Summer 2013

Volume 17, No. 1

Western Lands Project

P.O. Box 95545 Seattle, WA 98145-2545 (206) 325-3503 westernlands.org

Western Lands & Friends File Lawsuit On Destructive Solar Policy

or the last three years Western Lands Update readers have

In This Issue:

4 7 9

Mining land trades

Sealaska and the Tongass

Point Reyes update

learned, along with us, about the terrible impacts of the Obama Interior Departments industrial-solar invasion of our desert ecosystems, and the unexamined alternatives for renewable energy development that could spare these public lands. While at first loath to take on the issue, we simply had to as it became clear that solar development essentially amounts to privatization: the land is scraped raw, utterly transformed, fenced off. It may be leased rather than sold, but there is no getting it back for even if a solar plant is dismantled after the 30- to 50-year life of its permit, from a land-use perspective it has been permanently industrialized and from an ecological perspective it cannot be restored. The impacts of Big Solar (not to mention Big Wind) on public lands could doom whatever chance desert ecosystems may have to remain functional in the face of climate change. In that light, Western Lands Project has worked steadily to raise awareness of this issue and push for a dramatic change in policy. We cofounded Solar Done Right, a coalition focused on both illuminating the environmental destruction and waste associated with industrialscale solar and raising public awareness of distributed generation (DG) the localized, efficient, democratic, and cost-effective alternative that puts solar on rooftops and in the built environment. We camped out in the desert with fellow activists to bear witness to an ecosystem in peril, then flew to Washington D.C. to educate law-and policy-makers and Continued on page 2

Western Lands Update The Newsletter of the Western Lands Project http://westernlands.org

Solar Lawsuit
From page 1 urge a change in course. We wrote papers and op-eds; gave presentations and media interviews; strategized with grassroots groups; and exhorted Gang Green the national groups to get on the right side of the issue. We did not expect these efforts to result in a quick change in policy. Yet the issue of renewable energy development has presented obstacles that make it even more challenging than our long-standing quest to keep public land public. Here, the entrenched interests of corporations, the Democratic Party, Gang Green, and the big foundations have aligned to support the industrialization of our desert public lands and have formed a bulwark of misinformation and false choices in support of Big Solar.

development on degraded lands and in the already-built environment. The governments analysis under the National Environmental Policy Act (NEPA) ignored alternative approaches that would be far less damaging to the environment, more efficient, and less costly to taxpayers and ratepayers.

Wrong from the Start

In May 2008, the Interior and Energy departments initiated an effort that would result in a policy for siting industrial-scale solar projects on public land. The centerpiece was a programmatic environmental impact statement (PEIS). Like a regular environmental impact statement (EIS), this would look at alternatives but beyond the single-project, site-specific analysis in a regular EIS, its goal would be to arrive at an overall framework for the governments permitting of solar projects. Obama Interior Secretary Ken Salazar made solar development on public land a top priority and one of his highest-profile issues, heralding an approach he called smart from the start. The Bureau of Land Management, an agency of Interior, manages the lands involved and was in charge of the PEIS effort. Initially, the BLM focused on identifying Solar Energy Zones defined areas within which solar development would be permitted in six southwestern states, adding up to some 670,000 acres. The expectation was that these zones would bear the brunt of solar development and that their establishment signaled a genuine intention to limit the amount of public land open to industrialization. Yet, the draft PEIS identified a preferred alternative that would keep 22 million acres open, and the supplemental draft PEIS, 21.5 million. The final plans preferred alternative was to keep 19 million acres open, and designate solar energy zones on a little less than 300,000 acres, in

Corporations, the Democratic Party, Gang Green, and big foundations have aligned to support the industrialization of our desert public lands for Big Solar.
Our latest action brings us head-to-head against the Administration and its policy: Western Lands and two fellow publicinterest environmental organizations have filed a legal challenge against Interiors decision to keep 19 million acres of public land available to industry for utility-scale solar plants. Western Lands Staff Attorney Chris Krupp is representing us as well as co-plaintiffs Desert Protective Council and Western Watersheds Project. The complaint filed on February 12, 2013 cited the governments failure to consider alternatives that would focus solar

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Arizona, California, Colorado, Nevada, New Mexico and Utah. Permits for development in the zones would be streamlined, while those in the larger acreage would require a variance. Salazar signed off on the plan on October 12, 2012, before retiring in April 2013.

NEPA violations
Our lawsuit asserts that BLM violated NEPA by failing to examine two additional alternatives: a DG alternative, and another in which solar energy facilities would be sited on previously degraded or damaged lands. During the PEIS comment periods, we, as well as the Environmental Protection Agency (EPA), called for analysis of these alternatives, but BLM ignored them. In fact, through a program called Repowering Americas Lands, EPA has identified and created a database of contaminated and degraded lands potentially suitable for siting of renewables, including areas close to existing transmission lines. EPA requested that the BLM at the very least append information about this program to the PEIS. Again, the agency ignored this request. Analysis of alternatives is a central component of NEPA. Comparing the impacts of a range of alternatives is not intended just to aid the publics understanding, but to help the agency arrive at a betterinformed decision. The plaintiffs strongly believe that the superiority of the DG and degraded-lands options would be clear had they been analyzed next to the others. The limitations inherent in NEPA litigation are legendary. The courts have determined that NEPA is procedural, rather than substantive law meaning that the law only requires agencies to properly follow its procedures pertaining to notification, public involvement, analysis, etc. and does not require that the agency choose a particular alternative. That is,

A better way: Solar panels on a WalMart in Caguas, Puerto Rico. Photo: Wikimedia Commons it does not dictate the substantive result. Thus a successful challenge of the NEPA analysis may only result in further analysis followed by the very same decision. The same may hold true for a programmatic EIS: as the result of a NEPA court victory, the agency might examine the DG and degraded-land alternatives and end up choosing the 19-million-acre alternative yet again. However, we believe that if DG and degraded-land alternatives were actually analyzed and could be compared side-by-side to the current proposal, the superiority of these alternatives would be clear to the public at large, certainly, and possibly even to Gang Green. This knowledge in turn could bring about the needed change in policy. That is our hope. The powerful interests that support Big Solar have created many false storylines: to confront the climate crisis, we must deploy massive renewable-energy infrastructure on public lands; those who oppose Big Solar are either climate-deniers or coalindustry sympathizers; sacrifice of desert ecosystems is a necessary tradeoff in the pursuit of renewable energy. We dont believe these stories, and we will continue to advance the truth in every venue we have, including the courts.

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Mining companies dig land trades

One of the first calls for our help came in early 1997 from Tucson, where a newlyformed coalition called Save the Scenic Santa Ritas (SSSR) was working to stop a land trade between the Forest Service and the mining company ASARCO. The company had patented mining claims in an area called Rosemont Ranch in the Santa Rita Mountains south of Tucson and wished to acquire about 13,000 acres in the Coronado National Forest adjacent to the proposed mine; twenty square miles in the beautiful Santa Ritas would be turned over to tailings and other mine-related uses. In exchange for the public land, ASARCO offered about 2,200 acres, spread across the state in 13 parcels ranging in size from 1.1 to 520 acres.

Our lawsuit delayed the project by more than ten years and resulted in a 2010 victory that required the BLM to redo the environmental analysis still in process at this writing.
SSSR, coordinated by activist Randy Serraglio, built a strong campaign against the Rosemont Ranch Land Exchange, with support from across southern Arizona and beyond. The Pima County and Santa Cruz County commissioners and the Tucson City Council passed resolutions against the exchange, reflecting constituents concerns that the mine would destroy the beauty of the Santa Ritas, undermine the tourist economy, harm wildlife, and facilitate widespread environmental damage. While the Forest Services environmental impact statement was delayed by ASARCOs failure to submit a detailed mining plan, SSSR called a public forum in Tucson that brought more than 200 concerned citizens. Experts on mining policy, the National

Environmental Policy Act, and land exchanges (yours truly) spoke, and opposition to the project was further solidified. ASARCO eventually withdrew its land trade proposal, citing falling copper prices. Unfortunately, the mine, now owned by a Canadian company called Augusta Resources, is seeking permits from various regulatory agencies and approval from the Forest Service to exploit its claims within the Coronado National Forest. The Rosemont Ranch exchange was not the only mining-related project we ended up following that summer the Arizona BLM had four such projects. The major factor contributing to this rash of proposals was the patent moratorium that had been imposed by Congress in 1994: where once mining interests could acquire the patent (full ownership) of public lands where they held claims, the patent moratorium halted that practice. With the land remaining in public hands, mining operations fell under federal regulations, which were more stringent than the state laws that would apply to patented claims. So mining companies sought to acquire the lands through exchange and keep their newly-privatized land under more lax state laws. Native American and environmental organizations fought the projects including ASARCOs Ray Mine land trade, which we successfully challenged in court with co-plaintiffs Center for Biological Diversity and the Sierra Club. Our lawsuit delayed the project by more than ten years and resulted in a 2010 victory that required the BLM to redo the environmental analysis still in process at this writing. Sixteen years after the Rosemont Ranch project, we are still fighting land exchanges designed to help mining companies overcome legal hurdles. The Resolution Copper land exchange in south-central Arizona is proposed through a piece of legislation that has been debated in Congress since 2005. Resolution Copper wants 5,400 acres in the Tonto National Forest,

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The Morenci mine in Arizona was expanded through a land trade. Photo: Creative Commons where it would open a mine in Oak Flat, an area long protected by an Executive Order issued in the Eisenhower administration. The company would in turn give the U.S. about 2,300 acres scattered around Arizona. Tribes in the area near the proposed mine are extremely concerned about potential impacts to sacred land and water supplies, and many local citizens and environmental groups have opposed the trade. The legislation not only mandates that the exchange occur, but requires an environmental analysis only after the lands have been traded. In the worst kind of bipartisanship, Arizona Democratic Rep. Ann Kirkpatrick has joined Tea Party Republican Rep. Paul Gosar in sponsoring the legislation. Environmental stalwart Rep. Raul Grijalva (D-AZ) vociferously opposes the bill. And in a notable change of heart, the long-time mining town of Superior which Resolution sought to buy off with gifts of money, land, and promises of jobs has turned against the exchange. Beyond Arizona, mining corporations have seen how land trades can further their interests. In 2003, Western Lands Project assisted the grassroots group Heartwood in an unsuccessful legal challenge of a land trade proposed by Leslie Resources to give the company access to coal deposits in the Daniel Boone National Forest of Kentucky. We are also monitoring a proposed, now stalled, exchange in Illinois Shawnee National Forest that would facilitate coal strip-mining in habitat of the endangered Indiana bat. No mining-oriented land trade has been worse than one in Minnesota that would cut loose several mining companies to go after lands in the Superior National Forest that are currently protected from mining. The State of Minnesota owns land within the Boundary Waters Canoe Area Wilderness that it cannot exploit because to do so would imperil its wilderness quality. A proposal was introduced in the House last session to exchange 86,000 acres of State lands in the Boundary Waters for some unknown acreage in the Superior National Forest. Ownership of the National Forest parcels would enContinued on page 6

For more frequent short news updates visit our website at westernlands.org, and our Facebook page at facebook.com/ WesternLandsProject

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Boundary Waters. Photo: Josh Sullivan able the companies to get around current protections. Rep. Chip Cravaack, the sponsor, lost his seat in 2012, but there is fear that the two Democratic senators from Minnesota, Amy Klobuchar and Al Franken, will take up the project. Mining poses a huge threat to the Arrowhead Region of Minnesota, between the Boundary Waters and Lake Superior, where sulfide ores are being extracted. These ores generate sulfuric acid that leaches into soil and water, a phenomenon known as acid mine drainage that is highly toxic to fish and other aquatic life. According to the U.S. Environmental Protection Agency, acid mine drainage from coal mining is the leading source of water pollution in the Mid-Atlantic States. The Duluth-based Save Our Sky Blue Waters is fighting to keep this phenomenon from overrunning the Arrowhead and other areas in Minnesota. Last year, Western Lands Project and Save Our Sky Blue Waters brought together a coalition of 74 grassroots organizations from Minnesota and across the country to send an open letter to Sens. Klobuchar and Franken, urging them not to sponsor or support legislation for the Boundary Waters land trade. In addition to the peril it poses to the Superior National Forest, the exchange might not assure protection of lands in the Boundary Waters that would come into federal ownership. The Minnesota Constitution requires that the State reserve mineral rights on land it exchanges. From the time the 1872 Mining Law passed, government policy was to hasten and expand mining, largely by making public lands available and claims easy to patent. Now, policy and attitudes have changed, and the mining conglomerates that still seek our public land have a more circuitous and politicized route to navigate, and more negative public sentiment arrayed against them. Western Lands Project will continue to watchdog any proposal that seeks to privatize public land for mining, and to help communities confronted with these projects. For more information about the pending Resolution Copper land exchange and other projects throughout Arizona, check out the Arizona Mining Reform Coalition: http://www.azminingreform.org More information about the Boundary Waters exchange can be found here: http:// www.sosbluewaters.org

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Sealaska bill still looms

We continue to track Senate Bill 340, sponsored by Senator Lisa Murkowski (R-AK), which would allow the Sealaska Native Corporation to make land selections from public land outside the boundaries originally established for those selections under the Alaska Native Claims Settlement Act of 1971. We first learned the legislation was in the works in early 2008, when a school teacher from the tiny town of Edna Bay, Kosciusko Island, Alaska, contacted us. Sealaska, notorious for its scorchedearth logging practices, is going after old growth in the Tongass National Forest, earmarked for conveyance in the legislation. Towns all over southeast Alaska have been fighting the proposal, fearing ecological devastation and loss of access to the forest around them, including for

subsistence hunting. Many natives have also joined the opposition, believing that Sealaskas practices are not consistent with their interests or values. Murkowski uniformly invokes the need to finally settle Sealaskas land claims, obfuscating the fact that these claims depart from the original boundaries agreed to in legislation passed more than 40 years ago. High-grading the practice of logging the biggest, oldest trees so damaged the ecological integrity of the Tongass in past decades that Congress passed the Tongass Timber Reform Act in 1990 specifically to turn away from high-grading. Two former Area Biologists for the Alaska Department of Fish and Game, Don Cornelius and Jack Gustafson, recently published an article describing the significance of the forest Sealaska seeks to acquire through the legislation: Continued on page 8

Bald eagle in the Tongass National Forest. Photo: U.S. Forest Service

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To show your concern for the Tongass and keep this forest in public hands, send a letter to: The Honorable Ron Wyden, Chair Energy & Natural Resources 221 Dirksen Senate Office Building U.S. Senate Washington, D.C. 20510 Fax 202-224-6163

The Tongass National Forest contains a significant portion of the earths last remaining significantly-sized tracts of [largetree old growth]Size class 7 alone (think of trees 10-12+ feet in girth and worth a quarter million dollars per acre) today occur on just half a percent of the land base. Recent analysis of S. 340 shows that Sealaska is selecting large-tree old growth stands at 10 times the rate they occur naturally in the Tongass (30% vs 3.4%). In addition to local opposition, the Sealaska bill has attracted the attention of 300 scientists from across the U.S., including such luminaries as E.O. Wilson and Robert Michael Pyle, who have signed a letter opposing the land deal. The letter states, Public lands on the Tongass National Forest are a precious natural

resource. We believe they should be managed for their highest and best use, which includes protection of globally rare largetree rainforests that are vital for maintaining biodiversity and long-term carbon storage. The fate of the Sealaska bill is difficult to predict. The bill languished for several years while the Senate Energy & Natural Resources Committee was chaired by Senator Jeff Bingaman (D-NM). However, upon Bingamans 2012 retirement, the committee was been taken over by Oregon Democrat Ron Wyden, who may look upon the deal less critically than Bingaman and Murkowski is the ranking Republican member of the committee.

Anan Creek in the Tongass National Forest. Photo: U.S. Forest Service

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Point Reyes headlands from Chimney Rock. Photo: Wikimedia Commons

Know Thy Bedfellows

Things get very strange in the Point Reyes oyster farm fight

e told you a while back about the impending expiration of the permit for

Drakes Bay Oyster Company (DBOC) at Point Reyes National Seashore north of San Francisco. The oyster farm had been operating at Point Reyes since the 1930s; after the National Seashore was designated by Congress in 1962, the farms permit was set to expire in 2012, a generous grandfather clause for a commercial operation to continue inside the National Park System. In 1976, Congress added Wilderness designation to Point Reyes, and declared its intention that the area encompassing the oyster farm become part of the Wilderness once its permit expired and operations ceased. In 2006, a new owner, Kevin Lunny, bought the operation with the knowledge that the permit was running out. Over the years of Lunnys ownership, DBOC has been repeatedly cited for violating environmental laws and for disrupting seal pupping grounds in the estuary. Yet Lunny made it clear he would fight to get another extension of the permit. Last year, as expiration loomed, Bay Area oyster lovers and locavores, from Senator Dianne Feinstein to Alice Waters of Chez Panisse, rallied around Lunnys cause and excoriated those who wanted to see the Wilderness designation fulfilled. Writer-ethnobotanist Gary Nabhan became unhinged by criticism of his prooyster farm opinion piece in High Country News, resorting to ALL CAPS as he defended his stance.

Continued on page 11

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Oyster Farm
From page 9 In November 2012 ex-Interior Secretary Ken Salazar rightly decided to let the DBOC permit expire. Lunny went to court and ultimately gained an extension from the Ninth Circuit to keep operating while his appeal is under consideration. In the meantime, things have gotten unimaginably strange for the largely liberal Bay-Area pro-oyster -farm crowd. For joining them in support of Lunny are the anti-public land Pacific Legal Foundation (alma mater of James Watt and Gale Norton) and Americans for Prosperity (AFP), founded by the ultra-right billionaire Koch brothers. AFP has, in upside-down fashion, called the attempt to shut down DBOC a federal land grab. As if this were not enough, East Bay Express reporter Robert Gammon, who has covered the issue for months, reports that some members of Congress are lumping salvation of the oyster farm

in with some very big causes: Conservative Republicans in Congress also are still fighting on behalf of the oyster farm. Senator David Vitter of Louisiana has been attempting to extend the farms lease through legislation that would also greenlight the controversial Keystone XL pipeline, expand offshore oil drilling, and open Alaskas Arctic National Wildlife Refuge to oil exploration.

Oyster lovers and locavores, from Senator Dianne Feinstein to Alice Waters of Chez Panisse excoriated those who wanted to see the Wilderness designation fulfilled.
It will be interesting to see how the oyster-farm crowd gets out of this one. As Gammon points out, if the DBOC goes all the way to the Supreme Court to stay open, Waters, Nabhan, et al., will find themselves aligned with property-rights demagogues, and counting on the likes of Justice Scalia to come to their aid.

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Summer 2013

Western Lands Project P.O. Box 95545 Seattle, WA 98145-2545

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