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Quechan Tribe of the Fort Yuma Indian v. United States Department of the Interior; United States Bureau of Land

May 22, 2012

QUECHAN TRIBE OF THE FORT YUMA INDIAN RESERVATION,
PLAINTIFF,
v.
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, DEFENDANTS.
v.
OCOTILLO EXPRESS LLC, INTERVENOR-DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the "Ex Parte Motion for Temporary Restraining Order and Order to Show Cause Why Preliminary Injunction Should Not Issue" (ECF No. 9) filed by Plaintiff the Quechan Tribe of the Fort Yuma Indian Reservation.

I. Background

On December 19, 1980, the Department of the Interior approved a Record of Decision for the California Desert Conservation Area Plan ("CDCA") which established a "long-range, comprehensive plan for the management, use, development, and protection of over 12 million acres of public land...." (ECF No. 12-1 at 34).

On October 9, 2009, Ocotillo Express LLC applied to the Bureau of Land Management ("BLM") and to the County of Imperial to construct and operate a wind energy facility consisting of 193 turbines on public land within the CDCA. On February 4, 2010, the BLM initiated the consultation process with tribal organizations regarding the proposed wind energy facility.

In February 2012, the Department of the Interior created a Proposed Plan Amendment & Final Environmental Impact Statement/ Final Environmental Impact Report for the Ocotillo Wind Energy Facility ("OWEF Project") analyzing the impact of a 12,484 acre right-of-way over public land in favor of Ocotillo Express LLC to build 155 wind turbine generators. (ECF No. 14-1 at 2 through 18-2 at 1).

On May 11, 2012, the Department of the Interior approved a Record of Decision for the Ocotillo Wind Energy Facility and Amendment to the California Desert Conservation Area Plan ("ROD") which approves a 10,151 acre right-of-way over public land in favor of Ocotillo Express LLC to build 112 wind turbine generators. (ECF No. 13-2 at 2-50).

On May 11, 2012, a Memorandum of Agreement was entered into by the California State Historic Preservation Historic Office, the Advisory Council on Historic Preservation, the BLM, Army Corps of Engineers, and Ocotillo Express LLC as a part of the Record of Decision in order to mitigate and minimize adverse impacts of the OWEF Project on cultural resources. (ECF Nos. 35-2 at 32-65; 39-11 at 51-74).

On May 14, 2012, Plaintiff, the Quechan Tribe of the Fort Yuma Indian Reservation ("Quechan"), initiated this action by filling a Complaint against the United States Department of Interior; the United States Bureau of Land Management; Ken Salazar, Secretary of the Interior; Robert Abbey, Director, BLM; Teri Raml, District Manager, BLM California Desert District; and Margaret Goodro, Field Manager, BLM El Centro Field Office ("Federal Defendants"). (ECF No. 1). Plaintiff alleges that the May 11, 2012, ROD approved "the development of an industrial utility-scale wind power project ... [on public land] that contain[s] hundreds of archaeological sites (containing tens of thousands of individual artifacts) eligible and potentially eligible for inclusion in the National Register of Historic Places." (ECF No. 1 at ¶ 3). Plaintiff alleges that "[t]he OWEF Project Area is within the traditional territory of the Quechan Tribe and contains cultural and biological resources of significance to the Tribe and its members." Id. at ¶ 4. Plaintiff alleges that the Final Environmental Impact Statement/Final Environmental Impact Report ("FEIS") for the OWEF Project "reports that 287 archaeological sites were identified during surveys in the Area of Potential Effects for the OWEF Project." Id. at ¶ 42. Plaintiff alleges that the archaeological sites contain artifacts including "geoglyphs, petroglyphs, sleeping circles, milling features, agave roasting pits, ceramics (including unusual painted and stucco) and rare artifacts (such as anvil and crescentic)" as well as "24 pre-historic trail segments and at least six identified burial sites." Id. at ¶¶ 45-46. Plaintiff alleges that "[t]he lands within the OWEF Project Area and surrounding lands, as a whole, constitute a Traditional Cultural Property, which is eligible for inclusion in the National Register of Historic Places pursuant to the National Historic Preservation Act." Id. at ¶ 6. Plaintiff asserts claims under the Administrative Procedures Act ("APA"), the Federal Land Policy and Management Act ("FLPM"),the National Environmental Policy Act ("NEPA"), and the National Historic Preservation Act ("NHPA").

On May 15, 2012, Plaintiff filed an Ex Parte Motion for Temporary Restraining Order. (ECF No. 9). Plaintiff seeks an injunction against United States Department of the Interior; United States Bureau of Land Management; Ken Salazar, Secretary of the Interior; Robert Abbey, Director, BLM; Teri Raml, District Manager, BLM California Desert District; and Margaret Goodro, Field Manager, BLM El Centro Field Office, as follows:

[Federal Defendants] are temporarily restrained and enjoined from:

(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"); (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 ... 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 ... 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. (Proposed Order at 1-2).

On May 15, 2012, this Court granted a motion by Ocotillo Express LLC to intervene as a defendant ("Intervenor-Defendant Ocotillo"). (ECF No. 25). On May 17, 2012, Federal Defendants filed an opposition. (ECF No. 30). On May 17, 2012, ...


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