Ocotillo Wind: A Case Study of how Tribal-Federal Governmental Consultation is Failing Tribal Governments and their Spiritual Landscapes through Renewable Energy Development

Abstract

In an effort to mitigate climate change, the federal government of the United States has recently opened public lands to the development of utility-scale renewable energy projects. The federal government is processing the applications for these projects arbitrarily fast, particularly in southern California and western Arizona. Pursuant to Section 106 of the National Historic Preservation Act (NHPA), federal projects trigger government-to-government consultations between the federal government and Tribal governments. The Quechan Indian Nation, whose traditional lands encompass many of these projects, has been forced to defend its cultural resources from destruction by these projects. However, because the federal government has treated these applications in a “fast-track” manner, the tribal consultation process has become extremely rushed, thus not allowing Tribal governments enough time and/or resources to adequately protect their sacred sites on public lands from development. In particular, the Ocotillo Wind Express Facility, within a spiritual landscape important to the Quechan and other Indian Nations, highlights how Tribal governments may not be able to rely on Section 106 tribal consultation and the nomination of landscapes as Traditional Cultural Properties (TCP) to protect their spiritual heritage embedded in public land. The current tools of Section 106 consultation and TCP nomination have proven useless to preserve a cultural landscape, spiritually important to Quechan, from being devastated by a 112-turbine wind project. This article examines how the underlying nature of tribal consultation does not offer Tribal governments any reliable method of protecting their cultural resources on public lands. The federal government diminishes any benefit of tribal consulting when it arbitrarily accelerates the environmental review process on many current renewable energy projects.