The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge
ORDER GRANTING PRELIMINARY INJUNCTION
On October 29, 2010, Plaintiff (the "Tribe") filed its complaint, alleging Defendants' decision to approve a solar energy project violated various provisions of federal law. On November 12, the Tribe filed a motion for preliminary injunction, asking the Court to issue an order to preserve the status quo by enjoining proceeding with the project, pending the outcome of this litigation. After the motion was filed, Imperial Valley Solar LLC intervened as a Defendant.
On Monday, December 13, the Court held a oral argument at which the parties appeared through counsel. After the parties were fully heard, the Court took the matter under submission, with the intent to rule within two days.
The Quechan Tribe is a federally-recognized Indian tribe whose reservation is located mostly in Imperial County, California and partly in Arizona. A large solar energy project is planned on 6500 acres of federally-owned land known as the California Desert Conservation Area ("CDCA"). The Department of the Interior, as directed by Congress, developed a binding management plan for this area.
The project is being managed by a company called Tessera Solar, LLC.*fn1 Tessera plans to install about 30,000 individual "suncatcher" solar collectors, expected to generate 709 megawatts when completed. The suncatchers will be about 40 feet high and 38 feet wide, and attached to pedestals about 18 feet high. Support buildings, roads, a pipeline, and a power line to support and service the network of collectors are also planned. Most of the project will be built on public lands. Tessera submitted an application to the state of California to develop the Imperial Valley Solar project. The project is planned in phases.
After communications among BLM, various agencies, the Tribe, and other Indian tribes, a series of agreements, decisions, and other documents was published. The final EIS was issued some time in July, 2010.*fn2 At the same time, a Proposed Resource Management Plan - Amendment, amending the Department of the interior's CDCA was also published. On September 14 and 15, certain federal and state officials, including BLM's field manager, executed a programmatic agreement (the "Programmatic Agreement") for management of the project.*fn3 The Tribe objected to this. On October 4, 2010, Director of the Bureau of Land Management Robert Abbey signed the Imperial Valley Record of Decision ("ROD") approving the project, and the next day Secretary of the Interior Ken Salazar signed the ROD. The ROD notice was published on October 13, 2010.
The area where the project would be located has a history of extensive use by Native American groups. The parties agree 459 cultural resources have been identified within the project area. These include over 300 locations of prehistoric use or settlement, and ancient trails that traverse the site. The tribes in this area cremated their dead and buried the remains, so the area also appears to contain archaeological sites and human remains. The draft environmental impact statement ("EIS") prepared by the BLM indicated the project "may wholly or partially destroy all archaeological sites on the surface of the project area."
The Tribe believes the project would destroy hundreds of their ancient cultural sites including burial sites, religious sites, ancient trails, and probably buried artifacts. Secondarily, it argues the project would endanger the habitat of the flat-tailed horned lizard, which is under consideration for listing under the Endangered Species Act and which is culturally important to the Tribe. The Tribe maintains Defendants were required to comply with the National Environmental Policy Act (NEPA), the National Historical Preservation Act (NHPA), and the Federal Land Policy and Management Act of 1976 (FLPMA) by making certain analyses and taking certain factors into account deciding to go ahead with the project. The Tribe now seeks judicial intervention under the Administrative Procedures Act (APA).
The Court's review of agency action under NEPA, NHPA, or FLPMA is governed by the Administrative Procedures act. Under 5 U.S.C. § 706 the Court is directed to compel agency action that has been unlawfully withheld, (§ 706(1)), and hold unlawful and aside agency actions it finds to be "arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law" (§ 706(2)(A)), or "without observance of procedure required by law" ((§ 706(2)(D)). The burden is on the Tribe to show any decision or action was arbitrary and capricious. Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976).
Preliminary Injunctive Relief
The four-factor test for issuance of injunctive relief is set forth in Winter v. Natural Resources Defense Council, Inc., 129 S.Ct. 365, 374 (2008):
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, that the balance of equities tips in his favor, and that an injunction is in the public interest.
Even after Winter, the Court may also use a "sliding scale" approach. As explained in Alliance for Wild Rockies v. Cottrell, F.3d 1045, 1049--50 (9th Cir. 2010), "'serious questions going to the merits' and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met."
Here, the merits question is the most complex, and was the primary focus of briefing and argument. The Court considers this question first.
The parties agree that, under NHPA Section 106 (16 U.S.C. § 470f) and its implementing regulations, the Bureau of Land Management (BLM) is required to consult with certain parties before spending money on or approving any federally-assisted undertaking such as the project at issue here, and that the Tribe is one of those parties. The Tribe maintains BLM didn't adequately or meaningfully consult with them, but instead approved the project before completing the required consultation. According to the Tribe, BLM simply didn't consider what the tribe had to say before approving the project.
The Court finds this to be the strongest basis for issuance of injunctive relief and therefore focuses on it.
NHPA Consultation Requirements
The NHPA's purpose is to preserve historic resources, and early consultation with tribes is encouraged "to ensure that all types of historic properties and all public interests in such properties are given due consideration . . . ." Te-Moak Tribe v. U.S. Dept. of Interior, 608 F.3d 592, 609 (9th Cir. 2010) (quoting 16 U.S.C. § 470a(d)(1)(A)). The consultation process is governed by 36 C.F.R. § 800.2(c)(2), one of Section 106's implementing regulations. Under this regulation, "[c]onsultation should commence early in the planning process, in order to identify and discuss relevant preservation issues . . . ." § 800.2(c)(2)(ii)(A). The Ninth Circuit has emphasized that the timing of required review processes can affect the outcome and is to be discouraged. Id. (citing Pit River Tribe v. U.S. Forest Serv., 469 F.3d 787, 785--86 (9th Cir. 2006). The consultation requirement is not an empty formality; rather, it "must recognize the government-to-government relationship between the Federal Government and Indian tribes" and is to be "conducted in a manner sensitive to the concerns and needs of the Indian tribe." § 800.2(c)(2)(ii)(C). A tribe may, if it wishes, designate representatives for the consultation. Id.
The Section 106 process is described in 36 C.F.R. §§ 800.2--800.6. After preliminary identification of the project and consulting parties, Section 106 requires identifying historic properties within a project's affected area, evaluating the project's potential effects on those properties, and resolving any adverse effects. The Tribe insists this consultation must be completed at least for Phase 1 of the project, before construction begins.
Throughout this process, the regulations require the agency to consult
extensively with Indian tribes that fall within the definition of
"consulting party," including here the Quechan Tribe.*fn4
Section 800.4 alone requires at least seven issues about
which the Tribe, as a consulting party, is entitled to be consulted
before the project was approved. Under § 800.4(a)(3), BLM is required
to consult with the Tribe identify issues relating to the project's
potential effects on historic properties. Under § 800.4(a)(4), BLM is
required to gather information from the Tribe to assist in identifying
properties which may be of religious and cultural significance to it.
Under § 800.4(b), BLM is required to consult with the Tribe to take
steps necessary to identify historic properties within the area of
potential effects. Under § 800.4(b)(1), BLM's official is required to
take into account any confidentiality concerns raised by tribes during
the identification process. Under § 800.4(c)(1), BLM must
with the Tribe to apply National Register criteria to properties
within the identified area, if they have not yet been evaluated for
eligibility for listing in the National Register of Historic Places.
Under § 800.4(c)(2), if the Tribe doesn't agree with the BLM's
determination regarding National Register eligibility, it is entitled
to ask for a determination. And under § 800.4(d)(1) and (2), if BLM
determines no historic properties will be affected, it must give the
Tribe a report and invite the Tribe to provide its views. Sections
800.5 and 800.6 require further consultation and review to resolve
adverse effects and to deal with failure to resolve adverse
Furthermore, under 800.2, consulting parties that are Indian tribes are entitled to special consideration in the course of an agency's fulfillment of its consultation obligations. This is spelled out in extensive detail in § 800.2(c). Among other things, that section sets forth the following requirements:
(A) The agency official shall ensure that consultation in the section 106 process provides the Indian tribe . . . a reasonable opportunity to identify its concerns about historic properties, advise on the identification and evaluation of historic properties, including those of traditional religious and cultural importance, articulate its views on the undertaking's effects on such properties, and participate in the resolution of adverse effects. . . . Consultation should commence early in the planning process, in order to identify and discuss relevant preservation issues and resolve concerns about the confidentiality of information on historic properties.
(B) The Federal Government has a unique legal relationship with Indian tribes set forth in the Constitution of the United States, treaties, statutes, and court decisions. Consultation with Indian tribes should be conducted in a sensitive manner respectful of tribal sovereignty. . . .
(C) Consultation with an Indian tribe must recognize the government-to-government relationship between the Federal Government and Indian tribes. The agency official shall consult with representatives designated or identified by the tribal government . . . . Consultation with Indian tribes . . . should be conducted in a manner sensitive to the concerns and needs of the Indian tribe . . .
(D) When Indian tribes . . . attach religious and cultural significance to historic properties off tribal lands, section 101(d)(6)(B) of the act requires Federal agencies to consult with such Indian tribes. . . in the section 106 process. Federal agencies should be aware that frequently historic properties of religious and cultural significance are located on ancestral, aboriginal, or ceded lands of Indian tribes . . . and should consider that when complying with the procedures in this part.
36 C.F.R. § 800.2(c)(2)(ii)(A)--(D) (emphasis added). The Tribe points out the significance of the "confidentiality" provisions, citing Pueblo of Sandia v. United States, 50 F.3d 856, 861--62 (10th Cir. 1995) (noting that pueblo's reticence to share information about cultural and religious sites with outsiders was to be expected, and that federal government knew tribes would typically not answer general requests for information).
The Ninth Circuit has emphasized that federal agencies owe a fiduciary duty to all Indian tribes, and that at a minimum this means agencies must comply with general regulations and statutes. Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 788 (9th Cir. 2006). See also 36 C.F.R. § 800.2(c)(2)(ii)(B) (mentioning the "unique legal relationship" between federal government and Indian tribes). Violation of this fiduciary duty to comply with NHPA and NEPA requirements during the process of reviewing and approving projects vitiates the validity of that approval and may require that it be set aside. Id.
Defendants, citing 36 C.F.R. § 800.14(b)(1)(ii), argue that "the execution of a Programmatic Agreement completes the Section 106 process" (Opp'n to Mot. for Prelim. Inj., 22:11--17) and is an acceptable way to resolve adverse effects from complex projects "[w]hen effects on historic properties cannot be fully determined prior to approval of an undertaking." (Id. at 9:10--11.) But this is true only if "executing" means "carrying out;" merely entering into a programmatic agreement does not satisfy Section 106's consultation requirements. 36 C.F.R. § 800.14(b)(2)(iii) ("Compliance with the procedures established by an approved programmatic agreement satisfies the agency's section 106 responsibilities for all individual undertakings of the program covered by the agreement . . . .") The Tribe asks that consultation be completed at least for phase 1 before the project begins. That Defendants are resisting this suggests they are probably not prepared to do so.
The programmatic agreement must be negotiated in accordance with § 800.14(b), which itself requires an extensive consultation process. § 800.14(f). The Tribe has also argued a programmatic agreement is not authorized for this type of project.
Defendants are correct that under § 800.4(b)(2), identification of historic properties can be deferred if "specifically provided for" in a programmatic agreement negotiated pursuant to § 800.14(b). But this deferral is not indefinite, and entering into an appropriately-negotiated programmatic agreement does not relieve the BLM of all responsibility. The second half of § 800.4(b)(2) contemplates consultation on historic properties as it becomes feasible:
The process should establish the likely presence of historic properties within the area of potential effects for each alternative or inaccessible area through background research, consultation and an appropriate level of field investigation, taking into account the number of alternatives under consideration, the magnitude of the undertaking and its likely effects, and the views of . . . any other consulting parties. As specific aspects or locations of an alternative are refined or access is gained, the agency official shall proceed with the identification and evaluation of historic properties in accordance with paragraphs (b)(1) and (c) of this section.
In short, entering into an appropriately-negotiated programmatic agreement can result in deferral of the consulting process, but it would only allow a temporary delay in consultation, until it is feasible to identify and consult with the Tribe about the historic properties. Compare Te-Moak, 608 F.3d at 610 (explaining that assessment of impact on environmental resources could be deferred where drilling locations in mineral exploration project could not reasonably be determined at the time of approval, but where plan required assessment as drilling locations became known).
Communications and Documentary Evidence
The Tribe's Evidence and Arguments In support of its point that Defendants failed to adequately consult, the Tribe cites its letter to BLM's Field Manager on February 4, 2010, in which it expressed concern that the schedule for issuance of the ROD didn't allow enough time for adequate consultation, and that the required consultation was being inappropriate deferred. (Somerville Decl. in Supp. of Mot. for Prelim. Inj., Ex. 5 at 273--75.) This letter says the Tribe had informally learned that a Programmatic Agreement was being developed, which BLM intended to approve by September, 2010. It also expressed the concern that, if the project were ultimately approved in spite of the presence of cultural resources, the quick schedule wouldn't allow enough time for BLM to consult with the tribe to develop a plan to avoid harming the sites.
By itself, this letter suggests the Tribe was consulted late in the planning process, wasn't being consulted when it wrote the letter, and was concerned about the lack of consultation. It also suggests the time frame for consultation was compressed. The Tribe also cites other later ...