Quechan Tribe of the Fort Yuma Indian Reservation v. United States Department of the Interior et al, No. 3:2012cv01167 - Document 48 (S.D. Cal. 2012)
Court Description: ORDER denying without prejudice plaintiff's 9 Ex Parte Motion for Temporary Restraining Order and Order to Show Cause Why Preliminary Injunction Should Not Issue. The parties shall contact the Magistrate Judge immediately to meet and confer regarding a schedule for an expedited motion for preliminary injunction or an expedited motion for summary judgment. The Court will set a further hearing upon the filing of the motion. Signed by Judge William Q. Hayes on 5/22/12. (kaj)
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Quechan Tribe of the Fort Yuma Indian Reservation v. United States Department of the Interior et al Doc. 48 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 QUECHAN TRIBE OF THE FORT YUMA INDIAN RESERVATION, CASE NO. 12cv1167 WQH(MDD) ORDER 12 Plaintiff, 13 14 15 16 17 18 vs. UNITED STATES DEPARTMENT OF THE INTERIOR; UNITED STATES BUREAU OF LAND MANAGEMENT; KEN SALAZAR, Secretary of the Interior; ROBERT ABBEY, Director, Bureau of Land Management; TERI RAMAL, District Manager, BLM California Desert District; MARGARET GOODRO, Field Manager, BLM El Centro Field Office, 19 Defendants. 20 21 vs. OCOTILLO EXPRESS LLC, 22 23 Intervenor-Defendant. HAYES, Judge: 24 The matter before the Court is the “Ex Parte Motion for Temporary Restraining Order 25 and Order to Show Cause Why Preliminary Injunction Should Not Issue” (ECF No. 9) filed 26 by Plaintiff the Quechan Tribe of the Fort Yuma Indian Reservation. 27 I. 28 Background On December 19, 1980, the Department of the Interior approved a Record of Decision -1- 12cv1167-WQH-MDD Dockets.Justia.com 1 for the California Desert Conservation Area Plan (“CDCA”) which established a “long-range, 2 comprehensive plan for the management, use, development, and protection of over 12 million 3 acres of public land....” (ECF No. 12-1 at 34). 4 On October 9, 2009, Ocotillo Express LLC applied to the Bureau of Land Management 5 (“BLM”) and to the County of Imperial to construct and operate a wind energy facility 6 consisting of 193 turbines on public land within the CDCA. On February 4, 2010, the BLM 7 initiated the consultation process with tribal organizations regarding the proposed wind energy 8 facility. 9 In February 2012, the Department of the Interior created a Proposed Plan Amendment 10 & Final Environmental Impact Statement/ Final Environmental Impact Report for the Ocotillo 11 Wind Energy Facility (“OWEF Project”) analyzing the impact of a 12,484 acre right-of-way 12 over public land in favor of Ocotillo Express LLC to build 155 wind turbine generators. (ECF 13 No. 14-1 at 2 through 18-2 at 1). 14 On May 11, 2012, the Department of the Interior approved a Record of Decision for 15 the Ocotillo Wind Energy Facility and Amendment to the California Desert Conservation 16 Area Plan (“ROD”) which approves a 10,151 acre right-of-way over public land in favor of 17 Ocotillo Express LLC to build 112 wind turbine generators. (ECF No. 13-2 at 2-50). 18 On May 11, 2012, a Memorandum of Agreement was entered into by the California 19 State Historic Preservation Historic Office, the Advisory Council on Historic Preservation, 20 the BLM, Army Corps of Engineers, and Ocotillo Express LLC as a part of the Record of 21 Decision in order to mitigate and minimize adverse impacts of the OWEF Project on cultural 22 resources. (ECF Nos. 35-2 at 32-65; 39-11 at 51-74). 23 On May 14, 2012, Plaintiff, the Quechan Tribe of the Fort Yuma Indian Reservation 24 (“Quechan”), initiated this action by filling a Complaint against the United States Department 25 of Interior; the United States Bureau of Land Management; Ken Salazar, Secretary of the 26 Interior; Robert Abbey, Director, BLM; Teri Raml, District Manager, BLM California Desert 27 District; and Margaret Goodro, Field Manager, BLM El Centro Field Office (“Federal 28 Defendants”). (ECF No. 1). Plaintiff alleges that the May 11, 2012, ROD approved “the -2- 12cv1167-WQH-MDD 1 development of an industrial utility-scale wind power project ... [on public land] that 2 contain[s] hundreds of archaeological sites (containing tens of thousands of individual 3 artifacts) eligible and potentially eligible for inclusion in the National Register of Historic 4 Places.” (ECF No. 1 at ¶ 3). Plaintiff alleges that “[t]he OWEF Project Area is within the 5 traditional territory of the Quechan Tribe and contains cultural and biological resources of 6 significance to the Tribe and its members.” Id. at ¶ 4. Plaintiff alleges that the Final 7 Environmental Impact Statement/Final Environmental Impact Report (“FEIS”) for the OWEF 8 Project “reports that 287 archaeological sites were identified during surveys in the Area of 9 Potential Effects for the OWEF Project.” Id. at ¶ 42. Plaintiff alleges that the archaeological 10 sites contain artifacts including “geoglyphs, petroglyphs, sleeping circles, milling features, 11 agave roasting pits, ceramics (including unusual painted and stucco) and rare artifacts (such 12 as anvil and crescentic)” as well as “24 pre-historic trail segments and at least six identified 13 burial sites.” Id. at ¶¶ 45-46. Plaintiff alleges that “[t]he lands within the OWEF Project Area 14 and surrounding lands, as a whole, constitute a Traditional Cultural Property, which is eligible 15 for inclusion in the National Register of Historic Places pursuant to the National Historic 16 Preservation Act.” Id. at ¶ 6. Plaintiff asserts claims under the Administrative Procedures Act 17 (“APA”), the Federal Land Policy and Management Act (“FLPM”),the National 18 Environmental Policy Act (“NEPA”), and the National Historic Preservation Act (“NHPA”). 19 On May 15, 2012, Plaintiff filed an Ex Parte Motion for Temporary Restraining Order. 20 (ECF No. 9). Plaintiff seeks an injunction against United States Department of the Interior; 21 United States Bureau of Land Management; Ken Salazar, Secretary of the Interior; Robert 22 Abbey, Director, BLM; Teri Raml, District Manager, BLM California Desert District; and 23 Margaret Goodro, Field Manager, BLM El Centro Field Office, as follows: 24 [Federal Defendants] are temporarily restrained and enjoined from: 25 26 27 28 (1) issuing any Notice to Proceed or other form of authorization for development of the Ocotillo Wind Energy Facility on the public lands that are the subject of the May 2012 Department of the Interior Record of Decision for the Ocotillo Wind Energy Facility (the "Ocotillo ROD"); -3- 12cv1167-WQH-MDD (2) permitting, authorizing, or continuing to authorize or allow any ground-disturbing activities relating to development of the Ocotillo Wind Energy Facility on the public lands that are the subject of the Ocotillo ROD; and ... 1 2 3 that any ground-disturbing activities or other development of the Ocotillo Wind Energy Facility on the public lands that are the subject of the Ocotillo ROD are hereby temporarily enjoined; and ... 4 5 6 that this Temporary Restraining Order shall take effect immediately, with bond or security waived, and this Temporary Restraining Order shall remain binding and in effect until further order of this Court. 7 8 9 (Proposed Order at 1-2). 10 On May 15, 2012, this Court granted a motion by Ocotillo Express LLC to intervene 11 as a defendant (“Intervenor-Defendant Ocotillo”). (ECF No. 25). On May 17, 2012, Federal 12 Defendants filed an opposition. (ECF No. 30). On May 17, 2012, Intervenor-Defendant 13 Ocotillo filed an opposition. (ECF No. 29). On May 18, 2012, the Court heard oral argument. 14 15 II. Contentions of the Parties 16 Plaintiff contends that it is likely to succeed on the merits of its claim that the OWEF 17 Project does not comply with the CDCA Class L lower-intensity land use limitations. 18 Plaintiff contends that the environmental impact of the OWEF Project is not consistent with 19 the Class L limitations because it will diminish and denigrate sensitive natural, scenic, and 20 cultural resources on public land. Federal Defendants contend that the CDCA permits wind 21 turbine development on Class L public lands. Federal Defendants contend that the CDCA is 22 not based purely on preservation and conservation and that the CDCA does not elevate 23 cultural resource concerns above other concerns including the multiple use of resources. 24 Plaintiff contends that it is likely to succeed on the merits of its claim that the OWEF 25 Project does not comply with the FLPM Visual Resource Management (“VRM”) Class III 26 objective for moderate or lower changes to landscape characteristics. Plaintiff contends that 27 the “FEIS confirms that the OWEF Project ... does not meet the applicable Class III VRM 28 standards.” (ECF No. 9-1 at 20). Federal Defendants contend that the BLM appropriately -4- 12cv1167-WQH-MDD 1 determined that an interim VRM Class IV should apply to the OWEF Project based on the 2 visual resource values of the site and the land use allocation contemplated by the OWEF 3 Project. 4 Plaintiff contends that it is likely to succeed on the merits of its claim that the OWEF 5 Project does not comply with the NEPA requirement that Federal Defendants take a hard look 6 at the cumulative effect of projects on public land because Federal Defendants failed to 7 identify all of the relevant past, present, or reasonably foreseeable projects. Federal 8 Defendants contend that they performed extensive analysis of the past, present and future 9 projects, that they considered several resource categories, and that they appropriately 10 determined the geographic scope for cultural resources. 11 Plaintiff contends that it is likely to succeed on the merits of its claim that the OWEF 12 Project does not comply with the NHPA requirement that Federal Defendants consult with 13 Quechan regarding the project. Plaintiff contends that Federal Defendants were aware of the 14 Quechan Tribe’s concern about the OWEF Project area, but “the first meeting between BLM 15 officials and Quechan representatives did not occur until January 2012 ....” (ECF No. 9-1 at 16 25-26). Plaintiff contends that the Quechan Tribe was not provided with information 17 necessary to the consultation process until shortly before it was required to provide its 18 comments. Federal Defendants contend that tribal concerns were considered by all levels of 19 the BLM and Department of the Interior and that tribal concerns played a material role in 20 development decisions for the OWEF project. Federal Defendants contend that they engaged 21 in a two-year consultation process during which they held four site visits with tribal 22 representatives, conducted dozens of tribal consultation meetings, met with the Quechan 23 Tribe’s Cultural Committee on two occasions, attempted to establish monthly meeting to 24 discuss the OWEF Project, and invited the Quechan Tribe to comment on and observe the 25 archeological resources survey. Federal Defendants contend that the Quechan Tribe was 26 “non-responsive[]” to monthly meeting requests and the Quechan Tribe “elected not to 27 participate” in the archeological resources survey. (ECF No. 30 at 28). 28 Plaintiff contends that allowing the OWEF Project to proceed will cause “irreparable -5- 12cv1167-WQH-MDD 1 injury to Quechan culture, history, tradition, and religion.” (ECF No. 9-1 at 27). Plaintiff 2 contends that “development of the OWEF Project will destroy the characteristics that” make 3 the area “a NRHP-eligible Traditional Cultural Property” including “the presence of 4 pre-historic trails, ceremonial areas, cremation sites, and the sheer abundance of 5 archaeological sites and artifacts....” Id. Plaintiff contends that “[o]nce these sensitive desert 6 lands and resources are lost, they cannot be replaced.”1 Id. Federal Defendants contend that 7 the mitigation and avoidance measures contained in the Memorandum of Agreement protects 8 against irreparable injury prior to an opportunity to adequately consider the merits. Federal 9 Defendants contend that the Memorandum of Agreement protects against irreparable injury 10 by requiring archaeological artifacts to be identified and avoided, allowing tribal access to the 11 area, and creating a plan and protocol for the discovery of additional artifacts or burial sites 12 which includes cessation of ground disturbance. Plaintiff contends that the balance of hardship tips in its favor on the grounds that 13 14 important cultural resources located on public land will suffer irreparable injury if an 15 injunction is not issued stopping all work at the OWEF Project. Plaintiff contends that the 16 Federal Defendants and Intervenor-Defendant Ocotillo will not suffer any harm if an 17 injunction requiring the OWEF Project area remain undisturbed “pending further review of 18 Interior’s compliance with applicable law in this matter.” (ECF No. 9-1 at 29). Plaintiff 19 contends that “[a]ny temporary economic harm that [the Federal Defendants] or [Intervenor- 20 Defendant Ocotillo] may allege does not outweigh the public interest in resource 21 preservation.” Id. Federal Defendants and Intervenor-Defendant Ocotillo assert that cultural 22 resources are adequately protected and that the balance of hardships and public interest tips 23 sharply in favor of the development of renewable energy on public land. Federal Defendants 24 contend that the OWEF Project will provide renewable energy and offset greenhouse gas 25 emissions, the OWEF Project will benefit the public by creating jobs and stimulating 26 economic growth, the OWEF Project will produce tax revenue for the local and national 27 28 1 At oral argument Plaintiff stated: “There would not be injury to the view shed within the next 30 days by the wind turbines ....” (ECF No. 47 at 10). -6- 12cv1167-WQH-MDD 1 levels, and the OWEF Project will produce rental payments for the national government. 2 Federal Defendants assert that they have expended over 5,538 hours of work processing the 3 OWEF Project and that the proposed injunction will unnecessarily endanger the ability of the 4 Intervenor-Defendant Ocotillo to compete the project. 5 contends that the OWEF Project will boost energy security for the nation and benefit the local 6 economy in an area that is suffering from high unemployment rates. Intervenor-Defendant 7 Ocotillo contends that it seeks to partially fund the OWEF Project through a Congressionally 8 created investment tax credit grant for wind turbines put into service prior to the end of 2012. 9 Intervenor-Defendant Ocotillo contends that, without the benefit of the investment tax credit Intervenor-Defendant Ocotillo 10 grant, the OWEF Project would no longer be economically feasible. 11 III. Applicable Law 12 “[A] preliminary injunction is an extraordinary and drastic remedy, one that should not 13 be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek 14 v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original) (quotation omitted). When the 15 nonmovant has received notice, as here, the standard for issuing a temporary restraining order 16 is the same as that for issuing a preliminary injunction. See Stuhlbarg Int’l Sales Co. v. John 17 D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). 18 The party seeking preliminary injunctive relief has the burden to show “that he is likely 19 to succeed on the merits, that he is likely to suffer irreparable harm in the absence of 20 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the 21 public interest.” Winter v. NRDC, 555 U.S. 7, 20 (2008); see also Small v. Avanti Health 22 Systems, LLC, 661 F.3d 1180, 1187 (9th Cir. 2011) (“Winter overturned ... precedents that 23 allowed district courts to grant injunctions when a plaintiff demonstrated ... only a possibility 24 of irreparable harm[]” finding that the “possibility” standard is “too lenient”). 25 In Alliance for the Wild Rockies, the Court of Appeals for the Ninth Circuit explained 26 that “the Supreme Court has instructed us that ‘[e]nvironmental injury, by its nature, can 27 seldom be adequately remedied by money damages and is often permanent or at least of long 28 duration, i.e., irreparable.” Alliance for Wild Rockies v. Cottrell, 622 F.3d 1045, 1053 (9th -7- 12cv1167-WQH-MDD 1 Cir. 2010) (quoting Lands Council v. McNair, 537 F.3d 981, 1004 (9th Cir. 2008)). The Court 2 of Appeals went on to state: “[o]f course, this does not mean that ‘any potential environmental 3 injury’ warrants an injunction.” Alliance for Wild Rockies, 622 F.3d at 1053. Irreparable 4 injury is shown when there is an “actual and irreparable injury.” Id. (citing Winter, 555 U.S. 5 at 7). 6 The Court of Appeals for the Ninth Circuit has articulated a standard “under which a 7 preliminary injunction could issue where the likelihood of success is such that serious 8 questions going to the merits were raised and the balance of hardships tips sharply in 9 [plaintiff's] favor.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 10 2011) (citation omitted). The test applies a sliding scale approach to a preliminary injunction 11 in which “the elements of the preliminary injunction test are balanced, so that a stronger 12 showing of one element may offset a weaker showing of another.” Id.; see also Leiva-Perez 13 v. Holder, 640 F.3d 962, 966 (9th Cir. 2011) (holding that the sliding scale approach to 14 preliminary injunctions continues to be viable after Winter “so long as a certain threshold 15 showing is made on each [Winter] factor.”). 16 There is a public interest in “preserving nature and avoiding irreparable environmental 17 injury” which may outweigh economic concerns when a plaintiff is likely to succeed on the 18 merits. 19 environmental actions which do not result in irreparable injury may not outweigh economic 20 concerns. See id. (considering the public interest in factors including “aiding the struggling 21 local economy and preventing job loss” to determine that the balance of hardship did not tip 22 sharply in the plaintiff’s favor when the plaintiff did not show a likelihood of success on the 23 merits); W. Watersheds Project v. Bureau of Land Mgmt., 774 F. Supp. 2d 1089, 1103-04 (D. 24 Nev. 2011) (considering the public interest in renewable energy and job creation to find that 25 the balance of hardships did not tip in plaintiff’s favor when the environmental injury would 26 not result in irreparable harm). 27 IV. 28 Lands Council v. McNair, 537 F.3d at 1005 (citations omitted). However, Ruling of the Court The issue before the Court at this stage in the proceeding is whether all ground -8- 12cv1167-WQH-MDD 1 disturbances on the OWEF Project should be enjoined prior to the submission of a full record 2 and consideration of the merits in a preliminary injunction or expedited summary judgment. 3 In order to obtain this extraordinary preliminary relief, Plaintiff must show that it is “likely 4 to suffer irreparable harm in the absence of preliminary relief....” Winter, 555 U.S. at 20. 5 Plaintiff has submitted the Declaration of John Bathke, the Quechan Indian Tribe 6 Historic Preservation Officer, who states that “the [OWEF] Project area contains 287 7 identified archaeological sites, which include tens of thousands of individual artifacts.” (ECF 8 No. 9-2 at 7). Bathke states that the OWEF Project area also contains: “24 pre-historic trail 9 segments and at least six identified burial sites.” Id. Bathke states that he has “personally 10 visited about 20 turbine locations ... and [has] seen archaeological and cultural materials 11 within some of those ‘direct impact areas.’” Id. Bathke states that he has “discovered 12 previously unrecorded cultural materials and archaeological sites within direct impact areas, 13 such areas like the substation, turbine locations, and access roads.” Id. 14 The ROD recognizes that the OWEF Project would have unmitigated adverse effects 15 on certain cultural resources. In response, the ROD provides specific mitigation and 16 avoidance measures in the Memorandum of Agreement entered into by the California State 17 Historic Preservation Historic Office, Advisory Council on Historic Preservation, BLM, Army 18 Corps of Engineers, and Ocotillo Express LLC. (ECF No. 35-2 at 32-65). The Memorandum 19 of Agreement provides: “Archeological sites that are protected from physical impact, but are 20 within 150 feet of proposed construction activities, will be identified and labeled by 21 archaeological and Native American monitors as Environmentally Sensitive Areas (ESAs).” 22 (ECF No. 35-2 at 36). The Memorandum of Agreement provides: “[A]n ESA will define 23 areas where construction activities cannot occur to prevent damage to historic properties.” 24 Id. The Memorandum of Agreement provides: “[Intervenor-Defendant Ocotillo] shall ensure 25 that archaeological monitors and, to the extent practicable, tribal monitor will be on site 26 during construction to observe all construction ... near ESAs and in other areas designated for 27 full-time monitoring.” Id. at 39. The Memorandum of Agreement provides: “The BLM shall 28 ensure that any Native American burials and related items discovered on BLM administered -9- 12cv1167-WQH-MDD 1 lands ... will be treated respectfully and in accordance with the requirements of the Native 2 American Graves Protection and Repatriation Act ....” Id. at 41. The Memorandum of 3 Agreement provides: “The primary goal will be to avoid and protect newly encountered 4 burials and related cultural items and leave them in place.” Id. 5 Federal Defendants have submitted the Declaration of Carrie Simmons, BLM 6 Archaeologist, who states that “BLM worked with [Intervenor-Defendant Ocotillo] to 7 redesign the Project to avoid direct physical impacts to identified resources.” (ECF No. 39 8 at 14). Simmons states that during a recent trip to the OWEF Project site, archeological 9 artifacts were discovered “within the boundaries of the Project’s facilities, [and] they will be 10 collected and curated.” Id. at 20. Simmons states that a recent canine search of the OWEF 11 Project area revealed seven areas in which the dogs alerted the possible presence of burial 12 items. Simmons states that six of the alerts are in ESAs and will not be disturbed. With 13 regard to the seventh area, Simmons states that “the BLM will treat that location as a new 14 discovery and is currently developing proposed treatment measures for that site consistent 15 with [the Memorandum of Agreement].” Id. at 26. Simmons states that “BLM will continue 16 to consult with the tribes, and other consulting parties per the terms of the [Memorandum of 17 Agreement] ....” Id. at 14. 18 Plaintiff has submitted evidence that the OWEF Project area contains several identified 19 archaeological sites, but Plaintiff has failed to submit any evidence that the Federal 20 Defendants or Intervenor-Defendant Ocotillo have disturbed or plan to disturb those identified 21 archeological sites. Federal Defendants and Intervenor-Defendant Ocotillo have submitted 22 the Memorandum of Agreement which is specifically aimed at avoiding identified 23 archeological locations, providing protective measures and treatment plans for the discovery 24 of new traditional cultural property or burial remains, and providing for monitoring of the 25 construction of the OWEF Project site. Plaintiff has not submitted any evidence that the 26 procedures provided by the Memorandum of Agreement for newly discovered cultural and 27 burial items are not adequate to guard against irreparable injury to items discovered on public 28 land. The Court finds that Plaintiff has failed to make a sufficient showing of likelihood of - 10 - 12cv1167-WQH-MDD 1 “actual and irreparable injury” to support the extraordinary remedy of a temporary restraining 2 order prior to a consideration of the merits. Alliance for Wild Rockies, 622 F.3d at 1053. The 3 public has an interest in protection against environmental injury and promotion of 4 environmentally responsible renewable energy on public land. The record in this case shows 5 that the public’s interest in preserving cultural resources has been addressed and adequately 6 protected. The record does not show that Plaintiff is “likely to suffer irreparable harm in the 7 absence of [the requested] preliminary relief ....” Winter, 555 U.S. at 20. Plaintiff has failed 8 to show that the balance of hardships tips sharply in its favor. 9 V. Conclusion 10 IT IS HEREBY ORDERED that the “Ex Parte Motion for Temporary Restraining 11 Order and Order to Show Cause Why Preliminary Injunction Should Not Issue” (ECF No. 9) 12 filed by Plaintiff the Quechan Tribe of the Fort Yuma Indian Reservation is DENIED without 13 prejudice. The parties shall contact the Magistrate Judge immediately to meet and confer 14 regarding a schedule for an expedited motion for preliminary injunction or an expedited 15 motion for summary judgment. The Court will set a further hearing upon the filing of the 16 motion. 17 DATED: May 22, 2012 18 19 WILLIAM Q. HAYES United States District Judge 20 21 22 23 24 25 26 27 28 - 11 - 12cv1167-WQH-MDD
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