western lands update june 2013

7/28/2019 Western Lands Update June 2013

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

Western

LandsProjectP.O. Box 95545

Seattle, WA 98145-2545

(206) 325-3503

westernlands.org

Summer 2013Volume 17, No. 1

In This Issue:

Continued on page 2

4Mining land trades

7Sealaska and the Tongass

9Point Reyes update

Western Lands & Friends

File Lawsuit OnDestructive Solar Policy

For the last three years Western Lands Update readers havelearned, along with us, about the terrible impacts o the ObamaInterior Departments industrial-solar invasion o our desert

ecosystems, and the unexamined alternatives or renewable energydevelopment that could spare these public lands.

While at rst loath to take on the issue, we simply had to as it be-

came clear that solar development essentially amounts to privatization:the land is scraped raw, utterly transormed, enced o. It may beleased rather than sold, but there is no getting it back or even i asolar plant is dismantled ater the 30- to 50-year lie o its permit, roma land-use perspective it has been permanently industrialized and roman ecological perspective it cannot be restored. The impacts o BigSolar (not to mention Big Wind) on public lands could doom whateverchance desert ecosystems may have to remain unctional in the ace oclimate change.

In that light, Western Lands Project has worked steadily to raiseawareness o this issue and push or a dramatic change in policy. We

coounded Solar Done Right, a coalition ocused on both illuminatingthe environmental destruction and waste associated with industrial-scale solar and raising public awareness o distributed generation (DG) the localized, ecient, democratic, and cost-eective alternative thatputs solar on rootops and in the built environment. We camped out inthe desert with ellow activists to bear witness to an ecosystem in peril,then few to Washington D.C. to educate law-and policy-makers and


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2 Western Lands Update Summer 2013 Vol. 17 # 1

Solar LawsuitFrom page 1

urge a change in course. We wrote papersand op-eds; gave presentations and mediainterviews; strategized with grassrootsgroups; and exhorted Gang Green thenational groups to get on the right side othe issue.

We did not expect these eorts toresult in a quick change in policy. Yet theissue o renewable energy developmenthas presented obstacles that make it evenmore challenging than our long-standingquest to keep public land public. Here, theentrenched interests o corporations, theDemocratic Party, Gang Green, and thebig oundations have aligned to supportthe industrialization o our desert publiclands and have ormed a bulwark o misin-ormation and alse choices in support oBig Solar.

Our latest action brings us head-to-headagainst the Administration and its policy:Western Lands and two ellow public-interest environmental organizations haveled a legal challenge against Interiors

decision to keep 19 million acres o publicland available to industry or utility-scalesolar plants. Western Lands Sta AttorneyChris Krupp is representing us as well asco-plaintis Desert Protective Council andWestern Watersheds Project.

The complaint led on February 12,2013 cited the governments ailure toconsider alternatives that would ocus solar

development on degraded lands and in thealready-built environment. The govern-ments analysis under the National En-vironmental Policy Act (NEPA) ignoredalternative approaches that would be arless damaging to the environment, moreecient, and less costly to taxpayers andratepayers.

Wrong rom the Start

In May 2008, the Interior and Energydepartments initiated an eort that wouldresult in a policy or siting industrial-scalesolar projects on public land. The center-piece was a programmatic environmentalimpact statement (PEIS). Like a regularenvironmental impact statement (EIS), thiswould look at alternatives but beyondthe single-project, site-specic analysis ina regular EIS, its goal would be to arrive atan overall ramework or the governmentspermitting o solar projects.

Obama Interior Secretary Ken Salazarmade solar development on public land atop priority and one o his highest-proleissues, heralding an approach he called

smart rom the start. The Bureau o LandManagement, an agency o Interior, man-ages the lands involved and was in charge othe PEIS eort. Initially, the BLM ocusedon identiying Solar Energy Zones de-ned areas within which solar developmentwould be permitted in six southwesternstates, adding up to some 670,000 acres.

The expectation was that these zoneswould bear the brunt o solar develop-ment and that their establishment signaled

a genuine intention to limit the amounto public land open to industrialization.Yet, the drat PEIS identied a preerredalternative that would keep 22 millionacres open, and the supplemental dratPEIS, 21.5 million. The nal plans pre-erred alternative was to keep 19 millionacres open, and designate solar energyzones on a little less than 300,000 acres, in

Corporations, the Democratic Party, Gang

Green, and big oundations have aligned tosupport the industrialization o our desertpublic lands or Big Solar.


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Western Lands Update Summer 2013 Vol. 17 # 1 3

Arizona, Caliornia, Colorado, Nevada,New Mexico and Utah. Permits or devel-opment in the zones would be streamlined,while those in the larger acreage would re-quire a variance. Salazar signed o on theplan on October 12, 2012, beore retiringin April 2013.

NEPA violations

Our lawsuit asserts that BLM violatedNEPA by ailing to examine two addi-tional alternatives: a DG alternative, andanother in which solar energy acilitieswould be sited on previously degraded ordamaged lands. During the PEIS commentperiods, we, as well as the EnvironmentalProtection Agency (EPA), called or analy-sis o these alternatives, but BLM ignoredthem. In act, through a program calledRepowering Americas Lands, EPA hasidentied and created a database o con-taminated and degraded lands potentiallysuitable or siting o renewables, includ-ing areas close to existing transmissionlines. EPA requested that the BLM at thevery least append inormation about this

program to the PEIS. Again, the agencyignored this request.Analysis o alternatives is a central com-

ponent o NEPA. Comparing the impactso a range o alternatives is not intendedjust to aid the publics understanding,but to help the agency arrive at a better-inormed decision. The plaintis stronglybelieve that the superiority o the DG anddegraded-lands options would be clear hadthey been analyzed next to the others.

The limitations inherent in NEPAlitigation are legendary. The courts havedetermined that NEPA is procedural,rather than substantive law meaning thatthe law only requires agencies to prop-erly ollow its procedures pertaining tonotication, public involvement, analysis,etc. and does not require that the agencychoose a particular alternative. That is,

it does not dictate the substantive result.Thus a successul challenge o the NEPAanalysis may only result in urther analysisollowed by the very same decision.

The same may hold true or a program-matic EIS: as the result o a NEPA courtvictory, the agency might examine the DGand degraded-land alternatives and endup choosing the 19-million-acre alterna-tive yet again. However, we believe that i

DG and degraded-land alternatives wereactually analyzed and could be comparedside-by-side to the current proposal, thesuperiority o these alternatives would beclear to the public at large, certainly, andpossibly even to Gang Green. This knowl-edge in turn could bring about the neededchange in policy. That is our hope.

The powerul interests that support BigSolar have created many alse storylines: toconront the climate crisis, we must deploy

massive renewable-energy inrastructureon public lands; those who oppose BigSolar are either climate-deniers or coal-industry sympathizers; sacrice o desertecosystems is a necessary tradeo in thepursuit o renewable energy.

We dont believe these stories, and wewill continue to advance the truth in everyvenue we have, including the courts.

A better way: Solar panels on a WalMart in Caguas, Puerto Rico.

Photo: Wikimedia Commons


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Mining companiesdig land tradesOne o the rst calls or our help came inearly 1997 rom Tucson, where a newly-ormed coalition called Save the ScenicSanta Ritas (SSSR) was working to stop aland trade between the Forest Service andthe mining company ASARCO. The com-pany had patented mining claims in an areacalled Rosemont Ranch in the Santa RitaMountains south o Tucson and wished toacquire about 13,000 acres in the CoronadoNational Forest adjacent to the proposedmine; twenty square miles in the beautiulSanta Ritas would be turned over to tailingsand other mine-related uses. In exchangeor the public land, ASARCO oered about2,200 acres, spread across the state in 13 par-cels ranging in size rom 1.1 to 520 acres.

SSSR, coordinated by activist RandySerraglio, built a strong campaign againstthe Rosemont Ranch Land Exchange, withsupport rom across southern Arizona andbeyond. The Pima County and Santa CruzCounty commissioners and the TucsonCity Council passed resolutions against theexchange, refecting constituents concernsthat the mine would destroy the beauty

o the Santa Ritas, undermine the tour-ist economy, harm wildlie, and acilitatewidespread environmental damage. Whilethe Forest Services environmental impactstatement was delayed by ASARCOsailure to submit a detailed mining plan,SSSR called a public orum in Tucson thatbrought more than 200 concerned citizens.Experts on mining policy, the National

Environmental Policy Act, and land ex-changes (yours truly) spoke, and opposi-tion to the project was urther solidied.ASARCO eventually withdrew its landtrade proposal, citing alling copper prices.Unortunately, the mine, now owned by aCanadian company called Augusta Re-sources, is seeking permits rom variousregulatory agencies and approval rom theForest Service to exploit its claims withinthe Coronado National Forest.

The Rosemont Ranch exchange was notthe only mining-related project we endedup ollowing that summer the ArizonaBLM had our such projects. The majoractor contributing to this rash o proposalswas the patent moratorium that had beenimposed by Congress in 1994: where oncemining interests could acquire the patent(ull ownership) o public lands where theyheld claims, the patent moratorium haltedthat practice. With the land remaining inpublic hands, mining operations ell underederal regulations, which were more strin-gent than the state laws that would applyto patented claims. So mining companiessought to acquire the lands through ex-change and keep their newly-privatized land

under more lax state laws.Native American and environmental or-ganizations ought the projects includingASARCOs Ray Mine land trade, whichwe successully challenged in court withco-plaintis Center or Biological Di-versity and the Sierra Club. Our lawsuitdelayed the project by more than ten yearsand resulted in a 2010 victory that requiredthe BLM to redo the environmental analy-sis still in process at this writing.

Sixteen years ater the Rosemont Ranchproject, we are still ghting land exchangesdesigned to help mining companies over-come legal hurdles. The Resolution Cop-per land exchange in south-central Arizonais proposed through a piece o legisla-tion that has been debated in Congresssince 2005. Resolution Copper wants5,400 acres in the Tonto National Forest,

Our lawsuit delayed the project by more thanten years and resulted in a 2010 victory thatrequired the BLM to redo the environmentalanalysis still in process at this writing.


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where it would open a mine in Oak Flat,an area long protected by an ExecutiveOrder issued in the Eisenhower admin-istration. The company would in turngive the U.S. about 2,300 acres scatteredaround Arizona. Tribes in the area near theproposed mine are extremely concerned

about potential impacts to sacred land andwater supplies, and many local citizensand environmental groups have opposedthe trade. The legislation not only man-dates that the exchange occur, but requiresan environmental analysis only aterthelands have been traded. In the worst kindo bipartisanship, Arizona DemocraticRep. Ann Kirkpatrick has joined Tea PartyRepublican Rep. Paul Gosar in sponsor-ing the legislation. Environmental stalwart

Rep. Raul Grijalva (D-AZ) vocierouslyopposes the bill. And in a notable changeo heart, the long-time mining town o Su-perior which Resolution sought to buyo with gits o money, land, and promiseso jobs has turned against the exchange.

Beyond Arizona, mining corporationshave seen how land trades can urther their

interests. In 2003, Western Lands Project as-sisted the grassroots group Heartwood in anunsuccessul legal challenge o a land tradeproposed by Leslie Resources to give thecompany access to coal deposits in the Dan-iel Boone National Forest o Kentucky. Weare also monitoring a proposed, now stalled,

exchange in Illinois Shawnee National For-est that would acilitate coal strip-mining inhabitat o the endangered Indiana bat.

No mining-oriented land trade hasbeen worse than one in Minnesota thatwould cut loose several mining companiesto go ater lands in the Superior NationalForest that are currently protected rommining. The State o Minnesota ownsland within the Boundary Waters CanoeArea Wilderness that it cannot exploit

because to do so would imperil its wilder-ness quality. A proposal was introducedin the House last session to exchange86,000 acres o State lands in the Bound-ary Waters or some unknown acreage inthe Superior National Forest. Ownershipo the National Forest parcels would en-

The Morenci mine in Arizona was expanded through a land trade. Photo: Creative Commons

Continued on page 6

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able the companies to get around currentprotections. Rep. Chip Cravaack, thesponsor, lost his seat in 2012, but thereis ear that the two Democratic senatorsrom Minnesota, Amy Klobuchar and AlFranken, will take up the project.

Mining poses a huge threat to the Ar-rowhead Region o Minnesota, betweenthe Boundary Waters and Lake Superior,where sulde ores are being extracted.These ores generate suluric acid thatleaches into soil and water, a phenomenonknown as acid mine drainage that ishighly toxic to sh and other aquatic lie.According to the U.S. Environmental Pro-tection Agency, acid mine drainage romcoal mining is the leading source o waterpollution in the Mid-Atlantic States. TheDuluth-based Save Our Sky Blue Watersis ghting to keep this phenomenon romoverrunning the Arrowhead and otherareas in Minnesota.

Last year, Western Lands Project andSave Our Sky Blue Waters brought togethera coalition o 74 grassroots organizationsrom Minnesota and across the country tosend an open letter to Sens. Klobuchar andFranken, urging them not to sponsor orsupport legislation or the Boundary Waters

land trade. In addition to the peril it posesto the Superior National Forest, the ex-change might not assure protection o landsin the Boundary Waters that would comeinto ederal ownership. The MinnesotaConstitution requires that the State reservemineral rights on land it exchanges.

From the time the 1872 Mining Lawpassed, government policy was to hastenand expand mining, largely by makingpublic lands available and claims easy topatent. Now, policy and attitudes havechanged, and the mining conglomer-ates that still seek our public land have amore circuitous and politicized route tonavigate, and more negative public senti-ment arrayed against them. Western LandsProject will continue to watchdog anyproposal that seeks to privatize publicland or mining, and to help communitiesconronted with these projects.

For more inormation about the pend-ing Resolution Copper land exchange andother projects throughout Arizona, checkout the Arizona Mining Reorm Coalition:http://www.azminingreorm.org

More inormation about the BoundaryWaters exchange can be ound here: http://www.sosbluewaters.org

Boundary Waters. Photo: Josh Sullivan


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Sealaska billstill looms

We continue to track Senate Bill 340, spon-sored by Senator Lisa Murkowski (R-AK),which would allow the Sealaska NativeCorporation to make land selections rompublic land outside the boundaries origi-nally established or those selections underthe Alaska Native Claims Settlement Acto 1971. We rst learned the legislation wasin the works in early 2008, when a schoolteacher rom the tiny town o Edna Bay,Kosciusko Island, Alaska, contacted us.

Sealaska, notorious or its scorched-earth logging practices, is going ater oldgrowth in the Tongass National Forest,earmarked or conveyance in the legisla-tion. Towns all over southeast Alaskahave been ghting the proposal, earingecological devastation and loss o accessto the orest around them, including or

subsistence hunting. Many natives havealso joined the opposition, believing thatSealaskas practices are not consistent withtheir interests or values.

Murkowski uniormly invokes the needto nally settle Sealaskas land claims,obuscating the act that these claimsdepart rom the original boundaries agreedto in legislation passed more than 40 yearsago.

High-grading the practice o log-ging the biggest, oldest trees so damagedthe ecological integrity o the Tongass inpast decades that Congress passed the Ton-gass Timber Reorm Act in 1990 speci-cally to turn away rom high-grading. Twoormer Area Biologists or the Alaska De-partment o Fish and Game, Don Corne-lius and Jack Gustason, recently publishedan article describing the signicance o theorest Sealaska seeks to acquire throughthe legislation:

Continued on page 8

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


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The Tongass National Forest contains asignifcant portion o the earths last re-maining signifcantly-sized tracts o [large-tree old growth]Size class 7 alone (thinko trees 10-12+ eet in girth and worth aquarter million dollars per acre) today oc-cur on just hal a percent o the land base.

Recent analysis o S. 340 shows thatSealaska is selecting large-tree old growthstands at 10 times the rate they occur natu-rally in the Tongass (30% vs 3.4%).

In addition to local opposition, theSealaska bill has attracted the attention o300 scientists rom across the U.S., includ-ing such luminaries as E.O. Wilson andRobert Michael Pyle, who have signeda letter opposing the land deal. The let-ter states, Public lands on the TongassNational Forest are a precious natural

resource. We believe they should be man-aged or their highest and best use, whichincludes protection o globally rare large-tree rainorests that are vital or maintain-ing biodiversity and long-term carbonstorage.

The ate o the Sealaska bill is dicultto predict. The bill languished or severalyears while the Senate Energy & Natu-ral Resources Committee was chaired bySenator Je Bingaman (D-NM). However,upon Bingamans 2012 retirement, thecommittee was been taken over by OregonDemocrat Ron Wyden, who may lookupon the deal less critically than Bingaman and Murkowski is the ranking Republi-can member o the committee.

To show your

concern or the

Tongass and keep

this orest in public

hands, send a letter

to:

The Honorable Ron

Wyden, Chair

Energy & Natural

Resources

221 Dirksen Senate

Oce Building

U.S. Senate

Washington, D.C.

20510

Fax 202-224-6163

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


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In 1976, Congress added Wildernessdesignation to Point Reyes, and declaredits intention that the area encompass-ing the oyster arm become part o theWilderness once its permit expired and

operations ceased. In 2006, a new owner,Kevin Lunny, bought the operation withthe knowledge that the permit was runningout. Over the years o Lunnys ownership,DBOC has been repeatedly cited or vio-lating environmental laws and or disrupt-ing seal pupping grounds in the estuary.Yet Lunny made it clear he would ght toget another extension o the permit.

Last year, as expiration loomed, BayArea oyster lovers and locavores, romSenator Dianne Feinstein to Alice Waterso Chez Panisse, rallied around Lunnyscause and excoriated those who wanted

to see the Wilderness designation ul-lled. Writer-ethnobotanist Gary Nabhanbecame unhinged by criticism o his pro-oyster arm opinion piece in High Coun-try News, resorting to ALL CAPS as hedeended his stance.

Point Reyes headlands rom Chimney Rock. Photo: Wikimedia Commons

Know Thy Bedellows

Things get very strange in the Point Reyes oyster arm fght

W

e told you a while back about the impending expiration o the permit orDrakes Bay Oyster Company (DBOC) at Point Reyes National Seashorenorth o San Francisco. The oyster arm had been operating at Point Reyes

since the 1930s; ater the National Seashore was designated by Congress in 1962, thearms permit was set to expire in 2012, a generous grandather clause or a commercialoperation to continue inside the National Park System.

Continued on page 11


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In November 2012 ex-Interior Sec-retary Ken Salazar rightly decided to letthe DBOC permit expire. Lunny went tocourt and ultimately gained an extensionrom the Ninth Circuit to keep operatingwhile his appeal is under consideration.

In the meantime, things have gottenunimaginably strange or the largely liberalBay-Area pro-oyster -arm crowd. Forjoining them in support o Lunny are theanti-public land Pacic Legal Foundation(alma mater o James Watt and Gale Nor-ton) and Americans or Prosperity (AFP),ounded by the ultra-right billionaireKoch brothers. AFP has, in upside-downashion, called the attempt to shut downDBOC a ederal land grab.

As i this were not enough, East BayExpress reporter Robert Gammon, whohas covered the issue or months, re-ports that some members o Congressare lumping salvation o the oyster arm

in with some very big causes: Conser-vative Republicans in Congress also arestill ghting on behal o the oyster arm.Senator David Vitter o Louisiana hasbeen attempting to extend the arms leasethrough legislation that would also green-light the controversial Keystone XL pipe-

line, expand oshore oil drilling, and openAlaskas Arctic National Wildlie Reugeto oil exploration.

It will be interesting to see how theoyster-arm crowd gets out o this one. AsGammon points out, i the DBOC goesall the way to the Supreme Court to stayopen, Waters, Nabhan, et al., will ndthemselves aligned with property-rightsdemagogues, and counting on the likes oJustice Scalia to come to their aid.

Oyster lovers and locavores, rom SenatorDianne Feinstein to Alice Waters o ChezPanisse excoriated those who wanted to seethe Wilderness designation ulflled.

Oyster FarmFrom page 9


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western lands update june 2013

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