On December 15, a Southern California Federal District Court enjoined the United States from allowing the development of a large solar power project to proceed, because the U.S. Department of Interior's Bureau of Land Management failed to properly consult with the Quechan Tribe. The project is proposed for development in Southern California's Imperial Valley; on federal lands off of the Quechan Reservation but amidst hundred of tribal sacred sites. In a sweeping decision, the District Court ruled that the United States' so-called consultation efforts with the Quechan Tribe, as required by the National Historic Preservation Act (NHPA), among other federal laws, were wholly inadequate:
In other words, that BLM did a lot of consulting in general doesn't show that its consultation with the Tribe was adequate under the regulations. Indeed, Defendants' grouping tribes together (referring to consultation with "tribes") is unhelpful: Indian tribes aren't interchangeable, and consultation with one tribe doesn't relieve the BLM of its obligation to consult with any other tribe that may be a consulting party under NHPA.
The District Court further observed:
BLM's invitation to "consult," then, amounted to little more than a general request for the Tribe to gather its own information about all sites within the area and disclose it at public meetings. . . . While public informational meetings, consultations with individual tribal members, meetings with government staff or contracted investigators, and written updates are obviously a helpful and necessary part of the process, they don't amount to the type of "government to government" consultation contemplated by the regulations. This is particularly true because the Tribe's government's requests for information and meetings were frequently rebuffed or responses were extremely delayed as BLM-imposed deadlines loomed or passed.
According to the ruling, the private energy developer hoped to qualify for stimulus funds under the American Recovery and Reinvestment Act of 2009 by beginning construction by the end of 2010. "To that end, BLM apparently imposed deadlines of its own choosing," the Court observed.
Because of the large number of consulting parties (including several tribes), the logistics and expense of consulting would have been incredibly difficult. None of this analysis is meant to suggest federal agencies must acquiesce to every tribal request. That said, government agencies are not free to glide over requirements imposed by Congressionally-approved statutes and duly adopted regulations. The required consultation must at least meet the standards set forth in 36 CFR 800.2(c)(2)(ii), and should begin early. The Tribe was entitled to be provided with adequate information and time, consistent with its status as a government that is entitled to be consulted. The Tribe's consulting rights should have been respected. It is clear that did not happen here.
Presumably, without federal stimulus funds, the future of this high-profile Southern California solar energy project is in doubt.
Despite President Obama's November 5, 2009 Tribal Consultation Memorandum, and in turn various federal agencies self-touted efforts to consult with Indian tribes on tribal consultation, the District Court's ruling is at least the second such decision against the United States resulting from the Feds' failure to consult with Indian tribes regarding federally-backed private development projects, in the latter half of 2010.
In August, in Confederated Tribes and Bands of the Yakama Nation v. U.S. Dept. of Agriculture, the federal Indian consultation right was successfully wielded before a Washington State Federal District Court to put halt the USDA's efforts to allow a private contractor to import solid waste from the Hawaiian Islands, into Yakama ceded lands and historic fishing, hunting and gathering areas.
One can only hope that a third strike against the Obama Administration is not required before the Federal Government truly appreciates its abiding obligation to consult with tribal governments in any matter of tribal implication -- and the disastrous economic and non-economic consequences for its failure to consult.
Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. He can be reached at 206.691.3631 or firstname.lastname@example.org, or via galandabroadman.com.