is to

describe the project goals in a statement of “purpose and need.” These goals must be broadly

stated; they cannot simply reiterate a project applicant’s request. Nat’l Parks & Conservation

Ass’n v. Bureau of Land Management, 606 F.3d 1058, 1070 (9th Cir. 2010).

The Blythe II EIS violates this bedrock NEPA principle by defining the Project’s

“purpose and need” as “respond[ing] to the Grant Holder’s request.” King Decl., Ex.

A4:2364. The EIS then rejects numerous environmentally superior alternatives, including

developing solar energy facilities on brownfields, rooftops, and other areas where the

environmental damage would be far less, because these alternatives are not the exact project

NextEra seeks to build. This analysis merely rationalizes a pre-determined outcome—the

approval of the “Grant Holder’s request”—and thus violates NEPA.

3. BLM Violated FLPMA.

a. The Project Is Inconsistent with the Development Standards Set Forth in the CDCA Plan and Established Under BLM’s Visual Resource Management Policy.

As noted above (see Statement of Facts, Section II, supra), FLPMA and its

implementing CDCA Plan dictate the permissible uses of federal lands in the California

desert. All “resource management authorizations and actions” within this area must comply

with the approved CDCA Plan. 43 C.F.R. § 1610.5-3(a); King Decl., Ex. A3:1171


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(identifying the CDCA Plan as the resource management plan for the Blythe Area).

Despite this clear mandate, BLM approved the Project on land designated for

protection. The Project site is designated “Class L.” King Decl., Ex. A4:2637. This

designation is designed to “protect[] sensitive, natural, scenic, ecological and cultural

resource values,” and thus prohibits uses that would cause these sensitive values to be

“significantly diminished.” King Decl., Exs. A4:2637, C1:5373. It is undisputed that the

project will completely industrialize 4,000 acres of protected lands, replacing native desert

with thousands of photovoltaic panels. This landscape transformation will “significantly

diminish” the natural, scenic and cultural resource values of the area. King Decl., Exs.

B2:5670-71, B3:5680. Because the Project is plainly inconsistent with the Class L

designation, BLM violated FLPMA in approving it.

The Project is also inconsistent with the interim visual resource designation adopted

by BLM for the Project site, VRM Class III. King Decl., Ex. A3:1024. Under this

designation, (1) any approved use must at least partially retain the existing character of the

landscape; (2) any change to the characteristic landscape must be moderate; and (3)

management activities may not dominate the view of the casual observer. Id., Ex. A3:1348.

In the EIS for the Project, BLM actually admits that the Project does not comply with

these requirements. King Decl., Exs. A3:1026-29; A4:2729-31. This admission is

understandable, as BLM would be hard-pressed to show how the installation of reflective

photo-voltaic panels across 4,000 acres of desert retains the existing character of the

landscape, or how a field of mirrors could not dominate the view of a casual observer.

However, the admission does not excuse BLM from complying with federal law. As a result

BLM violated FLPMA when it approved a Project that is plainly, and admittedly,

inconsistent with the Project site’s VRM classification.

C. The Balance of the Equities Tips in CRIT’s Favor, and an Injunction Is in the Public Interest.

The final two factors this Court must weigh in determining whether an injunction is

appropriate are whether the balance of equities tips in CRIT’s favor and whether an


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injunction is in the public interest. Here, the balance of equities tips sharply in CRIT’s favor.

CRIT pursued every available option to engage with BLM during the administrative phase,

only to be ignored by the agency. During the administrative process for Blythe II, CRIT

repeatedly requested government-to-government consultation, noting that recent experience

with other solar developments proved the Project’s impacts would be significant and that

consultation was necessary. Instead of complying with this request, BLM deferred nearly all

analysis of the Project’s cultural resource impacts, understated those impacts in the EIS, and

then permitted NextEra to begin ground-disturbing activities before any cultural resource

monitoring plans had even been drafted, much less finalized. See Part I.B.1-2., supra.

In addition, the harm that will be caused to CRIT if the Project moves forward before

its claims are heard far outweighs any potential harm to BLM. See Part I.A., supra. As one

ethnographer stated in analyzing the cultural impacts of solar development in the area:

The loss of these lands and resources to the energy fields and transmission lines is incalculable from the standpoint of people whose roots are so deeply entwined with its openness and integrity. . . . The value placed on these lands by the Chemehuevi, Mojave, Cahuilla, Serrano, and Quechan peoples cannot be overestimated. Compensation for their loss cannot be fully realized, and there is no mitigation for such a loss.

King Decl., Ex. C6:5987. Compared with this potential loss to CRIT, BLM has relatively

little to lose from a brief delay in implementing the Project.

An injunction is also in the public interest. In Quechan, the court acknowledged a

public interest in developing renewable energy, but concluded that the public interest in

preserving cultural resources had to take priority. Quechan, 755 F. Supp. 2d at 1122; see also

Colorado River Indian Tribes v. Marsh, 605 F. Supp. 1425, 1440 (C.D. Cal. 1985) (cultural

resources “represent a means by which to better understand the history and culture of the

American Indians in the past, and hopefully to provide some insight and understanding of the

present day American Indians).” Here, too, a preliminary injunction would serve the

substantial public interest in preserving the cultural resources of CRIT and other area tribes.

Finally, any delay caused by a preliminary injunction would be short. BLM has

informed CRIT that the administrative record for the case is expected to be lodged with the


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Court in April. King Decl. ¶ 62. CRIT is willing to brief its summary judgment motion on an

expedited schedule.

II. The Court Should Not Require More Than a Nominal Undertaking.

CRIT respectfully requests that the Court not require the posting of a security bond, or

at most that it require only a nominal bond. The Court has the discretion to dispense with the

security bond and should do so when requiring it “would effectively deny access to judicial

review” or where the likelihood of success on the merits “tips in favor of a minimal bond or

no bond at all.” People ex rel Van De Kamp v. Tahoe Reg’l Planning Agency, 766 F.2d 1319,

1325-26 (9th Cir. 1985). Courts have often waived or required only nominal bonds for Indian

tribes. See Governing Council of Pinoleville Indian Cmty. v. Mendocino County, 684 F.

Supp. 1042, 1047 (N.D. Cal. 1988) (waiving bond where neither the Indian Council “nor the

Indians it represented [had] the financial capacity to post any significant bond”). To require

that CRIT post more than a nominal bond would effectively deny access to judicial review.

CONCLUSION

For all of these reasons, CRIT respectfully requests that the Court issue a preliminary

injunction prohibiting BLM from granting any further “notices to proceed” with project

construction until CRIT’s claims have been heard on the merits.

DATED: March 13, 2015 SHUTE, MIHALY & WEINBERGER LLP

By: /s/

WINTER KING Attorneys for the Colorado River Indian Tribes

626937.22


winter king (state bar no. 237958) [email protected] … · 2015-06-15 · case no....

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