Commission urges CA Attorney General to file suit if mitigation requests not met
Update February 12, 2013: A hearing set for February 15 in San Diego has been postponed.
By Miriam Raftery
January 22, 2013 (Ocotillo ) – The California Native American Heritage Commission (CNAH) has issued a report in support of the Viejas Band of the Kumeyaay Indians and the Quechan Indian Nation claims that the Bureau of Land Management failed in its duty to protect cultural resources including human remains and sacred sites at the Ocotillo Express Wind Facility. The draf staff report details a disturbing pattern by the BLM, Pattern Energy and a project archaeology consultant of ignoring tribal concerns and failing in its duty to protect cultural resources.
The tribes petitioned the NAHC to investigate and conduct a public hearing to consider tribal requests to declare the entire 12,500 acre site a ‘sanctified cemetery’. Tribes also seek to have the project halted to assess damage and want agencies to consult with tribes to agree on mitigation measures to prevent further harm to a broader region. The case has broad national significance, with hundreds of millions of acres of public lands slated for renewable energy projects.
The NAHC has cancelled a Public Hearing that had been scheduled at the State of California Building on Front Street in Downtown San Diego for February 15, offering no explanation for the indefinite postponement.
Tribes had argued that the project would cause irreparable harm in an area that includes a cultural and “spiritual landscape” of religious significance. The cultural landscape includes 22 sacred sites recorded with the California Historical Resources Information System at San Diego State University.
Approximately 2 million acres of California desert lands are under development for renewable energy through 200 separate projects, according to the U.S. Environmental Protection Agency, which has proposed putting projects on already polluted lands such as brownfields instead. But tribes argue that the BLM was swayed by developers’ money, “driven by apparent economic interests” while failing in the agency’s duty to protect cultural resources.
Numerous tribes gather annually in the area. Tribal elders have testified about their parents and grandparents taking them to Ocotillo for ceremonies. Imperial Valley Desert Museum in Ocotillo hosts an annual Indian Fair drawing Native Americans from many tribes. Ceremonies have continued through the onset of the project, including a wake held to mourn the desecration of tribal members' ancestors by Pattern Energy's project.
The landscape includes many sacred sites, such as Signal Mountain, a place of reverence. Local tribes refer to the Ocotillo Valley as the Valley of Death due to many burial sites there. State archaeologists have previously identified 523 sets of Native American remains in the vicinity.
The NAHC informed Imperial County back in 2010 that there were sacred sites in the area of potential effect and sent a follow up letter in August 2011, yet the county “never contacted the NAHC to inquire about the sacred sites that were identified in the project area,” the report reveals. These are sites in the NAHC Sacred Lands Inventory, not sites recently submitted merely to stop the project, the NAHC report points out. Nor did the California Public Utilities Commission, nor the Bureau of Land Management. In October 2011, the chairman of the Southern California Tribal Chairmen’s Association representing 19 tribes also sent a letter to the BLM’s California director criticizing the process and inaccuracies in the environmental documents.
The report adds that “no meaningful consultation” occurred to resolve tribal concerns as agencies faced a fast-track process with a deadline to have the wind facility operational before January 1, 2013 in order to get federal tax subsidies for the developer.
Viejas declared the project a Traditional Cultural Property eligible to the National Register of Historic Places. Quechan concurred that the project was eligible for both state and federal protections. The California State Historic Preservation Officer notified Imperial County in March and April 2012 with a reminder that public agencies must protect such resources.
Pattern Energy’s project in Ocotillo was scaled down from 155 wind turbine towers to 112, each approximately 450 feet tall. Pattern’s parent, Riverstone, is also involved in transmission of the electricity –the same company that built the Kumeyaay wind farm where a massive explosive failure occurred in December 2009, causing all 25 turbines to “disintegrate.”
The report notes that even tribes that have supported wind projects elsewhere may not support Ocotillo’s wind project; for example the Manzanita Band of the Kumeyaay Nation’s tribal consultant coordinated the forensic dog team searches that found numerous additional ancient Native American human remains on the site in May and July 2012.
The BLM and Pattern also denied tribes’ request to use forensic dogs trained to find ancient remains, even though the State of California has utilized the canines and deemed them reliable. Pattern refused to fund the survey and the BLM refused to require it.
So local tribes funded a partial dog search themselves of just 16 to 18 turbine pad sites on 5% of the site. Dogs found dozens of probably ancient remains. Tribes were unable to search 95% of the site and construction continued regardless of the many finds, bypassing only the areas where remains had been found, without regard for tribal concerns that remains were likely present at other turbine sites. Despite this, foundations were excavated, filled with concrete, turbines built, roads graded, and a substation built.
Although ultimately confirmation was made by the Imperial Valley Coroner of numerous ancient remains “the remains were not re-buried; they are still on the surface of the ground,” the report states, evidencing this further desecration of tribal members’ ancestors.
The report takes to task the project archaeologist, Tierra Environmental Services of San Diego, hired by Pattern Energy. Even after discoveries of the remains in May 2011, the Coroner did not receive the report of this find until August 2011 indicating the remains were likely ancient Native Americans. The report was delayed by Tierra for “unexplained reasons.”
The NAHC report concludes that “it is significant that no final archaeological report was authorized and prepared by the lead agencies until late in the environmental decision-making process of both the Bureau of Land Management and the County of Imperial. Therefore, such reports were not available to decision-makers in order to advise them.”
Tribal leaders did, however, offer emotional testify to the County of Imperial Supervisors pleading to protect their ancestors’ burial sites and sacred lands, but their concerns were ignored.
A lawsuit filed by Quechan sought a temporary restraining order, which was denied; their suit continues to languish in the court system. Letters from tribal leaders of Viejas and Quechan to President Barack Obama voicing concern about “rough-shod trampling of Native American governmental rights and cultural concerns” from fast-track projects such as Ocotillo Wind Express were never addressed.
The NAHC asks if “whenever the federal government has a project on a fast-track, and in the interest of national defense (as all the large-scale renewable energy projects are considered) that tribal governmental rights, rights to religious freedom, and the protection of cultural sites, honored and revered by the country’s American Indian tribal governments, can be trampled upon, and ignored.”
The commission finds that the spoked wheel geoglyph in Ocotillo, already on the National Register of Historic Places, is clearly a ceremonial site and that the standard of “multiple remains” identified by the coroner meets the state standard for protection.
The commission further finds that “the BLM and the County of Imperial have not shown clear and convincing evidence that the destruction of this site is in the public interest and necessary and alternatives were available but not studied or selected.”
With hundreds of millions of acres of public lands targeted for renewable energy projects, the ramifications are vast.
The commission recommends that the federal government and corporations involved, including SDG&E and Pattern, “provide mitigation measures that are meaningful to affected tribal nations here and on other renewable projects.”
If the BLM and the County of Imperial reject these mitigation measures, the NAHC report concludes, “The Commisison requests that the California Attorney General file suit on behalf of the Commission to prevent further severe and irreparable harm to Native American Cultural sites.”