The Continuum

UNITED STATES DISTRICT COURT FOR THE CALIFORNIA EASTERN DISTRICT CAlifornians for Renewable Energy, Inc., La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee, Jim K. Guerra, Alfredo Acosta Figueroa, Phillip Gonzales Smith, Patricia Figueroa, Rev. Ron Van Fleet, Catherine Ohrin-Greipp, Plaintiffs, v.

Bob Abbey, Director BLM Washington Office 1849 C Street NW, Rm. 5665 Washington DC 20240, KENNETH SALAZAR, Secretary U.S. Department of the Interior 1849 C Street, N.W. Washington, DC 20240, Teri Raml, District Manager, BLM California Desert District 22835 Calle San Juan De Los Lagos Moreno Valley, CA 92553 Defendants. ________________________________________________)

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF INTRODUCTION 1.

Plaintiffs seek relief from Defendants’ violation of federal historical preservation

laws in connection with Defendants’ decision to authorize the construction and operation of five solar power projects that will have deleterious impacts on federally protected historical sites.

These projects are BrightSource Energy Ivanpah Solar Electric Generating System (CACA48668), Tessera Solar’s Imperial Valley Solar Project (CACA-47740), Chevron Lucerne Valley Solar Project (CACA-49561), Tessera Solar's Calico Solar Project (CACA-049537), Blythe Solar

Power Project (CACA-48811), and the Genesis Solar Power Project (CACA-48880), hereafter referred to as The 5 Challenged Projects. The U.S. Department of the Interior’s Bureau of Land Management (“BLM”) has violated and is continuing to contravene various provisions of the National Historic Preservation Act, 16 USCS § 470, by issuing and relying on an unlawful opinion for the proposed solar power facilities (The 5 Challenged Projects), that will allow the project proponent access to public lands without sufficient safeguards. BLM has contravened and continues to violate the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.

(2000), the National Historic Preservation Act (“NHPA”), 16 USCS § 470, the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, by authorizing projects that will endanger the environment, tribal lands, historic preservation, and protected animals without obtaining proper and lawful authorization to do so.

2.

The Decision by the Bureau of Land Management stating Overriding

Considerations of global warming and job creation have relied on outdated information regarding the current cost comparison of large solar thermal and concentrating solar plants with Distributed Generation Solar PV. Date current to October 2010, provided by engineer Bill Powers an article entitled "The Federal Government Is Betting on the Wrong Solar Horse" lists costs as follows: "Showing Solar Thermal No Longer Competitive With Solar PVCPS Energy, the San Antonio public utility, offers a case study in cost-based solar energy project selection. CPS Energy was developing a 27-megawatt Tessera Solar dish engine project in West Texas.

The power-purchase agreement (PPA) between CPS Energy and Tessera was recently cancelled due to Tessera’s inability to get project financing at the agreed-upon PPA terms.1 The cancelled Tessera project was subsequently replaced with three 10-megawatt distributed PV projects to be built around San Antonio.

The PPA rate for the CPS distributed PV projects is $150 a megawatt-hour.3 There will be no transmission cost, as these projects will be built within the San Antonio demand center itself. San Antonio has a good solar resource. However, it is 10 to 20 percent less robust on an annual basis than Southern California coastal and desert sites.

2

What is true for San Antonio is even more so for Southern California. It has by far the most operational solar thermal capacity in the country and has been evaluating the cost of solar thermal projects in detail for years. Current cost-of-energy data developed by California energy authorities makes clear that solar thermal cost of energy is much greater than the cost of energy from the distributed PV projects being developed by CPS Energy.

The California Public Utilities Commission estimates the cost of energy from a base-case, dry-cooled solar thermal plant at a best-case Mojave Desert site in Southern California is $202 a megawatt-hour.5 The Commission estimates a new transmission cost of $34 to $46 a megawatt-hour to move this desert solar power to load centers.6 Transmission losses consume about 5 percent, the equivalent of $10 a megawatt- hour, of this remote solar energy production.7 As a result, the “all-in” cost of energy for this representative solar thermal project is approximately $250 a megawatt-hour.

In the Mojave Desert, the solar exposure is about 20 percent better than in San Antonio, while that for Southern California demand centers Los Angeles and San Diego is about 10 percent better. If the same three 10-megawatt distributed PV projects located in San Antonio were located in or near Los Angeles or San Diego, they would produce approximately 10 percent more electricity over the course of a year for the same capital and operations and maintenance cost. This means that the PPA rate of $150 a megawatthour at the San Antonio solar PV site adjusts to a PPA rate of about $136 a megawatt-hour at sites in or near Los Angeles or San Diego for roughly the same return on investment.

Few consumers would doubt which solar electricity option to select if one option delivers solar electricity at $136 a megawatt-hour and the other option produces the same commodity at $250 a megawatt-hour. The proposed solar feed-in tariff for the city of Los Angeles, which would include commercial rooftop PV, ground-mounted PV, and residential PV, has a 2010 composite rate of $220 a megawatt-hour and drops rapidly in future years.8 Even this proposed feed-in tariff is substantially less than the “all-in” cost of energy for solar thermal projects. Yet both the state of California and the U.S. government are making major strategic commitments to the highest-cost $250-a-megawatthour solar thermal option."

There are further difficulties associated with developing temporary "boom towns" in the

3

Eastern Mojave. After the construction phase is complete, there will be small crews of workers perhaps up to a maximum of 100, who will remain. All of the stores that grew up around the desert construction will no longer be able to thrive dependent on a vastly reduced population, and those stores will in all probability have to close. This could create permanent vacant buildings in small desert communities, not a welcome addition to the desert landscape.

Meeting the goal of reducing climate change can be accomplished far more quickly with deployment within the urban core and the perimeter of Southern California towns and cities. There are industrial parks throughout the area from Los Angeles to San Diego, which could accommodate rooftop solar. Government buildings, schools, and non-profits could benefit greatly from solar PV investment. The driving factors for central station power plants located in remote areas meets the utilities' current central station models, yet will be deployed slowly, and in stages that cannot match the speed with which solar PV can be deployed. Climate change can be addressed far more quickly with Distributed Solar PV than with large central station plants. According to Bill Powers in an interview filmed by Robert Lundahl on Novermber 111, local solar PV will create 3 times more jobs than remote central station solar thermal plants. The three to one job ratio, close to load also benefits existing communities, adding ancillary jobs locally.

Additionally, spreading the work among local US companies certainly keeps more of the taxpayer and ratepayer money here in the US, while the bulk of the companies involved in the five major solar companies targeted in the lawsuit are foreign based.

3.

BLM issuance of authorization for the projects is unlawful. BLM issued rights-

of-way leases/grants pursuant to Title V of the Federal Land Policy and Management Act of October 21, 1976 (“ FLPMA”) (90 Stat. 2776; 43 U.S.C. 1761) and the Bureau of Land Management right-of-way regulations (43 CFR Part 2800).

4.

In so doing, BLM violates the National Environmental Policy Act (“NEPA”), 42

U.S.C. § 4321 et seq., and the APA, 5 U.S.C. § 706, by issuing an Environmental Impact

1

http://www.vimeo.com/16796513

4

Statement that ignores or fails to consider the effects of their actions on all aspects of the "human environment." Humans relate to their environment through their culture, so that the cultural aspects of the environment -- for example, cultural uses of the natural environment, the built environment, and human social institutions -- obviously must be considered in the EIS documents.

According to the National Preservation Institute, "Human environment" shall be interpreted comprehensively to include the natural and physical environment and the relationship of people with that environment (40 CFR 1508.14). NEPA's concern is with the "human environment," defined as including the natural and physical (e.g. built) environment and the relationships of people to that environment. A thorough environmental analysis under NEPA should systematically address the "human" -- social and cultural -- aspects of the environment as well as those that are more "natural," and should address the relationships between said natural and cultural environments. Culturally valued aspects of the environment generally include historic properties, other culturally valued pieces of real property, cultural use of the biophysical environment, and such "intangible" sociocultural attributes as social cohesion, social institutions, lifeways, religious practices, and other cultural institutions. These impacts are customarily analyzed either as impacts on "cultural resources," or as "social impacts," or as both -- but many such impacts actually fall into the cracks between the "cultural resource" and "social impact" categories as usually defined2.

5.

As La Cuna De Aztlan Sacred Site Protection Circle member, plaintiff Jim

Guerra, an Apache/Tepehuan, clarifies, “The sacred site is not a specific spot, even though you may find an intaglio in a specific spot. It’s a continuum of land use in history and tribal tradition” (hereafter referred to as The Continuum). (EXHIBIT A).

6.

Systematic de-culturalization had already occurred and affected Southern

California Indians and tribes by virtue of the effects of federal government policies for over 100 years. This fact energizes and gives special meaning to the proper interpretation of NEPA

2

National Preservation Institute, Tools for CRMs, http://www.npi.org/NEPA/whatare.html

5

standards3 (See The MFASAQHE Myth)4 As Anthropologist/Ethnographer Lowell Bean describes in an interview with Film Maker, Robert Lundahl: “The language was lost in part because there was a deliberate attempt by the federal government to stop people from speaking the language. It was played out most vividly in the Indian schools. Children would be brought to the school, such as Sherman Institute in Riverside, and they were not allowed to speak their language. Another factor was that they -- the students there were from different tribes, so they didn't speak -- they couldn't understand someone from another tribe -- another language group, I should say. So you may have five or six or seven languages being spoken in that school, when they were allowed to do it. The -- it was an intent of the teaching process to deculturalize them in any way they possibly could.”

7.

Bean Continues to describe how cultural information is embedded in language.

”to have the cultural memory that's in the language and the history of the people, which is in the songs and the stories. Quite literally, the song cycles -- of which there are many hundreds of hundreds of songs – tell about everything from the creation to the biotic community, what animals are here and what they're about, what birds are here and what foods are here to eat and where the trails are and all the ceremonial and religious materials and the games that are played. All of that -- everything is in the language. And when the language is gone you [sic]-- those things go with them. You can't do [sic] -- you can't do a ceremony in English for goodness sakes. It would be [sic] -- it would be sacrilegious. So as speakers -- as fluent speakers passed away, those materials passed away with them, everything from the most sacred to the most common.” [EXHIBIT B]

In light of a significant loss of cultural information over the past 100 years, upon which the tribes 3 4

http://www.npi.org/NEPA/whatare.html http://www.npi.org/NEPA/process.html

6

and tribal peoples are dependent for their survival, preserving what Guerra refers to as the “The Continuum,” or the status quo, a critical priority and no “overriding consideration” should take precedence.

8.

BLM’s decision also violated its memorandum of understanding (“MOU”)

(EXHIBIT C) with the La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee which states at 1 “[t]he purpose of this MOU is to assist the BLM with its responsibilities under Section 110 of the National Historic Preservation Act of 1966, as amended.” The MOU refers to the jurisdiction and responsibility "Along the Colorado between Needles and Yuma” and does not mean "contained within" (for example no east west boundaries are delineated), but rather "incorporative of" a wider landscape related to traditional lifeways and practices. CARE members and families are part of Yuman cultural continuums and Uto -Aztecan cultural continuums, so that their area of interest applies to said wider region of traditional cultural interactions of the Yuman and Uto-Aztecan language groups and tribes. La Cuna members have standing relative to their MOA to protect the "continuum" which includes integrated aspects related to cultural use including desert ecosystem viability, flora and fauna, trails, burials, cremations, village sites, features, geoglyphs, petroglyphs, etc. from destruction of the physical integrity of the environment, of which they are an integral components. [EXHIBIT C] 9.

According to the American Association of State Highway and Transportation

Officials Center for Environmental Excellence, a variety of federal laws and regulations and other mandates such as presidential executive orders require consultation with federally recognized Indian tribes as part of planning for federally funded or authorized projects. Tribes are defined as a “tribe, band, nation, or other organized group or community of Indians … which is recognized as

7

eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” 25 U.S.C. 3001, § 2(7). La Cuna De Aztlan Sacred Sites Protection Circle by virtue of its being defined as an “other organized group or community of Indians …, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians,” should have been consulted with under ARHP Section 106. The group is eligible for special services, i.e. the group enjoys the privilege of being consulted with about matters related to sacred sites protection according to its existing MOU with the BLM. Therefore the group should have been and should be a party to consultations under Section 106.

10.

Plaintiffs contend that the five projects challenged herein, using the same

technologies are "connected," 40 C.F.R. § 1508.25(a)(1), potentially "cumulative," 40 C.F.R. § 1508.25(a)(2), and sufficiently "similar," 40 C.F.R. § 1508.25(a)(3) to justify a programmatic EIS of commensurate scope initially before right-of-way is granted for any of the projects. Failure to consider the cumulative effects of large Solar Developments, specifically including but not limited to the 5 Challenged Projects, threatens the existence of the aforementioned culturally valued aspects of the environment, in emphasis– “The Continuum.”

11.

BLM’s decision to allow these projects to proceed regardless of such substantial

legal deficiencies injures CARE’s members and La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee members by setting the precedent that solar power facilities will be permitted without sufficient consideration to their effects on the natural and physical (e.g. built) environment and the relationships of people to that environment. The practical result is that La Cuna De Aztlan Sacred Site Protection Circle members, families and lineal descendants would be prohibited from carrying out meaningful cultural practices on culturally valued lands to the detriment of their identities, histories and cultures, i.e. “The Continuum.”

12.

Extended comments by Dr. Jim Andre, Ph.D., Director of the Granite Mountains

Desert Research Institute at U.C Riverside, related to flora and fauna, vulnerable to development

8

in the Ivanpah Valley, as well as vulnerable to the cumulative effects of extended development of Large Solar in the Mojave, Colorado, and Sonoran Deserts predict complete destruction of the natural and human environments, traditional practices and uses, by virtue of the development of 2 million acres, and further predicts ecosystem collapse and massive extinctions, which would result in the end of “The Continuum.”5 13.

BLM’s decision to allow these projects to proceed on lands that are home to

sensitive biological resources and species, listed as "threatened" under the United States federal Endangered Species Act, such as the Flat-Tailed Horned Lizard, and the Desert Tortoise, and central to the traditional life practices and teachings of Indian cultures, also considered “vulnerable” by the International Union for Conservation of Nature (IUCN), threatens the natural and "human environments."

14.

Public lands that are the subject of the 5 Challenged Projects are located within

the California Desert Conservation Area and have been designated by the Department of the Interior as Class-L "Limited Use" lands, designated to "protect sensitive, natural, scenic, ecological, and cultural resource values" and are therefore required to be "managed to provide for generally lower-intensity, carefully controlled multiple use of resources, while ensuring that sensitive values are not significantly diminished." California Desert Conservation Area Plan (CDCA Plan), p. 13.

15.

The proposed 5 Challenged Projects are among the largest in the world, and

include the 9500 acre Blythe Solar, which investors describe as the "world's largest concentrated solar power plant and one that more than doubles all of U.S. solar output", Imperial Solar 2, which will comprise 30,000 independent "SunCatcher" facilities spread across 6,144 acres of public land, and the 663.5 MW Calico Solar Project, located on 4,613 acres in San Bernardino County, where 26,450 of the giant, 38-foot-diameter SunCatchers are to be arrayed.

16.

5

Interior's issuance of rights-of-way, and amendment of the CDCA Plan, for

http://www.vimeo.com/16067454

9

the purpose of permitting construction and operation of the 5 challenged projects on these specific Class L 6 lands, and permitting the destruction of sensitive resources on these lands, is unlawful.

17.

The administrative process leading up to the execution and implementation of the

Project ROD’s, including Interior's inadequate evaluation of the cumulative impact of the IVS Project in conjunction with the multitude of other large-scale commercial solar, wind, and other energy projects planned in and around the California Desert Conservation Area and the failure to complete an evaluation of impacts to cultural resources under NEPA and Section 106 of the National Historic Preservation Act prior to issuance of the RODs for the 5 Challenged Projects, was unlawful.

18.

Further, BLM is violating the National Environmental Policy Act (“NEPA”), 42

U.S.C. § 4321 et seq., and the APA, 5 U.S.C. § 706, by issuing an Environmental Impact Statement that ignores or fails to take a “hard look” at alternatives to the several lease applicant’s proposed projects and the numerous ways in which the projects will be harmful to wildlife and particularly to historical sites.

19.

CARE seeks a declaratory judgment; the United States Department of the Interior,

the Bureau of Land Management, and its officials, officers and agents (collectively "Interior") have violated and are violating federal laws, regulations, and policies including the Federal Land Policy and Management Act (FLPMA); National Historic Preservation Act (NHPA); National Environmental Policy Act (NEPA); Administrative Procedures Act (APA); the American Indian Religious Freedom Act of 1978 (AIRFA, the Native American Graves Protection and Repatriation Act of 1990, and the California Desert Conservation Area Land Use Management Plan (CDCA Plan) by approving, executing, and implementing the RODs for the 5 Challenged Projects.

20.

CARE seeks an order vacating the RODs of the 5 Challenged projects, including

the Amendment to the CDCA Plan; an order permanently enjoining issuance of rights-of-way and Notices to Proceed for the 5 Challenged Projects on these Class L lands; and an order permanently enjoining amendment of the CDCA Plan for development of the 5 Challenged

10

Projects on these Class-L lands.

21.

CARE seeks preliminary injunctive relief to enjoin any issuances of

rights-of-way or Notices to Proceed, enjoin any ground-disturbing activities authorized under Notices to Proceed, and enjoin any further implementation of the 5 Challenged Projects. To avoid Irreparable injury to the members and officers, their families and lineal descendants of La Cuna De Aztlan Sacred Sites Protection Circle, and the cultural and biological resources of concern, including the "human" -- social and cultural -- aspects of the environment, as well as those that are more "natural," addressing the relationships between natural and cultural. Culturally valued aspects of the environment generally include historic properties, other culturally valued pieces of real property, cultural use of the biophysical environment, and such "intangible" sociocultural attributes as social cohesion, social institutions, lifeways, religious practices, and other cultural institutions, i.e. a continuum of land use in history and tribal tradition”, “The Continuum.”

22.

The severity of harm to the plaintiffs, their families and lineal descendants, is in

direct proportion to the damage to “The Continuum.” Since any alterations to Sacred Sites, to cultural resources, to culturally valued landscapes, and to the human environment, as a result of the construction of the 5 Challenged Projects, would be permanent, the effects should be considered unmitigable. To place this into perspective, the question of existing and potential harm, incurred, presently being incurred, and potentially to be incurred by the plaintiffs is well expressed by Kumeyaay/Quechan elder, Preston Arrow-Weed, on November 15, 2010, in an interview with Film Maker Robert Lundahl, in which he states, “They’re destroying a past.

They’re destroying - - just like if I went over there and took your driver’s license and took your birth certificate and took everything that you had and took your camera and kicked you out going down the road. You have no past, no nothing. The only thing you got is your memory.” [EXHIBIT D]

11

JURISDICTION 1.

The 5 Challenged Projects are in this case; BrightSource Energy Ivanpah Solar

Electric Generating System (CACA-48668), Tessera Solar’s Imperial Valley Solar Project (CACA-47740), Chevron Lucerne Valley Solar Project (CACA-49561), Tessera Solar's Calico Solar Project (CACA-049537), Blythe Solar Power Project (CACA-48811), and the Genesis Solar Power Project (CACA-48880. The Secretary’s approval of these decisions constitutes the final decision of the Department of the Interior and, in accordance with the regulations at 43 CFR 4.410(a)(3), and is not subject to appeal under Departmental regulations at 43 CFR Part 4. Any challenge to these decisions, including the BLM Authorized Officer's issuance of the right-of-way as approved by these decisions challenged herein, must be brought in federal district court.

2.

This Court has jurisdiction over this action pursuant to 16 U.S.C. § 1540(g) and 28

U.S.C. § 1331.

PARTIES 1.

Plaintiff CAlifornians for Renewable Energy (“CARE”) is a 501 (c)(3) Non-profit

corporation incorporated in 1999, (Federal ID # 77-0542998), created out of concern over nonrenewable natural gas power facilities in California. The organization advocates for the interests of Californians in the development of sustainable and renewable energy sources in California on brown field sites near the load centers where the power is needed, as opposed to on green field development, distant from the load center where expensive transmission infrastructure will be required to interconnect. CARE provided comments to the California Energy Commission (“CEC”) and BLM on Ivanpah Solar Electric Generating System (CACA-48668), Chevron Lucerne Valley Solar Project (CACA-49561), Blythe Solar Power Project (CACA-48811), and the Genesis Solar Power Project (CACA-48880). CARE also filed a administrative complaint of discrimination against US workers to the US DOE and recovery.gov on the US DOE’s 1.37 billion dollar ARRA loan guarantee issued for Ivanpah Solar Electric Generating System.

12

2.

Plaintiff La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee

(“LCASSPC”) is also a 501 (c)(3) Non-profit corporation that is composed of 15 indigenous and culturally aware individuals who are dedicated to physically protecting the Blythe Giant Intaglios, other culturally and physically related geoglyphs, and sacred sites. The fiscal sponsor of the La Cuna de Aztlan Sacred Sites Protection Circle is Escuela de la Raza Unida, a non-profit organization, incorporated in 1972, (Federal ID # 95-2778840), a Bilingual Indigenous Alternative school, which includes Early Childhood and Day-Care Centers, and KERU-88.5 FM, an educational bilingual radio station located on the premises of 137 North Broadway, Blythe, Ca 92225.

3.

Plaintiff Jim K. Guerra was born in Pennsylvania, “An Army brat.” His family

relocated to Los Angeles where he went to school at Roosevelt High. After obtaining an M.A in Rural Planning, he became a Planner for the City of Los Angeles. He also taught at Cal Poly Pomona. Mr. Guerra was brought to Blythe to conduct a project in Manpower Training in 1975, and his curiosity and research into his cultural ancestry became stimulated. A descendent of Apache and Tepehuan peoples (Uto-Aztecan), he then became an active committee member of La Cuna de Aztlan Sacred Sites Protection Circle located in Blythe. Mr. Guerra has participated for 19 years as a volunteer, and 2 years as a member of the Board of Directors between 1985 and 2010 with Escuela de La Raza Unida, Inc., mentioned above, La Cuna de Aztlan Sacred Sites Protection Circle’s fiscal sponsor. Jim has been dedicated to the preservation and protection of indigenous sacred sites for the last 10 years from 2000 to 2010. He also served two years on Board of Directors of U.S.D.A./Southern Low Desert Resource Conservation & Development Council of Indio, California.

4.

Plaintiff Alfredo Acosta Figueroa is a native of the traditional Colorado

community known as Acacitli, (East Blythe, California) and is a descendent of the Chemehuevi/Yaqui peoples and nations. He is the Chemehuevi Tribal Monitor of Sacred Sites and

13

cultural resources, and is the coordinator and elder historian of La Cuna de Aztlán Sacred Sites Protection Circle in Blythe.

For the past 55-years Alfredo has been researching the lands and values of his ancestors, which include Aztlán, the place of origin of the Mexica/Aztecs, the sacred sites along the Colorado River. Throughout the years, Alfredo has centered his research on several forms and expressions of cultural realities, including the Blythe Giant Intaglios, hundreds of other geoglyphs, petroglyphs, pictographs, mountain images/peaks, archeo-astromonical oberservations and phemonena related to equinoxes and solstices, and native languages and oral histories of the Lower Colorado River. In addition Alfredo is the author of the highly esteemed book “Ancient Footprints of the Colorado River” which was published in 2002. He has written numerous booklets and newspaper articles concerning the sacred sites, cultural resources, and patterns of cultural use.

In 1975, under the leadership of La Escuela de la Raza Unida, he helped organize the movement opposing the construction of the Sun Desert Nuclear Power Plant. The proposed site was located at the base of the sacred Mule Mountains, also known as “Calli” (“House” in the Nahuatl language) and “Hamoc-Avi” (In the Mojave language). In 1991, Alfredo and Reverend Ronald “Ron” Van Fleet co-organized the Colorado River Anti-Ward Valley Coordinating Committee, founded to protest the proposed Ward Valley Toxic Nuclear Dump, near Needles, California. After 9-years of intense struggle, Ward Valley nuclear dump site was abandoned in the year 2000.

Then, in 2001, Alfredo and La Escuela de la Raza Unida were successful in preventing the proposed North Baja Natural Gas Line from destroying the petroglyphs and other sacred sites at the Palo Verde Peak Point at the base of the Cibola Valley. During this year, he coordinated La Cuna de Aztlán Sacred Sites Protection Circle, in order to protect the Blythe Giant Intaglios and other geoglyphs along the Colorado River.

In 2008, due to La Cuna de Aztlan Sacred Sites Protection Circle’s dedication to the preservation of traditional knowledge and practices, the group received a Memorandum of

14

Understanding (MOU) from the Bureau of Land Management (BLM) to be the guardians of the world famous Blythe Giant Intaglios, along with other geoglyphs and several hundred sacred sites that are located along the Colorado River from Needles, California to Yuma, Arizona.

5.

Plaintiff Phillip Gonzales Smith lives in Needles, California and is a Chemehuevi

Elder/Tribal Monitor enrolled in the Colorado River Indian Tribe Reservation. His family has lived in the Mojave Desert and along the Lower Colorado River for hundreds of years. His grandmother’s family lived in the Primm/Ivanpah Valley area of California and Nevada, now the site of the BrightSource Energy Ivanpah Solar Electric Generating System (CACA-48668). Phil is a veteran of the Anti-Ward Valley Toxic Dump Warrior struggle and his traditional/environmental dedication has taken him to other states and Mexico as a representative of this and other community efforts. In addition, Phil is one of the most knowledgeable carriers of the traditional knowledge related to flora and fauna, in the Chemehuevi culture. He is well educated in desert environment, having been tutored in desert subsistence living by his father, who lived in a remote region of what is now the Mohave National Preserve known as Piute Springs. On October 16, 2010, Phil was the head organizer of the Ivanpah Valley Spiritual Run that was coordinated to protest the approved Ivanpah Solar Electric Generating Plant project in San Bernardino County.

5.

Plaintiff Patricia F. Piñòn is the current Champion of the Blythe Giant Intaglios

and Chairperson of the La Cuna de Aztlán Sacred Sites Protection Circle. In 2003, La Cuna de Aztlán Sacred Sites Protection Circle approached the Southern Low Desert Resource Conservation and Development Council requesting assistance with protecting the Blythe Intaglios and the hundreds of geoglyphs found in the Palo Verde and Parker Valleys and beyond. The target goal is to protect these archaeological sites and to transform the regional cultural complex comprised of trail networks, geoglyphs, petroglyph sites, mountain images, and features reflected in the Aztec Calendar into a world heritage destination.

15

6.

Plaintiff Rev. Ronald “Ron” Van Fleet is a member of the Fort Mojave Nation.

Ron is the grandnephew of Sukulai-Homar (Peter Lambert), one of the last Mojave Traditional Chiefs. Sukulai-Homar was the son of Empote-Quatcheech and grandson of Homoseh-Quahote, the great Chief and leader of his people who was forced to surrender to the U.S. Army in 1859. In the early 1970’s Ron, and more than 40 Native Americans from the Colorado River Indian Tribes Reservation and surroundings, enrolled at Palo Verde Junior College under the Colorado River Guides Vocational Training Program. This program was sponsored by the California Employment Department and Palo Verde Junior College. The program lasted approximately two years. The training consisted of visiting the different sacred and historical sites along the Colorado River in order to promote educational development and future tourism of the area. At that time their instructors were desert U.S. Rangers from the Bureau of Land Management and top archaeologists such as Boma Johnson. During one of the onsite tours, BLM archaeologist Boma Johnson took them to the Kokopilli, Cicimitl and Thunderbird Eagle geoglyphs, which will be impacted by the approved Blythe Solar Power Project.

As part of the Colorado River Guides program, the group was taken to numerous onsite tours of the sacred and historical geoglyph sites. They were given lectures on the historical background of the Colorado River areas. In addition, they were taught how to conduct tours and promote tourism for these historical sites. They also promoted their native culture by building huts and canoeing along the river. Ron and his father, who was also enrolled in the course, had already become familiarized with the sacred trails that lead from the Blythe Giant Intaglios to the East) towards the Thunderbird Eagle, Kokopelli and Cicimitl’s sites.

In the late 1980’s, Ron organized the Spiritual Renewal Runs continuing the ancient Mojave (Yuman) traditions, and co-organized the campaign against the proposed Ward Valley Nuclear Toxic Dump in the “Aha-Macave” ancestral homeland near Needles, California. In 1992, Ron and others organized of the Peace & Dignity Journey Sacred Run for the Colorado River

16

Tribes. Their route wound throughout Mexico for 3-months and ended in Mexico City (Teotihuacan). Ron has since traveled to Mexico on several occasions, to study the Mexica culture and traditions, as well as to protest the construction of the Ward Valley Nuclear Toxic Dump before United Nations representatives. On October 16, 2010, Ron helped organize the Ivanpah Valley Spiritual Run, coordinated to protest the approval of the Ivanpah Solar Electric Generating Plant project in San Bernardino County.

8.

Plaintiff Catherine Ohrin-Greipp, MSW, LCSW, BCD is a Counselor &

Psychotherapist in Yuma, Arizona. She is of Cherokee descent and is deeply involved in the protection of native ancestral lands and cultural resources. She lived in Blythe, California where she worked at Palo Verde College. In 2000, she became a member of La Cuna de Aztlán Sacred Sites Protection Circle. As a teacher, she has an obligation to pass on the cultural significance of the sites, cultural practices, and human environment, i.e “The Continuum,” in its entirety, to her students.

9.

Defendant Bob Abbey is the Director of BLM, the agency within the Department

of the Interior responsible for overseeing leases and easements.

10.

Defendant Kenneth Salazar is the Secretary of the Interior and has ultimate

responsibility for the Department of the Interior and agencies within the Department, including BLM. 11.

Defendant Teri Raml is the District Manager of the BLM (DOI) California

Desert District located in Moreno Valley, CA. She and is responsible for decisions related to the implementation of permitting and siting criteria under NEPA, and for administering the Section 106 process of the National Register of Historic Places (NRHP).

17

STATUTORY FRAMEWORK AND FACTS GIVING RISE TO PLAINTIFFS’ CLAIMS A.

Statutory Framework

1.

The National Environmental Policy Act 1.

The historical and cultural foundations of the Nation should be preserved as a

living part of our community life and development. The preservation of this irreplaceable heritage is in the public interest so that its vital legacy of cultural, educational, aesthetic, inspirational, economic, and energy benefits will be maintained and enriched for future generations of Americans.6 2.

Like 106 of the NRHP, NEPA imposes procedural requirements, ensuring that

agencies "look before they leap" by considering the effects of major federal actions on the environment, along with a range of reasonably available alternatives to the proposed action, through an environmental assessment or a more detailed environmental impact statement (EIS). 7 Although the statute does not require that the least environmentally degrading alternative be chosen,8 NEPA urges agencies to use "all practicable means" to "preserve important historic, cultural, and natural aspects of our national heritage," and to maintain "an environment which supports diversity and variety of individual choice."9 3.

This secular policy is effectuated through the Archeological Resources Protection

Act (ARPA),10 the Native American Graves Protection and Repatriation Act (NAGPRA),11 and the

6

16 U.S.C. 470(b)(2), (b)(4) (1994).

7

42 U.S.C. 4332(2)(C) (1994); Part II.B.1, supra (discussing requirements of NHPA 106).

8

See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989). The agency should, however, identify the environmentally preferable alternative in its NEPA analysis, defined as the one that "ordinarily ... causes the least damage to the biological and physical environment ... [and] best protects, preserves, and enhances historic, cultural, and natural resources." Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, 46 Fed. Reg. 18026, 18028 (1981).

9

See David Lowenthal, The Past is a Foreign Country 114-15 (1985); Novak, supra note 13, at 20, 49; see also William A. Shutkin, The Concept of Environmental Justice and a Reconception of Democracy, 14 Va. Envtl. L.J. 579, 581 (1995) (stating that "for [Thomas] Jefferson, the environment (albeit cultivated) was the essential ingredient for a healthy democracy").

10

16 U.S.C. 470aa-470ll (1994).

11

25 U.S.C. 3001-3013 (1994).

18

National Historic Preservation Act (NHPA).12 In addition, federal decisions affecting cultural resources on public lands require environmental analysis pursuant to the National Environmental Policy Act (NEPA).13 Together, these laws evidence Congress's goal of accommodating cultural resource use and protection, and they provide a means of promoting tribal sovereignty and redressing the continuing effects of a long history of suppression and displacement of Indian tribes.

4.

Under NEPA two types of EIS are possible: programmatic and specific. "A

programmatic EIS reflects the broad environmental consequences attendant upon a wide-ranging federal program. The programmatic EIS looks ahead and assimilates `broad issues' relevant to [the program], the site-specific EIS addresses more particularized considerations..." Nat'l Wildlife Federation v. Appalachian Regional Comm'n, supra, 677 F.2d at 888.

5.

Various standards guide judicial review of whether an agency should complete a

programmatic EIS. The Supreme Court has emphasized that the question of preparing a programmatic EIS is initially committed to the agency. Kleppe v. Sierra Club, supra, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576. Under CEQ regulations a programmatic EIS should be prepared if actions are "connected," "cumulative," or sufficiently "similar" that a programmatic EIS is "the best way" to identify the environmental effects.

6.

Plaintiffs contend that the five projects challenged herein, using the same novel

technology are "connected," 40 C.F.R. ยง 1508.25(a)(1), potentially "cumulative," 40 C.F.R. ยง 1508.25(a)(2), and sufficiently "similar," 40 C.F.R. ยง 1508.25(a)(3) to justify a Programmatic EIS of commensurate scope. Additionally, we note that federal development of new technologies with unknown environmental consequences is the type of action in which programmatic considerations

12

16 U.S.C. 470, 470a-470m, 470w (1994).

13

42 U.S.C. 4321, 4331-35, 4341-47 (1994).

19

are particularly important. Scientists' Institute for Public Information v. AEC, supra, 481 F.2d at 1089-1090.

7.

NEPA requires all agencies of the federal government to prepare a “detailed

statement” regarding all “major federal actions significantly affecting the quality of the human environment,” 42 U.S.C. § 4332(C), including situations where several separate actions may have a cumulatively significant impact on the environment. 50 C.F.R. § 1508.27(b)(7).

i.

This statement – known as an Environmental Impact Statement (“EIS”) –

must describe (1) the “environmental impact of the proposed action,” (2) any “adverse environmental effects which cannot be avoided should the proposal be implemented,” (3) alternatives to the proposed action, (4) “the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity,” and (5) any “irreversible or irretrievable commitment of resources which would be involved in the proposed action should it be implemented.” 42 U.S.C. § 4332. NEPA further provides that agencies “shall . . . study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.” Id. § 4332(2)(E). ii.

To determine whether an EIS is required in situations where an EIS is not

normally prepared, federal agencies must prepare an Environmental Assessment (“EA”).

40 C.F.R. § 1501.4. An EA must provide sufficient evidence and analysis to support the agency’s determination of whether a proposed action will significantly affect the environment, thus requiring an EIS. iii.

At the time of its decision to take a proposed action, the agency must

prepare a concise public “record of decision,” which must identify all reasonable alternatives and “[s]tate whether all practicable means to avoid or minimize

20

environmental harm from the alternative selected have been adopted, and if not, why they were not.” Id. § 1505.2. iv.

A Supplemental EIS must be prepared if the agency makes “substantial

changes in the proposed action that are relevant to environmental concerns” or if there are “significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” Id. § 1502.9(c).

8.

The Administrative Procedure Act governs judicial review of agency decisions

under NEPA. NEPA aims to promote environmentally sensitive governmental decision-making, without prescribing substantive standards. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989); Tillamook County v. U.S. Army Corps of Eng'rs, 288 F.3d 1140, 1143 (9th Cir.2002). Toward that end, the Congress by statute requires, with some exceptions, that all federal agencies consider the environmental impact of their actions.

Anderson v. Evans, 350 F.3d 815, 829(9th Cir.2003).

9.

The adequacy of an Environmental Impact Statement (EIS) is judged by whether

it constituted a "detailed statement" that took a "hard look" at all of the potentially significant environmental consequences of the proposed action and reasonable alternatives thereto, considering all relevant matters of environmental concern. 42 U.S.C. § 4332(2)(a); Kleppe v.

Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976); 40 C.F.R. § 1502.1.

The critical question is whether the EIS contains a "reasonably thorough discussion of the significant aspects of the probable environmental consequences" of the proposed action as well as a range of alternatives to that action. California v. Block, 690 F.2d 753, 761 (9th Cir.1982). The "hard look" mandated by Congress must be timely, and must be taken objectively and in good faith-"not as an exercise in form over substance, and not as a subterfuge designed to rationalize a decision already made." Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir.2000).

10.

"An environmental impact statement is more than a disclosure document." 40

C.F.R. § 1502.1. It is not enough to simply outline the foreseeable effects of a decision already

21

made. NEPA requires consideration of a range of alternatives, and frank public discussion of those alternatives.

11.

Similar rules apply to Environmental Assessments (EA). An EA is to 1144*1144

"[b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact," and "shall include brief discussions of the need for the proposal, of alternatives as required by section 102(2)(e), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted." 40 C.F.R. ยง 1508.9(a)(1), (b); Save the Yaak Comm. v. Block, 840 F.2d 714, 717-18 (9th Cir.1988). Although the discussions may be "brief," the Court must still determine whether an EA took a "`hard look' at the environmental consequences" of the proposed action.

Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir.1998) (citing Oregon Natural Res. Council v. Lowe, 109 F.3d 521, 526 (9th Cir.1997)). The court must defer to an agency conclusion that is "fully informed and well-considered," but need not rubber stamp a "clear error of judgment." Blue Mountains, 161 F.3d at 1211 (quoting Save the Yaak Comm., 840 F.2d at 717 and Marsh, 490 U.S. at 378, 109 S.Ct. 1851).

12.

An EA as well as an EIS must analyze "connected actions." Save the Yaak, 840

F.2d at 720. An EA must discuss reasonably foreseeable future actions that may result in cumulative impacts. Id. It must also be circulated to the public for some level of comment and participation. Citizens for Better Forestry v. U.S. Dept. of Agriculture, 341 F.3d 961, 970-971 (9th Cir.2003). As the Ninth Circuit recently noted: Although we have not established a minimum level of public comment and participation required by the regulations governing the EA and FONSI process, we clearly have held that the regulations at issue must mean something. ... It is evident, therefore, that a complete failure to involve or even inform the public about an agency's preparation of an EA and a FONSI, as was the case here, violates these regulations.

22

13.

Id. In this circuit, the "touchstone [of NEPA compliance] is whether an

[EA's] selection and discussion of alternatives fosters informed decision-making and informed public participation." California v. Block, 690 F.2d 753, 767 (9th Cir.1982), quoted in Natural Resources Defense Council, Inc. v. National Marine Fisheries Svc., 280 F.Supp.2d 1007, 1015 (N.D.Cal.2003).

14.

Whether there may be a significant effect on the environment requires

consideration of "context and intensity." 40 C.F.R. ยง 1508.27; 42 U.S.C. ยง 4332(2)(a); see also Sierra Club v. U.S. Forest Svc., 843 F.2d 1190, 1193 (9th Cir.1988). Context refers to the scope of the agency's action, including the interests affected. Intensity relates to the degree to which the agency action affects the locale and interests identified in the context part of the inquiry. National Parks & Conservation Ass'n, 241 F.3d at 731.

15.

In challenges to an agency's issuance of a FONSI, the reviewing court

must ensure that, in preparing the EA, the agency took a "hard look" at all the relevant foreseeable consequences of a proposed action, in light of their context and intensity, and determined that no "significant impact" to the environment would result. Metcalf, 214 F.3d at 1141 (citing Robertson, 490 U.S. at 348, 109 S.Ct. 1835). An agency's issuance of a FONSI is entitled to "substantial deference." Oregon Natural Res. Council, 490 U.S. at 372, 109 S.Ct. 1851. The agency's determination is considered in light of the degree of uncertainty manifested, and the degree of controversy generated. "Either of these factors may be sufficient to require preparation of an EIS in appropriate circumstances." National Parks & Conservation Ass'n, 241 F.3d at 731 (quoting Sierra Club v. U.S. Forest Svc., 843 F.2d 1190, 1193, 1194 (9th Cir.1988); Blue Mountains, 161 F.3d at 1212-14).

2.

Native American Graves Protection and Repatriation Act 1.

NAGPRA establishes rights of federally recognized tribes, Alaskan Native villages and

Native Hawaiian organizations to cultural items embedded in federal and tribal lands.14 Objects of cultural patrimony include objects with "ongoing historical, traditional, or cultural importance central to the Native

14

25 U.S.C. 3002-03 (1994). Section 3002 applies to discoveries made after November 16, 1990, the effective date of the Act. 25 U.S.C. 3002(a) (1994). Federal lands include most lands controlled or owned by the United States. 25 U.S.C. 3001(5) (1994); 43 C.F.R. 10.2(f)(1) (2001). NAGPRA uses the term "Native American" to include "a tribe, people, or culture that is indigenous to the United States." 25 U.S.C. 3001(9). An "Indian Tribe" includes "any tribe, band, nation, or other organized group or community of Indians, including any Alaska Native village ... which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians." 3001(7). "Native Hawaiian" means "any individual who is a descendant of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii." 3001(10).

23

American group or culture itself ... which, therefore, cannot be alienated, appropriated, or conveyed by any individual."15

2.

If cultural items are discovered on federal or tribal lands, the person making the discovery

must provide notice to the responsible federal official and to interested tribes.16 Meanwhile, the activity that led to the discovery must cease.17 It may be resumed thirty days after certification that notice has been received, but an ARPA permit is required if the activity would result in the excavation or removal of archeological resources.18 2.

The National Historic Preservation Act (NHPA) 1.

The NHPA complements NAGPRA by requiring consultation for federal undertakings

affecting historic properties, including burial grounds and sacred sites. Although its predecessor, the Historic Sites Act of 1935, only covered sites of "exceptional value," the NHPA reflects much broader concerns - the "preservation of an environment that truly represents the nation's social and historic diversity," not just structures built by the wealthy and powerful. n138 2.

Traditional cultural properties associated with the practices or beliefs of a community,

rooted in community history and important in maintaining cultural identity, may meet eligibility criteria. n140 The 1992 NHPA amendments explicitly provide that "properties of traditional religious and cultural importance" to American Indian tribes may be eligible, n141 even though other religious properties are not covered unless they are "integral parts" of eligible districts or derive their "primary significance from architectural or artistic distinction or historical importance." n142 3.

The NHPA's primary mechanism for the protection of historic properties is procedural in

nature. Agencies that fail to execute the NHPA's procedural responsibilities, along with their permittees, may be enjoined from proceeding with the undertaking in question. n148 Further, a permittee who has intentionally caused significant adverse effects to an historic property may be barred from receiving loans, licenses, or other assistance. n149

15

3001(3)(D) (1994) .

16

25 U.S.C. 3002(d) (1994); 43 C.F.R. 10.4(b) (2001).

25 U.S.C. 3002(d).

18 25 U.S.C. 3002(c)-(d); 16 U.S.C. 470cc (1994).

17

24

4.

From the outset, (Section 106) consultation should be conducted in tandem with the

preparation of NEPA analyses, n151 as historic and cultural resources are expressly included among the factors to be considered in environmental impact statements (EISs). n152 Action agencies must consult with State Historic Preservation Officers (SHPO) on undertakings that may affect historic properties, n153 and must include interested tribes when traditional cultural properties may be affected, even if the property is outside reservation boundaries. n154 5.

Tribal oral tradition should also be considered to establish the location and significance of

a place. n157 If an eligible property is identified, the action agency must then consult to determine whether the undertaking will have adverse effects on the property by "diminishing the integrity of the property's location, ... setting, ... feeling, or association." n158 Examples of adverse effects include physical destruction, the introduction of visual, audible, or atmospheric elements that are out of character with the property, the alteration of the property's setting, and the transfer of the property without adequate restrictions to ensure its long-term preservation. n159 6.

If the agency proposes a finding of no adverse effect, it must consult with the parties in an

attempt to resolve any disagreements with that finding. n160 If adverse effects are found, the selection of alternatives to avoid or mitigate those effects will be the subject of continuing consultations, typically culminating in a Memorandum of Agreement (MOA). n161 The action agency may terminate consultation and go forward with the undertaking even if a MOA cannot be agreed upon, but it does so at its own peril. n162 In Muckleshoot Indian Tribe v. United States Forest Service, the Ninth Circuit enjoined a land exchange after the parties had failed to reach agreement, finding that the Forest Service erred in concluding that photographing and mapping a historic trail prior to transferring it to a private party would mitigate adverse effects to the site's significant features. n163 If the agency does proceed in the absence of an MOA, it must ask the Advisory Council to comment on the undertaking, n164 and the decision must be made by the head of the agency. n165 7.

Section 110 goes beyond 106 by providing substantive protection for properties designated

by the Secretary of the Interior as National Historic Landmarks. n166 Landmarks include public or private properties of national historic significance that "possess exceptional value or quality in illustrating or interpreting the heritage of the United States in history, architecture, archeology, engineering and culture and

25

... a high degree of integrity of location, design, setting, materials, workmanship, feeling and association." n167 Agencies must take steps to avoid harm to landmarks "to the maximum extent possible" and must provide the Advisory Council an opportunity to comment on federal undertakings affecting landmarks. n168 8.

NHRP has been characterized as a "stop, look and listen" provision. Apache Survival I,

21 F.3d at 906; Muckleshoot Indian Tribe v. U.S. Forest Svc., 177 F.3d 800, 805 (9th Cir.1999).

NHPA requires, prior to any federal undertaking, that the relevant federal agency "take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register" and "afford the Advisory Council on Historic Preservation ... a reasonable opportunity to comment with regard to such undertaking." 16 U.S.C. § 470f.[2]

9.

NHPA's regulations also require federal agencies to provide interested members of

the public reasonable opportunity to participate in the section 470f process. 36 C.F.R. §§ 800.1(a), 800.2(a)(4), (d)(1). Thus, any member of the public who can demonstrate sufficient interest in the preservation of the historical lands at issue falls within the zone of interests protected by the NHPA. 10.

NHPA requires a federal agency to make a reasonable and good faith effort to

identify historic properties, 36 C.F.R. § 800.4(b); determine whether identified properties are eligible for listing on the National Register based on criteria in 36 C.F.R. § 60.4; assess the effects of an "undertaking" on any eligible historic properties found, 36 C.F.R. §§ 800.4, 800.5, 800.9(a); determine whether the effect will be adverse, 36 C.F.R. §§ 800.5, 800.9(b); and avoid or mitigate any adverse effects, 36 C.F.R. §§ 800.8(e), 800.9.

Additional NHPA provisions apply to Indian tribes: In carrying out its responsibilities under Section 106, a Federal Agency shall consult with any Indian Tribe ... that attaches religious and cultural significance to properties described in Subparagraph (A). 16 U.S.C. § 470a(d)(6)(B).

11.

Under NHPA, it is the policy of the federal government to "foster conditions

under which our modern society and our prehistoric and historic resources can exist in productive harmony and fulfill the social, economic, and other requirements of present and future

26

generations." 16 U.S.C. § 470-1(1). Section 106 of the NHPA requires that whenever a federal agency has "direct or indirect jurisdiction" over a project or program that could affect historic properties, the federal agency must study ways to avoid or mitigate any adverse impacts to those properties. 16 U.S.C. § 470f. The agency must afford the Federal Advisory Council on Historic Preservation ("Advisory Council") "a reasonable opportunity to comment." Id. 12.

The § 106 review process requires the federal agency to: (1) identify the properties

that are eligible for listing on the National Register that would be affected by the federal undertaking; (2) determine if the effect could be adverse; and (3) if so, 1129*1129 consult with the State Historic Preservation Officer ("SHPO")[2] to develop alternatives to mitigate any adverse effects on the historic properties. See 36 C.F.R. §§ 800.4(b) & (c) & 800.5(e).[3] If the agency and the SHPO agree, they execute a MOA, which must be joined in or approved by the Advisory Council. See 36 C.F.R. §§ 800.5(e)(4), 800.6(a). Where a MOA is executed, it "shall govern the undertaking and all of its parts." 16 U.S.C. § 470h-2(l).

13.

Fundamental purpose of National Historic Preservation Act (16 USCS §§ 470 et

seq.) and regulations implementing it is to protect historical heritage from extinction but not necessarily from every conceivable threat resulting from exigencies of modern life; where citizens' association contended that federally funded highway project would create additional noise and air pollution, such harms were not of historical or architectural character of community warranting intervention on NHPA grounds. Cobble Hill Asso. v Adams (1979, ED NY) 470 F Supp 1077, 9 ELR 20710.

14.

Federal law controls the interpretation of the relevant MOU19 in this case because

it was entered into pursuant to a federal scheme and BLM is a party. See Klamath Water Users Protective Ass'n v. Patterson, 204 F.3d 1206, 1210 (9th Cir. 2000) (holding that federal law controls the interpretation of a contract entered into pursuant to federal law when the United States

19

See Memorandum of Understanding (MOU) between the Bureau of land Management (BLM) and La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee (LCASSPC).

27

is a party). "The interpretation of a contract is a mixed question of law and fact subject to de novo review. In particular, the determination of whether contract language is ambiguous is a question of law." Id. (citation omitted).

B.

Facts Giving Rise to Plaintiffs’ Claims

1.

BLM’s Memorandum of Understanding (MOU) violated with La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee (LCASSPC) . On or about March 14,

2008 the BLM signed “Amendment No. 1 [which] modifies the current Memorandum of Understanding (MOU) that was signed by the Bureau of land Management (BLM) and by the Southern. Low Desert Resource Conservation and Development Council (Council) in July 2006 to include the La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee (LCASSPC), and the Blythe Area Chamber of Commerce and Tourist Information Center (Chamber), in the partnership for protection of cultural resources in the BLM Yuma Field Office planning area…

Section "II. Definitions" is amended as follows:…La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee [LCASSPC] A 501 (c)(3) Non-profit organization that is composed of 15 indigenous and culturally· aware individuals who are dedicated to physically protecting the Blythe Giant Intaglios, other geoglyphs, and several hundred sacred sites that are located along the Colorado River from Needles California to Yuma Arizona...The purpose of this MOU is to assist the BLM with its responsibilities under Section 110 of the National Historic Preservation Act of 1966, as amended." [MOU at 1] [Emphasis added] As part of the MOU the BLM agreed to: A. Work cooperatively on projects of mutual benefit to the MOU signatories.

B. Provide technical and planning assistance for projects of mutual benefit to the MOU signatories.

C. Initiate any environmental assessment documents deemed necessary for the completion of any agreed upon joint projects.

D. Assist with the preparation of statements of work and hiring of contractors to complete the agreed upon projects.

28

E. Cooperate and assist (when appropriate) with seeking funds to complete agreed upon joint projects. [MOU at III D] As part of the MOU LCASSPC agreed to: A. Work cooperatively with BLM to coordinate and facilitate the development of plans for the conservation, protection, and interpretation of desert resources and sacred sit. Specifically LCASSPC agrees to diligently work toward the immediate and future protection of cultural resources, including the Blythe Intaglios, for the good of the future generations and the public good.

B. Assist with any environmental documents deemed necessary for the completion of joint projects.

C. Provide a public outreach program to encourage and promote, active public participation in the protection of desert resources.

D. Assist in the solicitation of funds from outside organizations and agencies to complete agreed upon projects or work its.' work items. [MOU at III B.] A.

General Allegations and Claims– BrightSource Energy Ivanpah Solar Electric

Generating System (CACA-48668).

The Ivanpah Solar Electric Generating System (CACA-48668) Federal Process began with BLM’s Notice of Intent Published in Federal Register, November 5, 2007 and culminated with the Right-of-Way Grant by the BLM to commence construction of the project on October 7, 2010.

1.

BLM DID NOT CONSULT WITH LA CUNA DE AZTLAN SACRED SITES

PROTECTION CIRCLE ON THE IVANPAH PROJECT, AS WAS REQUIRED BY THE EXISTING MOU, AND BY SECTION 1O6 OF NRHP. BLM’s decision to issue the ROD violated its memorandum of understanding (“MOU”) (EXHIBIT C) with the La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee which states at 1 “[t]he purpose of this MOU is to assist the BLM with its responsibilities under Section 110 of the National Historic Preservation Act of 1966, as amended.” The MOU refers to jurisdiction and responsibility "Along the Colorado between Needles and Yuma” and does not

29

mean "contained within" (for example no east west boundaries are delineated) but rather "incorporative of" or incorporating. Care members and families are part of Yuman cultural continuums and Uto Aztecan cultural continuums, so that their area of interest applies to the wider region of historic cultural interactions of the Yuman and Uto-Aztecan language groups and tribes.

La Cuna members have standing relative to their MOA to protect the "continuum" which includes several integrated aspects related to cultural use including desert ecosystem viability, flora and fauna, trails, burials, cremations, village sites, features, geoglyphs, petroglyphs, etc. from destruction of the physical integrity of the natural and human environments which incorporate and sustain them , and of which they are an integrated component. This includes protection from effects from the cumulative impacts of multiple projects on desert ecosystems. It includes the disposition and integrity of desert tortoises and other creatures within their continuums.

BLM’s memorandum of understanding (“MOU”) (EXHIBIT C) with the La Cana de Atlas Sacred Sites Protection Circle Advisory Committee states at 1 “[t] he purpose of this MOU is to assist the BLM with its responsibilities under Section 110 of the National Historic Preservation Act of 1966, as amended.” The existing Memorandum of Understanding with the La Cana de Atlas Sacred Sites Protection Circle Advisory Committee “to provide a means…to work in partnership to enhance cultural resource protection, conservation, and interpretation efforts on BLM lands…The fact that the BLM did not and has not yet consulted with the La Cana de Atlas Sacred Sites Protection Circle according to Section 106 of NRHP is unlawful.

2.

BLM IVANPAH DOCUMENTS WERE FROM ANOTHER PROJECT In breach of this agreement and instead of consultation with LCASSPC the BLM prepared

a Programmatic Agreement (PA) for a different project altogether with PA for a ROW with SCE which demonstrates the BLM failed to carry out its NHPA consultations with the LCASSPC altogether for the Ivan Solar Electric Generating System ROD.

30

3.

IVANPAH PROJECT DECIMATES THE “HUMAN ENVIRONMENT” On March 24, 2010 Californians for Renewable Energy, Inc., (CARE) filed a

administrative complaint with Ray Madden, U.S. Department of Energy, Office of Inspector General against the US DOE issuance of the $1.37 billion in loan guarantees claiming it violated the civil rights of Native Americans, since the project was located on traditional lands of local indigenous tribes including the Mojave, Southern Paiute, and Chemehuevi, and contains cultural resources, sacred sites and species (Desert Tortoise) important to the cultural practices inherent to “The Continuum,” which would potentially be destroyed.

4.

LOAN GUARANTEES WERE ISSUED ON IVANPAH PROJECT DESPITE POTENTIAL HARM TO NATIVE AMERICANS CARE’s complaint alleged this action by US DOE violate Title VI of the Civil Rights Act

of 1964; no person in the United States shall be excluded from participation in or otherwise discriminated against on the ground of race, color, or national origin under any program or activity receiving Federal financial assistance. On behalf of CARE’s Native American members CARE complained that the project adversely impacted Native American cultural resources and sacred sites and that the federal government had a duty to conduct government to government consultations with Native American tribes and groups impacted by the project.

5.

AMMENDMENTS TO THE CDCA PLAN ARE UNLAWFUL On September 4, 2010 CARE filed a complaint and protests to the Ivanpah Solar Electric

Generating System (ISEGS) Final Environmental Impacts Statement (FEIS) and associated proposed amendment to BLM’s California Desert Conservation Area (CDCA) Plan.

6.

CEQA/NEPA VIOLATED “The Final EIS is pre-committing to a certain plan prior to conducting an independent

environmental review [SA/EIS] which violates the public participation requirements under the California Environmental Quality Act (CEQA), and the National Environmental Policy Act (NEPA). “ [EXHIBIT E/Protest P. 2]

31

7.

INADEQUATE NO ACTION ALTERNATIVE Inadequate No-action Alternative; The Final EIS alternatives analysis is in adequate

because it fails to properly provide for a no action alternative. Pursuant to NEPA (40 CFR 1505.1(e)), a reasonable range of alternatives must be examined in the Draft EIR/EIS, and were selected based on the following criteria: (1) the alternative’s potential to meet the Proposed Action’s purpose and need; (2) the feasibility of the alternative; and (3) the alternative’s ability to avoid or lessen adverse effects of the Proposed Project. As required under NEPA Section 1502.14(d), a No Action Alternative must also be considered.” [EXHIBIT D/Protest P. 3] When federal agencies decide on project proposals, “[n]o action . . . would mean the proposed activity would not take place, and the resulting environmental effects from taking no action would be compared with the effects of permitting the proposed activity or an alternative activity to go forward.”20 The Ninth Circuit has held that “consideration of the alternatives requirement . . . guarantee[s] that agency decision-makers have before them and take into proper account all possible approaches to a particular project (including total abandonment of the project).”21 [EXHIBIT F/Protest P. 4] NEPA requires full consideration of "appropriate" alternatives. [42 USC § 4332(2)(E)] Included with the appropriate alternatives must be the "no action" alternative [40 CFR § 1502.14(d)] The evidentiary record demonstrates the FEIS’s “preferred alternative”, as discussed in the Ivanpah FEIS, the Mitigated Ivanpah 3 Alternative, is not superior to the High DG option identified in the California Public Utilities Commission’s 33% Renewables Portfolio Standard Implementation Analysis Preliminary Results (June 2009).22 [EXHIBIT G/PROTEST P. 4]]

20

Forty Most Asked Questions Concerning CEQ’s NEPA Regulations, 46 Fed. Reg. 18026, 18027 (March 23, 1981).

Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 785 (9th Cir. 2006) (emphasis in original).

22 See California Public Utilities Commission's California Solar Initiative team Annual Program Assessment to the Legislature June 30, 2009. http://docs.cpuc.ca.gov/PUBLISHED/GRAPHICS/103173.PDF Highlights of the report include: California has over half a gigawatt of solar connected to the electric grid at customer sites. With recent rapid growth, California now has over 515 megawatts (MW) of cumulative installed solar photovoltaic (PV) capacity at nearly 50,000 sites,[] including 226 MW installed under the CSI Program.[] The non-CSI Program solar PV capacity was installed primarily under prior solar programs, including the Self-Generation Incentive Program (SGIP) and the Emerging Renewables Program (ERP).

21

32

8.

FAILURE TO CONSIDER THE “HIGH DG” ALTERNATIVE PD and FEIR fail to include the High DG alternative; The FEIS improperly excludes the

High DG alternative. The FEIS states at 3-83, “However, achieving 400 MW of distributed solar PV or solar thermal would depend on additional policy support, manufacturing capacity, and lower cost than currently exists to provide the renewable energy required to meet the California Renewable Portfolio Standard requirements so additional technologies, like utility-scale solar thermal generation, are also necessary.” [EXHIBIT G/PROTEST P. 4] In an interview with Film Maker Robert Lundahl, Solar Engineer, Bill Powers, P.E. states, “Many applications are filed in that time frame, 2008, 2009, of which Ivanpah was one, Genesis, some of these other projects. One of the project objectives is then identified as getting to the finish line quickly enough to get the cash grant. What is now used -- so the ARRA program really has now resulted in a perverse set of incentives that push forward projects that happen to be relatively far along in their permitting and development, whether they're good or bad or whether there are alternatives. None of that matters anymore.” [EXHIBIT H/P. 6,7] 9.

APPLICANTS USED CONTRACTOR DATA TO COMPLETE SECTION 106 PROCESS Plan adopted by BLM with CEC and the project Applicant purportedly in government to

government consultations pursuant to Section 106 by the BLM with Indian tribes is unlawful, since they rely on authorizing the Applicant to conduct specific identification efforts for this undertaking by allowing the Applicant to retain an archaeological consultant to complete all of the investigations necessary to identify and evaluate cultural resources located within the Area of Potential Effect (APE) for both direct and indirect effects. [EXHIBIT I, P. 8, 9] 10

BLM CONSISTENTLY IGNORED PUBLIC COMMENTS AND MADE STATEMENTS IN RESPONSES FOUND TO BE UNTRUE

Consultation, Coordination and Public Involvement (11000) 11150 Native Americans (Government-to-Government)

33

Comment 19-25. Sensitive archaeological sites, ancient trails, an unstudied geoglyph (ISEGS-01) next to the site, and cultural values for the local tribes have not been sufficiently addressed or mitigated. The input of the Chemehuevi Tribe was not included.

Comment 9-2. Consultation with tribes and interested Native American tribes and interested Native American individuals, as consulting parties, on the NAHC list, should be conducted in compliance with the requirements of federal NEPA (42 U.S.C. 432143351) and Section 106 and 409 of federal NHPA (16 U.S.C. 470 [f)]et seq.), 36 CFR Part 800.3, the President's Council on Environmental Quality (CSQ; 42 U.S.C. 4371 et seq.) and NAGPRA (25 U.S.C. 3001-3013), as appropriate. The 1992 Secretary of the Interior's Standards for the Treatment of Historic Properties were revised so that they could be applied to all historic resource types included in the National Register of Historic Places and including cultural landscapes. This project site is certainly within the ‘cultural landscape of the Mojave. Furthermore, consultation with Native --American communities is also a matter of environmental justice as defined by California Government Code §65040.12(e) and the National Environmental Policy Act (42. U.S.C. 432143351).

Response: See the Native American Consultation subsection of the Cultural Resources section (Pages 4-4.23 to 4.4-25 of the FEIS), and Tables 4-4.4 and 44.5 in the Cultural Resources section of the FEIS. These sections provide the consultation information requested in the comments. This information in the FEIS was updated to include the additional government-to-government consultation that occurred subsequent to the publication of the DEIS. No concerns were expressed by any of the Tribes consulted. Although information was requested, no sites of traditional or religious use were identified in the area by the Tribes.

560020 -Ethnographic Resources Comment 9-1. The Native American Heritage Commission withholds a determination of opposition or support of this project subject to the completion by the Bureau of Land Management of the Tribal Consultation required by the National Historic Preservation Act, Section 106 process. The NAHC did perform a Sacred Lands File (SLF) search in the NAHC SLF Inventory, established by the Legislature pursuant to Public Resources Code §5097.94(a) and Native American Cultural Resources were not identified within one-half mile of the APE identified for the project. However, Native American cultural resources are in close proximity to the APE. Early consultation with Native American tribes in your area is the best way to avoid unanticipated discoveries once a project is underway. Enclosed are the names of the culturally affiliated tribes and interested Native American individuals that the NAHC recommends as 'consulting parties,' for this purpose, that may have knowledge of thereligious and cultural significance of the historic properties in the project area (e.g. APE). We recommend that you contact persons on the attached list of Native American contacts. A Native American Tribe or Tribal Elder may be the only source of information about a cultural resource. Also, the NAHC recommends that a Native American Monitor or Native American culturally knowledgeable person be employed whenever a professional archaeologist is employed during the 'Initial Study' and in other phases of the environmental planning processes. Furthermore the NAHC recommends that you contact the California Historic Resources

34

information System (CHRIS) at the Office of Historic Preservation (OHP) Coordinator's office (at (916) 653-7278, for referral to the nearest OHP information Center of which there are 10.

Response: No specific concerns were expressed by any of the Tribes consulted.

Although information was requested, no sites of traditional or religious use were identified in the area by the Tribes. One Tribal elder from Needles did note that ‘Ivanpah’ meant ‘good water’ in Chemehuevi. The project is within the homeland of the Chemehuevi and Southern Paiute. The Timbisha Shoshone Tribe was added to the consultation/coordination list in November 2009, at their request.

Numerous letters as well as phone calls and face to face meetings occurred with Tribes on this project: Letters submitted on: Letter #1: October 4, 2007 or December 6, 2007 (for Tribes on NAHC list, not on original BLM list) and December 2, 2009 for the Timbisha Shoshone Initiating coordination/consultation with results of archaeological survey Letter #2: March 5, 2009 Follow-up and results of additional survey Letter #3: December 16, 2009 Draft EIS Letter #4: April 16, 2010 Supplemental Draft EIS The Needles Field Office Manager and archaeologist had short face-to-face meetings with both the Pahrump Chairman and Chemehuevi Cultural Lead about ISEGS at an OHV conference at Chemehuevi Reservation, 4 April 2009, but no concerns were expressed. BLM was contacted by the Colorado River Indian Tribes on October 21, 2009. The only specific comments given were that the Chemehuevi used to live in and use the mountains surrounding the Ivanpah Valley for hunting and collecting, that a spring was named “Ivanpah” meaning ‘good water’ in Chemehuevi (not near the project area) and that he wanted to be included on future mailings.

BLM was contacted via phone by the Chairman of the San Fernando Band of Mission Indians. BLM returned his call on May 4, 2010. He wanted to know if the project lands had been surveyed and if any prehistoric or Tribal sites had been found. BLM assured him that only historic period sites had been identified to date and that the agency would let him know if any were identified. His concern was that prehistoric sites indicating tribal activity might be destroyed.

Tribes contacted by BLM included: Chemehuevi Indian Tribe Colorado River Indian Tribes Fort Mojave Indian Tribe Las Vegas Paiute Tribe Pahrump Paiute Tribe *Cahuilla Band of Indians *Morongo Band of Mission Indians *Ramona Band of Mission Indians *San Fernando Band of Mission Indians *San Manuel Band of Mission Indians *Serrano Nation of Indians Timbisha Shoshone Tribe * -On NAHC list

35

The only site eligible for inclusion on the National Register of Historic Places that will be affected is the transmission line, CA-SBr-10315H. No prehistoric sites were identified in the project footprint.

Coordination with tribes is ongoing and does not necessarily stop when the FEIS is signed or ROD is signed. No tribe or representative identified any sacred sites or expressed concerns during contacts regarding this project.

11.

CONSULTATION WITH TRIBES DECLARED ON-GOING BUT FEIS AND ROD HAVE BEEN SIGNED, RENDERING SECTION 106 MEANINGLESS. PLAINTIFF’S SMITH AND VAN FLEET TESTIFY TO THE UNTRUTHFULNESS OF BLM RESPONSES How can “coordination with tribes [be] ongoing” when BLM has failed to identify any

“tribe or representative identifying] any sacred sites or express[ing] concerns during contacts regarding this project”? This is false as demonstrated by the affidavits of Phillip Gonzales Smith and Ron Van Fleet, and according to a September 14, 2010 Las Vegas Review-Journal newspaper article23 entitled “Tribes Join Protests of Ivanpah Solar Project: Sacred site, Vital Habitat Merit Protection, Critics Say, by Keith Rogers. “They trudged through soft sand and used walking sticks for balance as they ascended a ridge crowned with black boulders and triangular-shaped piles of rust-colored rocks… (La Cuna De Aztlan Sacred Sites Protection Circle member and Plaintiff), Phillip Smith, a Chemehuevi, who's an elder in the Colorado River Indian Tribe, and (La Cuna De Aztlan Sacred Sites Protection Circle member and Plaintiff), the Rev. Ron Van Fleet of the Fort Mohave Indian Tribe, call this a sacred place.

Their ancestors have come to these "altars" for centuries to practice their culture. On Tuesday, they came to the sacred site to join about 20 protesters who want to protect a 5.6-squaremile stretch of desert below the ridge…That's where BrightSource Energy expects to break ground next month on what will be the world's largest system of mirrors, or heliostats. The system will focus the sun's energy on three solar towers to create heat to drive turbines to generate electricity

23

See Exhibit xxx

36

for Southern California…Smith said the project threatens the tribes' heritage and the habitat shared by federally protected desert tortoises…”

Tribes say that the BrightSource solar property outside Primm, Nevada has trails and other sites that are sacred to Native Americans.

In a October 19, 2010 newspaper report by David Danelski of the Riverside Press-Enterprise titled California Desert: Native Americans object to energy projects states: “The recent sight of road graders clearing old-growth Mojave Desert shrubs to make way for the nation's first large-scale solar energy project on public land was painful to Phil Smith…’It hurts because it will never be the same again,’ said the Chemehuevi elder, who lives in the Needles area…

The Ivanpah Valley in northeast San Bernardino County is a place of ancient trails and worship sites, he said. It is home to the desert tortoise and other plants and animals that were important sources of food and medicine to his people…”

Phil Smith’s grandmother lived in the Primm Valley and the Tortoises there were thought of as “teachers.” “They lived a long time and we would watch what they ate, and we would eat what they ate, so we knew that we’d be getting clean foods.” [Paraphrased to Film Maker Robert Lundahl].

But state and federal reviews earlier this year found the 5.6-square-mile project near the Nevada border now being built by Oakland-based BrightSource Energy Co. had no significant cultural resources, such as former village or burial sites. Government officials are now allowing the tortoises to be captured and moved…Smith is among several Native Americans upset with the federal government for rapidly approving large

37

solar projects on public land, a process they fear will obliterate sacred places, landmarks, and artifacts.” (Danielski, Riverside P.E.)

Photo By Laura Cunningham

12.

BLM LIMITS PROJECT A.P.E. ARBITRARILY TO APPLICANT’S FINANCIAL ADVANTAGE Chemehuevi Tribal Chairman Charles Wood in an interview with Film Maker Robert Lundahl, conducted by interviewer Daniela Haskara states: “I often use contemporary locations, so that if a development wanted to go through a certain area and they say -- they call it the Area of Potential Effect, the APE, the A-P-E. They want to try and make that A-P-E as small as possible so they can develop around it. So I used the example of the Catholic Church. I want to build a pipeline through the Vatican Mall. It's really not a part of the Vatican, so it's not sacred. That's the only way a lot of times that people will begin to understand it if you put it in their terms. Suddenly they're saying, “No, this whole area is sacred.”

13.

BLM VIOLATES NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) The BLM issued an Environmental Impact Statement that ignores or fails to consider the

effects of their actions on all aspects of the "human environment." Humans relate to their

38

environment through their culture, so the cultural aspects of the environment -- for example, cultural uses of the natural environment, the built environment, and human social institutions.

According to the National Preservation Institute, "Human environment" shall be interpreted comprehensively to include the natural and physical environment and the relationship of people with that environment (40 CFR 1508.14). A thorough environmental analysis under NEPA should systematically address the "human" -- social and cultural -- aspects of the environment as well as those that are more "natural," and should address the relationships between natural and cultural. Culturally valued aspects of the environment include historic properties, other culturally valued pieces of real property, cultural use of the biophysical environment, and such "intangible" sociocultural attributes as social cohesion, social institutions, lifeways, religious practices, and other cultural institutions24 14.

BLM ISSUANCE OF ROD DISRUPTS THE “CONTINUUM,” REPLACES STATUS QUO In consonance with the importance of the mandated NEPA consideration of the “Human

Environment,” above, La Cuna De Aztlan Sacred Site Protection Circle member, former “Champion ” of the protection of the Blythe Intaglios and Sacred Sites, and plaintiff , Jim Guerra, Apache/Tepehuan, clarifies, “ The Sacred Site is not a specific spot, even though you may find an intaglio in a specific spot. It’s a continuum of land use in history and tribal tradition” referred to as “The Continuum”). Therefore destruction of sacred sites, features, and lands brought about by approval of the ROD, restricts access to the sites on project lands or nearby them, and alters the landscapes that contain them and degrades the human environment, which is unlawful. (EXHIBIT A).

15.

BLM’s DECISION TO ISSUE THE ROD VIOLATES ITS MEMORANDUM OF UNDERSTANDING (“MOU”) (EXHIBIT C) WITH LA CUNA DE AZTLAN SACRED SITES PROTECTION CIRCLE ADVISORY COMMITTEE

24

National Preservation Institute, Tools for CRMs, http://www.npi.org/NEPA/whatare.html

39

“[t]he purpose of this MOU is to assist the BLM with its responsibilities under Section 110 of the National Historic Preservation Act of 1966, as amended.” The MOU refers to jurisdiction and responsibility "Along the Colorado between Needles and Yuma” and does not mean "contained within" (for example no east west boundaries are delineated) but rather "incorporative of" or incorporating. Care members and families are part of Yuman cultural continuums and Uto Aztecan cultural continuums, so that their area of interest applies to the wider region of historic cultural interactions of the Yuman and Uto-Aztecan language groups and tribes.

16.

BLM’s ISSUANCE OF ROD PREVENTS LCDASSPC MEMBERS AND FAMILES FROM PARTICIPATING IN TRADITIONAL CULTURAL PRACTICES ON AND NEAR THE PROJECT LANDS Culturally valued aspects of the environment include cultural use of the biophysical

environment, and such "intangible" sociocultural attributes as social cohesion, social institutions, lifeways, religious practices, and other cultural institutions,25 i.e “a continuum of land use in history and tribal tradition,” or “The Continuum.” The practical result is that La Cuna De Aztlan Sacred Site Protection Circle members, families and lineal descendants would be prohibited from carrying out meaningful cultural practices on culturally valued lands to the detriment of their identities, histories and cultures, “The Continuum.”

17.

BLM’s ISSUANCE OF ROD ENDANGERS THREATENED SPECIES OF FAUNA WITHIN THE “HUMAN ENVIRONMENT” BLM Decision to allow the Ivanpah Project to proceed on lands that are home to sensitive

biological resources and species, listed as "threatened" under the United States federal Endangered Species Act, such as the Desert Tortoise, central to the traditional life practices and teachings of the Chemehuevi (Uto-Aztecan) culture, and also considered “vulnerable” by the International Union for Conservation of Nature (IUCN), threatens the "human environment." “The Human Environment” under NEPA, is defined as “including the natural and physical (e.g. built) 25

National Preservation Institute, Tools for CRMs, http://www.npi.org/NEPA/whatare.html

40

environment and the relationships of people to that environment,” and “a thorough environmental analysis under NEPA should systematically address the "human" -- social and cultural -- aspects of the environment as well as those that are more "natural," and should address the relationships between natural and cultural.”

18.

BLM’s ISSUANCE OF ROD ENDANGERS THREATENED SPECIES OF FLORA, WITHIN THE “HUMAN ENVIRONMENT” The presence of various Sacred Sites and ancient trails, along with the presence of

vulnerable and unidentified flora and fauna s documented in this short film by Film Maker Robert Lundahl entitled, “PRESS VERSION Solar Gold: Mojave Desert Facing Ecosystem Collapse, Massive Extinctions,” Which features the following content: a).

An interview with Jim Andre, Director of the Granite Mountains

Desert Research Institute, U. C. Riverside, predicting ecosystem collapse and massive species extinctions. b).

Documents and explains sacred sites in the Ivanpah Valley area

which should be protected by the National Trust for Historic Preservation. c).

Ivanpah Spirit Run to pray for and save the people, plants and

animals of the Ivanpah Valley and of the Mojave, with Native American tribal elders and spiritual leaders.26 B.

General Allegations and Claims–Tessera Solar’s Imperial Valley Solar Project

(CACA-47740)

The Imperial Valley Solar Project (CACA-47740) Federal Process began with BLM’s Notice of Intent Published in Federal Register, October 18, 2008 and culminated with the Record of Decision by the BLM issued on October 5, 2010.

26

The short film may be seen here: http://www.vimeo.com/16073646

41

1.

BLM DID NOT CONSULT WITH LA CUNA DE AZTLAN SACRED SITES PROTECTION CIRCLE ON THE IMPERIAL VALLEY SOLAR PROJECT, AS WAS REQUIRED BY THE EXISTING MOU, AND BY SECTION 1O6 OF NRHP. BLM’s decision to issue the ROD violated its memorandum of understanding (“MOU”)

(EXHIBIT C) with the La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee which states at 1 “[t]he purpose of this MOU is to assist the BLM with its responsibilities under Section 110 of the National Historic Preservation Act of 1966, as amended.” The MOU refers to jurisdiction and responsibility "Along the Colorado between Needles and Yuma” and does not mean "contained within" (for example no east west boundaries are delineated) but rather "incorporative of" or incorporating. Care members and families are part of Yuman cultural continuums and Uto Aztecan cultural continuums, so that their area of interest applies to the wider region of historic cultural interactiongs of the Yuman and Uto-Aztecan language groups and tribes.

La Cuna members have standing relative to their MOA to protect the "continuum," which includes several integrated aspects related to cultural use including desert ecosystem viability, flora and fauna, trails, burials, cremations, village sites, features, geoglyphs, petroglyphs, etc. from destruction of the physical integrity of the natural and human environments which incorporate and sustain them, and of which they are an integrated component. This includes protection from effects from the cumulative impacts of multiple projects on desert ecosystems. It includes the disposition and integrity of desert tortoises and other creatures within their continuums.

BLM’s memorandum of understanding (“MOU”) (EXHIBIT C) with the La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee states at 1 “[t]he purpose of this MOU is to assist the BLM with its responsibilities under Section 110 of the National Historic Preservation Act of 1966, as amended.” The existing Memorandum of Understanding with the La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee “to provide a means…to work

42

in partnership to enhance cultural resource protection, conservation, and interpretation efforts on BLM lands…The fact that the BLM did not and has not yet consulted with the La Cuna de Aztlan Sacred Sites Protection Circle according to Section 106 of NRHP is unlawful.

2.

APPLICANTS USED CONTRACTOR DATA TO COMPLETE SECTION 106 PROCESSES FEIS and amended CDCA Plan adopted by BLM with CEC and the project

Applicant purportedly in government to government consultations pursuant to Section 106 by the BLM with Indian tribes are unlawful since they rely on authorizing the Applicant and private consultants to conduct specific identification efforts for this undertaking under a purported Section 106 programmatic agreement, by allowing the Applicant to retain an archaeological consultant to complete all of the investigations necessary to identify and evaluate cultural resources located within the Area of Potential Effect (APE) for both direct and indirect effects.

The project applicants and their consultants failed to adequately identify a major archeological complex, on the project lands, which would be destroyed, if the project construction begins. This complex is described in Film Maker Robert Lundahl’s short film, Yuha. [EXHIBIT J/Video]. It may also be seen and described in Chris Clarke’s iPhone movie.27 The following Google Earth image shows visible striations comprised of “wind rows” or rock works forming lines and intermittent bald areas. The numerous rock cairns are identified by La Cuna De Aztlan Sacred Sites Protection Circle member and Chemehuevi Cultural Monitor, Alfredo Figueroa, as referring to the “underworld” in Uto-Aztecan cosmology. Cremations are present on the site as described by Kumeyaay/Quechan tribal elder Preston Arrow-Weed, in a November 15 interview with Film Maker Robert Lundahl: MR. ARROW-WEED: I said before that once somebody lived there and you 27

http://www.youtube.com/watch?v=jhxY4qa2eWQ

43

had a cremation there, you have to stay away from it until we’re ready to go back and do one when the time comes. I can’t tell you when that is.

MR. LUNDAHL: I see.

MR. ARROW-WEED: I can’t tell you when that time is. It’s like saying when is the Creator going to show up and how is he going to come? How is he going to come down here? What does he look like? [EXHIBIT K, P. 9, 10] According to Chris Clarke: “The rockworks we saw are indeed visible, if faintly, by way of Google: http://maps.google.com/?ie=UTF8&ll=32.759936,115.926763&spn=0.004159,0.007811&t=h&z=18 (From Facebook) The cleared areas — which I was calling "wind rows" — are a slightly lighter beige. The rows of cairns are visible as rows of slightly darker tan dots, visible more easily if you zoom in one step. I adjusted the contrast and took out the color in Photoshop — I made no other adjustments — and the extent of the works is far more plain. I've attached that graphic here.”

“I measure an area approximately 1400 feet long along a southwest-northeast axis and just under 800 feet across at its broadest point. Accounting for variations in width, call it a 20-acre intensively altered archaeological site that went unremarked upon in any of the review documents.”

44

3.

BLM ISSUANCE OF ROD ENDANGERS CULTURAL RESOURCES The BLM issuance of the ROD endangers cultural resources, the human environment, and

would irreparably disrupt the Uto-Aztecan and Yuman continuums.

The DEIS confirms that the IVS Project is proposed for development in an area of high cultural sensitivity. The DEIS reports that 432 cultural resource sites were identified in the Project area and that the Project "may wholly or partially destroy all archaeological sites on the surface of the project area." DEIS, at C.2-106. The Final EIS identifies 459 sites in the Area of Potential Effects. FEIS, at 4.5-1.

4.

BLM FEIS DID NOT DETERMINE HISTORICAL OR CULTURAL SIGNIFICANCE

The DEIS acknowledges that Interior did not determine the historical or cultural significance of the sites within the Project area. DEIS at C.2-130. Similarly, no NHPAeligibility determinations occurred prior to completion of the FEIS. FEIS, at 4.5-1.

5.

IMPERIAL VALLEY SOLAR PROJECT (CACA-47740), DECIMATES THE

“HUMAN ENVIRONMENT” BLM violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., and the APA, 5 U.S.C. § 706, by issuing an Environmental Impact Statement that ignores or fails to consider the effects of their actions on all aspects of the "human environment." Humans relate to their environment through their culture, so the cultural aspects of the environment -- for example, cultural uses of the natural environment, the built environment, and human social institutions -obviously must be considered in an EIS. Therefore destruction of sacred sites, features, and lands brought about by approvals for construction of the Imperial Valley Solar Project (CACA-47740), restriction of access to the sites on project lands or nearby them, and the alteration of landscapes that contain them and which degrade the human environment in which Sacred Sites and cultural resources play a historic role in tribal tradition, results in destruction to “The Continuum,” and is unlawful. (EXHIBIT A).

45

6.

AMMENDMENTS TO THE CDCA PLAN ARE UNLAWFUL The California Desert Conservation Area (CDCA) is a region encompassing over ten

million acres of public land in five southern California counties: Imperial, Riverside, San Bernardino, Kern, and Inyo Counties. These CDCA public lands are managed by the Department of the Interior, Bureau of Land Management (BLM). The Federal Land Policy and Management Act of 1976 (FLPMA), BLM’s organic act, directs the BLM to prepare land use plans which provide guidance, with public input, on how the public lands are to be managed. All subsequent activities on the BLM-managed public lands must be in conformance with the approved land use plan. The California Desert Conservation Area Plan (CDCA Plan, 1980, as amended) provides land use plan guidance for the entire California Desert Conservation Area.

7.

LOAN GUARANTEES WERE ISSUED ON THE IMPERIAL VALLEY SOLAR

PROJECT DESPITE POTENTIAL HARM TO NATIVE AMERICANS According to Title VI of the Civil Rights Act of 1964; no person in the United States shall be excluded from participation in or otherwise discriminated against on the ground of race, color, or national origin under any program or activity receiving Federal financial assistance. The project adversely impacts Native American cultural resources and sacred sites within the “Human Environment,” and disrupts “The Continuum.” The federal government has a duty to conduct government to government consultations with Native American tribes and groups impacted by the project.

8.

FAILURE TO CONSIDER THE “HIGH DG” ALTERNATIVE.

The FEIS improperly excludes the High DG alternative. The FEIS states at 2-39 to 2-40: "Residential Roof Top Solar Panels.

One comment received during scoping discussed the advisability of alternative renewable power generation, including the use of roof top solar panels on residences, rather than CES’s Proposed Action.

Response:

46

In California, construction of roof top solar panels on homes requires electrical upgrades to interconnect the panels to the local distribution lines to allow sales of excess energy to the grid and installation of meters. It also requires an agreement between all the necessary property owners and the Applicant for the use of rooftops, as well as, an agreement between the property owners and utility to buy back the excess power, which has to be renewed when the property is sold. The BLM recognizes that roof top solar panels could produce renewable energy, and the Applicant is free to pursue that type of development in addition to the proposed solar project. Should BLM decide to deny the ROW, the Applicant can pursue any other energy development methods, technology, and locations that the Applicant desires, including using roof top solar panels for energy development.�

The PA and FEIS makes false findings of fact about the High DG alternative that roof top solar panels located near the load center where the power is needed on brownfield sites is less feasible than the proposed project. This demonstrates a pre-decision in support if the applicant’s project as opposed to the No-action alternative. In fact 515 MW of PV solar DG28 that is already interconnected to the distributed transmission system has been denied access to sell its capacity in to the markets. Additionally, the CPUC and CAISO have erected barriers to entry by small DG PV solar in to the ancillary services markets for avoided costs of natural gas, and emissions, including, but not limited to; criteria pollutants credits; other greenhouse gas emission credits29; and renewable energy credits ("REC") s based on specific environmental attributes of specific types and technologies of the renewable energy resource. Purportedly the California Solar Initiative "['CSI'] Program focuses exclusively on onsite, grid-connected solar that is used by electric customers that want to offset some portion of their own load by installing self-generation.

The CSI Program does not fund wholesale solar power plants, designed to serve the

28

See California Public Utilities Commission's California Solar Initiative team Annual Program Assessment to the Legislature June 30, 2009. http://docs.cpuc.ca.gov/PUBLISHED/GRAPHICS/103173.PDF Highlights of the report include: California has over half a gigawatt of solar connected to the electric grid at customer sites. With recent rapid growth, California now has over 515 megawatts (MW) of cumulative installed solar photovoltaic (PV) capacity at nearly 50,000 sites,[] including 226 MW installed under the CSI Program.[] The non-CSI Program solar PV capacity was installed primarily under prior solar programs, including the Self-Generation Incentive Program (SGIP) and the Emerging Renewables Program (ERP).

29 Although the Commission's authority includes recovery of certain costs associated with environmental compliance through wholesale rates, the Commission does not directly regulate air emissions. The Commission is taking action consistent with climate change concerns, including removing regulatory barriers to increased development of renewable energy and enabling more effective demand response. In addition, Commission staff studies federal, state, and regional greenhouse gas initiatives to consider the implications of such initiatives for the Commission and the wholesale energy markets it regulates.

47

electric grid or help utilities meet Renewable Portfolio Standard ('RPS') obligations"30 and this policy has created undue prejudice or disadvantage to any sale of electric energy for resale in interstate commerce of small Distributed Generation (“DG”) PV solar located near to the load centers.31 8.

PA AND FEIS PERPETRATE DISPARATE IMPACTS By excluding the High DG alternative the PA and FEIS perpetrates disparate impacts i.e.,

in the form of socioeconomic discrimination on low-income communities of color in the load centers where fossil fuel power plants are currently located that emit emissions that are harmful and endanger the public. This represents a distinct “community value” that supports locating solar PV generation near load centers where transmission upgrades may not be needed. Building transmission projects to connect LVSP that will require nearly the same amount of fossil fuel combustion turbines for backup power during periods of peak demand is the antithesis of this “community value” that has not been examined in the FEIS or is it addressed by the PPA. 9.

INADEQUATE NO ACTION ALTERNATIVE

NEPA requires full consideration of "appropriate" alternatives. [42 USC § 4332(2)(E)] Included with the appropriate alternatives must be the "no action" alternative [40 CFR § 1502.14(d)] The evidentiary record demonstrates the FEIS’s “preferred alternative” as discussed in this FEIS32 is not superior to the High DG option identified in the California Public Utilities Commission’s 33% Renewables Portfolio Standard Implementation Analysis Preliminary Results (June 2009). It 30

Annual Program Assessment to the Legislature June 30, 2009 at page 5.

The California utilities contract for a variety of renewable resources including industrial wind, and industrial solar as part of the RPS Program, but exclude counting over 515 megawatts (MW) of cumulative installed solar photovoltaic (PV) towards RPS compliance. Updates on the progress of the RPS program can be found at http://www.cpuc.ca.gov/PUC/energy/Renewables/ 32 The Preferred Alternative identified by the BLM has identified a combination of Alternative 3 –the Proposed Action, and Alternative 4 – Modified Site Layout as the Preferred Alternative. This combination of alternatives includes all of the features in Alternative 4, with the exception of rerouting some of the surface water drainage to provide additional water to the vegetative screen area. The surface water would follow the natural pathways as identified in Alternative 3.

The preferred alternative is improper because the proposed action is for a different project than what the public commented on. Similar changes to the proposed Black Mesa Project, by the Office of Surface Mining Reclamation and Enforcement (OSMRE) in November 2006 issued a Draft Environmental Impact Statement (EIS) and in November 2008 issued a Final EIS. In January 2010, an administrative law judge for the appeals of OSMRE’s approval of the Peabody Western Coal Company’s permit revision application for the Black Mesa Complex decided that the Final EIS did not satisfy the National Environmental Policy Act (NEPA) judge’s decision because of substantial changes to the proposed action after the opportunity for public comment. NEPA ALJ’s decision: http://www.wrcc.osmre.gov/Current_Initiatives/Black_Mesa_EIS/BMEIS/AdministrativeLawJudgeDecision.pdf 31

48

concludes at page 59 "[a] high DG strategy could facilitate achieving a 33% RPS in 2020 as well as mitigate some of the need for transmission and transform the market for solar PV technologies."

The report goes on to provide Table 14 a Comparison of 33% RPS Cases Across RPS Policy Objectives demonstrating that the High DG scenario is the best "fit" to achieving RPS compliance with the highest rating of the scenarios analyzed.

10.

CEQA/NEPA VIOLATED BY PRE-COMMITTING TO A CERTAIN OUTCOME “The Final EIS is pre-committing to a certain plan prior to conducting an independent

environmental review [SA/EIS] which violates the public participation requirements under the California Environmental Quality Act (CEQA), and the National Environmental Policy Act (NEPA). “ CARE did not file comments in the EIS for the Imperial Valley Solar Project but La Cuna De Aztlan Founder/Member and Chemhuevi Cultural Monitor, Alfredo Acosta Figueroa is a member of CARE, and as a signer of MOU, establishes CARE’s standing to challenge the Imperial Valley Solar Project.

C.

General Allegations and Claims– Chevron Lucerne Valley Solar Project (CACA 49561)

The Chevron Lucerne Valley Solar Project (CACA-49561) Federal Process began with BLM’s Notice of Intent Published in Federal Register, July 23, 2009 and culminated with the Record of Decision by the BLM issued on October 5, 2010.

1.

FAILURE TO CONSIDER THE “HIGH DG” ALTERNATIVE.

CARE provided comments on the Chevron Lucerne Valley Solar Project to the BLM. The FEIS improperly excludes the High DG alternative. The FEIS states at 2-39 to 2-40: "Residential Roof Top Solar Panels.

One comment received during scoping discussed the advisability of alternative renewable power generation, including the use of roof top solar panels on residences, rather than CES’s Proposed Action.

Response:

49

In California, construction of roof top solar panels on homes requires electrical upgrades to interconnect the panels to the local distribution lines to allow sales of excess energy to the grid and installation of meters. It also requires an agreement between all the necessary property owners and the Applicant for the use of rooftops, as well as, an agreement between the property owners and utility to buy back the excess power, which has to be renewed when the property is sold. The BLM recognizes that roof top solar panels could produce renewable energy, and the Applicant is free to pursue that type of development in addition to the proposed solar project. Should BLM decide to deny the ROW, the Applicant can pursue any other energy development methods, technology, and locations that the Applicant desires, including using roof top solar panels for energy development.�

The PA and FEIS makes false findings of fact about the High DG alternative that roof top solar panels located near the load center where the power is needed on brownfield sites is less feasible than the proposed project. This demonstrates a pre-decision in support if the applicant’s project as opposed to the No-action alternative. In fact 515 MW of PV solar DG33 that is already interconnected to the distributed transmission system has been denied access to sell its capacity in to the markets. Additionally, the CPUC and CAISO have erected barriers to entry by small DG PV solar in to the ancillary services markets for avoided costs of natural gas, and emissions, including but not limited to; criteria pollutants credits; other greenhouse gas emission credits34; and renewable energy credits ("REC") is based on specific environmental attributes of specific types and technologies of renewable energy resources. Purportedly the California Solar Initiative "['CSI'] Program focuses exclusively on onsite, grid-connected solar that is used by electric customers that want to offset some portion of their own load by installing self-generation. The CSI Program does not fund wholesale solar power plants, designed to serve the electric grid or help utilities 33

See California Public Utilities Commission's California Solar Initiative team Annual Program Assessment to the Legislature June 30, 2009. http://docs.cpuc.ca.gov/PUBLISHED/GRAPHICS/103173.PDF Highlights of the report include: California has over half a gigawatt of solar connected to the electric grid at customer sites. With recent rapid growth, California now has over 515 megawatts (MW) of cumulative installed solar photovoltaic (PV) capacity at nearly 50,000 sites,[] including 226 MW installed under the CSI Program.[] The non-CSI Program solar PV capacity was installed primarily under prior solar programs, including the Self-Generation Incentive Program (SGIP) and the Emerging Renewables Program (ERP).

34 Although the Commission's authority includes recovery of certain costs associated with environmental compliance through wholesale rates, the Commission does not directly regulate air emissions. The Commission is taking action consistent with climate change concerns, including removing regulatory barriers to increased development of renewable energy and enabling more effective demand response. In addition, Commission staff studies federal, state, and regional greenhouse gas initiatives to consider the implications of such initiatives for the Commission and the wholesale energy markets it regulates.

50

meet Renewable Portfolio Standard ('RPS') obligations"35 and this policy has created undue prejudice or disadvantage to any sale of electric energy for resale in interstate commerce of small Distributed Generation (“DG”) PV solar located near to the load centers.36 2.

PA AND FEIS PERPETRATE DISPARATE IMPACTS By excluding the High DG alternative the PA and FEIS perpetrates disparate impacts i.e.,

in the form of socioeconomic discrimination on low-income communities of color in the load centers where fossil fuel power plants are currently located that emit emissions that are harmful and endanger the public. This represents a distinct “community value” that supports locating solar PV generation near load centers where transmission upgrades may not be needed. Building transmission projects to connect LVSP that will require nearly the same amount of fossil fuel combustion turbines for backup power during periods of peak demand is the antithesis of this “community value” that has not been examined in the FEIS or is it addressed by the PPA. 3.

INADEQUATE NO ACTION ALTERNATIVE

NEPA requires full consideration of "appropriate" alternatives. [42 USC § 4332(2)(E)] Included with the appropriate alternatives must be the "no action" alternative [40 CFR § 1502.14(d)] The evidentiary record demonstrates the FEIS’s “preferred alternative” as discussed in this FEIS37 is not superior to the High DG option identified in the California Public Utilities Commission’s 33% Renewables Portfolio Standard Implementation Analysis Preliminary Results (June 2009). It 35

Annual Program Assessment to the Legislature June 30, 2009 at page 5.

The California utilities contract for a variety of renewable resources including industrial wind, and industrial solar as part of the RPS Program, but exclude counting over 515 megawatts (MW) of cumulative installed solar photovoltaic (PV) towards RPS compliance. Updates on the progress of the RPS program can be found at http://www.cpuc.ca.gov/PUC/energy/Renewables/ 37 The Preferred Alternative identified by the BLM has identified a combination of Alternative 3 –the Proposed Action, and Alternative 4 – Modified Site Layout as the Preferred Alternative. This combination of alternatives includes all of the features in Alternative 4, with the exception of rerouting some of the surface water drainage to provide additional water to the vegetative screen area. The surface water would follow the natural pathways as identified in Alternative 3.

The preferred alternative is improper because the proposed action is for a different project than what the public commented on. Similar changes to the proposed Black Mesa Project, by the Office of Surface Mining Reclamation and Enforcement (OSMRE) in November 2006 issued a Draft Environmental Impact Statement (EIS) and in November 2008 issued a Final EIS. In January 2010, an administrative law judge for the appeals of OSMRE’s approval of the Peabody Western Coal Company’s permit revision application for the Black Mesa Complex decided that the Final EIS did not satisfy the National Environmental Policy Act (NEPA) judge’s decision because of substantial changes to the proposed action after the opportunity for public comment. NEPA ALJ’s decision: http://www.wrcc.osmre.gov/Current_Initiatives/Black_Mesa_EIS/BMEIS/AdministrativeLawJudgeDecision.pdf 36

51

concludes at page 59 "[a] high DG strategy could facilitate achieving a 33% RPS in 2020 as well as mitigate some of the need for transmission and transform the market for solar PV technologies."

The report goes on to provide Table 14 a Comparison of 33% RPS Cases Across RPS Policy Objectives demonstrating that the High DG scenario is the best "fit" to achieving RPS compliance with the highest rating of the scenarios analyzed.

4.

CEQA/NEPA VIOLATED BY PRE-COMMITTING TO A CERTAIN OUTCOME “The Final EIS is pre-committing to a certain plan prior to conducting an independent

environmental review [SA/EIS] which violates the public participation requirements under the California Environmental Quality Act (CEQA), and the National Environmental Policy Act (NEPA). “ 5.

BLM FAILED TO CONSULT WITH TRIBES UNDER SECTION 106 NRHP The BLM has failed to carry out its duties under AIRFA, AHPA, and NHPA to conduct

government to government consultation with tribes. According to public comments the “BLM neglected to notify all of the tribes, however, about the Proposed Action… BLM’s failure to consult with all of the tribes that have historic ties to the Project area precludes an analysis of all of the Project’s foreseeable impacts”.

1.

See FEIS N-38 to N-39:

Comment Number 127: The BLM did not consider all impacts to cultural resources The DEIS acknowledges that five ethnic groups historically used the Proposed Action area: the Mohave, Kawaiisu, Southern Paiute (Las Vegas and Chemehuevi groups), Vanyume/Serrano and Western Shoshone. The BLM neglected to notify all of the tribes, however, about the Proposed Action. The BLM’s failure to consult with all of the tribes that have historic ties to the Project area precludes an analysis of all of the Project’s foreseeable impacts Response: Section 5.2.3 of the DEIS lists the Native American tribes that were given notice of preparation of the EIS, as follows:

52

Morongo Band of Mission Indians; San Fernando Band of Mission Indians; San Manuel Band of Mission Indians; Serrano Nation of Indians.

The Chemehuevi Tribe and the Twenty-nine Palms Band of Mission Indians were also given notice of the EIS, and Section 5.2.3 of the Final EIS has been corrected to add both additional tribes to this list.

Comment Number 128: The BLM did not notify the Chemehuevi tribe about the Proposed Action. The Chemehuevi tribe considers all of San Bernardino County and parts of Riverside, Kern and Inyo Counties its ancestral, historical homeland.

Response: See Response to Comment 127. BLM did consult with the Chemehuevi tribe.

Comment Number 129: Because Lucerne Valley is only twenty miles from the Chemehuevi’s ancient village and major trade route, it is likely that the Chemehuevi used the Project area and have ties to the land. The BLM must consult with the Chemehuevi, and all tribes that have ties to the land, to determine if there are historical resources that have not been identified. Failure to do so arbitrarily limits the BLM’s hard look at the Project’s impacts and conflicts with Section 106 of the National Historic Preservation Act. Response: BLM did consult with this tribe. See Response to Comment 127.

2.

APPLICANTS USED CONTRACTOR DATA TO COMPLETE SECTION 106

PROCESS CARE reviewed the process handbook from the Advisory Council on Historic Preservation (ACHP).38 It indicates the FEIS and amended CDCA Plan by BLM and the project Applicant purportedly in government to government consultations pursuant to Section 106 by the BLM with Indian tribes is unlawful since they rely on authorizing the Applicant and their

38

See http://www.achp.gov/regs-tribes2008.pdf

53

consultant the Chambers Group39 to conduct specific identification efforts for this undertaking by allowing the Applicant to retain an archaeological consultant to complete all of the investigations necessary to identify and evaluate cultural resources located within the Area of Potential Effect (APE) for both direct and indirect effects. This also violates the BLM’s existing MOU with the inter-tribal group the La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee.

6.

CHERVON LUCERNE PROJECT DECIMATES NEPA–“THE HUMAN

ENVIRONMENT” BLM violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., and the APA, 5 U.S.C. § 706, by issuing an Environmental Impact Statement that ignores or fails to consider the effects of their actions on all aspects of the "human environment." Humans relate to their environment through their culture, so the cultural aspects of the environment -- for example, cultural uses of the natural environment, the built environment, and human social institutions -- obviously must be considered in an EIS. 7.

BLM DID NOT CONSULT WITH LA CUNA DE AZTLAN SACRED SITES

PROTECTION CIRCLE ON THE CHEVRON LUCERNE PROJECT, AS WAS REQUIRED BY THE EXISTING MOU, AND BY SECTION 1O6 OF NRHP. BLM’s decision to issue the ROD violated its memorandum of understanding (“MOU”) (EXHIBIT C) with the La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee which states at 1 “[t]he purpose of this MOU is to assist the BLM with its responsibilities under Section 110 of the National Historic Preservation Act of 1966, as amended.” The MOU refers to jurisdiction and responsibility "Along the Colorado between Needles and Yuma” and does not mean "contained within" (for example no east west boundaries are delineated) but rather "incorporative of" or incorporating. CARE members and families are part of Yuman cultural continuums and Uto-Aztecan cultural continuums, so that their area of interest applies to the wider region of historic cultural interactions of the Yuman and Uto-Aztecan language groups and tribes.

39

See http://www.chambersgroupinc.com/clients/

54

La Cuna members have standing relative to their MOA to protect the "continuum" which includes several integrated aspects related to cultural use including desert ecosystem viability, flora and fauna, trails, burials, cremations, village sites, features, geoglyphs, petroglyphs, etc. from destruction of the physical integrity of the natural and human environments which incorporate and sustain them, and of which they are an integrated component. This includes protection from effects from the cumulative impacts of multiple projects on desert ecosystems. It includes the disposition and integrity of desert tortoises and other creatures within their continuums.

BLM’s memorandum of understanding (“MOU”) (EXHIBIT C) with the La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee states at 1 “[t]he purpose of this MOU is to assist the BLM with its responsibilities under Section 110 of the National Historic Preservation Act of 1966, as amended.” The existing Memorandum of Understanding with the La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee “to provide a means…to work in partnership to enhance cultural resource protection, conservation, and interpretation efforts on BLM lands…The fact that the BLM did not and has not yet consulted with the La Cuna de Aztlan Sacred Sites Protection Circle according to Section 106 of NRHP on The Chevron Lucerne Valley Solar Project (CACA-49561) is unlawful.

8

LOAN GUARANTEES WERE ISSUED ON THE CHEVRON LUCERNE VALLEY

SOLAR PROJECT DESPITE POTENTIAL HARM TO NATIVE AMERICANS According to Title VI of the Civil Rights Act of 1964, no person in the United States shall be excluded from participation in or otherwise discriminated against on the ground of race, color, or national origin under any program or activity receiving Federal financial assistance. The project adversely impacts Native American cultural resources and sacred sites within the “Human Environment,” and disrupts “The Continuum” and the federal government has a duty to conduct government to government consultations with Native American tribes and groups impacted by the project.

D.

Tessera Solar's Calico Solar Project (CACA-049537)

55

Federal Process began with BLM’s Notice of Intent Published in Federal Register, July 23, 2009 and culminated with the Record of Decision by the BLM issued on October 5, 2010.

1.

AMMENDMENTS TO THE CDCA PLAN ARE UNLAWFUL The public lands that are the subject of the Calico Project are located within the California

Desert Conservation Area and have been designated by the Department of the Interior as Class-L "Limited Use" lands, which are designated to "protect sensitive, natural, scenic, ecological, and cultural resource values" and are required to be "managed to provide for generally lower-intensity, carefully controlled multiple use of resources, while ensuring that sensitive values are not significantly diminished." California Desert Conservation Area Plan (CDCA Plan), p. 13. Interior's issuance of a right-of-way, and amendment of the CDCA Plan, for the purpose of permitting construction and operation of the Calico Project on these specific Class L 6 lands, and permitting the destruction of sensitive resources on these lands, is unlawful. The use of Tessara SunCatcher technology is anything but low impact.

1. Bill Powers, P.E. explains their technical complexity in an interview with Film Maker, Robert Lundahl, “Talking about – specifically about Tessara solar, the technology that will be used in these two large proposed facilities, Solar One and Solar Two, in Imperial County, the -- it's a futuristic looking technology which consists of basically a large reflective bowl. I think it's 35 or 40 feet across and there's basically a stick that comes out from the center of it. At the end of the stick, which may be also 25, 30, 40 feet out, is an engine, a Sterling engine that is -- the working fluid in that engine is hydrogen. So they have hydrogen in the cylinders.

And the solar energy is focused from that dish on a plate on the back side of the engine, and that provides the heat input to get that engine moving.” [EXHIBIT M] 2.

Video footage of the SunCatchers in action reveals a high decibel implementation

56

more suitable for an urban industrial zone.40 3.

Chemehuevi Tribal Chairman, Charles Wood explains how noise pollution is

incompatible with cultural practices defined and explained in the concept of the “Human Environment,” and cumulative effects (NEPA), in an interview with Film Maker, Robert Lundahl. “it's not this little area here we're going to fence off and then move over a hundred yards and there's another area. They need to begin thinking about the total landscape that we see.

We stopped a minute ago for an airplane. In discussions about the Ivanpah airport, well, there's sound contamination. You always think of bottles and cans, but there's sound contamination. And how does that affect the wildlife? And in fact it may even affect the plants. You know, so you always need to look at the total picture not just this little thing.”

2.

THE CALICO SOLAR PROJECT DECIMATES THE “HUMAN ENVIRONMENT” BLM violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et

seq., and the APA, 5 U.S.C. § 706, by issuing an Environmental Impact Statement that ignores or fails to consider the effects of their actions on all aspects of the "human environment." Humans relate to their environment through their culture, so the cultural aspects of the environment -- for example, cultural uses of the natural environment, the built environment, and human social institutions -- obviously must be considered in the EIS. 3.

BLM DID NOT CONSULT WITH LA CUNA DE AZTLAN SACRED SITES

PROTECTION CIRCLE ON THE IVANPAH PROJECT, AS WAS REQUIRED BY THE EXISTING MOU, AND BY SECTION 1O6 OF NRHP. BLM’s decision to issue the ROD violated its memorandum of understanding (“MOU”) (EXHIBIT C) with the La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee which states at 1 “[t]he purpose of this MOU is to assist the BLM with its responsibilities under Section 110 of the National Historic Preservation Act of 1966, as amended.” The MOU refers to 40

http://www.youtube.com/watch?v=wEIQ2FVL_ys

57

jurisdiction and responsibility "Along the Colorado between Needles and Yuma” and does not mean "contained within" (for example no east west boundaries are delineated) but rather "incorporative of" or incorporating. Care members and families are part of Yuman cultural continuums and Uto-Aztecan cultural continuums, so that their area of interest applies to the wider region of historic cultural interactions of the Yuman and Uto-Aztecan language groups and tribes.

La Cuna members have standing relative to their MOA to protect the "continuum" which includes several integrated aspects related to cultural use including desert ecosystem viability, flora and fauna, trails, burials, cremations, village sites, features, geoglyphs, petroglyphs, etc. from destruction of the physical integrity of the natural and human environments which incorporate and sustain them, and of which they are an integrated component. This includes protection from effects from the cumulative impacts of multiple projects on desert ecosystems. It includes the disposition and integrity of desert tortoises and other creatures within their continuums.

BLM’s memorandum of understanding (“MOU”) (EXHIBIT C) with the La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee which states at 1 “[t]he purpose of this MOU is to assist the BLM with its responsibilities under Section 110 of the National Historic Preservation Act of 1966, as amended.”

The existing Memorandum of Understanding with the La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee “to provide a means…to work in partnership to enhance cultural resource protection, conservation, and interpretation efforts on BLM lands…all projects conducted under this MOU will be carried out by qualified specialists. Contractors hired for projects must meet BLM standards. Projects conducted under thus MOU include but are not limited to cultural resource survey, archaeological site recordation, National Register of Historic Places nominations, ethnographic studies with interested Native American tribes, design and installation of site protection and interpretation measures, and the production of interpretative materials for the pubic.”

The fact that the BLM did not and has not yet consulted with the La Cuna de Aztlan

58

Sacred Sites Protection Circle under Section 106 ARHP on The Calico Solar Project (CACA049537) is unlawful.

4.

BLM’s ISSUANCE OF ROD PREVENTS LCDASSPC MEMBERS AND FAMILES

FROM PARTICIPATING IN TRADITIONAL CULTURAL PRACTICES ON AND NEAR THE PROJECT LANDS Culturally valued aspects of the environment include cultural use of the biophysical environment, and such "intangible" sociocultural attributes as social cohesion, social institutions, lifeways, religious practices, and other cultural institutions,41 i.e. “a continuum of land use in history and tribal tradition,” or “The Continuum.” The practical result is that La Cuna De Aztlan Sacred Site Protection Circle members, families and lineal descendants would be prohibited from carrying out meaningful cultural practices on culturally valued lands to the detriment of their identities, histories and cultures, “The Continuum.”

5.

APPLICANTS USED CONTRACTOR DATA TO COMPLETE SECTION 106

PROCESSES Plan adopted by BLM with CEC and the project Applicant purportedly in government to government consultations pursuant to Section 106 by the BLM with Indian tribes is unlawful, since they rely on authorizing the Applicant to conduct specific identification efforts for this undertaking by allowing the Applicant to retain an archaeological consultant to complete all of the investigations necessary to identify and evaluate cultural resources located within the Area of Potential Effect (APE) for both direct and indirect effects.

6.

LOAN GUARANTEES WERE ISSUED ON CALICO PROJECT DESPITE

POTENTIAL HARM TO NATIVE AMERICANS According to Title VI of the Civil Rights Act of 1964, no person in the United States shall be excluded from participation in or otherwise discriminated against on the ground of race, color, or national origin under any program or activity receiving Federal financial assistance. The Calico 41

National Preservation Institute, Tools for CRMs, http://www.npi.org/NEPA/whatare.html

59

Solar project adversely impacted Native American cultural resources and sacred sites and that the federal government had a duty to conduct government to government consultations with Native American tribes and groups impacted by the project.

7.

FAILURE TO CONSIDER THE “HIGH DG” ALTERNATIVE PD and FEIR fail to include the High DG alternative; The FEIS improperly excludes the

High DG alternative. The FEIS states at 3-83, “However, achieving 400 MW of distributed solar PV or solar thermal would depend on additional policy support, manufacturing capacity, and lower cost than currently exists to provide the renewable energy required to meet the California Renewable Portfolio Standard requirements so additional technologies, like utility-scale solar thermal generation, are also necessary.”

In an interview with Film Maker Robert Lundahl, Solar Engineer, Bill Powers, P.E. states, “Many applications are filed in that time frame, 2008, 2009, of which Ivanpah was one, Genesis, some of these other projects. One of the project objectives is then identified as getting to the finish line quickly enough to get the cash grant. What is now used -- so the ARRA program really has now resulted in a perverse set of incentives that push forward projects that happen to be relatively far along in their permitting and development, whether they're good or bad or whether there are alternatives. None of that matters anymore.”

8.

INADEQUATE NO ACTION ALTERNATIVE Inadequate No-action Alternative; The Final EIS alternatives analysis is in adequate

because it fails to properly provide for a no action alternative. Pursuant to NEPA (40 CFR 1505.1(e)), a reasonable range of alternatives must be examined in the Draft EIR/EIS, and were selected based on the following criteria: (1) the alternative’s potential to meet the Proposed Action’s purpose and need; (2) the feasibility of the alternative; and (3) the alternative’s ability to avoid or lessen adverse effects of the Proposed Project. As required under NEPA Section 1502.14(d), a No Action Alternative must also be considered.” [EXHIBIT D/Protest P. 3]

60

When federal agencies decide on project proposals, “[n]o action . . . would mean the proposed activity would not take place, and the resulting environmental effects from taking no action would be compared with the effects of permitting the proposed activity or an alternative activity to go forward.”42 The Ninth Circuit has held that “consideration of the alternatives requirement . . . guarantee[s] that agency decision-makers have before them and take into proper account all possible approaches to a particular project (including total abandonment of the project).”43 [EXHIBIT E/Protest P. 4] NEPA requires full consideration of "appropriate" alternatives. [42 USC § 4332(2)(E)] Included with the appropriate alternatives must be the "no action" alternative [40 CFR § 1502.14(d)] The evidentiary record demonstrates the FEIS’s “preferred alternative”, as discussed in the Ivanpah FEIS, the Mitigated Ivanpah 3 Alternative, is not superior to the High DG option identified in the California Public Utilities Commission’s 33% Renewables Portfolio Standard Implementation Analysis Preliminary Results (June 2009).44 9.

PA AND FEIS PERPETRATE DISPARATE IMPACTS By excluding the High DG alternative the PA and FEIS perpetrates disparate impacts i.e.,

in the form of socioeconomic discrimination on low-income communities of color in the load centers where fossil fuel power plants are currently located that emit emissions that are harmful and endanger the public. This represents a distinct “community value” that supports locating solar PV generation near load centers where transmission upgrades may not be needed. Building transmission projects to connect LVSP that will require nearly the same amount of fossil fuel

42

Forty Most Asked Questions Concerning CEQ’s NEPA Regulations, 46 Fed. Reg. 18026, 18027 (March 23, 1981).

Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 785 (9th Cir. 2006) (emphasis in original).

44 See California Public Utilities Commission's California Solar Initiative team Annual Program Assessment to the Legislature June 30, 2009. http://docs.cpuc.ca.gov/PUBLISHED/GRAPHICS/103173.PDF Highlights of the report include: California has over half a gigawatt of solar connected to the electric grid at customer sites. With recent rapid growth, California now has over 515 megawatts (MW) of cumulative installed solar photovoltaic (PV) capacity at nearly 50,000 sites,[] including 226 MW installed under the CSI Program.[] The non-CSI Program solar PV capacity was installed primarily under prior solar programs, including the Self-Generation Incentive Program (SGIP) and the Emerging Renewables Program (ERP).

43

61

combustion turbines for backup power during periods of peak demand is the antithesis of this “community value” that has not been examined in the FEIS or is it addressed by the PPA. 10.

CEQA/NEPA VIOLATED BY PRE-COMMITTING TO A CERTAIN OUTCOME “The Final EIS is pre-committing to a certain plan prior to conducting an independent

environmental review [SA/EIS] which violates the public participation requirements under the California Environmental Quality Act (CEQA), and the National Environmental Policy Act (NEPA). “ 11.

LOAN GUARANTEES WERE ISSUED ON CALICO PROJECT DESPITE

POTENTIAL HARM TO NATIVE AMERICANS According to Title VI of the Civil Rights Act of 1964, no person in the United States shall be excluded from participation in or otherwise discriminated against on the ground of race, color, or national origin under any program or activity receiving Federal financial assistance. The project adversely impacts Native American cultural resources and sacred sites within the “Human Environment,” and disrupts “The Continuum” and the federal government has a duty to conduct government to government consultations with Native American tribes and groups impacted by the project.

E.

Blythe Solar Power Project 1.

The Blythe Solar Power Project (CACA-48811) Federal Process began with

BLM’s Notice of Intent Published in Federal Register, November 23, 2009 and culminated with the Secretary of Interior signing the ROD for the project on October 25, 2010. 2. This is the second project with direct impacts identified to cultural resources that are not avoided by BLM.

62

Giant geoglyphs of Kokopilli/Quetzalcoatl and Cicimitl

1.

BLM DID NOT CONSULT WITH LA CUNA DE AZTLAN SACRED SITES PROTECTION

CIRCLE UNDER SECTION 106 ARHP

Contact was made by BLM with the La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee regarding the Blythe Solar Project but not to carry out any Section 106 consultation or to carry out the terms of the MOU. “In a February 8, 2010 e-mail to the BLM’s Palm Springs Field Office, Pati Pinon, Chairperson of the La Cuna de Aztlan Sacred Sites Protection Circle, expressed concern that the proposed BSPP would be constructed on a Kokopelli geoglyph and numerous other images and ancient trails that lead to other geoglyphs a few miles away. The geoglyphs and other resources have been investigated, and a report on them is currently under preparation.” [Vol. 2 Blythe PA/FEIS at D-7] Regarding BLM’s consultation pursuant to NHPA, the ROD states at 28 “3.3.3 NHPA Section 106 Programmatic Agreement; Under Section 106 of the NHPA, the BLM consults with Indian tribes and other groups as part of its responsibilities to identify, evaluate, and resolve adverse effects on cultural resources affected by BLM undertakings.

63

Adverse effects that the Selected Alternative could have on cultural resources will be resolved through compliance with the terms of a Programmatic Agreement under NHPA Section 106 (16 USC 470; 36 CFR 800.14)…The BLM prepared a Programmatic Agreement for the Blythe Solar Power Project in consultation with the Advisory Council on Historic Preservation, the California State Historic Preservation Officer, CEC, interested Native American Tribes (including tribal governments as part of governmentto-government consultation described earlier), and other interested parties. The executed Final Programmatic Agreement, provided in Appendix 3 of this ROD, will govern the continued identification and evaluation of historic properties (eligible for the National Register) and historical resources (eligible for the California Register of Historic Places), as well as the resolution of any effects that may result from the Blythe Solar Power Project. Historic properties and historical resources are significant prehistoric and historic cultural resources as determined by the BLM.” The Section 106 programmatic agreement approved by the Secretary states “ WHEREAS, the California Energy Commission (Energy Commission), may certify the Blythe Solar Power Project located on public lands pursuant to Section 25519, subsection (c) of the Warren-Alquist Act of 1974 and for the purposes of consistency proposes to manage all historical resources in accordance with the stipulations of this Agreement; and WHEREAS, the BLM, in coordination with the Energy Commission, has authorized the Applicant to conduct specific identification efforts for this undertaking including a review of the existing literature and records, cultural resources surveys, ethnographic studies, and geo morphological studies to identify historic properties that might be located within the Area of Potential Effect (APE); and WHEREAS, the Applicant has retained an archaeological consultant to complete all of the investigations necessary to identify and evaluate cultural resources located within the APE for both direct and indirect effects. A review of the existing historic, archaeological and ethnographic literature and records has

64

been completed to ascertain the presence of known and recorded cultural resources in the APE and buffered study area, has conducted an intensive field survey for 8,005 acres of land, including all of the lands identified in APE for direct effects for all project alternatives, and has completed intensive field surveys for alternatives on lands that are no longer part of the project. A cultural resources inventory report Draft Final Class III Survey Report, for the Proposed Blythe Solar Power Project Riverside County, California, prepared by AECOM, January 2010 that presents the results of identification efforts to the BLM, and the Energy Commission has been submitted by AECOM. The BLM has provided the report to the consulting parties and Indian Tribes for review and comment; and; and WHEREAS, the BLM and the Energy Commission have prepared the Staff Assessment and Draft Environmental Impact Statement and Draft California Desert Conservation Area Plan Amendment, Blythe Solar Power Project, Application for Certification (09-AFC-6) Riverside County (2010) to identify the project alternatives for purposes of the California Environmental 153 Quality Act (CEQA) and the National Environmental Policy Act (NEPA), and have comparatively examined the relative effects of the alternatives on known historic properties;; and…” No report was provided to LCASSPC. 2.

BLM VIOLATED MOU WITH LA CUNA DE AZTLAN SACRED SITES

PROTECTION CIRCLE BLM’s decision to issue the ROD violated its memorandum of understanding (“MOU”) (EXHIBIT C) with the La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee which states at 1 “[t]he purpose of this MOU is to assist the BLM with its responsibilities under Section 110 of the National Historic Preservation Act of 1966, as amended.” The MOU refers to jurisdiction and responsibility "Along the Colorado between Needles and Yuma” and does not mean "contained within" (for example no east west boundaries are delineated) but rather "incorporative of" or incorporating. Care members and families are part of Yuman cultural

65

continuums and Uto-Aztecan cultural continuums, so that their area of interest applies to the wider region of historic cultural interactions of the Yuman and Uto-Aztecan language groups and tribes.

La Cuna members have standing relative to their MOA to protect the "continuum" which includes several integrated aspects related to cultural use including desert ecosystem viability, flora and fauna, trails, burials, cremations, village sites, features, geoglyphs, petroglyphs, etc. from destruction of the physical integrity of the natural and human environments which incorporate and sustain them, and of which they are an integrated component. This includes protection from effects from the cumulative impacts of multiple projects on desert ecosystems. It includes the disposition and integrity of desert tortoises and other creatures within their continuums.

BLM’s memorandum of understanding (“MOU”) (EXHIBIT C) with the La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee states at 1 “[t]he purpose of this MOU is to assist the BLM with its responsibilities under Section 110 of the National Historic Preservation Act of 1966, as amended.” The existing Memorandum of Understanding with the La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee “to provide a means…to work in partnership to enhance cultural resource protection, conservation, and interpretation efforts on BLM lands…The fact that the BLM did not and has not yet consulted with the La Cuna de Aztlan Sacred Sites Protection Circle according to Section 106 of NRHP on The Chevron Lucerne Valley Solar Project (CACA-49561) is unlawful.

3.

AMMENDMENTS TO THE CDCA PLAN ARE UNLAWFUL The public lands that are the subject of the Blythe Solar Project are located within the

California Desert Conservation Area and have been designated by the Department of the Interior as Class-L "Limited Use" lands, which are designated to "protect sensitive, natural, scenic, ecological, and cultural resource values" and are required to be "managed to provide for generally lower-intensity, carefully controlled multiple use of resources, while ensuring that sensitive values are not significantly diminished." California Desert Conservation Area Plan (CDCA Plan), p. 13.

Interior's issuance of a right-of-way, and amendment of the CDCA Plan, for the purpose of

66

permitting construction and operation of the Calico Project on these specific Class L 6 lands, and permitting the destruction of sensitive resources on these lands, is unlawful.

4.

APPLICANTS USED CONTRACTOR DATA TO COMPLETE SECTION 106 PROCESSES Plan adopted by BLM with CEC and the project Applicant purportedly in government to

government consultations pursuant to Section 106 by the BLM with Indian tribes is unlawful, since they rely on authorizing the Applicant to conduct specific identification efforts for this undertaking by allowing the Applicant to retain an archaeological consultant to complete all of the investigations necessary to identify and evaluate cultural resources located within the Area of Potential Effect (APE) for both direct and indirect effects.

The Section 106 programmatic agreement45 approved by the Secretary seems to indicate the Section 106 programmatic agreement FEIS and amended CDCA Plan adopted by BLM with CEC and the project Applicant purportedly in government to government consultations pursuant to Section 106 by the BLM with Indian tribes is unlawful since they rely on authorizing the Applicant and private consultants to conduct specific identification efforts for this undertaking under a purported Section 106 programmatic agreement, by allowing the Applicant to retain an archaeological consultant to complete all of the investigations necessary to identify and evaluate cultural resources located within the Area of Potential Effect (APE) for both direct and indirect effects.

5.

LOAN GUARANTEES WERE ISSUED ON BLYTHE SOLAR PROJECT DESPITE POTENTIAL HARM TO NATIVE AMERICANS According to Title VI of the Civil Rights Act of 1964, no person in the United States shall

be excluded from participation in or otherwise discriminated against on the ground of race, color, or national origin under any program or activity receiving Federal financial assistance. The Calico

45

http://www.blm.gov/pgdata/etc/medialib/blm/ca/pdf/elcentro/nepa/2010/eis/ivsolar.Par.5550.File.dat/5IVS%20Appendix%20F-G%20Tribal%20Consultation.pdf at pages 20 to 21.

67

Solar project adversely impacted Native American cultural resources and sacred sites and that the federal government had a duty to conduct government to government consultations with Native American tribes and groups impacted by the project.

6.

BLM PROPOSES TO DECOMMISSION PUBLIC ROADS/TRAILS WHICH HAVE

BEEN ACTIVELY USED FOR THOUSANDS OF YEARS The tribes seek avoidance of harm by denial of the private right-of-way by the Secretary of Interior who seeks to convert preexisting rights into privileges. According to the ROD at 14 “1.3.3 Revisions to Open Routes, in 2002, the BLM updated access plans and routes in the eastern Colorado Desert through the Northern & Eastern Colorado Desert Coordinated Management Plan (NECO) Amendment to the CDCA Plan. The NECO Amendment assigned access for off-highway vehicle (OHV) routes in the eastern Colorado Desert. Currently, there are five open routes traversing the project site. Open Route access is defined in the CDCA Plan as: “Access on route by motorized vehicles is allowed. Special uses with potential for resource damage or significant conflict with other use may require specific authorization.”

The five open routes on the site are shown on Table 4.16-1 and on Figures 10 and 10a in the PA/FEIS. In order to accommodate the Selected Alternative, three open routes identified in the PA/FEIS (Routes 661085, 66113, and 66115) will be closed. These routes are comprised of approximately 4.5 miles of public access. With approval of the ROW grant, the BLM will designate these three open routes as closed. The perimeter of the project site will be fenced, which will prevent public access within the project site, except for access to holders of valid existing rights. “ The applicant proposes to decommission or vacate public highways that are trails that have existed for thousands of years and to otherwise impair public use of historically established roads and ways within the subject area. The proposal put forth by the applicant would prohibit access of their property and dictating terms of use. By proposing such schemes, the BLM ignores

68

native people's inalienable rights that are protected by the United States Constitution, California Constitution, California State law, Federal law, and/or Presidential authority affixed with the original land patents, and possibly even rights protected by the Treaty of Guadalupe Hidalgo.

All of the main arterial highways passing over the subject public lands were clearly established before Congressional passage to the Federal Land Policy Management Act of 1976, which repealed Federal Revised Statute 2477. Many of these highways were, in fact, established during the prehistoric era and continued in use during the Spanish and Mexican Periods, were protection of the Treaty of Guadalupe Hidalgo and later perfected under Revised Statute 2477 and the California Act Granting to Roads and Highways a Right of Way over the Public Lands of this State (California 1866:855). Revised Statutes 2477 states as follows: A.

Sec. 2477. The right of way for construction of highways over public lands, not

reserved for public uses, is hereby granted. (U.S. 1875:456.)

B.

An early California legal definition for the term highway clearly included a

broader interpretation than might be considered today. The 1911 Highway Code define Highway as follows: ยง 2618. In all counties of this State public highways are roads, streets, alleys, lanes, courts, places, trails, and bridges, laid out or erected as such by the public, or if laid out or erected by others, dedicated or abandoned to the public, or made such in actions for the partition of real property.

C.

The Act Granting to Roads and Highways a Right of Way over the Public Lands

of this State, approved by the sixteenth session of the California Legislature, states: Section 1. Whenever any corporation, company or individual shall, in accordance with the general laws of this State, lay out and construct any road or highway over any unoccupied public lands of this State, or over any lands that the State by donation of Congress, otherwise, may hereafter acquire, such corporation, company or individual, and their respective assigns, are hereby granted the right of way for such roads or highways over

69

such public lands. This act shall apply to roads heretofore as well as hereafter laid out and constructed. (Approved April 2, 1866. Statutes 1865-66:855.)

D.

The United States Constitution, ninth and tenth amendments provide addition

explanation regarding the rights and powers of the Unites States, the State, and the people: Amendment 9 - The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment 10 - The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Based on these early laws, it is clear that both the United States Congress and the California State Legislature distinctly understood that the public had a right to pass over the public lands and there was an expressed expectation for the people to use or otherwise construct highways to facilitate their rights and rights of ways, to, from, over, and across these public lands. The BLM cannot grant or charge fees for rights or rights of ways that are preexisting, protect by the United States Constitution, the California Constitution, California State law, Federal law, international treaty and/or Presidential authority affixed with the original land patents.

Decommissioning roads, the County's abandonment of roads, or otherwise vacating roads only affect the government's responsibility to the roads, but in no way impairs the public's right to use or maintain the public road or way (Chollar-Potosi v.

Kennedy 93 Am. Dec. 409; Brown v. Stone 69 Am. Dec. 303). Additionally, the long history of uninterrupted use and enjoyment of the roads and right of way conferred titled to the private property assignees in common, and perhaps in common with the public, and have also established prescriptive rights to continue to enjoy the roads and rights of ways

70

(Pierce v. Cloud, 82 Am. Dec. 496; Chollar-Potosi v. Kennedy 93 Am. Dec. 409; Hill v.

Crosby, 13 Am. Dec 448).

Historically established public highways within the subject area include, but are not limited to, the roads and trails as marked on the Patrick Johnson Map 4-1-1957. Based upon CARE’s Exhibit 609 trails; i.e., historically established public highways, roads, ways, and rights of ways that were established and granted by laws, treaties, rights, and court decisions that supersede the BLM's authority to grant others this right of way. The BLM lacks authority to convert preexisting rights into privileges. Research is incomplete regarding other public highways existing in the subject area. These impacts have not been studied to the degree to inspire confidence. “Video ”The Killing of Kokopelli” by Robert Lundahl documents the use of such roads/trails for Native American ceremonial purposes.

7.

FAILURE TO CONSIDER THE “HIGH DG” ALTERNATIVE PD and FEIR fail to include the High DG alternative; The FEIS improperly excludes the

High DG alternative. The FEIS states at 3-83, “However, achieving 400 MW of distributed solar PV or solar thermal would depend on additional policy support, manufacturing capacity, and lower cost than currently exists to provide the renewable energy required to meet the California Renewable Portfolio Standard requirements so additional technologies, like utility-scale solar thermal generation, are also necessary.”

In an interview with Film Maker Robert Lundahl, Solar Engineer, Bill Powers, P.E. states, “Many applications are filed in that time frame, 2008, 2009, of which Ivanpah was one, Genesis, some of these other projects. One of the project objectives is then identified as getting to the finish line quickly enough to get the cash grant. What is now used -- so the ARRA program really has now resulted in a perverse set of incentives that push forward projects that happen to be relatively far along in their permitting and development, whether they're good or bad or whether there are alternatives. None of that matters anymore.”

71

“Table 2-1 of the FEIS lists “Distributed Solar Technology” as “Ineffective, infeasible.” Clearly the failure to include the High DG alternative is an unlawful attempt to minimize the impacts of the project by not considering a reasonable range of alternatives as demonstrated by the FEIS’s improper assumption that DG “is eliminated because its implementation is infeasible”. Clearly such finding would be erroneous since whenever an agency approves a major action that may affect the environment, it must comply with NEPA. NEPA “establishes ‘action-forcing’ procedures that require agencies to take a ‘hard look’ at environmental consequences,” including, in many cases, preparation of an EIS.46 In addition to analyzing the proposed agency action, an EIS must “‘[r]igorously explore and objectively evaluate all reasonable alternatives’ to [the proposed] action. The analysis of alternatives to the proposed action is ‘the heart of the environmental impact statement.’”47 The FEIS improperly excludes the High DG alternative.” [CARE comments at 7] “In an Advice Letter 3691-E filed before the California Public Utilities Commission (CPUC) PG&E identified “ten location-specific criteria that it has used, and is continuing to use, to select candidate sites for PV [utility owned generation] UOG facilities. Among these are the cost of interconnection, substation capacity, and local transmission capacity.[48] Each of these factors favors project sites that would reduce or eliminate the need for costly upgrades to the transmission and distribution system. Indeed, the PV Program as a whole was proposed in part because distributed generation may reduce the transmission-related delay and cost related to bringing new sources of renewable power to load centers. Accordingly, PG&E has proposed appropriate siting criteria to optimize the locational value of sites and to reduce potential costs related to

46

Center for Biological Diversity v. U.S. Dept. of Interior, 581 F.3d 1063, 1071 (9th Cir. 2009) (internal citations omitted).

47 Id.; 40 C.F.R. § 1502.14 (2009).

48 See Advice Letter 3691-E at 8.

72

transmission upgrades.” Interconnect costs and feasibility is not included in the FEIS and judging from fees of 600,000 USD currently charged to project in the 3 MW size, substantial system upgrades may be required with projects of a combined thousands of MW on a single line, if it is possible to connect them at all, and the omission of these facts from the FEIS, calls the ability to interconnect into question since no planning or preparation is indicated.” [CARE comments at 7 to 8] 8.

INADEQUATE NO ACTION ALTERNATIVE Inadequate No-action Alternative; The Final EIS alternatives analysis is in adequate

because it fails to properly provide for a no action alternative. Pursuant to NEPA (40 CFR 1505.1(e)), a reasonable range of alternatives must be examined in the Draft EIR/EIS, and were selected based on the following criteria: (1) the alternative’s potential to meet the Proposed Action’s purpose and need; (2) the feasibility of the alternative; and (3) the alternative’s ability to avoid or lessen adverse effects of the Proposed Project. As required under NEPA Section 1502.14(d), a No Action Alternative must also be considered.” [EXHIBIT D/Protest P. 3] When federal agencies decide on project proposals, “[n]o action . . . would mean the proposed activity would not take place, and the resulting environmental effects from taking no action would be compared with the effects of permitting the proposed activity or an alternative activity to go forward.”49 The Ninth Circuit has held that “consideration of the alternatives requirement . . . guarantee[s] that agency decision-makers have before them and take into proper account all possible approaches to a particular project (including total abandonment of the project).”50 [EXHIBIT E/Protest P. 4] NEPA requires full consideration of "appropriate" alternatives. [42 USC § 4332(2)(E)] Included with the appropriate alternatives must be the "no action" alternative [40 CFR § 1502.14(d)] The evidentiary record demonstrates the FEIS’s “preferred alternative”, as discussed 49 50

Forty Most Asked Questions Concerning CEQ’s NEPA Regulations, 46 Fed. Reg. 18026, 18027 (March 23, 1981).

Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 785 (9th Cir. 2006) (emphasis in original).

73

in the Ivanpah FEIS, the Mitigated Ivanpah 3 Alternative, is not superior to the High DG option identified in the California Public Utilities Commission’s 33% Renewables Portfolio Standard Implementation Analysis Preliminary Results (June 2009).51 9.

PA AND FEIS PERPETRATE DISPARATE IMPACTS By excluding the High DG alternative the PA and FEIS perpetrates disparate impacts i.e.,

in the form of socioeconomic discrimination on low-income communities of color in the load centers where fossil fuel power plants are currently located that emit emissions that are harmful and endanger the public. This represents a distinct “community value” that supports locating solar PV generation near load centers where transmission upgrades may not be needed. Building transmission projects to connect LVSP that will require nearly the same amount of fossil fuel combustion turbines for backup power during periods of peak demand is the antithesis of this “community value” that has not been examined in the FEIS or is it addressed by the PPA. 10.

CEQA/NEPA VIOLATED BY PRE-COMMITTING TO A CERTAIN OUTCOME “The Final EIS is pre-committing to a certain plan prior to conducting an independent

environmental review [SA/EIS] which violates the public participation requirements under the California Environmental Quality Act (CEQA), and the National Environmental Policy Act (NEPA). “ 11.

ISSUANCE OF ROD WILL PLACE CULTURAL RESOURCES AT RISK, IMPAIR

ACCESS TO THEM, SINGIFICANTLY ALTER THE LANDSCAPES AROUND THEM, PHYSICALLY AND MATERIALLY IMPACT THE ABILITY OF LCDASSPC MEMBERS, FAMILIES AND LINEAR DESCENDENTS FROM PRACTICING TRADITIONS,

51

See California Public Utilities Commission's California Solar Initiative team Annual Program Assessment to the Legislature June 30, 2009. http://docs.cpuc.ca.gov/PUBLISHED/GRAPHICS/103173.PDF Highlights of the report include: California has over half a gigawatt of solar connected to the electric grid at customer sites. With recent rapid growth, California now has over 515 megawatts (MW) of cumulative installed solar photovoltaic (PV) capacity at nearly 50,000 sites,[] including 226 MW installed under the CSI Program.[] The non-CSI Program solar PV capacity was installed primarily under prior solar programs, including the Self-Generation Incentive Program (SGIP) and the Emerging Renewables Program (ERP).

74

DESTROYING, “THE CONTINUUM” AND IRREPARABLY AND FOREVER CHANGING THE STATUS QUO. Six significant geoglyphs and cultural resources are identified as being within the project boundaries.

The site boundaries are the MTRS (Meridian, Township, Range, Section) descriptions listed on pdf pages 97 and 98 of the August 2010 document identified as: BLM Plan Amendment / Final EIS For The Blythe Solar Power Project, Volume 1 of 2 DOI Control #: FES 10-41 Publication Index #: BLM/CA/ES-2010-015+1793 NEPA Tracking # DOI-BLM-CA-060-0010-0013-EIS Results: Feature / Glyph Kokopilli Group Cicimitl Kokopilli Bigfoot Reti Jesus Glyph Transformation West of BSPP Fireplace DayNight Tosco Group Tosco Fish Checkerboard Wide Ancient Trail Maze Circle Temple Group Temple Three Mounds Magnetic North Three Circles Stone Circle

Inside or Outside the BSPP boundary

Location

Outside Outside Outside Outside Outside Outside

360 m south of the BSPP boundary.

360 m south of the BSPP boundary.

360 m south of the BSPP boundary.

620 m south of the BSPP boundary 450 m south of the BSPP boundary 160 m south of the BSPP boundary

Outside Outside

270 m west of the BSPP boundary 1400 m west of the BSPP boundary

Outside Outside Outside Outside Outside Outside

360 m east of the BSPP boundary 900 m east of the BSPP boundary 759 m east of the BSPP boundary 540 m east of the BSPP boundary 1080 m east of the BSPP boundary 960 m east of the BSPP boundary

Inside Inside Inside Inside Inside

260 m inside the BSPP boundary 180 m inside the BSPP boundary 410 m inside the BSPP boundary 130 m inside the BSPP boundary 300 m inside the BSPP boundary

On September 20, 2010 CAlifornians for Renewable Energy, Inc. (CARE) filed a protest and comments on the FEIS and amended CDCA Plan “I wish to file a complaint and protest against the California-based concentrating solar power (CSP) developer Solar Millennium, a German developer, the California Energy Commission (CEC), the United

75

States Department of Interior Bureau of Land Management (BLM) and the United State Department of Energy (US DOE) for violating human rights to fast track the development of large industrial solar thermal electric projects that will literally pave over hundreds of square kilometers of undeveloped wilderness whose entire landscape (including this project’s site) is considered sacred to the Mojave, Paiute, and Chemehuevi peoples.[52]”[CARE comments at 2] “The PA/DEIS fails to comply with CEQA and NEPA in seven distinct ways.

First, it omits essential information and, as a result, fails as an informational document.

Second the PA/FEIS unlawfully defers the formulation of various studies and mitigation measures. Third, significant unstudied changes have been made to the Project since the PA/FEIS release, and significant new information is planned to be added to the PA/FEIS at a future date, so the PA/FEIS must be re-circulated and an additional public comment period provided. Fifth, the discussion of Alternatives is inadequate insofar as BLM declined to evaluate site alternatives on the sole basis that they are inconsistent with the Applicant’s purpose and need. Sixth, the PA/FEIS unlawfully segments the Project by failing to consider the impacts of the Palen and Genesis solar projects and associated transmission upgrades. Seventh, the Project applicant proposes to use well water that is drawn from the Colorado River that is already allocated to other consumptive users.”

[CARE comment at 3].

“40 CFR, § 1502.13 (Purpose and Need), requires the purpose and need statement to briefly specify the underlying purpose and need to which the agency is responding 52

The video with the background info on our struggle for justice is at: http://www.vimeo.com/13985034

The digital video is authenticated by Testimony of film maker Robert Lundahl and Declaration of aircraft pilot Jeff Gatchell 1)http://www.energy.ca.gov/sitingcases/genesis_solar/documents/others/CARE_Exhibits/615_unsigned_Testimony_and Declaration_of_Robert_Lundahl_9-AFC-8.PDF 2)http://www.energy.ca.gov/sitingcases/genesis_solar/documents/others/CARE_Exhibits/610_Dec_of_Gatchell_5-242010.PDF We incorporate by reference herein the Exhibit Files for Intervenor CARE at the CEC Genesis project website: http://www.energy.ca.gov/sitingcases/genesis_solar/documents/others/CARE_Exhibits/

76

[emphasis added] in proposing the alternatives, including the proposed action. In Appendix N, BLM’s responses to public comments on the Chevron Energy Solutions Lucerne Valley Solar DEIS, Section 1.1.1 of the DEIS, the BLM’s Purpose and Need includes responding to Chevron Energy Solution’s (CES) application under Title V of the FLPMA, BLM ROW regulations, 43 CFR, Part 2800, and other applicable federal directives, as follows: “The BLM will decide whether to approve, approve with modifications, or deny issuance of the ROW….” In this case the BLM recognizes the benefit to developing renewable and acknowledges that there are numerous locations on which to develop renewable energy as well as many different technologies. However, contributing to the state’s renewable standards is not a BLM mandate and therefore is not included in the BLM’s purpose and need statement. [Emphasis added] In the BSPP PA/FEIS the BLM takes the opposite approach by recognizing the CEC’s project objective as part of the Purpose and Need for the project. This is improper and violates 42 U.S.C. § 1983.[53]” [CARE comments at 6.

The Blythe FEIS project boundaries contain significant cultural resources within them. “The Temple to the underworld feature documented in the short film by Film Maker Robert Lundahl entitled, “The Killing of Kokopelli”54 Remains within project boundaries as of 11/12/2010. Project boundaries have been adjusted ongoing to suit the needs of the applicant in and around several major geoglyphs and cultural features.

Referencing Charles Wood’s comments about minimizing the APE, Area of Potential 53

This is in violation of 42 U.S.C. § 1983, commonly referred to as "section 1983" which provides: Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C. § 1983 (emphasis added).

54

77

Effect, this is the extreme example. While 11/12/2010 project boundaries exclude geoglyphs and major cultural features, they inhibit, restrict, alter, and render the experience substantively different, The large geoglyph of Kokopelli for example, would be roughly 100 feet from the project and as such would be subject to abuse, given the potential uses of the area as a parking lot for workers or a place for construction personnel to eat lunch. Several major earthworks and geoglyphs are similarly in close proximity to construction and operational activities and no plan for protection, such as fencing, is mentioned in the FEIS. Thus, the continuum of land use in history and tribal tradition, quoting Jim Guerra is interrupted. No final project boundaries had been published as of 11/12/2010. A revised EIS should be required.

BLM violates the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., and the APA, 5 U.S.C. § 706, by issuing an Environmental Impact Statement that ignores or fails to consider the effects of their actions on all aspects of the "Human Environment." Humans relate to their environment through their culture, so the cultural aspects of the environment -- for example, cultural uses of the natural environment, the built environment, and human social institutions -- obviously must be considered in the FEIS. According to the National Preservation Institute, "Human Environment" shall be interpreted comprehensively to include the natural and physical environment and the relationship of people with that environment (40 CFR 1508.14). NEPA's concern is with the "human environment," defined as including the natural and physical (e.g. built) environment and the relationships of people to that environment. A thorough environmental analysis under NEPA should systematically address the "human" -- social and cultural -- aspects of the environment as well as those that are more "natural," and should address the relationships between natural and cultural. Culturally valued aspects of the environment generally include historic properties, other culturally valued pieces of real property, cultural use of the biophysical environment, and such

78

"intangible" sociocultural attributes as social cohesion, social institutions, lifeways, religious practices, and other cultural institutions. These impacts are usually analyzed either as impacts on "cultural resources," or as "social impacts," or as both -- but many such impacts actually fall into the cracks between the "cultural resource" and "social impact" categories as usually defined55 F.

Genesis Solar Power Project The Genesis Solar Power Project (CACA-48880) Federal Process began with BLM’s

Notice of Intent Published in Federal Register, November 23, 2009 and culminated with the Record of Decision by the BLM issued on November 5, 2010 1.

BLM DID NOT ADEQUATELY CONSULT WITH LA CUNA DE AZTLAN

SACRED SITES PROTECTION CIRCLE ON THE GENESIS SOLAR PROJECT, AS WAS REQUIRED BY THE EXISTING MOU, AND BY SECTION 1O6 OF NRHP. The BLM erroneously states in Section 5.5 of the ROD that it participated in “[c]onsultation with” the La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee regarding the Genesis Solar Power Project.56 On August 9, 2010 Alfredo Figueroa in behalf of La Cuna de Aztlan Sacred Protection Circle was asked by Anthony Madrigal, Jr., Twenty-Nine Palms Band of Mission Indians, Environmental Scientist/ Cultural Resource Specialist to participate in the BLM’s “Genesis, Blythe, and Palen PA Comments, proposed site eligibility determinations, meeting”.57 According to the attached July 20, 2010 e-mail from George E. Kline BLM’s Archaeologist the purpose of the meeting was as follows: The Bureau of Land Management, Palm Springs-South Coast Field Office (BLM) recently notified and invited consulting parties to participate in the development of Programmatic Agreements (PAs) for the Solar Millennium Blythe, Solar Millennium Palen, and The NextEra/Genesis Solar Power Projects along the Interstate 10 corridor, east of Desert Center. NextEra Energy Resources, LLC, has applied to the BLM for a right-of-way grant to construct and operate a 250 55

National Preservation Institute, Tools for CRMs, http://www.npi.org/NEPA/whatare.html http://www.blm.gov/pgdata/etc/medialib/blm/ca/pdf/palmsprings/genesis.Par.95255.File.dat/Genesis%20ROD.pdf at page 48.

57 See Exhibit XXX August 9, 2010 e-mail from Anthony Madrigal, Jr. 56

79

Megawatt (MW) solar power generating facility between Desert Center and Blythe, CA. Solar Millennium, LLC has applied to the BLM for a right-of-way grant to construct and operate a 1,000-MW Blythe Solar Power Project near Blythe, CA, and a 500 MW Palen Solar Power Project near Desert Center, CA…The BLM is planning a follow-up consulting party meeting to incorporate comments that have been received thus far regarding the Revised Programmatic Agreements (PA) for the three solar power projects. These are projects that the BLM has already initiated consultation with the SHPO, the CEC and other consulting parties. In addition to the PA update, we will be discussing the proposed archaeological site determinations of eligibility for the National Register of Historic Places. These proposed eligibility determinations will be available upon request at the end of this week, and prior to the meeting.

Mr. Figueroa and Mr. Robert Lundahl a film producer retained by CARE to record the August 11, 2010 meeting both Mr. Figueroa was refused any opportunity to participate in consultation with BLM and Mr. Lundahl was asked not to record the public meeting he had been retained to record by CARE. Plaintiffs allege that this was intentional as the BLM’s purpose of the meeting was to consult with only the project applicants and the CEC and not to carry out consultation with the La Cuna de Aztlan Sacred Protection Circle on the development of the “Programmatic Agreements (PA) s for the Solar Millennium Blythe, Solar Millennium Palen, and The NextEra/Genesis Solar Power Projects along the Interstate 10 corridor” as was required by the BLM’s MOU with the La Cuna de Aztlan Sacred Protection Circle .

On July 8, 2010 CARE timely filed comments of the Draft PA/EIS stating “CARE doesn’t agree that the project is ready for public comment yet and believes that the rushed schedule is due only to the applicant’s commercial interests in receiving ARRA funding from the United States, which is a financial interest that shouldn’t be allowed to prejudice or prejudge this project’s environmental review based on the currently incomplete record for the project’s review…CARE believes the record in this case is incomplete in all areas since final mitigation measures to be adopted are unknown do to a lack of baseline information and the failure of BLM to provide all

80

the necessary information required to determine what mitigation is acceptable to the BLM specifically regarding the alternatives examined and the impacts of the project on cultural resources. Specific areas that are not ready for public comments due to outstanding baseline information are the project description, socioeconomic impacts, project alternatives, biological resources, cultural resources, water and soils.” The November 5, 2010 ROD fails to address any of CARE’s July 8, 2010 comments on the Draft PA/EIS altogether.

Page 2 of Appendix 1 of the November 5, 2010 ROD list receiving comments from Patricia Pinion and Alfredo A. Figueroa of Patricia Pinion and Alfredo A. Figueroa received on September 14, 2010 but does not address their content. The contents are listed on page 11 of the Public Comments Received58t he comments were, in fact, a request for more time from the BLM because “tribes need additional time [] to consult with Dr. Bean, and therefore in behalf of our inter-tribal group La Cuna de Aztlan Sacred Site Protection Circle, we respectfully request the BLM grant a 30 days extension on Protests and Comments on the Final EIS and Proposed California Desert Conservation Area (COCA) Plan Amendment for CACA 048811, Chevron Energy Solutions/Solar Millennium Blythe Solar Power Plant, CACA 048880, Genesis Solar, LLC Genesis Solar Energy Project, and Plan Amendment LLCAD06000“. The BLM never provided any response to the request for additional time and the ROD was issued anyway.

Based on the Notice of Availability of Final EIS Published by BLM in Federal Register, on August 30, 2010 CARE filed its “[c]omplaint and protest against the California-based concentrating solar power (CSP) developer Genesis Solar LLC, the California Energy Commission (CEC), the United States Department of Interior Bureau of Land Management (BLM) and the United States Department of Energy (US DOE)” on September 29, 2010. Again the November 5, 2010 ROD fails to address any of CARE’s September 29, 2010 comments and protest.

58

http://www.blm.gov/pgdata/etc/medialib/blm/ca/pdf/palmsprings/genesis.Par.83856.File.dat/Genesis%20FEIS%20Co mments.pdf

81

2.

BLM ISSUANCE OF ROD FAILED TO TAKE INTO ACCOUNT THAT THE

GENESIS PROJECT HAS NO LAWFUL WATER SUPPLY The BLM therefore failed to address the fact that the applicant has no lawful water supply for the Genesis project. The CEC’s Revised Staff Assessment (RSA) states, “water in the Colorado River is fully appropriated and any diversion of water from the Colorado River would be a significant impact.”59 Accordingly, CEC Staff concluded that proposed Project groundwater pumping would result in a significant impact to the Colorado River because “the reduction in outflow from the CVGB to the PVMGB” that results from Project groundwater use “will be made up at least in part by inflow from the Colorado River”60 and “all groundwater production at the site would be considered Colorado River water.”61 CEC Staff’s conclusions are in accordance with the BLM’s FEIS for the Project. The FEIS states: [b]ecause water within the [CVGB] is tributary to the Colorado River System, it is subject to the U.S. Supreme Court’s Consolidated Decree (regarding Arizona v.

California). Studies have estimated the flow to the Colorado River Basin as being between about 400 to 1,200 ac-ft/yr…The USGS identifies the CCGB [sic] as part of the Colorado River Basin/System in USGS SIR 2008-5113. The basin is subject to the Colorado River Compact of 1922, and the Boulder Canyon act of 1928, and Consolidated Decree (547 U.S. 150 [2006]). Groundwater contained in the CVGB discharges across the eastern basin boundary, located between the McCoy Mountains and the Mule/Palo Verde Mountains, about 8 miles southeast of the GSEP…where it enters into the [PVMGB]. Groundwater contained in the PVMGB is hydrologically contiguous with groundwater contained in the Palo Verde Valley Groundwater Basin (PVVGB), which flanks the Colorado River.

Therefore, under current/natural conditions, groundwater underlying the GSEP site flows in a southeasterly direction, into the PVVGB, and eventually influences

59

Exh. 400, p. C.9-68 Exh. 402, p. 31 61 Exh. 400, p. C.9-68 60

82

the hydrology of the Colorado River. Downstream water right holders include California, Arizona, and Mexico.62 Also: [g]iven the location of the GSEP and the anticipated annual GSEP water requirements, the GSEP would impact the PVMGB and the Colorado River Basin. [63] The Colorado River Basin is defined under the Colorado River Compact of 1922 (affirmed by 547 U.S. 150 [2006]) as, ‘…all of the drainage area of the Colorado River System,’ where the term ‘Colorado River System’ is defined as the Colorado River and its tributaries. Finally, tributaries to the Colorado River were defined as, ‘all stream systems the waters of which naturally drain into the mainstream of the Colorado River below Lee Ferry.’[64] Further: [t]he U.S. Geological Survey has indicated that the CVGB lies within a basin tributary to the Colorado River and that wells drawing groundwater within those groundwater basins could be considered to be withdrawing water from the Colorado River Aquifer (Wilson et al., 1994). The USGS developed an accounting surface for determination of whether water was being drawn from the mainstream of the Colorado River. The accounting surface for the GSEP site ranged from 248 to 252 feet mean sea level (msl). Consequently, the GSEP has the potential to divert Colorado River water without an entitlement to the water, and all groundwater production at the site should be considered Colorado River water. [65] The FEIS later states, in its evaluation of the dry cooling alternative, that “[w]ater in the Colorado River is fully appropriated and the Colorado River would be impacted.

The U.S. Geological Survey has indicated that the PVMGB and CVGB lie within a basin tributary to the Colorado River and that wells drawing groundwater could be considered to be withdrawing water from the Colorado River Aquifer (Wison et al., 1994).

Consequently, the GSEP has the potential to divert Colorado River water without any 62

Genesis Solar Energy Project PA/FEIS, pp. 3.20-3-4.

Genesis Solar Energy Project PA/FEIS, p. 4.19-2 64 Id 65 Ibid 63

83

entitlement to the water, and all groundwater production at the site would be considered Colorado River water.”66 In short, both Energy Commission Staff and the BLM concluded that proposed Project pumping would use Colorado River water, resulting in an impact to the River. The Applicant disagrees and contends that the Project would not impact the Colorado River.

Notably, the Bureau of Reclamation, the water master for the Colorado River, stated that the Applicant’s conclusion that the Project would not impact the Colorado River (or require an entitlement) is unjustified.

On September 28, 2010 a letter67 from the Colorado River Board of California was docketed with the Energy Commission, which confirms this critical point.

Established in 1937 by California statute to protect Californians rights and interests in the Colorado River, the Colorado River Board is the authoritative State agency for the Colorado River.68 This letter says, definitively, that groundwater pumping is pumping Colorado River water, and that the Project Applicant must obtain a legal entitlement to Colorado River water pursuant to Federal law before it may pump groundwater.

The Colorado River Board confirmed "the CVGB groundwater underneath the project site is hydraulically connected with the Colorado River."69 The Colorado River Board, the United States Geological Survey, the Metropolitan Water District, the Bureau of Land Management and Energy Commission Staff all agree that the Chuckwalla Valley Groundwater Basin is hydraulically connected to the Colorado River. The Colorado River Board confirmed that "consumptive use" of the Colorado River mainstream includes water drawn from the River mainstream by underground pumping.70 Thus, "any amount"

66

Genesis Solar Energy Project PA/FEIS, p. 4.19-17 See http://www.energy.ca.gov/sitingcases/genesis_solar/documents/others/2010-0923_Colorado_River_Board_of_California_Letter_TN-58622.pdf 68 Cal. Water Code §§12500 et seq.

69 Letter from Gerald R. Zimmerman, Acting Executive Director of the Colorado River Board of California to the State Clearinghouse, September 23, 2010, p. 1 70 Id pp. 1-2.

67

84

of the 10,644 acre-feet of water extracted from the Chuckwalla Valley Groundwater Basin for Project construction (4.104 acre-feet) and operation (6.540 acre-feet under a drycooled scenario) "that will be replaced by the Colorado River, in total or in part, is considered a use of Colorado River water.71 In other words, regardless of whether the water drawn is used directly by the Project or is induced into the groundwater basin to fill the void left by the Project's groundwater pumping the Project's groundwater pumping would be considered a "consumptive use" of Colorado River mainstream water pursuant to the United States Supreme Court consolidated decree Arizona v. California (2006) 547 U.S. 150.

Finally, the Colorado River Board confirmed that to obtain "a legally authorized and reliable water supply" for the Project, the Applicant should acquire "water through an existing [Boulder Canyon Project Act] Section 5 contract holder, the Metropolitan Water District of Southern California."72 Further, "[a]lthough other options may be available it is the Board's assessment that they could not be implemented in a timely manner and address the requirement that water consumptively used from the Colorado River must be through a BCPA Section 5 contractual entitlement."73 The legal requirement that the Applicant obtain an entitlement is distinct from any offset scheme. Thus, to comply with federal law, the BLM must require the Applicant to obtain an entitlement before pumping any ground water at the Project site.

The BLM also failed to address the fact that the National Historic Preservation Act (Section 106; 36 CFR, Part 800) Section 106 of the NHPA requires federal agencies to take into account the effects of their undertakings on historic properties and seeks to accommodate historic preservation concerns with the needs of federal undertakings through consultation among the agency official and other parties. The goal of consultation 71

Id p. 1 Id p. 2 73 Id 72

85

is to identify historic properties potentially affected by the undertaking, assess effects, and seek ways to avoid, minimize or mitigate any adverse effects on historic properties. The BLM has failed to carry out its duties under AIRFA, AHPA, and NHPA to conduct government to government consultation with tribes. The Final EIS identified the following impacts from the project but failed to identify any mitigation plan for impacts on the existing Public Highways [Trails] within the Subject Area.

Ground-disturbing construction activities associated with the GSEP can directly impact cultural resources by damaging and displacing artifacts, diminishing site integrity and altering the characteristics that make the resources significant. In addition, in the case of historic architectural resources and places of traditional cultural importance, impacts can occur to the setting of a resource even if the resource is not physically damaged…. [PA/FEIS at 4.4-3] Based on graphical representations showing the anticipated disturbance below ground and the anticipated above-ground intrusion into the flat landscape, impacts associated with the GSEP potentially affecting cultural resources, … [PA/FEIS at 4.4-3] Based on this information all archaeological resources, and possibly additional resources yet to be discovered during construction, located within the full extent of the GSEP’s surface and below-grade impacts (inclusive of foundations and trenches) would be adversely affected by the GSEP…[PA/FEIS at 4.4-3] Based on preliminary evaluations of NRHP eligibility, the proposed GSEP would directly impact 27 significant archaeological resources (see Table D-9). These include: 1. 12 prehistoric-to-historic period Native American archaeological sites, 6 of which are potential contributing elements to a potential Prehistoric Trails Network Archaeological Landscape (PTNAL); and… [PA/FEIS at 4.4-3 to 4.4-4]

86

In addition, the proposed GSEP would indirectly impact 248 sites that are contributors to the potential Prehistoric Trails Network Archaeological Landscape (PTNAL) (see 3.4-16 and 3.4-39 through 3.4-41). [PA/FEIS at 4.4-4] 3.

BLM ISSUANCE OF ROD POTENTIALLY HAS SEVERE IMPACTS ON A

NETWORK OF ANCIENT TRAILS LINKING MAJOR CULTURAL SITES, CREATES IMPACTS TO THE “HUMAN ENVIRONMENT”, TO CONTIGUOUS FEATURES, GEOGLYPHS, AND PETROGLYPHS, DESTROYING THE PHYSICAL INTEGRITY OF THE SITE (S)/CULTURAL COMPLEX, AND THEIR TRADITIONAL CULTURAL, SOCIAL, AND NATURAL USES AND ENVIRONMENTS. During late prehistoric and ethnohistoric times, an extensive network of Native American trails was present in the Colorado Desert and environs (Heizer 1978; Cleland 2007; Sample 1950, p. 23; Apple 2005; Earle 2005; McCarthy 1993a; Melmed and Apple 2009; Von Werlhof 1986). Segments of many trails are still visible, connecting various important natural and cultural elements of landscape, for example, these trails are often marked by votive stone piles (cairns) and ceramic sherd scatters (pot drops).

A late prehistoric-early historic Native American trail has been reported traversing roughly east/west through the Chuckwalla Valley (Johnson and Johnstone 1957, map 1).

Johnson (1980, p. 89-93, fig. 1) identifies this route as part of the Halchedhoma Trail (recorded as CA-Riv-53T) running from San Bernardino through San Gorgonio Pass to the Colorado River at present day Palo Verde Valley. In the vicinity of the Chuckwalla Valley, the trail proceeded roughly east-northeast from Hayfield Dry Lake past the future site of Desert Center to Gruendike Well. From there it went east, south of Palen Dry Lake to Sidewinder Well, then turned east, north of Ford Lake to McCoy Spring. It then headed south, around the south end of the McCoy Mountains, before going northeast towards the Colorado River. Work by McCarthy (1993a, Fig. 10) suggests that offshoots of this trail

87

may have crossed the GSEP site footprint leading to Ford Dry Lake and points to the south and west. [PA/FEIS at 3.4-16] Geoglyphs were constructed on desert pavements by rearranging and/or clearing pebbles and rocks to form alignments, clearings, and/or figures (Arnold et al. 2002; Gilreath 2007, pp. 288–289; Solari and Johnson 1982). These rock alignments (Harner 1953) occur throughout the deserts of southeast California and adjacent portions of southern Nevada and western Arizona. Rock alignments are present throughout this region, including two recorded along the western foot of the McCoy Mountains (McCarthy 1993a and b). Representational figures have only been noted in close proximity to the Lower Colorado River.

In the Mojave Desert, large rock alignments are found in Panamint Valley, Death Valley, Eureka Valley, and the Owens River Valley (Davis and Winslow 1965; Gilreath 2007, pp. 288–289; von Werlhof 1987). They have been interpreted as resulting from group ritual(s) (von Werlhof 1987). Many appear characterized by multiple-use episodes, with portions added through the years as part of ongoing rituals/ceremonies.

Colorado River geoglyphs include the Topock Maze (Rogers 1929) and a few dozen giant ground figures (Harner 1953; Setzler and Marshall 1952), often first observed from the air. During historic times, the Topock Maze was used by Yuman peoples for spiritual cleansing.

Johnson (1985, 2003), von Werlhof (2004), and Whitley (2000) relate the geoglyphs to Yuman cosmology, origin myths, and religion. Cation ratio dating5 of desert varnish has provided estimated ages of approximately 1200–1000 BC for the Colorado

88

geoglyphs (Dorn et al. 1992; Schaefer 1994, p. 63; von Werlhof 1995), although use of the technique remains controversial (Gilreath 2007, p. 289).

Von Werlhof (1995, 2004) relates these sites to the Yuman creation story. They also may have functioned as focal points for shamanistic activities, vision quests, curing, and group rituals/ceremonies. Symbolic activities also were represented by intentional pot drop distributions along trails near water sources. The importance to Native Americans of water sources for survival during long-distance trips and seasonal rounds is obvious.

Water sources also manifested significant spiritual values and often were associated with major rock art complexes (McCarthy 1993a and b; Schaefer 1992). [PA/FEIS at 3.4-16 to 3.4-17] Ethnographic Background Currently, it is unclear which historic Native American group or groups occupied or used the region, in which the proposed GSEP site is located, but the Chemehuevi, Serrano, Cahuilla, Mojave, Quechan, Maricopa, and Halchidhoma are the most likely.

[PA/FEIS at 3.4-17] 3.

BLM PROPOSES TO DECOMMISSION PUBLIC ROADS/TRAILS WHICH HAVE

BEEN ACTIVELY USED FOR THOUSANDS OF YEARS The applicant proposes to decommission or vacate public highways that are trails that have existed for thousands of years and to otherwise impair public use of historically established roads and ways within the subject area. The proposal put forth by the applicant would prohibit access of their property and dictating terms of use. By proposing such schemes, the BLM ignores native people's inalienable rights that are protected by the United States Constitution, California Constitution, California State law, Federal law, and/or Presidential authority affixed with the original land patents, and possibly even rights protected by the Treaty of Guadalupe Hidalgo.

89

Existing trails between Corn Spring and McCoy Spring bisects the Genesis project site All of the main arterial highways passing over the subject public lands were clearly established before Congressional passage to the Federal Land Policy Management Act of 1976, which repealed Federal Revised Statute 2477. Many of these highways were, in fact, established during the prehistoric era and continued in use during the Spanish and Mexican Periods, were protection of the Treaty of Guadalupe Hidalgo and later perfected under Revised Statute 2477 and the California Act Granting to Roads and Highways a Right of Way over the Public Lands of this State (California 1866:855). Revised Statutes 2477 states as follows: Sec. 2477. The right of way for construction of highways over public lands, not reserved for public uses, is hereby granted. (U.S. 1875:456.)

An early California legal definition for the term highway clearly included a broader interpretation than might be considered today. The 1911 Highway Code define Highway as follows:

90

ยง 2618. In all counties of this State public highways are roads, streets, alleys, lanes, courts, places, trails, and bridges, laid out or erected as such by the public, or if laid out or erected by others, dedicated or abandoned to the public, or made such in actions for the partition of real property.

The Act Granting to Roads and Highways a Right of Way over the Public Lands of this State, approved by the sixteenth session of the California Legislature, states: Section 1. Whenever any corporation, company or individual shall, in accordance with the general laws of this State, lay out and construct any road or highway over any unoccupied public lands of this State, or over any lands that the State by donation of Congress, otherwise, may hereafter acquire, such corporation, company or individual, and their respective assigns, are hereby granted the right of way for such roads or highways over such public lands. This act shall apply to roads heretofore as well as hereafter laid out and constructed. (Approved April 2, 1866. Statutes 1865-66:855.)

The United States Constitution, ninth and tenth amendments provide addition explanation regarding the rights and powers of the Unites States, the State, and the people: Amendment 9 - The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment 10 - The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Based on these early laws, it is clear that both the United States Congress and the California State Legislature distinctly understood that the public had a right to pass over the public lands and there was an expressed expectation for the people to use or otherwise construct

91

highways to facilitate their rights and rights of ways, to, from, over, and across these public lands.

The BLM cannot grant or charge fees for rights or rights of ways that are preexisting, protect by the United States Constitution, the California Constitution, California State law, Federal law, international treaty and/or Presidential authority affixed with the original land patents.

Decommissioning roads, the County's abandonment of roads, or otherwise vacating roads only affect the government's responsibility to the roads, but in no way impairs the public's right to use or maintain the public road or way (Chollar-Potosi v. Kennedy 93 Am. Dec. 409; Brown v.

Stone 69 Am. Dec. 303). Additionally, the long history of uninterrupted use and enjoyment of the roads and right of way conferred titled to the private property assignees in common, and perhaps in common with the public, and have also established prescriptive rights to continue to enjoy the roads and rights of ways (Pierce v. Cloud, 82 Am. Dec. 496; Chollar-Potosi v. Kennedy 93 Am. Dec. 409; Hill v. Crosby, 13 Am. Dec 448).

Historically established public highways within the subject area include, but are not limited to, the roads and trails as marked on the Patrick Johnson Map 4-1-1957. Based upon CARE’s Exhibit 609 trails; i.e., historically established public highways, roads, ways, and rights of ways that were established and granted by laws, treaties, rights, and court decisions that supersede the BLM's authority to grant others this right of way. The BLM lacks authority to convert preexisting rights into privileges.

4.

APPLICANTS USED CONTRACTOR DATA TO COMPLETE SECTION 106 PROCESSES Like the other projects challenged herein the Section 106 programmatic agreement74

approved by the Secretary seems to indicate the Section 106 programmatic agreement FEIS and amended CDCA Plan adopted by BLM with CEC and the project Applicant purportedly in

74

http://www.blm.gov/pgdata/etc/medialib/blm/ca/pdf/palmsprings/genesis.Par.55838.File.dat/GSEP%20Appendix%205 .pdf at pages 6 to 7.

92

government to government consultations pursuant to Section 106 by the BLM with Indian tribes is unlawful since they rely on authorizing the Applicant and private consultants to conduct specific identification efforts for this undertaking under a purported Section 106 programmatic agreement, by allowing the Applicant to retain an archaeological consultant to complete all of the investigations necessary to identify and evaluate cultural resources located within the Area of Potential Effect (APE) for both direct and indirect effects.

5.

BLM’s DECISION TO ISSUE THE ROD VIOLATES ITS MEMORANDUM OF

UNDERSTANDING (“MOU”) (EXHIBIT C) WITH LA CUNA DE AZTLAN SACRED SITES PROTECTION CIRCLE ADVISORY COMMITTEE AND SECTION 106 REQUIREMENTS (Continued from above): This also violates the Balm’s existing MOU with the inter-tribal group the La Cana de Atlas Sacred Sites Protection Circle Advisory Committee.

There where extensive public comments on the inadequacies of the Balm’s section 106 consultation processes.

“A1.2.2 Cultural Resources and Tribal Consultation Multiple letters (8 and 9) include comments concerning cultural resources and tribal consultation. These comments are summarized as follows: • BLM failed to take a hard look at the project’s significant effects on buried prehistoric cultural resources; • The BLM failed to adequately identify the environmental consequences of the project on prehistoric resources and therefore could not develop appropriate mitigation; • Subsurface testing of prehistoric resources is necessary in order to properly assess impacts and determine appropriate mitigation; and • The additional 30-day comment period should be extended for the conclusion of the National Historic Preservation Act Section 106 process.

Cultural resources were addressed in PA/FEIS Sections 3.4, Cultural Resources, 4.4, Impacts on Cultural Resources, and 5.5, Public Comment Process. See also, Appendix 4 to this ROD, Programmatic Agreement.

93

Section 106 of the National Historic Preservation Act (NHPA) requires Federal agencies including the BLM to take into account the effects of their undertakings on historic properties and afford the Advisory Council on Historic Preservation a reasonable opportunity to comment on such undertakings (36 CFR 800.1). The goal is to identify historic properties potentially affected by the undertaking, assess its effects and seek ways to avoid, minimize or mitigate any adverse effects on historic properties (Id).75 Compliance with the procedures established by the approved Programmatic Agreement satisfies the BLM’s NHPA Section 106 responsibilities (36CFR 800.14), and the terms and conditions contained in the Programmatic Agreement supersede the mitigation measures identified in the PA/FEIS as BLM-CUL-1 through and including BLM-CUL-9.76 15-016 The Section 106 Programmatic Agreement is in progress. This process is independent of, and separate from the NEPA process, and will be prepared in accordance with the schedule and procedures established in the relevant regulatory regimes. Studies required or completed in satisfaction of other agencies’ requirements that become available before the Record of Decision (ROD) is issued will be evaluated by the BLM. BLM is making every effort to complete these processes in coordination with NEPA, and to finalize these other processes before the issuance of the ROD. Other agencies and the public would have the opportunity to review such reports to the full extent of the relevant governing law. Finally, please see Section 5.2.3 of the PA/FEIS, Tribal Consultation for the GSEP.77 15-023 New information made available since the release of the Staff Assessment/Draft EIS has been incorporated into this PA/FEIS and has been made available to the public. New information includes an updated project description, the Revised Staff Assessment; the Revised Staff Assessment Supplement; Applicant’s Supplemental Information; a response to Mojave Desert 75

http://www.blm.gov/pgdata/etc/medialib/blm/ca/pdf/palmsprings/genesis.Par.86222.File.dat/GSEP%20Appendix%201 .pdf at page 6.

76 Id at 8.

77 Id at 13.

94

Air Quality Management District (MDAQMD) Requests for Additional Information; an updated Biological Resources Technical Report that includes findings from spring 2010 surveys (TTEC 2010p); golden eagle survey results from spring 2010 (TTEC 2010u); and a Golden Eagle Risk Assessment (TTEC 2010v). The public will be allowed 30 days to comment on the PA/FEIS as required by the NEPA process.

Other documents, such as the Section 106 Programmatic Agreement, are in process and are independent of and separate from the NEPA process. These documents will be prepared in accordance with the schedule and procedures established in the relevant regulatory regimes. Other agencies and the public will have the opportunity to review such reports to the full extent of the relevant governing law.78

6.

PROJECT VIOLATES NEPA, SUPPLEMETARY DRAFT EIS NOT

PREPARED Since the project has been changed substantially after the public comment period on the Draft PA/EIS, therefore the approval of the ROD “violated NEPA by not preparing a supplemental draft environmental impact statement (EIS)” as was pointed in CARE’s July 8, 2010 comments on the Draft PA/FEIS regarding the January 5, 2010 Order of DV 2009-1-PR thru DV 2009-8-PR before the US DOI Office of Hearings and Appeals, In re Black Mesa Complex Permit Revision, Permit No. AZ-000lD, the ALJ found after the project description was changed without an opportunity for public comments that “[b]ecause the Final EIS does not satisfy NEPA, the decision must be vacated and remanded”.

In the January 5, 2010 Order[79] of DV 2009-1-PR80 thru DV 2009-8-PR before the United States Department of the Interior Office of Hearings and Appeals, In

78

Id at 14 to 15.

Seehttp://www.wrcc.osmre.gov/Current_Initiatives/Black_Mesa_EIS/BMEIS/AdministrativeLawJudgeDecision.pdf at page 6.

79

95

re Black Mesa Complex Permit Revision, Permit No. AZ-000lD, the ALJ found after the project description was changed without an opportunity for public comments stating that “I have decided to grant Nutumya's NEPA Motion because it demonstrates that OSM violated NEPA by not preparing a supplemental draft environmental impact statement (EIS) when Peabody changed the proposed action. As a result the Final EIS did not consider a reasonable range of alternatives, described the wrong affected environment baseline, and did not achieve the informed decision-making and meaningful public comment required

by NEPA. Because the Final EIS does not satisfy NEPA, the decision must be vacated and remanded to OSM for further action.”

Since the project has been changed substantially so has the proposed action.

Therefore this violates NEPA. 7.

FAILURE TO CONSIDER THE “HIGH DG” ALTERNATIVE PD and FEIR fail to include the High DG alternative; The FEIS improperly excludes the

High DG alternative. The FEIS states at 3-83, “However, achieving 400 MW of distributed solar PV or solar thermal would depend on additional policy support, manufacturing capacity, and lower cost than currently exists to provide the renewable energy required to meet the California Renewable Portfolio Standard requirements so additional technologies, like utility-scale solar thermal generation, are also necessary.”

In an interview with Film Maker Robert Lundahl, Solar Engineer, Bill Powers, P.E. states, “Many applications are filed in that time frame, 2008, 2009, of which Ivanpah was one, Genesis, some of these other projects. One of the project objectives is then identified as getting to the finish line quickly enough to get the cash grant. What is now used -- so the ARRA program really has now resulted in a perverse set of incentives that push forward projects that happen to be

80

CARE was the first appellant with case number DV 2009-1-PR.

96

relatively far along in their permitting and development, whether they're good or bad or whether there are alternatives. None of that matters anymore.”

“Table 2-1 of the FEIS lists “Distributed Solar Technology” as “Ineffective, infeasible.” Clearly the failure to include the High DG alternative is an unlawful attempt to minimize the impacts of the project by not considering a reasonable range of alternatives as demonstrated by the FEIS’s improper assumption that DG “is eliminated because its implementation is infeasible”. Clearly such finding would be erroneous since whenever an agency approves a major action that may affect the environment, it must comply with NEPA. NEPA “establishes ‘action-forcing’ procedures that require agencies to take a ‘hard look’ at environmental consequences,” includes, in many cases, preparation of an EIS.81 In addition to analyzing the proposed agency action, an EIS must “‘[r]igorously explore and objectively evaluate all reasonable alternatives’ to [the proposed] action. The analysis of alternatives to the proposed action is ‘the heart of the environmental impact statement.’”82 The FEIS improperly excludes the High DG alternative.” [CARE comments at 7] “In an Advice Letter 3691-E filed before the California Public Utilities Commission (CPUC) PG&E identified “ten location-specific criteria that it has used, and is continuing to use, to select candidate sites for PV [utility owned generation] UOG facilities. Among these are the cost of interconnection, substation capacity, and local transmission capacity.[83] Each of these factors favors project sites that would reduce or eliminate the need for costly upgrades to the transmission and distribution system. Indeed, the PV Program as a whole was proposed in part because distributed generation might reduce the transmission-related delay and cost related to bringing new sources of

81

Center for Biological Diversity v. U.S. Dept. of Interior, 581 F.3d 1063, 1071 (9th Cir. 2009) (internal citations omitted).

82 Id.; 40 C.F.R. § 1502.14 (2009).

83 See Advice Letter 3691-E at 8.

97

renewable power to load centers. Accordingly, PG&E has proposed appropriate siting criteria to optimize the locational value of sites and to reduce potential costs related to transmission upgrades.” Interconnect costs and feasibility is not included in the FEIS and judging from fees of 600,000 USD currently charged to project in the 3 MW size, substantial system upgrades may be required with projects of a combined thousands of MW on a single line, if it is possible to connect them at all, and the omission of these facts from the FEIS, calls the ability to interconnect into question since no planning or preparation is indicated.” [CARE comments at 7 to 8] 8.

INADEQUATE NO ACTION ALTERNATIVE Inadequate No-action Alternative; The Final EIS alternatives analysis is in adequate

because it fails to properly provide for a no action alternative. Pursuant to NEPA (40 CFR 1505.1(e)), a reasonable range of alternatives must be examined in the Draft EIR/EIS, and were selected based on the following criteria: (1) the alternative’s potential to meet the Proposed Action’s purpose and need; (2) the feasibility of the alternative; and (3) the alternative’s ability to avoid or lessen adverse effects of the Proposed Project. As required under NEPA Section 1502.14(d), a No Action Alternative must also be considered.” [EXHIBIT D/Protest P. 3] When federal agencies decide on project proposals, “[n]o action . . . would mean the proposed activity would not take place, and the resulting environmental effects from taking no action would be compared with the effects of permitting the proposed activity or an alternative activity to go forward.”84 The Ninth Circuit has held that “consideration of the alternatives requirement . . . guarantee[s] that agency decision-makers have before them and take into proper account all possible approaches to a particular project (including total abandonment of the project).”85 [EXHIBIT E/Protest P. 4]

84 85

Forty Most Asked Questions Concerning CEQ’s NEPA Regulations, 46 Fed. Reg. 18026, 18027 (March 23, 1981).

Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 785 (9th Cir. 2006) (emphasis in original).

98

NEPA requires full consideration of "appropriate" alternatives. [42 USC § 4332(2)(E)] Included with the appropriate alternatives must be the "no action" alternative [40 CFR § 1502.14(d)] The evidentiary record demonstrates the FEIS’s “preferred alternative”, as discussed in the Ivanpah FEIS, the Mitigated Ivanpah 3 Alternative, is not superior to the High DG option identified in the California Public Utilities Commission’s 33% Renewables Portfolio Standard Implementation Analysis Preliminary Results (June 2009).86 9.

PA AND FEIS PERPETRATE DISPARATE IMPACTS By excluding the High DG alternative the PA and FEIS perpetrates disparate impacts i.e.,

in the form of socioeconomic discrimination on low-income communities of color in the load centers where fossil fuel power plants are currently located that emit emissions that are harmful and endanger the public. This represents a distinct “community value” that supports locating solar PV generation near load centers where transmission upgrades may not be needed. Building transmission projects to connect LVSP that will require nearly the same amount of fossil fuel combustion turbines for backup power during periods of peak demand is the antithesis of this “community value” that has not been examined in the FEIS or is it addressed by the PPA. 10.

CEQA/NEPA VIOLATED BY PRE-COMMITTING TO A CERTAIN OUTCOME “The Final EIS is pre-committing to a certain plan prior to conducting an independent

environmental review [SA/EIS] which violates the public participation requirements under the California Environmental Quality Act (CEQA), and the National Environmental Policy Act (NEPA). “ 11.

GENESIS SOLAR PROJECT, DECIMATES THE “HUMAN ENVIRONMENT”

BLM violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., and the

86

See California Public Utilities Commission's California Solar Initiative team Annual Program Assessment to the Legislature June 30, 2009. http://docs.cpuc.ca.gov/PUBLISHED/GRAPHICS/103173.PDF Highlights of the report include: California has over half a gigawatt of solar connected to the electric grid at customer sites. With recent rapid growth, California now has over 515 megawatts (MW) of cumulative installed solar photovoltaic (PV) capacity at nearly 50,000 sites,[] including 226 MW installed under the CSI Program.[] The non-CSI Program solar PV capacity was installed primarily under prior solar programs, including the Self-Generation Incentive Program (SGIP) and the Emerging Renewables Program (ERP).

99

APA, 5 U.S.C. § 706, by issuing an Environmental Impact Statement that ignores or fails to consider the effects of their actions on all aspects of the "human environment." Humans relate to their environment through their culture, so the cultural aspects of the environment -- for example, cultural uses of the natural environment, the built environment, and human social institutions -obviously must be considered in an EIS. Therefore destruction of trails, sacred sites, features, and lands brought about by approvals for construction of the Genesis Solar Project, restriction of access to the sites on project lands or nearby them, and the alteration of landscapes that contain them and which degrade the human environment in which Sacred Sites and cultural resources play a historic role in tribal tradition, results in destruction to “The Continuum,” and is unlawful. (EXHIBIT A).

12.

AMMENDMENTS TO THE CDCA PLAN ARE UNLAWFUL The California Desert Conservation Area (CDCA) is a region encompassing over ten

million acres of public land in five southern California counties: Imperial, Riverside, San Bernardino, Kern, and Inyo Counties. The Department of the Interior, Bureau of Land Management (BLM), manages these CDCA public lands. The Federal Land Policy and Management Act of 1976 (FLPMA), BLM’s organic act, directs the BLM to prepare land use plans which provide guidance, with public input, on how the public lands are to be managed. All subsequent activities on the BLM-managed public lands must be in conformance with the approved land use plan. The California Desert Conservation Area Plan (CDCA Plan, 1980, as amended) provides land use plan guidance for the entire California Desert Conservation Area.

13.

LOAN GUARANTEES WERE ISSUED ON THE GENESIS SOLAR PROJECT

DESPITE POTENTIAL HARM TO NATIVE AMERICANS According to Title VI of the Civil Rights Act of 1964, no person in the United States shall be excluded from participation in or otherwise discriminated against on the ground of race, color, or national origin under any program or activity receiving Federal financial assistance. The project adversely impacts Native American cultural resources and sacred sites within the “Human

100

Environment,” and disrupts “The Continuum” and the federal government has a duty to conduct government to government consultations with Native American tribes and groups impacted by the project.

14.

THE AUTHOR OF THE GENESIS GELOLOGY REPORT IS A PG (PROFESSIONAL

GEOLOGIST) AND THE REPORT CLAIMS HE IS A CEG (CERTIFIED ENGINEERING GEOLOGIST), BUT HE IS NOT. According to John Helms, CEG, “The author of the Genesis Geology Report is a PG (Professional Geologist) and the report claims that he is a CEG (Certified Engineering Geologist), but he is not.

To pile things on, the author's PG license status is also currently listed as suspended due to non payment of fees with the CA Board of Geologists and Geophysicists. Technically he was not even legally allowed to practice geology at the time the report was stamped.Unless of coarse he paid and the Board is just slow to update their web page. That was not the case with my fees though.”

And… “I was actually speechless when I first read the report by my (ex) client. I have done age dating reports for a lot of different geologists (PhD's, CEG's) for research and industry across California (mainly southern), and I have never had a client take any of my data provided and apply it towards another project site (adjacent or non-adjacent) without some kind of statement or abridged study from me first. This situation is a first for me.

Sometimes my more frequent clients would call and ask if some of the data that I provided on a previous job may be applied toward an new job on an adjacent site. Then I make a determination. Now my (ex) client is actually offering 'soil dating services' on his website.

I do not know how this can be. A lot of geologists become interested in my speciality after seeing what I do and reading my reports. Many think it is voodoo science and are just curious how it works. The educational background most people have that do this kind of science is kind of unique (includes 75% Quaternary Geological Science, and 25% Agricultural Soil Science). The process is subjective and there is descriptive variance from person to person. That is why the only soil age dates that are generally accepted by the scientific community and by most reviewing agencies are done by people who have conducted some type of soil dating research and who have been published in a main stream, peer reviewed scientific journal.

If my (ex) client were to try to do soil age dating for a fault rupture hazard project or something with a more stringent review process, the data would be questioned and the reviewing agency would request an expert or dating specialist be consulted. This happens occasionally, and the offender is usually given a list of the 5 people he can call. (The number of people on the list varies from 6 to 3 depending on the reviewing agency).”

[EXHIBIT J]

101

G.

The 5 Challenged Projects 1.

In each of the five desert renewable projects challenged herein the BLM

failed to adequately consult with La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee, Alfredo Acosta Figueroa, Michelle Leivas Kristmann, Jorge Hernandez, Mateo Hanks Levias, Phillip Gonzales Smith, Gilbert Lopez Levias, Patricia Figueroa, Catherine Ohrin-Greipp, Jim Guerra, Robert Gonzales, Ron Van Fleet Sr., Dr. Greg Nall, and Boma Johnson of the project EISs and refused to participate NHPA Section 106 consultations on the proposed programmatic agreement on the Section 106 consultation at publicly noticed meetings.

2.

Since all these projects have been changed substantially due to deferred

analysis of the impacts and mitigation and entering in to settlement agreements with third parties on mitigation outside the EIS process so has the proposed actions changed.

Therefore these projects changes all violate NEPA.

102

Conclusion.

The Final Bullet: Harm and The Removal of the American Indians From Traditional Lands, Land Based Cultural Practices, and “The Human Environment.”

The harm that large Solar Development potentially will inflict upon the American Indians and American Indian communities of Southern California might best be described as the “Final Bullet.” Plaintiff Alfredo Acosta Figueroa, who traces his family lineage to Sonoran (Yaqui) miners working in the Sierra Nevada foothills during the1840s discusses why his family was forced to move south to the area near Blythe, “They overran us,” he says tersely.

Gary G. Ballard, Kumeyaay Webmaster, professional Web blogger, and multi-media journalist, writes, “The great CALIFORNIA GOLD RUSH 1848-1855 is historically paramount to Native American Indian history in California — it was estimated that some 300,000 immigrants poured into California during this seven-year period. When James Marshall discovered

103

gold at Sutter's Mill in Coloma, California, on January 24th, 1848, it was estimated there were some 150,000 Indigenous Native American Indians living in California. In 1848, Indians in California outnumbered whites by 10 to one — can you imagine that — walking out of your house today and hiking to your favorite park or beach in an 1848 California countryside?

By 1870 (22 years later) it was estimated there were only 30,000 Indians left living in California mostly as a result of the California Gold Rush and the onslaught of white immigrant settlers as their foreign diseases and U.S. government-sanctioned genocide were systematically wiping out the California indigenous populations — better known today as ethnic cleansing — 120,000 California aboriginal Indians were lost in this 22year period. By 1900 it was estimated that less than 16,000 California Indians had survived the invasion of their homelands (some 134,000 California Indians were lost during this 52-year period while the United States Government was in control of California). It is believed the Kumeyaay (Tipay-Iipay-Diegueño) Indians — one of the largest and strongest pre-contact tribal groups in California — had only 1,000 surviving tribal members at the turn of the 20th century (1900). KUMEYAAY GOLD history in San Diego County's Gold-Rush era mines (1869) — Julian, California (very near the presentday Iipay Nation of Santa Ysabel Reservation, a sovereign Indian nation) — some $5 million of gold was taken out of the Julian Eagle and High Peak Mine during the 1870s from deep in the heart of pre-contact Kumeyaay tribal mountains of San Diego County.

Overall, non-Indians took billions of today's dollars in gold and minerals from traditional California Native American tribal lands during the California Gold Rush. With the slightest few facts about Kumeyaay Indian history in San Diego County, it seems unconscionable (to me) that a reasonable person would dare judge or attempt to interfere with the Native American aboriginal people's legal and moral right to sovereign self government. After all, THEIR ancestors held the land and water rights in the greater San

104

Diego area more than 12,000 years. And THEIR Grandfathers and Grandmothers were "pushed into the rocks," severely punished, culturally deprived, enslaved, and even murdered during the California Genocide in the greater Southern California area,”87 Sacramento Bee Staff Writer Stephen Magagnini, in a Jan. 18, 1998 article entitled, “Indians' Misfortune Was Stamped in Gold,” details the effects on native life and indigenous population.88 "It has been the melancholy fate of California Indians to be more vilified and less understood than any other of the American aborigines," said Stephen Powers in his 1877 book "Tribes of California." "They were once probably the most contented and happy race on the continent ... and they have been more miserably corrupted and destroyed than any other tribes within the Union. They were certainly the most populous, and dwelt beneath the most genial heavens, amidst the most abundant natural productions, and they were swept away with the most swift and cruel extermination."

"There is only one kind of treaty that is effective -- cold lead.89" -- Editorial in Chico Courant The “Gold Rush” of 1848 resulted in not only cultural and social impacts of lasting harm to American Indians and Indian groups such as the Kumeyaay, it resulted in severe destruction of California’s ecosystems and natural environments. Native Americans, dependent on traditional hunting and gathering, became the victims of starvation and disease, as gravel, silt and toxic chemicals from prospecting operations killed fish and destroyed habitats.90 91 The surge in the mining population also resulted in the disappearance of game and food gathering locales as gold

87

http://www.kumeyaay.info/california_gold/ http://www.calgoldrush.com/part3/03native.html 89 http://www.calgoldrush.com/part3/03native.html#ixzz15wd9P2rG. 90 Rawls, James J. and Orsi, Richard J. (eds.) (1999). A golden state: mining and economic development in Gold Rush California (California History Sesquicentennial Series, 2). Berkeley and Los Angeles: University of California Press.pp.

32–36.

91 Rawls, James J. and Orsi, Richard (eds.) (1999), p. 199.

88

105

camps and other settlements were built amidst them. Later farming spread to supply the camps, taking more land from the use of Native Americans. Starvation often provoked the Native tribes to steal or take by force food and livestock from the miners, increasing miner hostility and provoking retaliation against them.92 The Act for the Government and Protection of Indians, passed on April 22, 1850 by the California Legislature, allowed settlers to continue the Californio practice of capturing and using Native people as bonded workers. It also provided the basis for the enslavement and trafficking in Native American labor, particularly that of young women and children, which was carried on as a legal business enterprise. Native American villages were regularly raided to supply the demand, and young women and children were carried off to be sold, the men and remaining people often being killed in genocidal attacks. [113] The Gold Rush of 1848 was not the first series of horrors to befall the American Indians of Southern California. The “Mission System" had already broken “The Continuum” of cultural practice and lifeways of many tribal communities a generation or two before. The Spanish missions in California comprise (d) [sic] a series of religious and military outposts established by Spanish Catholics of the Franciscan Order between 1769 and 1823, to spread the Christian faith among the local Native Americans. The missions represented the first major effort by Europeans to colonize the Pacific Coast region, and gave Spain a valuable toehold in the frontier land. The settlers introduced European livestock, fruits, vegetables, cattle, horses and ranching into the California region; however, the Spanish occupation of California also brought with it serious negative consequences to the Native American populations with whom the missionaries came in contact.

In 1768, Fray Junípero Serra was appointed superior of a band of 15 Franciscans for the Indian Missions of Baja California. The Franciscans took over the administration of the missions on the Baja California Peninsula from the Jesuits after King Carlos III ordered them forcibly 92

http://en.wikipedia.org/wiki/California_Gold_Rush

106

expelled from "New Spain" on February 3, 1768. Early in the year 1769, he accompanied Governor Gaspar de Portolà on his expedition to Alta California. When the party reached San Diego on July 1, Serra stayed behind to start the Mission San Diego de Alcalá, the first of the 21 California missions (including the nearby Visita de la Presentación, also founded under Serra's leadership).93 Despite romantic portraits of California missions they were essentially coercive religious, labor camps organized primarily to benefit the colonizers. The overall plan was to first militarily intimidate the local Indians with armed Spanish soldiers who always accompanied the Franciscans in their missionary efforts. At the same time the newcomers introduced domestic stock animals that gobbled up native foods and undermined the free or "genitle" tribes efforts to remain economically independent.94 Local tribes were relocated and conscripted into forced labor on the mission, stretching from San Diego to San Francisco. Disease, starvation, over work, and torture decimated these tribes.95 Many were forcibly converted and baptized as Roman Catholics by the Franciscan missionaries at the missions. Mission Indians were from many Californian Native American tribes that were relocated together in new mixed groups and renamed after the responsible mission. For instance the Payomkowishum were renamed "Luiseños" after the Mission San Luis Rey and the Acjachemem were renamed the "Juaneños" after the Mission San Juan Capistrano.96 The overall cultural genocide of the mission era resulted in the original linguistic, spiritual, and cultural practices forbidden and lost.

Father Junípero Serra was beatified by Pope John Paul II on September 25, 1988, this being one of the steps towards canonization, or promotion to sainthood, in the Roman Catholic Church. Some Native American groups are opposed to this, claiming that the missions seriously 93

http://en.wikipedia.org/wiki/Jun%C3%ADpero_Serra http://www.nahc.ca.gov/califindian.html 95 Pritzker, Barry M. A Native American Encyclopedia: History, Culture, and Peoples. Oxford: Oxford University Press, 2000. ISBN 978-0195138771. P. 114 96 Pritzker, Barry M. A Native American Encyclopedia: History, Culture, and Peoples. Oxford: Oxford University Press, 2000. ISBN 978-0195138771. P. 129.

94

107

mistreated their people. They point to the harsh conditions of mission life, substantial Native Californian population and cultural losses, and Serra's own justification of Indian Reductions and beatings. In 1780, Serra wrote: "that spiritual fathers should punish their sons, the Indians, with blows appears to be as old as the conquest of the Americas; so general in fact that the saints do not seem to be any exception to the rule."97 Referring to “The Missions of California; A Legacy of Genocide, edited by Rupert Costo and Jeannette Henry Costo98, book review editor, Raymond Starr of The Journal of San Diego History99, writes, “Ironically, it is the interviews with the scholars defending Serra that contain the strongest evidence against the mission system. The ethnocentrism of the interviewees and their, at times, embarrassing lack of knowledge regarding Indian ways, lead to numerous questionable assertions. Thus, Doyce Nunis comments that until Serra's arrival "the Indians had no sense of fidelity to each other" and that "living just meant eating and staying alive.

"Harry Kelsey states "I think the Indians lived in misery before the missionaries came."

David Hornbeck asserts that the Indians had "no strong social, political, or economic structure." From the interviews in the Serra Report, one gets the impression that Serra's work can be defended only by demeaning the culture and traditions of the native Californians.”

“The work of A. L. Kroeber, Sherburne Cook, Robert Heizer (all cited in the text) and others establishes that the arrival of the Europeans was a cultural and demographic catastrophe for the California Indians. Too often it is forgotten that Serra aimed not just to convert the Indians to Catholicism but to eradicate Indian culture as well. It is in this sense that the book's subtitle. "A Legacy of Genocide" is justified. Many of Serra's fiercest critics are individuals actively engaged in efforts to heal Indian society by recovering and 97

http://www.pbs.org/weta/thewest/people/s_z/serra.htm San Francisco: Indian Historian Press, 1987 99 , SAN DIEGO HISTORICAL SOCIETY QUARTERLY, Summer 1989, Volume 35, Number 3 98

108

honoring the traditional ways that bound tribes together for centuries. The attempt to sanctify a man who dedicated his life to the destruction of those ways is, understandably, galling to them.”100 Dr. Diana Tumminia, Dept. of Sociology, CSU at Sacramento, Sacramento, Ca created a virtual memorial to all the California Indians who died in the many years genocide. Dr. Tumminia writes, “In California, various school systems assign a learning segment on the California Mission system. Ironically, I get mail from younger students who have to complete the California Mission assignment. Some grade school and middle school students want to know why the genocidal aspects of the California Mission system and the native revolts against repression are hardly mentioned in their school curriculums. If these aspects are mentioned, the reasons for the rebellions are not explored. Some students would prefer to work on Native American and Chicano history projects. I support this alternative.”101 Incidentally, I just visited the Serra Museum at San Diego's Presidio Park. In one line in the exhibit, the museum mentions a native revolt, but gives no reasons for the rebellion. Again, the museum silently prefers not to remember the genocide.” Dr. Tumminia’s “California Indians Memorial” includes a timeline of historical events related to native, non-native relations, and the effects of Federal, State, and Territorial policies over time related to the American Indians of California.

1769 - Early Contact. Father Serra at San Diego with military support. Spanish barter with indigenous peoples. Soldiers build El Presidio, the fort. Some native people convert to Catholicism as part of the trade process; others are forced to work at the mission.

1729-1834 Many populations are captured and forced into slave labor. In the mission system, soldiers abuse women and spread venereal disease, which repeatedly decimates populations. Other diseases, such as measles and small pox, ravage indigenous populations. Friars punish Indians with flogging for any infraction, including running

100 101

http://www.sandiegohistory.org/journal/89summer/br-missions.htm http://www.csus.edu/indiv/t/tumminia/memorial.htm

109

away. Native Americans build the Mission System at tremendous personal costs.

1775 - Presidio soldiers pursue two runaways, Zegota and Francisco. They escape and organize a Kumeyaay102 rebellion. They burn the San Diego Mission.

1777 - Santa Clara Mission epidemic.

1782 - Santa Barbara Mission built. Spanish disrupt Chumash economy and spread disease. See Chumash.103 1793 - Ohlone people pressed into service. (San Francisco) See Ohlone104 1785 - Led by female chief Toy Purina, San Gabriel Mission Indians revolt. Many rebels killed, while others exiled to Santa Barbara Island.

1795 - 200 Indians fled Mission Dolores 1804 - San Diego, friar who flogs cook is poisoned. At Santa Cruz, Indians kill another friar.

1820 - 20,000 Native Americans in Mission System. They are called neophytes. They are mistreated, beaten, sexually assaulted, or killed for infractions, particularly running away.

1824 - Chumash revolt at Santa Barbara, Santa Inez, & La Purisma Concepcion. Juana Maria105 1829 - The Spring Creek massacre.

1834 - Governor of California frees Indians from missions, but without land they are forced into servitude with wealthy landowners. Many migrated to Los Angeles.

1837 - Genocidal raids against native people. Jose Maria Amador kills 200.

1839 - 1849 - Johann Sutter keeps 600 to 800 Indians in virtual slavery.

1846 - A member of the Donner Party kills his two Indian guides for food.

1847 - Indian district of Los Angeles razed. Native Americans required to live with their "masters."

1848 - Indians exploited in gold panning operations.106 "Digger's ounce" invented. See Maidu.107 California Indian Policies.108 More Maidu.109 1848 - Treaty of Guadelupe Hildalgo honors Native-American land rights.

1849- Weber Creek massacre.

1849 - The Pomo110 of Clear Lake rise up against their "masters." The army puts down rebellion.

1850 - Bloody Island Massacre111, another site on the history112. Video of protest & memorial ceremony.113 1850-1868 Active open slave trade of Indians. Children and women constantly abducted.

1850 - Known as the California Indian Slave Act114115 by critics, The Act for the Government and Protection of Indians passed by the First State Constitutional Convention.

1850 - At Feather River massacre, Miwok attacked by militia. Antonio Garra, chief of

102

http://www.kumeyaay.com/ http://www.sbnature.org/research/anthro/chumash/intro.htm 104 http://www.muwekma.org/history/history_06s.html 105 http://www.powersource.com/gallery/womansp/chumash.html 106 http://www.calgoldrush.com/part3/03native.html 107 http://www.maidu.com/ourhistory/ethno-history.html 108 http://www.nahc.ca.gov/califindian.html 109 http://www.maidu.com/maiduculture/firstcontactto1863.html 110 http://www.nahc.ca.gov/califindian.html 111 http://bioregion.ucdavis.edu/book/10_Clear_Lake/10_17_circ_cl_bloodyi.html 112 http://www.nps.gov/history/history/online_books/5views/5views1h8.htm 113 http://www.youtube.com/watch?v=UkuUkTWH8zU 114 http://www.militarymuseum.org/MilitiaandIndians.html 115 http://www.northforkrancheria.com/page.cfm?pageID=4 103

110

Cupenos, leads uprising against Juan Jose Warner (Warner Springs). Pala Indians116 1850-1860 Indians removed to "Farms" or pre-reservations. 1860-1890 Reservation system established.

1850-1872 Yahi hunted and killed. Ishi, the last of his tribe survives.

1852 - California legislature authorized $1.1 million to reimburse people who kill Indians.

1852 - Bridge Gulch Massacre117 1860 - Indian Island Massacre, Text.118 1862 - Concow Maidu Trail of Tears119 1863 - The Humboldt Times editorializes for extermination.

1872 - Attack on Captain Jack of the Modocs. Modoc War120. Captain Jack's Cave121122123.

Modoc profile.124 1880s - Children forced to go to "Indian" schools. Boarding schools.

1883 - Banker Darius Ogden Mills presented a statue of Columbus Appealing to Queen Isabella to the State and it is placed in the State Capitol building at Sacramento.

1887 - Dawes Act allowed whites to gobble up more native land.

1900 - Alfred Kroeber starts his research.

1911 - Ishi125 found in Oroville, California. film clips126 1928 - Congress created the California Indian Jurisdictional Act, or Lea Act. Under it, lawsuits filed over broken treaties. 18 Treaties127 1950-1960s - Termination policy of Federal Government. (Lecture)128 Miwok Fight to Reclaim Tribal Status129 Lost Tribal Status130 1965 - Statue of Junipero Serra erected in Capitol Park, Sacramento.

1969 - Indians of All Nations takeover Alcatraz. Search Alcatraz Island131 D-Q University logo

116

http://www.palatribe.com/ http://www.trinitycounty.com/stnf-nb.htm 118 http://www.originalvoices.org/PriceOfGoldEight.htm 119 http://www.maidu.com/maiduculture/firstcontactto1863.html 120 http://www.nps.gov/history/history/online_books/5views/5views1h11.htm 121 http://commons.wikimedia.org/wiki/File:Captain_Jack%27s_cave_at_Captain_Jack%27s_Stronghold_in_Lava_Beds_ NM-750px.JPG 122 http://en.wikipedia.org/wiki/File:Capt_Jack_Cave.jpg 123 http://books.google.com/books?id=p65LFb1Xdw8C&pg=PA129&lpg=PA129&dq=captain+jack%27s+cave&source= bl&ots=qLUg48WYXa&sig=ND5zWOCRkyZm6Oy1hUkrI9sccfs&hl=en&ei=JXjpTJ_DNpTGsAPWytCwCw&sa=X& oi=book_result&ct=result&resnum=11&ved=0CGQQ6AEwCg#v=onepage&q=captain%20jack%27s%20cave&f=false 124 http://www.siskiyous.edu/shasta/nat/mod.htm 125 http://hearstmuseum.berkeley.edu/exhibitions/ncc/4_2_2.html 126 http://www.youtube.com/watch?v=AwMzFGygcvw&feature=related 127 http://www.indiancanyon.org/t18TreatyList.html 128 http://www.emayzine.com/lectures/native1945.htm 129 http://archives.cnn.com/2000/US/07/12/miwok.reservation/ 130 http://www.raisethefist.com/news.cgi?artical=wire/--------099724643t4a.article 131 http://www.thepeoplespaths.net/history/AlcatrazProclamation1969.htm 117

111

1971 - Native American and Chicano activists occupy an old Army communications center near Davis, California. They found D-Q University, a college for all indigenous peoples. The "D" stands for the name of the Great Peacemaker Denagawida who inspired the founding of the Iroquois Confederacy (Hodenoshone); the full name symbolized by the "D" is used only in a religious context. The "Q" represents Quetzalcoatl, an Aztec prophet, who symbolizes the principles of wisdom and self-discipline.

1972 - A petition by American Indian students at Stanford University results in that school dropping its "Indian" sports team nickname and logos. Movement to end Indian mascots.

1987 - In California vs. Cabazon Band of Mission Indians, the Supreme Court ruled that the states could not enforce any gaming laws or regulations on Indian reservations. In response to California vs. Cabazon, Congress passed the Indian Gaming Regulatory Act (IGRA) of 1988132, that gives states limited power over tribal gaming.

1990s - Sacramento Bee article, Current List of Nations133 Current Reservations134 Tribes Not Recognized by Federal Government135 1996 - Ishi not last?136 1999 - Demands to return Ishi's remains. Ishi's Brain. More information.137 2000 - Ishi's brain returned.

Miwok Fight to Reclaim Tribal Status138 2000 - According to US Census, 333,346 people reported as Native American in California, the highest population concentration in US. These people who reported being Native American in California represent many native nations, and, of course, not all were indigenous to California (for example, Cherokees of California139 who are not indigenous).

Some people who filled out the census were of mixed race, but did not report as such.

There is no procedure to check for accuracy in reporting. The Native American category in the census made up 1% of Californians. When adding reported Native Americans to those who stated a native heritage in addition to another heritage (mixed race), the total count was 627,562 or 1.9% of Californians. The Native American population count has grown significantly outstripping the national rate since the late 1980s. Some of the reason for this growth is a phenomenon called "switching"---meaning that some people did not report their race formerly as Native American, but have switched for various reasons, one being it is more acceptable now to be an American Indian than in previous decades.

2002 - California dedicates bronze plaque on the steps of the Capitol Building to California Indians. California Indian Seal140 Kawaiisu Tribal History 2003 - Professor Edward Castillo of Sonoma State University receives grant to develop curriculum for grade schoolers about indigenous history.141 Many students do not hear the real story of Native-American history until they come to college.

Some time in the last few years, Capitol Park added a grinding rock to honor native peoples.142 132

http://en.wikipedia.org/wiki/Indian_Gaming_Regulatory_Act http://infodome.sdsu.edu/research/guides/calindians/calinddict.shtml 134 http://www.epa.gov/region9/air/maps/r9_tribe.html 135 http://www.csulb.edu/~gcampus/libarts/am-indian/tribes/California_text.html 136 http://www.berkeley.edu/news/media/releases/96legacy/releases.96/14310.html 137 http://faculty.washington.edu/chudler/ishi.html 138 http://archives.cnn.com/2000/US/07/12/miwok.reservation/ 139 http://www.powersource.com/cocinc/ 140 http://www.laprensa-sandiego.org/archieve/may24-02/seals.htm 141 http://www.sonoma.edu/pubs/release/2003/93740400.html 142 http://www.capitolmuseum.ca.gov/ 133

112

2005 - In January, D-Q University143 lost its accreditation.

2006- Native artists 2007 - December 15-Representatives of Miwoks accept apology. Francis Quinn, retired Catholic bishop of Sacramento, apologized for cruelties the Church committed against Native Americans at the 109th anniversary of Mission San Rafael Archangel. The mistreatment of Miwoks at the mission has rarely been acknowledged.

2007 - Remembering the old days, Yosemite / Paiute Harold Miller, you-tube video144 How are we to define the harm incurred by the cumulative effects of Federal, state, and territorial policies acting to the detriment of the American Indian and American Indian Sovereignty? Could it be considered spiritual? Certainly, given the spiritual basis of the cultures themselves, grounded in the relationships with the land and the cultural expressions of history and tribal tradition on the land, it is. As Anthropologist Lowell Bean explains in an interview with Film Maker, Robert Lundahl: DR. BEAN: Well, as you know, history --history becomes religion (unintelligible). You look at our own cultures; ancient and important architecture that is part of our political -our religious history

becomes sacred. We deem it a treasure and we put a name on it

and we put rules out that no one can endanger that. It's not unlike -- every culture does it.

So if you -- if there's a village site out in the desert and someone's going to put a road over it, people are concerned. That's part of their traditional history and traditional history really is sacred to everybody.”

But what we might call “spiritual” is simultaneously historical, “The continuum of land use in history and tribal tradition,” referred to earlier in this document by Plaintiff and La Cuna De Aztlan Sacred Sites Protection Circle Member Jim Guerra, and referred to subsequently as “The Continuum.” As the “spiritual” is also the “historical,” then by virtue of the examples and histories cited above, it is also economic and physical.

Just has displacement from tribal lands has lead to a high incidence of diabetes in American Indian communities, the effects of de-culturalization have had negative effects across the entire spectrum of human life and well being. “The Continuum” of land use in history and 143 144

http://www.youtube.com/watch?v=HzQYjj4nB3g http://www.youtube.com/watch?v=pf2JxdXvgY8

113

tribal tradition is the antidote. Construction of the 5 Challenged Projects will set a precedent of the purveyance of inadequate EIS’s and inadequate Section 106 consultation, procedures which aside from being unlawful actions in their own right, will facilitate the possible of the potentially 245 additional “renewable’ energy projects, to be strewn across the western deserts with limited concern for their impacts. In so witnessing we would then silently participate in the collapse of ecosystems, the extinctions of undocumented species of flora and fauna, and the collapse of whole cultures and peoples, histories and identities.

In an interview with Film Maker Robert Lundahl, Dr. Jim Andre explains: “I'm a botanist, and I study the plants in the California deserts and Nevada deserts. What has really struck me by this area is the level at which we are just scratching the surface in terms of documenting the flora. You can assume roughly about 5 to 10 percent of the species out there remain undescribed to date. We continue to describe species over the last hundred years at about 25 species per decade. There are very few areas in North America where you can go and find that kind of a frontier, floristic frontier of sorts.”

The Tohono O'odham Nation, a reservation larger than Connecticut that stands just west of Tucson, has one of the highest concentrations of diabetes in the world. More than 50 percent of adults on the reservation have the disease, according to Indian Health Services.

During World War II, Tohono O'odham men joined the military and left the native foods the tribe had eaten for ages to wither. When the men returned from the war, they took jobs in commercial cotton fields near the reservation instead of going back to their farms. At mealtime, they began eating pinto beans that the government disseminated as part of a welfare program. In the 1930s, the nation produced about 1.8 million pounds of traditional tepary beans annually. By 2001, it produced fewer than 100 pounds.

The new diet wreaked havoc on the Tohono O'odham. Studies suggest that their bodies evolved to weather the feast-and-famine cycles their ancestors faced in the desert and are highly efficient at turning calories into fat.

114

Terrol Johnson, founder of Tohono O'odham Community Action, or TOCA, heard stories about the effects of bad sugar as a child. "My parents would say, 'This person got a leg chopped off,'" he said. "We were like, 'What?' 'That person got a leg chopped off.'" Eventually, the stories hit closer to home. Doctors amputated Johnson's step-grandma's leg. Johnson's parents told him that if he continued to eat junk food and candy he'd get the bad sugar, too. Johnson sometimes thinks back on his grandfather's unwitting contribution to diabetes on the reservation: During World War II, he learned as a Navy cook how to make doughnuts." He got home and would make doughnuts and sell them in the village," Johnson said. "He didn't know. No one knew."

When diabetes began surfacing, local and national entities stepped in to work on the problem. Indian Health Services, in collaboration with the Tohono O'odham Health Department, put diabetes prevention projects in place in the community and in schools. The Tucson Indian Center began offering nutrition education, as well. A variety of integrated medical programs started offering treatment. A small group of Tohono O'odham decided to address diabetes from a different angle: Since nobody had heard of bad sugar 50 years ago when everybody ate like the ancestors did, they began to study the way the ancestors ate.

Traditional foods, such as tepary beans and cholla buds, worked well for the Tohono O'odham. Soluble fiber in the beans reduced blood sugar, slowed its rate of absorption and improved insulin production.

In the second half of the 20th century, Native Americans started coming down with bad sugar. It made them sleepy, caused sluggish blood circulation and often led to amputation, a common result of the disease. In 1996, Johnson helped to found TOCA with the goal of addressing community problems through culturally based responses.

In 2000, soon after Johnson's grandfather's died, TOCA and a local community college designed a survey to find out whether tribe members would eat traditional foods often if they had the option. That's all the encouragement TOCA needed to start growing tepary beans on a grand scale and teaching people how to prepare them quickly - with a crock pot and freezer. The old-

115

time garden grew from a quarter acre at a church to one acre at a hospital. It moved to Johnson's grandfather's land, where it continued to grow. About three years ago, the Tohono O'odham Nation handed TOCA 100 acres for farming, and the farm soon will expand again.

This month, the Community Food Bank bought 3,500 pounds of tepary beans from the TOCA farm. The food bank will pack the beans into diabetic food boxes - half for the reservation and half for dissemination by Catholic Social Services. "They're such a good source of protein and such a good way to control that blood sugar level," said Melena MacLeod, the food bank's Value Food Store manager.

TOCA's work has garnered national attention. The Ford Foundation and Kellogg have stepped forward with grants, and CBS featured the organization on "60 Minutes."145 Unfortunately, should the number of large Solar Developments currently in the application stages be permitted, their cumulative impacts would wipe out the desert ecosystems and much of the flora and fauna with their intrinsic values.

Jim Andre, Ph.D: “One of the things I did is I looked at – once it reached about 250 proposed projects -- all ranging from 5 to 25,000 acres each, totaling 2 million acres just for California -- I decided to do a quick and dirty analysis of how many acres of public lands have been mined since the passage of the 1872 Mining Act. We will exceed that total number of acres in three to five years if all these proposed projects were to go through. So in a flash we would basically have the largest most disruptive impact that have been recorded in a short period of time. That is -- that is remarkable. That is a remarkable thing. When you consider the importance of these systems to provide corridors for species to move as climate changes, whether it's human caused change or just the natural course of variation in climate change, you've really done in the entire ecosystem at that scale.”

When “The Continuum” is disrupted and the links between the social and the natural broken, solutions for future problems become unavailable. Sacred sites and cultural resources are

145

http://www.rlnn.com/ArtNov06/TohonoOodhamFightDiabetesCropsGParentsGrew.html

116

components of an expansive library of indigenous knowledge about how to live both on the land and with the land. And as the Tohono O’odham battled an addiction to sugar in their diets, so the dominant society looks to renewable energy implementations in order to provide relief and to mitigate its addiction to the use of fossil fuels with their destructive byproduct, atmospheric carbon. In the first case, the answer was found in the traditional indigenous practices, so too can the dominant society come to understand “renewability” through a traditional relationship with the land, if we so choose. Or perhaps we will stimulate yet another a “boom cycle” followed by a bust, a fast tracked “Gold Rush” that destroys cultures and the environment in the name of “Overriding Concerns.” And if we do, we will revisit the darkest of days in American History.

As Preston Arrow-Weed remarked earlier: “They’re destroying a past. They’re destroying - - just like if I went over there and took your Driver’s license and took your birth certificate and took everything that you had and took your camera and kicked you out going down the road. You have no past, no nothing.

The only thing you got is your memory.” [EXHIBIT B] The forced removal of American indigenous peoples from their ancestral lands is one of the darkest chapters in American history. Perhaps few today realize, however, that this forced removal did not result from isolated acts of Western settlers; rather, it was set in motion by the federal government. In 1827, the Cherokee nation, located within the boundaries of the state of Georgia, adopted a written constitution modeled after the U.S. Constitution, which declared them to be a sovereign, autonomous nation.146 At the time, the Cherokee nation possessed "a thriving agricultural economy, a written language, and a formal government, including a legislature, and courts.147 The following year, the state of Georgia passed a law assimilating Cherokee lands into Georgia's northwestern counties. In 1829, the state passed a law rendering the Cherokee territory located within Georgia boundaries subject to the laws of Georgia, effectively abolishing existing 146

VINE DELORIA, JR. & CLIFFORD M. LYTLE, AMERICAN INDIANS, AMERICAN JUSTICE 28 (1983) ("American Indians").

147 ." DAVID H. GETCHES ET AL., FEDERAL INDIAN LAW 96 (4th ed. 1998) ("Federal Indian Law").

117

Cherokee laws and customs. The Cherokee nation filed suit in federal court to enjoin the enforcement of the Georgia laws, but the matter was dismissed for lack of jurisdiction.148 A year after dismissing the case, however, the Supreme Court, in an opinion authored by Chief Justice John Marshall, determined the Cherokee nation to be "a distinct community, occupying its own territory, . . . in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves�149 Prior to the Court's decision, however, Congress had passed the Indian Removal Act, authorizing the President to compel Indian Tribes living east of the Mississippi River to migrate westward. Additionally, in 1830, the governor of Georgia had announced that gold had been discovered on the Cherokee lands, prompting widespread trespasses onto Cherokee territory by Georgia citizens searching for gold. Therefore, the governor of Georgia, together with numerous state officials, announced that they would not obey the mandate of the Supreme Court.150 Moreover, upon learning of the Worcester decision, President Andrew Jackson151 is fabled to have retorted: "Well, John Marshall has made his decision—now let him enforce it." When they realized that the executive branch had no intention of honoring the decision of the Court, the Cherokee nation reluctantly entered into the Treaty of New Echota in 1835. 152Soon afterward, "[n]early sixteen thousand Cherokees walked `silent and resigned' from Georgia to their new homes in what became eastern Oklahoma. This journey has been called the `Trail of Tears' because the Indians were leaving their ancestral lands under the most harsh conditions imaginable."153 "The Cherokee are probably the most tragic instance of what could have succeeded in American Indian policy and didn't. All these things that Americans would proudly see as the hallmarks of civilization are going to the West by Indian people. They do everything 148 149

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25 (1831).

Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561, 8 L.Ed. 483 (1832)

150

Federal Indian Law at 122.

151 152 153

American Indians at 33.

Id. at 7.

118

they were asked except one thing. What the Cherokees ultimately are, they may be Christian, they may be literate, they may have government like ours, but ultimately they are Indian. And in the end, being Indian is what kills them."154 -Richard White, Historian The pattern of legislative and regulatory actions by the Federal Government, which have caused harm to American Indians dates from the nation’s inception. It is a sad legacy given the potential for cultural interactions, shared histories, and future perspectives that are possible.

The permitting, siting, and implementation of large solar projects on tribal lands continue this pattern of disregard and abuse. As Lower Elwha Klallam Elder Beatrice Charles stated in the film “Unconquering the Last Frnntier,”155 by Film Maker Robert Lundahl, “We were just Indians and that was the treatment we got.” In ruling for declaratory and injunctive relief, the court has an opportunity to establish a more consistently respectful and sovereign path.

“Enough is Enough.”

–Beatrice Charles, Lower Elwha Klallam Elder, 2005. From “TheVillage of Chi-WhitZen, video,156 by Film Maker, Robert Lundahl.

Respectfully Submitted,

__________________________ November 16, 2010

154

155 156

http://www.cherokeebyblood.com/trailtears.htm

http://www.unconquering.org/ http://www.youtube.com/watch?v=RAAIeLTiugo

119