A three-judge panel at the U.S. Ninth Circuit Court of Appeals on Dec. 21 rejected a tribal appeal related to a U.S. Bureau of Land Management approval for the Ocotillo wind farm in California.
The Quechan Tribe of the Fort Yuma Indian Reservation had in 2013 appealed a district court’s order granting summary judgment in favor of the appellees, including BLM. Quechan Tribe maintained that the BLM violated the California Desert Conservation Area (CDCA) Plan, the Federal Land Policy and Management Act (FLPMA) and the National Environmental Policy Act (NEPA) when it granted Ocotillo Express LLC a right-of-way to construct and operate the Ocotillo Wind Energy Facility (OWEF) near Ocotillo, California.
Quechan Tribe first contended that BLM violated the CDCA Plan by failing to determine whether the OWEF Project met the substantive requirements the plan imposes on proposed uses of Class L land—the class of land upon which the OWEF Project is located. Because the OWEF project is located on CDCA land, the BLM was required to ensure the project complied with the plan before granting the right-of-way.
In the Record of Decision granting a right-of-way for the OWEF project, the BLM adopted a Category 3 plan amendment to accommodate the project. The BLM amended the CDCA plan to designate the approximately 10,151 acres of public land where the project was to be located as suitable for wind energy development. A Category 3 amendment, like a zoning variance, allows the BLM to carve out an exception to the CDCA plan for a specific use or activity. Once the BLM determines that a specific project warrants a Category 3 amendment, that project is no longer required to comply with the substantive requirements of the class of land on which the project is sited. Rather, the project is governed by the plan amendment.
The BLM identified 116 past, present, and reasonably foreseeable projects that could have an impact on cultural resources in this area. The BLM then described the existing damage to cultural resources in that area and discussed generally how reasonably foreseeable projects would further impact those resources. The Dec. 21 court ruling said: “Such analysis was sufficient to identify and describe the cumulative impacts on cultural resources. The BLM similarly analyzed each potentially impacted resource. Because the BLM’s cumulative impacts analysis was not arbitrary or unreasonable, we conclude the BLM’s analysis did not violate NEPA.”
The Quechan Tribe also contended that the BLM violated FLPMA by arbitrarily assigning the interim Visual Resource Management classification of the project site. FLPMA directs the BLM to inventory public lands and their resources, including the “scenic values” of public lands. The appeals court panel concluded that the BLM’s approval of the OWEF project (and its interim VRM Class IV designation) was permissible because the BLM adopted a Category 3 amendment to the CDCA plan.
In a November 2013 brief in this case, Ocotillo Express LLC, owned by Pattern Energy Group Inc., noted that this is a 112-wind turbine project located on federal multiple-use lands in California’s Imperial Valley. The company added: “The Ocotillo Valley has one of the highest quality wind resources in Southern California and is one of the few such sites that have not been foreclosed to wind development. The Project site also is well suited for wind development. The Sunrise Powerlink, a 500-kV transmission line constructed specifically to foster the development of renewable energy projects, bisects the Ocotillo site. In addition to the Sunrise Powerlink, another 500-kV transmission line, Interstate 8, the Imperial Highway, State Route 98, and the San Diego and Arizona Eastern Railway all run through the Project area.”
Says the Pattern website: “Ocotillo is a 265 MW project located in western Imperial County, California. The project at Ocotillo consists of 112 2.37 MW Siemens turbines. Commercial operations on 223 MW of Ocotillo’s electricity generating capacity commenced during the fourth quarter of 2012 and commenced commercial operations on the remaining 42 MW of electricity generating capacity from Ocotillo’s additional 18 turbines in July 2013. The project sells 100% of its electricity generation, including capacity and environmental attributes, to San Diego Gas & Electric (“SDG&E”) under a long-term power purchase agreement. Ocotillo connects to the SDG&E 500 kV transmission system. The project is located on approximately 12,500 acres in Imperial County, CA and is almost entirely on federal land administered by the Bureau of Land Management. The project was granted a right-of-way by the Bureau of Land Management.”