Federal Court Hears: Israeli Firm Desecrated Salt Song Trail of Paiutes and Chemehuevi with Solar Project
LA CUNA DE AZTLÁN SACRED SITES PROTECTION CIRCLE ARGUES RELIGIOUS FREEDOM FOR NATIVE AMERICANS IN 9TH CIRCUIT COURT OF APPEALS
Judges Grill Attorneys From Both Sides Over Landmark Case
By Robert Lundahl
In December 2010, La Cuna de Aztlán Sacred Sites Protection Circle and CAre, Californians for Renewable Energy, along with 6 (six) Native American elders, filed suit against the Department of the Interior, Bureau of Land Management, and the Department of Energy, which were later joined by defendant project applicants for 6 of the first 10 industrial solar projects slated for the California deserts. The case, heard in the 9th Circuit, Friday April 10, in Pasadena, California, pertained specifically to the Ivanpah project, already constructed, and its applicant company, BrightSource.
BrightSource is an Israeli firm, which positioned itself to receive loan guarantees and cash grants under the ARRA stimulus program, American Recovery and Reinvestment Act of 2009. The primary objective for ARRA was to save and create jobs for Americans. Other non-American firms, like Solar Millennium AG, from Germany, also applied for and were granted permits to build utility scale renewable energy projects on public lands in the West. Solar Millennium AG is now bankrupt. Under the ARRA program, federal loan guarantees and cash grants were offered to companies. Cash grants totaled 30% of a project's budget. The Ivanpah project was budgeted at 2.2 billion USD.
Questions related to religious freedom came about because BrightSource's Ivanpah project was built on sections of the Salt Song Trail, sacred to Indian tribes and groups, including the Chemehuevi and Southern Paiute. The case was argued under RFRA, the Religious Freedom Restoration Act of 1993. The law mandates that strict scrutiny be used when determining whether the Free Exercise Clause of the First Amendment to the United States Constitution, guaranteeing religious freedom, has been violated.
The First Amendment of the Constitution of the United States states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. The first part, known as the Establishment Clause, comes into play whenever the government takes an action that leads to suspicions that it is endorsing any or all religions. There is a second Free Exercise clause, which basically ensures that people should be free to practice their religion as they see fit.
La Cuna had challenged the projects on the basis they violated NEPA, the National Environmental Protection Act, The National Historic Places Act of 1966, AIRFA, the American Indian Religious Freedom Act, and several other laws protecting Native American antiquities and heritage, practices and culture, but the argument came down to RFRA on appeal.
Native American spiritual and cultural practices are often land-based, involving spiritual practices on the land. Land is a commodity in the American economic system, something which can be bought and sold. The fundamental conflict of values could result and has resulted in the destruction and loss of cultural identity, according to Chemehuevi Elder Phil Smith, and Quechan/Kumeyaay elder Preston Arrow-weed, in the film, "Who Are My People?" by filmmaker Robert Lundahl, http://whoaremypeople.com, which explores the grounds for and context of the legal case. Mr. Smith is a named litigant.
Laws specific to American Indians protect vulnerable cultural resources, which pre-existed the formation of modern nations, and represent the documentation of the identity and practices of those early cultures. But RFRA protects all Americans equally, and as such, may be the stronger argument by example.
La Cuna attorney Cory Briggs presented his argument first. He indicated his clients were trying to exercise their religious beliefs, and that the sincerity of those beliefs were not challenged. Those beliefs include utilization of the Salt Song Trail, a network of trails extending over a vast, four state area, from California to Northern Utah, through Nevada and Arizona. Part pilgrimage, part "rite of passage," the Salt Song Trail provides linkages between village locations and gathering sites for salt and medicinal herbs.
The usage of the Trail and its importance to tribes like the Chemehuevi and Southern Paiute does not translate easily. Judges questioned the importance of a "small location in a vast area" (The Ivanpah Site) to the exercise of those beliefs. "If you can use them and pray on them on all the rest of it, does it matter to the free exercise of religion? Does it significantly burden the exercise?" Briggs responded that according to litigants Smith and Ron Van Fleet, that going to the particular site was "meaningful to the practice of their religion." Justices wanted to know in specific what it is that is sacred, "Can you lose any part of the Salt Song Trail, even if there is no sites on it, just the fact that its part of the trail…? …(does that) burden your ability to follow this religious tradition?" Briggs responded, "Yes."
"Part of my clients' religious tradition is an oral history tradition…" Imagine a path... and along that path you have some significant markers. And for Native Americans on this path, on the Ivanpah site, there are significant religious markers that are part of the oral tradition and the handing down of their religion, that they have to actually be at… They have to have a certain view of the Clark Mountains, they have to be in a location, where the sun rises at a certain time… The problem is by putting a fence around the entire site, my clients can't get to the particular landmarks along the way."
Justices asked, "Suppose you win, does RFRA protect the entire four state area from any development?" Briggs responded,"The Ivanpah project is only dealing with a portion of this… we're not arguing you have to set aside the entire four states. What we are saying is that within the project, because it is now off limits, they built a fence around it, my clients can't get to the portions that are significant for their religion…"
"They used to do these runs. These runs would last weeks if not months. And literally might spend all day running, literally running, from one state to another. By putting up the fence, you are essentially requiring them to take a detour from "Point A" to "Point C," except "Point B" is religiously significant."
Briggs said again, related to the scope of the argument, in response to judges reference to the "compelling interest" of the government to "develop something" in the four state area, that the government must provide access to what is at least one significant marker existing on the Salt Song Trail, on the Ivanpah Project, and in subsequent phases must consult with the litigants so that no more destruction occurs. "The claim is not that you cannot touch any part of the Salt Song Trail, the claim is that there is at least one significant marker within the fenced off portion of the Ivanpah project. We're not arguing that you can't have your Ivanpah project." What we are arguing is that not being able to visit that site, freely…"
Justices: "Are you saying that all you want is for them to open the gate when an Indian comes and let them run through it and then you can have the Ivanpah project?" "That's a good chunk of it," responded Briggs, "Let me explain the other part, "if there are other phases that would require the destruction of a specific marker, that the government would need to work with my client to accommodate that."
Justices: "Your clients never brought this up, is the problem."
Briggs: "Actually we sued over the lack of consultations. We didn't raise this issue on appeal." According to Briggs, litigant Phillip Smith went to a meeting and indicated he wanted to be consulted on this project. BLM did not respond. "BLM took my information but never consulted with me," Smith is quoted as saying in the proceedings.
Justices: "I thought that was the way the government consulted."
Briggs: "This isn't some kid from Santa Monica in board shorts and a skateboard showing up and saying, "Hey I have an issue, this is a regular person consulted by the BLM on these issues, he goes to a meeting. He goes to a meeting and says, 'We need to have a chat about this project.' They do not follow up. There is a footnote in the federal government brief, saying, 'Look if you'd just contacted us we would have come to some agreement.' First of all, it's in a footnote, second, there's nothing in the record to suggest that that's true. And third, it is the government's obligation to at least engage in a back and forth with my clients."
"What interferes within their religion is going to the site to finish a portion of the run and being told, if you cross over the fence, you're going to be arrested."
Opposing counsel Robert Oakley from the Department of the Interior indicated that case law swung the other way. Justices asked, “Can you say that, in the context of what we have to take as the legitimate basis of their religious faith, can we take one part of that trail, wherever it may be, and know that it’s not going to be there any more and say we haven’t substantially burdened?
Oakley: I think you’d have to know for sure that it was a trail. I could refer to a case Judge Kleinfeld decided, the Huna case. It was not a RFRA case, it was National Historic Preservation Act, where the question was, “Had the government preserved some trails that were used in conflicts between Native Americans and Russians in Alaska, and the Court pointed out that these were very poorly marked, and that knowing something important happened in the area was not enough to make the entire area sacred.”
Justices: “You're the side that wanted access to the sacred trail, did you ever give them a map?”
Briggs: “The answer is yes, It's already in BLM's possession. It has been in BLM's possession for a long time. Let me be exactly precise, your honor. Did my clients in conjunction with this lawsuit, hand them the map? No…. The BLM actually has the inventory… They've had it for years. They have their own archaeologists and historians who know all of this stuff. To say that in this lawsuit my clients and I diid not hand them the map, is to feign ignorance on subject matter that the agencies and the tribes have long shared a common understanding over.”
In response to Mr. Oakley’s comments that BrightSource does not have authority to make arrests, and stating that there are gaps in the fence for transmission lines, which could be utilized for access, Briggs concluded (to the justices),
"I realize you still have the difficult task of figuring out if it is in an area that is still fenced off is that still a significant burden. The only thing I would say to you is, just because the Sheriff is not there to watch somebody hop the fence… in other words, because you managed to not get caught… it's the threat of prosecution that is the burden, not the fact that the Sheriff gets there in time to see you scaling the fence.”
Background:
BrightSource’s Ivanpah project has been controversial from the inception.
Withstanding criticism following the 2011 Solyndra Bankruptcy, that the federal government was trying to use ARRA stimulus funds to pick marketplace winners and losers, and amid charges of cronyism, in November 2014, BrightSource requested a $539 million federal grant to pay off their 1.6 billion in federal loan guarantees under the ARRA stimulus program.
Some months earlier it had hit the press that “the project also functions as an avian death trap."
"Authorities were all aware that birds couldn’t withstand the furnace-like heat generated by the unprecedented collection of solar panels. Unfortunately, the 350,000 energy-culling mirrors make the whole think look like a glittering oasis, luring birds to the area, where they are burned to death in the searing heat," wrote The Wire in February, shortly after the Ivanpah Solar plant opened.
The article continues, (The project) “previously came under fire for displacing desert tortoises with the solar towers. In 2012, Bloomberg Businessweek reported the tension between the project's green ambitions and not-so-green execution:
Early on, the project gained green cred from the Sierra Club and Natural Resources Defense Council. That was before its 45-story towers began rising from a 3,500-acre dry lake bed in California, uprooting scores of desert tortoises from their burrows, far more than federal wildlife officials had estimated.”
In late October, 2014, GreenTechSolar reported: “The Mojave Desert plant, built with the aid of a $1.6 billion federal loan guarantee, kicked off commercial operation at the tail end of December 2013, and for the eight-month period from January through August, its three units generated 254,263 megawatt-hours of electricity, according to U.S. Energy Information Administration data, that’s roughly one-quarter of the annual 1 million-plus megawatt-hours that had been anticipated.
Output did pick up in the typically sunny months of May, June, July and August, as one might expect, with 189,156 MWh generated in that four-month period. But even that higher production rate would translate to annual electricity output of less than 600,000 MWh, at least 40 percent below target.
Another sign of the plant’s early operating woes: In March, the owners sought permission to use 60 percent more natural gas in auxiliary boilers than was allowed under the plant’s certification, a request that was approved in August.”
4/12/15
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