October 20, 2021
Kasey Prestwich, Project Manager
Lava Ridge Wind Energy EIS
BLM Shoshone Field Office
400 West F Street
Shoshone, ID 83352
Subject: Scoping Comments on Lava Ridge Wind Project, DOI-BLM-ID-T030-2021-0015-EIS
Dear Project Manager Prestwich:
I am writing on behalf of over 2,000 members of the Coalition to Protect America’s National Parks (Coalition), whose membership is comprised of retired, former, or current National Park Service (NPS) employees. As a group we collectively represent over 40,000 years of experience managing and protecting America’s most precious and important natural and cultural resources. Among our members are former NPS directors, regional directors, superintendents, resource specialists, rangers, maintenance and administrative staff, and a full array of other former employees, volunteers, and supporters.
On behalf of our membership, we offer the following comments for your consideration regarding the proposed Lava Ridge Wind Project, DOI-BLM-ID-T030-2021-0015-EIS.
As described in its plan of development (POD), Magic Valley Energy, LLC (MVE) proposes to construct the Lava Ridge Wind Project, which would include up to 400 wind turbines with a maximum height of up to 740 feet, up to seven new substations, a battery energy storage system, three operations and maintenance facilities and associated infrastructure. Associated infrastructure required by the project includes access roads, electric collector lines and transmission lines to interconnect the generated power to the electric grid.
Various studies indicate that large wind turbines in a western landscape can be visible to the human eye up to 36 miles away. For example, a 2011 study1https://www.cesa.org/wp-content/uploads/CESA-Visual-Impacts-Methodology-May2011.pdf prepared for the Clean Energy States Alliance found that, “In general, visual impacts are greater when objects are seen at close range. Wind turbines may be seen from 15-25 miles and even farther under optimal atmospheric conditions… If a project dominates the views from highly sensitive viewpoints to such an extent that it would significantly harm scenic resources that are clearly valued within the region, it is likely to have unreasonable or undue visual impacts.” Note: We and many others would consider Minidoka NHS to be a “highly sensitive viewpoint.” In a 2012 study2https://blmwyomingvisual.anl.gov/docs/WindVITD.pdf prepared by the Argonne National Laboratory for BLM, “377 observations of five wind facilities in Wyoming and Colorado were made under various lighting and weather conditions. The facilities were found to be visible to the unaided eye at >58 km (36 mi) under optimal viewing conditions, with turbine blade movement often visible at 39 km (24 mi).”
The Lava Ridge Project Area Map3https://eplanning.blm.gov/eplanning-ui/project/2013782/580 above illustrates that the majority of wind turbines would be located within 5-20 miles of the NHS. As a result, the proposed wind farm would be highly visible, dominate the landscape, and overwhelm the scenic vistas immediately north and northeast of Minidoka National Historic Site (NHS), thus causing unacceptable impacts to, and likely impairment of, protected resources and values within a unit (or park) of the National Park System.
II. PARK OVERVIEW
Minidoka was listed in the National Register of Historic Places on August 18, 1979 and designated a unit of the national park system in 2001. Minidoka NHS preserves approximately 500 acres of the original 33,000-acre Minidoka War Relocation Center and interprets the stories and lives of the individuals incarcerated there and its important civil rights lessons. During World War II, nearly 13,000 Japanese Americans from Alaska, Washington, Oregon, and California were incarcerated at Minidoka War Relocation Center between 1942 and 1945. The relocation center contained more than 600 buildings, 36 residential blocks, schools, fire stations, and a hospital. Throughout the late 1940s and early 1950s, plots of land, buildings, and even furniture that once made-up Minidoka were given away in lotteries by the U.S. Bureau of Reclamation to returning World War II veterans as homesteads and farms. Today, the irrigated fields and agricultural landscape remain an enduring legacy of the communities once incarcerated at Minidoka War Relocation Center. Minidoka’s unique national role is explained in the statement of significance on p. 3 of for the site’s nomination form4https://s3.amazonaws.com/NARAprodstorage/lz/electronic-records/rg-079/NPS_ID/79000791.pdf for listing on the National Register of Historic Places:
The ruins of Minidoka, a Japanese-American internment camp during World War II, are tangible reminders of one of the most serious and painful contradictions of our country’s philosophy of freedom. Through a nefarious legal fiction, over 110,000 loyal Americans were wrenched from their homes and forcefully detained without due process of law, in bleak, barbed wire-enclosed camps scattered over inland areas on desolate tracts of Federal land. The concrete slabs, dilapidated shacks, and scattered refuse surrounded by rich farm land—much of it reclaimed by the camp’s inmates, is also a memorial to the suffering and remarkable courage of the Japanese-Americans of that time.
Despite being less than 50 years old [at the time of its nomination to the National Register], this site represents an exceptional chapter in the history of the United States that should always be remembered. Commemoration of this event should take place before memories fade and the sharpness of the event is dulled by time.
The significance of the site is further described in the NPS Foundation Document Overview5http://npshistory.com/publications/foundation-documents/miin-fd-overview.pdf for Minidoka NHS:
The Minidoka War Relocation Center (or internment camp) site was listed on the National Register of Historic Places. On January 17, 2001, Minidoka Internment National Monument was established through a presidential proclamation as the 385th unit of the national park system, preserving and protecting 72.75 acres of the original 33,000- acre Minidoka War Relocation Center in Jerome County, Idaho. The U.S. Congress later passed Public Law 110-229 on May 8, 2008, expanding the national monument to 388 acres, changing the name to Minidoka National Historic Site, and adding the Bainbridge Island Japanese American Memorial in Washington State to the national park unit.
The purpose of Minidoka National Historic Site is to provide opportunities for public education and interpretation of the exclusion and unjust incarceration of Nikkei—Japanese American citizens and legal residents of Japanese ancestry—in the United States during World War II. Minidoka National Historic Site protects and collaboratively manages resources related to the Minidoka War Relocation Center in Idaho and the Bainbridge Island Japanese American Exclusion Memorial in Washington State.
During World War II, Minidoka War Relocation Center was one of 10 camps operated by the War Relocation Authority. Construction of Minidoka near Jerome, Idaho began on June 5, 1942, and the first incarcerated Nikkei arrived on August 10, 1942, while the camp was still under construction. Once fully constructed, Minidoka contained more than 600 buildings; and its population peaked at 9,500, with more than 13,000 Nikkei from Alaska, Washington, Oregon, and California passing through its gates until it officially closed on October 28, 1945. The irrigated fields and agricultural landscape surrounding the camp were developed by the Nikkei and remain as an enduring legacy of the communities once incarcerated at Minidoka.
During this dark chapter in American history, Japanese-American citizens of the United States (the Nikkei) were forcibly removed from their homes, businesses, and communities in the lush environment of the Pacific Coast and relocated to Minidoka’s remote location in the high desert of Idaho. The setting and location of Minidoka, with its isolation, stark openness, and distance from the Pacific Coast, are characteristic of the War Relocation Authority’s site selection criteria. Despite uncertainty for the future, the Nikkei created a community in an unfamiliar desert environment and transformed the arid landscape into irrigated agricultural fields in and around the Minidoka War Relocation Center. The present-day agricultural character of the Jerome area is the legacy of their labor during World War II.
The exclusion, forced removal, and unjust incarceration of American citizens and legal residents of Japanese ancestry were the product of a long history of racial prejudice, war hysteria, and failure of political leadership. The people incarcerated at Minidoka were confronted with injustice, the loss of freedom, and profound emotional, psychological, physical, and economic hardship, and they responded and adapted in various ways with distinctive combinations of Japanese and American cultural practices, values, and perseverance.
Minidoka NHS provides a place for engagement, reflection, and healing. Minidoka’s remote location in the high desert of Idaho provides an immersive setting that is fundamental to the visitor experience. Views of open fields and distant mountains create a sense of isolation on a vast landscape where Minidoka once stood. Experiencing this environmental setting allows visitors to better understand and connect to the daily lives of the Nikkei who were unjustly incarcerated at Minidoka.
This site provokes connections to individuals affected by the World War II exclusion, forced removal, and unjust incarceration, and serves to commemorate those who survived this difficult chapter of American history.
III. APPLICABLE AUTHORITIES
A. Federal Land Policy and Management Act of 1976 (FLPMA) – The Act, which is codified at 43 U.S.C. Ch. 35 § 1701 et seq., is often referred to as BLM’s “organic act,” since it provides the statutory authority for BLM to manage public lands under the principles of multiple use and sustained yield. As such, FLPMA is commonly referred to as “multiple use mandate.” Among its many provisions, FLPMA mandates the permanent federal ownership of public lands; declares that BLM will manage public lands for multiple uses and values; repealed more than 1,000 out-of-date land management statutes, replacing them with new policies, including a new planning system; changed how BLM manages minerals and grazing in public lands; and mandated new forms of preservation and protection for public lands.
Despite its emphasis on allowing multiple uses, which includes consumptive uses by commercial operators such as mining, oil and gas extraction, grazing, at its core FLMPA is a conservation law. For example, Section 102 (a)(8) of the Act states:
“the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use.” (Emphasis added.)
B. National Park Service Organic Act of 1916 – 6https://www.govinfo.gov/content/pkg/COMPS-1725/pdf/COMPS-1725.pdfIn contrast to the BLM’s “multiple use mandate” under FLPMA, the NPS-managed resources at Minidoka NHS are managed and protected under a separate statutory requirement, which is the “conservation mandate” of the NPS Organic Act of 1916 and subsequent amendments. The Organic Act established the fundamental purpose of units of the National Park System, which is
“to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations” (54 USC§ 100101(a)).
Courts have consistently interpreted the Organic Act as giving conservation priority over use such that “when there is a conflict between conserving resources and values and providing for enjoyment of them, conservation is to be predominant” (NPS Management Policies 2006 §1.4.3).
C. National Environmental Policy Act of 1970 (NEPA)7https://ceq.doe.gov/index.html – Congress enacted NEPA in 1970 to establish a national policy for the environment, provide for the establishment of the Council on Environmental Quality (CEQ), and for other purposes. NEPA was the first major environmental law in the United States and is often called the “Magna Carta” of Federal environmental laws. NEPA requires Federal agencies to assess the environmental effects of proposed major Federal actions and inform the public of those effects prior to making decisions.
Section 101 of NEPA sets forth a national policy “to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.” 42 U.S.C. 4331(a).
Section 102 of NEPA establishes procedural requirements, applying that national policy to proposals for major Federal actions significantly affecting the quality of the human environment by requiring Federal agencies to prepare a detailed statement on: (1) the environmental impact of the proposed action; (2) any adverse effects that cannot be avoided; (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 and irretrievable commitments of resources that would be involved in the proposed action. 42 U.S.C. 4332(2)(C).
Under the Act, the Council on Environmental Quality (CEQ) is responsible for developing procedures for Federal agency implementation of NEPA. CEQ’s NEPA implementing regulations are found at 40 CFR Parts 1500-1508 and 1515-1518.8https://www.govinfo.gov/content/pkg/FR-2020-07-16/pdf/2020-15179.pdf
D. National Historic Preservation Act (NHPA) of 1966, as amended 9https://www.achp.gov/sites/default/files/2018-06/nhpa.pdf– The National Historic Preservation Act (Public Law 89-665 and amendments thereto; 16 U.S.C. 470 et seq.) was enacted in 1966, then subsequently amended in 1980 and 1992. The law contains a strong policy statement supporting historic preservation activities and programs. Section 2 of the statute calls for the Federal government in partnership with States, local governments,
Title I of the statute established the National Register of Historic Places as a national listing of “historic properties”, that is, districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, engineering, and culture. Title I also established State Historic Preservation Officers as partners in the national historic preservation program; and contained Section 106, which established consultation requirements and requires federal agencies to consider the effects on historic properties of any projects they carry out, approve, or fund.
Title II of the statute established the Advisory Council on Historic Preservation (ACHP). Section 106 requires that all federal agencies provide ACHP an opportunity to comment on any undertaking for which an agency has direct or indirect jurisdiction when the undertaking has an effect on a historic property listed on or eligible for listing on the National Register of Historic Places. ACHP has published regulations at 36 CFR § 80010https://www.achp.gov/sites/default/files/regulations/2017-02/regs-rev04.pdf that guide federal agencies and other participants in the Section 106 process.
Section 110 of the statute requires the head of each Federal agency to manage and maintain historic properties under the jurisdiction or control of the agency in a way that considers the preservation of their historic, archeological, architectural, and cultural values. These responsibilities include the identification, evaluation, nomination to the National Register of Historic Places, and protection of historic resources. In addition, historic properties not under agency jurisdiction or control but potentially affected by agency actions are to be fully considered in agency planning.
E. Endangered Species Act of 197311https://www.fws.gov/endangered/esa-library/pdf/ESAall.pdf – When Congress passed the Endangered Species Act (ESA) in 1973, it recognized that our rich natural heritage is of “esthetic, ecological, educational, recreational, and scientific value to our Nation and its people.” It further expressed concern that many of our nation’s native plants and animals were in danger of becoming extinct.
The purpose of the ESA is to protect and recover imperiled species and the ecosystems upon which they depend. It is administered by the U.S. Fish and Wildlife Service (Service) and the Commerce Department’s National Marine Fisheries Service (NMFS). The Service has primary responsibility for terrestrial and freshwater organisms, while the responsibilities of NMFS are mainly marine wildlife such as whales and anadromous fish such as salmon.
Under the ESA, species may be listed as either endangered or threatened. “Endangered” means a species is in danger of extinction throughout all or a significant portion of its range. “Threatened” means a species is likely to become endangered within the foreseeable future. All species of plants and animals, except pest insects, are eligible for listing as endangered or threatened. For the purposes of the ESA, Congress defined species to include subspecies, varieties, and, for vertebrates, distinct population segments.
F. Civil Rights Act of 1964 12https://www.govinfo.gov/content/pkg/STATUTE-78/pdf/STATUTE-78-Pg241.pdf – The Civil Rights Act of 1964 is the nation’s premier civil rights legislation. The Act outlawed discrimination on the basis of race, color, religion, sex, or national origin, required equal access to public places and employment, and enforced desegregation of schools and the right to vote. It did not end discrimination, but it did open the door to further progress. Title VI of the Civil Rights Act prohibits recipients of federal financial assistance (states, grantees, etc.) from discriminating based on race, color, or national origin in any program or activity. This section of the Civil Rights Act provides the legal basis for the concept of “environmental justice.”
Environmental justice is defined by the U.S. Environmental Protection Agency (EPA) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”13https://www.epa.gov/environmentaljustice
G. P.L. 109-441, An Act to Provide for the Preservation of Japanese American Confinement Sites 14https://www.congress.gov/109/plaws/publ441/PLAW-109publ441.pdf – Section 1(a) of the Act provides that
The Secretary shall create a program within the National Park Service to encourage, support, recognize, and work in partnership with citizens, Federal agencies, State, local, and tribal governments, other public entities, educational institutions, and private nonprofit organizations for the purpose of identifying, researching, evaluating, interpreting, protecting, restoring, repairing, and acquiring historic confinement sites in order that present and future generations may learn and gain inspiration from these sites and that these sites will demonstrate the Nation’s commitment to equal justice under the law. (Emphasis added.)
In other words, it was the expressed intent of Congress that the Secretary of the Interior shall, among other things, identify, protect, and restore Japanese American confinement sites to “demonstrate the Nation’s commitment to equal justice under the law.” Implicit within this statement is Congress’s recognition that the Nikkei were unjustly incarcerated at sites like Minidoka; and preservation of these sites by the Department of the Interior is necessary to demonstrate the Nation’s commitment to righting that that injustice.
H. Executive Order 12898 of February 11, 1994: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations – 15https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf The EO states that “In accordance with Title VI of the Civil Rights Act of 1964, each Federal agency shall ensure that all programs or activities receiving Federal financial assistance that affect human health or the environment do not directly, or through contractual or other arrangements, use criteria, methods, or practices that discriminate on the basis of race, color, or national origin.” It further states that “each Federal agency shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations in the United States.”
It has become common practice in federal NEPA reviews to evaluate the impacts of proposed actions on “communities with environmental justice concerns,” which are minority populations or low income populations that are disproportionately adversely affected by the environmental effects of actions taken or approved by federal agencies.
More recently, the Federal Interagency Working Group on Environmental Justice & NEPA Committee subsequently issued a report in March 2016 titled “Promising Practices for EJ Methodologies in NEPA Reviews16https://www.epa.gov/sites/default/files/2016-08/documents/nepa_promising_practices_document_2016.pdf”. The report provides guidance to federal agencies for incorporating environmental justice (EJ) methodologies into NEPA reviews, such as the environmental impact statement being prepared for the proposed Lava Ridge Wind Project.
I. Executive Order 13985 of January 20, 2021: Advancing Racial Equity and Support for Underserved Communities Through the Federal Government17https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government/ – The EO directs that “the Federal Government should pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality. Affirmatively advancing equity, civil rights, racial justice, and equal opportunity is the responsibility of the whole of our Government.”
J. Executive Order 14008 of January 27, 2021: Tackling the Climate Crisis at Home and Abroad18https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/27/executive-order-on-tackling-the-climate-crisis-at-home-and-abroad/ – EO section 207, Renewable Energy on Public Lands and in Offshore Waters, directs the Secretary of the Interior to consult with interested parties in her review of siting and permitting processes for renewable energy on public lands. Obviously, in this case the Nikkei are an interested party who must be consulted.
K. Secretary’s Order (SO) 3399 of April 16, 2021: Department-Wide Approach to the Climate Crisis and Restoring Transparency and Integrity to the Decision-Making Process –19https://www.doi.gov/sites/doi.gov/files/elips/documents/so-3399-508_0.pdf Section 4 of the SO established a Departmental Climate Task Force and directed it to “develop a strategy to reduce climate pollution; improve and increase adaptation and resilience to the impacts of climate change; address current and historic environmental injustice; protect public health; and conserve Department managed lands.” As described in this section, the Task Force’s mission includes the following:
(6) identifying policies and action to address current and historic environmental injustice to address the disproportionately high and adverse human health, environmental, and climate-related and other cumulative impacts on disadvantaged communities through coordination with the White House Environmental Justice Interagency Council established by EO 14008; and (8) working with individual States, Tribes, local governments, environmental justice communities, and other interested stakeholders on these matters. (Emphasis added.)
Section 5 of SO 3399 directs: “Bureaus/Offices will proactively begin consultation with potentially impacted Tribes, both those currently in the proposed area and those with a historic presence, as well as engage potentially impacted environmental justice communities early in the project planning process. ‘Early in the project planning process’ includes when a Bureau/Office has enough information on a proposed action to determine that an environmental assessment or an environmental impact statement will be prepared.” (Emphasis added.)
Obviously, in this case the Nikkei are a community with environmental justice concerns related to this project and therefore must be consulted. However, because BLM did not reach out to the Japanese American community until after scoping had already begun the Bureau has already failed to engage the Nikkei community “early in the project planning process.” Moving forward, it is essential that BLM fully embrace its consultation responsibilities.
L. 43 CFR Part 280020https://www.govinfo.gov/content/pkg/CFR-1998-title43-vol2/pdf/CFR-1998-title43-vol2-part2800.pdf – Section 501 (a)(4) of FLPMA authorizes the Secretary of the Interior “to grant, issue, or renew rights-of-way . . . for generation, transmission, and distribution of electric energy.” The Secretary has delegated that authority to the BLM. The Bureau has promulgated regulations at 43 CFR Part 2800 governing the granting such rights-of-way; and Subpart 2804 addresses how to apply for BLM right-of-way grants.
Section 2804.35 applies to how BLM will prioritize solar or wind energy applications. Under sub-section 2804.35(c), applications for right-of-way grants on “(1) Lands near or adjacent to lands designated by Congress, the President, or the Secretary for the protection of sensitive viewsheds, resources, and values (e.g., units of the National Park System…), which may be adversely affected by development” are considered “low-priority applications” and “may not be feasible to authorize.’ In other words, the proposed action close to Minidoka NHS should be considered “a low priority application” by BLM and “may not be feasible to authorize” in order to protect “sensitive viewsheds, resources and values” of a unit of the National Park System.
IV. COMMENTS REGARDING CONCERNS TO CONSIDER IN THE DRAFT ENVIRONMENTAL IMPACT STATEMENT (DEIS)
Given the information provided in Sections II-IV above as context, we offer the following comments and concerns for consideration in the forthcoming DEIS.
Comment # 1: The proposed action violates the spirit and letter of P.L. 109-441, an “Act to Provide for the Preservation of Japanese American Confinement Sites.” 21Ibid.
The Act requires the Secretary to establish a program within the National Park Service “for the purpose of identifying, researching, evaluating, interpreting, protecting, restoring, repairing, and acquiring “historic confinement sites in order that present and future generations may learn and gain inspiration from these sites and that these sites will demonstrate the Nation’s commitment to equal justice under the law.” (Emphasis added.) As stated in the law, this is an “all of the above” mandate; not a discretionary or “none of the above” decision option for Interior agencies.
The proposed action, a massive wind farm development with up to 400 wind turbines with a maximum height of up to 740 feet, will be highly visible, dominate the landscape, and overwhelm the scenic vistas immediately north and northeast of Minidoka National Historic Site (NHS). Moving forward with the proposed action, as described, would be the antithesis of the Act’s mandate to right the injustice of Nikkei incarcerations and demonstrate the “Nation’s commitment to equal justice under the law.”
To be frank, BLM’s proposed action seems ignorant of or indifferent to the unjust treatment suffered by or the amazing resiliency demonstrated by the Nikkei community at Minidoka during one of the gravest American civil rights injustices of the 20th century. Consistent with P.L. 109-441, BLM should fully embrace its consultation responsibilities with the Nikkei community, listen to their concerns, and consider the historical and cultural context of the Minidoka landscape that BLM’s proposed action would irreparably harm.
Comment # 2: Nikkei survivors and their descendants are a distinct “community with environmental justice concerns” related to this project. The DEIS should include an environmental justice analysis; and NPS should prepare that analysis because it has “special expertise” regarding the history and injustice of the Nikkei internment.
First and foremost, BLM should recognize the 120,000 Nikkei who were unjustly incarcerated at the 10 internment camps operated by the War Relocation Authority during World War II, as well as their descendants, constitute a “community with environmental justice (EJ) concerns” under applicable federal guidance. That guidance includes: Executive Orders 12898 and 13985; Secretary’s Order 3399; and the Federal Interagency Working Group on Environmental Justice & NEPA Committee’s 2016 report titled “Promising Practices for EJ Methodologies in NEPA Reviews.”
In terms of preparing an environmental justice analysis for the DEIS, we call your attention to the CEQ NEPA implementing regulations at 40 CFR §1501.8(b)(3).22https://www.law.cornell.edu/cfr/text/40/1501.8 This section provides that the lead agency in a planning process (in this case BLM) can request that a cooperating agency (NPS) “assume responsibility for developing information and preparing environmental analyses [for] portions of the environmental impact statement concerning which the cooperating agency has special expertise.”
NPS clearly has “special expertise” regarding the history and injustice of Nikkei incarcerations at Minidoka and other internment camps and the long lasting impacts that experience has had on the Nikkei community. On the other hand, apparently BLM has no direct or ongoing relationship with the Nikkei survivors and descendants; and based on this proposal also seems to have little knowledge or appreciation of the national significance of Minidoka NHS and the cultural landscape surrounding the internment camp. For these reasons, we strongly recommend that NPS (not BLM) prepare the environmental justice analysis for the EIS.
NPS’s knowledge and expertise regarding the Nikkei incarcerations is clearly demonstrated in the content of the NPS Foundations Document for Minidoka NHS, which is briefly summarized in the Park Overview section above. Keys points from that summary include:
The exclusion, forced removal, and unjust incarceration of American citizens and legal residents of Japanese ancestry at 10 internment camps, including Minidoka, were the product of a long history of racial prejudice, war hysteria, and failure of political leadership. The setting and location of Minidoka, with its isolation, stark openness, and distance from the Pacific Coast, are characteristic of the War Relocation Authority’s site selection criteria. The people incarcerated at Minidoka were confronted with injustice, the loss of freedom, and profound emotional, psychological, physical, and economic hardship, and they responded and adapted in various ways with distinctive combinations of Japanese and American cultural practices, values, and perseverance.
Minidoka NHS provides a place for engagement, reflection, and healing. Minidoka’s remote location in the high desert of Idaho provides an immersive setting that is fundamental to the visitor experience. Views of open fields and distant mountains create a sense of isolation on a vast landscape where Minidoka once stood. Experiencing this environmental setting allows visitors to better understand and connect to the daily lives of the Nikkei who were unjustly incarcerated at Minidoka. Last but not least, the designation and preservation of Minidoka NHS as a unit of the National Park System represents an important national acknowledgement of the injustices committed against the Nikkei community.
In essence, Minidoka NHS serves not only as a tangible reminder of a dark chapter in our nation’s history; it also serves as a public tribute to the Nikkei community’s survival, resilience, and accomplishments. The evidence is compelling that the Japanese Americans, who survived incarceration at the ten War Relocation Authority internment camps, and their descendants constitute a distinct “community with environmental justice concerns” related to the Lava Ridge Wind Project.
As mentioned under the Applicable Authorities section above, Secretary’s Order (SO) 3399 directs “Bureaus… [to] proactively… engage potentially impacted environmental justice communities early in the project planning process,” which is described in the SO as “when a Bureau has enough information on a proposed action to determine that an environmental assessment or an environmental impact statement will be prepared.” Because the BLM waited until after public scoping began to reach out to the Japanese American community about the proposed action, BLM has already failed to comply with the letter and intent of the Secretary’s environmental justice directive.
Moving forward with preparation of the DEIS, the BLM must acknowledge the Nikkei’s status as a community with environmental justice concerns; and fully consider the disparate impacts the proposed action would have on the internment camp survivors and descendants. In addition, we strongly recommend that NPS (not BLM) prepare the environmental justice analysis for the EIS due to the NPS’s special expertise regarding the history, injustice, and long lasting impacts of the Nikkei incarcerations.
Comment # 3: Project siting concern: In the interest of transparency, the DEIS should include a summary of communications between BLM and Magic Valley Energy regarding possible locations for this project; and an explanation of the factors considered or not considered in determining the proposed project site (i.e., location).
As background, the U.S. Department of Energy (DOE) Wind Energy Technologies Office states that “[a]reas with annual average wind speeds around 6.5 meters per second and greater at 80-m height are generally considered to have a resource suitable for wind development.”23https://windexchange.energy.gov/maps-data/34 However, the National Renewable Energy Laboratory (NREL) wind resource map for Idaho (below) indicates that the average wind speed in the vicinity of the Lava Ridge project site just north of Twin Falls is less than the recommended 6.5 meters per second threshold.
This begs the question – why was the project proposed at this location, if the wind energy potential is marginal at best? What other factors were considered, if any?
We understand that MVE may have approached BLM previously (i.e., some years ago) about locating the project south (not north) of Twin Falls. We also understand that MVE was possibly discouraged from applying for a grant to use that location for a wind energy project due to conflicts with greater sage grouse habitat. As a result, MVE proposed the current project site immediately north of Minidoka NHS.
Is this true? And if so, to what extent did BLM suggest or encourage MVE to consider the current proposed site? When considering the current proposed site, to what extent did MVE or BLM consider the project’s obvious, significant, unavoidable, and unmitigable adverse impacts to resources and values at Minidoka NHS, a unit of the National Park System? And why did BLM not suggest or discourage MVE from applying for this site because of the direct conflicts with the conservation of Minidoka’s resources and values?
These questions and concerns relate directly to the previously mentioned executive orders on environmental justice and Secretary’s Order 3399 on “Restoring Transparency and Integrity to the Decision-Making Process.” To be frank, because of the marginal wind energy potential and the enormity of the potential impacts to Minidoka NHS, proceeding with an EIS to develop a massive wind farm at this particular site defies common sense. BLM must explain in the DEIS how the site selection decision for the proposed action was reached and is being allowed to move forward for detailed analysis. The explanation must be much more in depth than BLM’s typical response of simply saying “this is the site MVE has applied for, so it must be considered.”
In addition to including a summary of communications between MVE and BLM that contributed to the selection of the proposed project site, we ask that the DEIS identify the factors that were considered or dismissed during site selection discussions. This information could be simply summarized in a table in the DEIS that identifies the factor and a check mark identifying whether the factor was considered or not in the siting decision. For example, these factors could or should include:
- Avoidance of significant conflicts with greater sage grouse habitat;
- Avoidance of significant conflicts with the conservation of resources and values at Minidoka NHS;
- Proximity to the future completion of the Southwest Intertie Project (SWIP), an interstate high voltage transmission line project approved in 1994 that is, as yet, not constructed in Idaho;
- Adequacy of available wind resources that would meet or exceed DOE’s recommended 6.5 meters per second at 80 meters threshold;
- Consistency with applicable BLM land use plans, including the Monument Resource Management Plan (RMP) and related documents; and
- Any other factors considered or dismissed by BLM.
Comment # 4: The DEIS should include a summary of the gaps and shortcomings in applicable BLM land use planning documents as they relate to the Proposed Action and potential adverse impacts to visual resources.
These documents include, but are not limited to, the following:
A. January 1986 Monument Resources Management Plan (RMP)24https://eplanning.blm.gov/public_projects/lup/36121/42518/45285/monumentRMP_ok.pdf: The RMP is grossly outdated and does not serve as a valid basis for justifying the siting of the proposed wind farm. The RMP did not contemplate the creation of Minidoka Internment National Monument by Presidential Proclamation in 2001; or the establishment of Minidoka NHS by act of Congress in 2008. Nor did the RMP include a Visual Resource Management (VRM) inventory, analysis, or classifications25https://blmwyomingvisual.anl.gov/vr-inventory/blm/index.cfm that would serve as a valid baseline for determining the appropriateness of future development; or, in this case, for evaluating potential visual impacts of the proposed wind farm.
Although the RMP provided that “[g]enerally, public lands may be considered for the installation of public utilities”; it did not specifically consider the possible future construction of a major interstate high voltage transmission line (SWIP) or the possible future construction of a massive wind farm project (Lava Ridge). Given such gaps in the RMP’s “vision” of future use and development, it would be nonsense if BLM were to say now that the massive wind farm that has been proposed now is somehow “consistent” with the general reference to “public utilities” in the 1986 RMP. As a result, BLM should provide a reasonable explanation in the DEIS as to the planning basis for accepting MVE’s grant application to develop a massive wind farm at such an highly impactful location and thus move forward with an EIS.
Last but not least, the RMP provides little useful guidance regarding the identification and protection of cultural resources within the RMP area. In essence, the RMP fails to comply with Section 110 of the NHPA, which requires federal agencies to identify, evaluate, nominate to the National Register of Historic Places, and protect historic resources within their jurisdiction. However, all the 1986 RMP says is: “BLM will manage cultural resources so that representative samples of the full array of scientific and socio-cultural values are maintained or enhanced, consistent with State and Federal laws.”
B. 1994 BLM Record of Decision (ROD) for the Southwest Intertie Project (SWIP)26https://www.wapa.gov/regions/DSW/Environment/Documents/SWIPFEISDecisionRecord.pdf – The ROD approved the granting of a public land right-of-way to Idaho Power Company, Boise, Idaho for the construction, operation, maintenance, and termination of the Southwest Intertie 500 kilovolt (kV) electrical transmission line project (SWIP). SWIP would be constructed in phases and eventually provide a high voltage transmission connection between Las Vegas, Nevada and the Midpoint Substation near Shoshone, Idaho.
With regard to the proposed construction of SWIP within the BLM’s Shoshone District (location of the current wind farm proposal), the 1994 ROD stated, “[the Monument RMP], while not specifically designating Right-of-Way corridors, provides that public lands may be considered for the installation of public utilities, except where expressly prohibited by law or regulation. The proposal [i.e., SWIP] is determined to be in conformance with the existing management plan and no amendment to that plan is necessary.”
Similar to the Monument RMP, the 1994 SWIP ROD did not contemplate the creation of Minidoka Internment National Monument by Presidential Proclamation in 2001; or the establishment of Minidoka NHS by act of Congress in 2008. In addition, the ROD contained no VRM inventory or class determinations that would serve as a baseline for evaluating potential visual impacts of the proposed wind farm.
C. Other plans in effect for the Twin Falls District27https://www.blm.gov/programs/planning-and-nepa/plans-in-development/idaho – None of the “plans in effect” identified on BLM Idaho’s planning website for the Shoshone Field Office contain the requisite Visual Resource Management (VRM) class information for the project area.
Lacking such information, please explain how BLM determined it would be appropriate to consider and potentially allow a massive wind energy development in the immediate vicinity of Minidoka NHS, a unit of the National Park System.
Comment # 5: The completion of SWIP Phase III (AKA SWIP North) in Idaho and the Proposed Action appear be “connected actions” under NEPA.
Although the Record of Decision (ROD) for SWIP was issued in 1994, SWIP Phase III (AKA SWIP North), which is a 275-mile 500 kV transmission line between Midpoint Sub-station near Shoshone, Idaho and Robinson Summit in Nevada, has never been constructed.
In December 2020, LS Power reported28https://docs.cpuc.ca.gov/PublishedDocs/Efile/G000/M353/K226/353226801.PDF that SWIP North is “permitted but seeking cost recovery” (i.e., construction funding) and that the “project is nearly construction ready and could be online as early as June 2024.” The same report also indicated that SWIP North would provide a link to “Idaho Power Company’s interconnection queue; primarily wind, including a 1050 MW Lava Ridge wind project, being developed by [an] LS Power affiliate that is scheduled to be online in 2024.” (Emphasis added.) It is unclear from that report if a Federal loan guarantee from DOE is needed to support financing of SWIP North; however, if it is, then one would expect DOE to conduct NEPA compliance as it did previously in 2010 for the Federal loan guarantee for SWIP South.
In any case, the long delayed completion of SWIP North (or SWIP Phase III), first approved in 1994, and the proposed Lava Ridge Wind Project are both planned for completion in 2024; both are being developed by LS Power or an “affiliate’ of LS Power; and both projects would be impractical and ineffective (i.e., useless) without the other. In fact, the map below that was included in LS Power’s December 2020 report geographically illustrates the dependency of one project’s existence upon the completion of the other, and vice versa.
Last but not least, the most recent (July 2021) U.S. Geological Survey (USGS) interactive “wind turbine database” map29https://eerscmap.usgs.gov/uswtdb/viewer/#7/42.564/-113.716 for Idaho shows there are no existing wind turbines in the immediate vicinity of the Twin Falls-Midpoint Substation-Shoshone area. In other words, there is no apparent current demand for extending SWIP into Idaho at this time.
Completing the Idaho leg of an interstate high voltage transmission line that terminates in rural Idaho nearly three decades after it was approved, makes no sense unless and until there will be a major energy generation facility near the same terminus. As a result, SWIP North and the Lava Ridge Wind Project appear to be “connected actions” under NEPA. As described in BLM Permanent Instruction Memorandum No. 2018-023.30https://www.blm.gov/policy/pim-2018-023
Connected actions are those proposed Federal actions that are “closely related” and “should be discussed” in the same NEPA document (40 CFR 1508.25 (a)(1)). Proposed actions are connected if they automatically trigger other actions that may require an environmental impact statement; cannot or will not proceed unless other actions are taken previously or simultaneously; or if the actions are interdependent parts of a larger action and depend upon the larger action for their justification (40 CFR 1508.25 (a)(1)). (Emphasis added.)
If the connected action is also a proposed BLM action, we recommend that you include both actions as aspects of a broader “proposal” (40 CFR 1508.23), analyzed in a single NEPA document. You may either construct an integrated purpose and need statement for both your proposed action and the connected action, or you may present separate purpose and need statements for your proposed action and the connected action. Regardless of the structure of the purpose and need statement(s), you must develop alternatives and mitigation measures for both actions (40 CFR 1508.25(b)), and analyze the direct, indirect, and cumulative effects of both actions (40 CFR 1508.25(c)). (Emphasis added.)
We recommend that the DEIS include an analysis of SWIP North (Phase III) and the Lava Ridge Wind Project as “connected actions” under NEPA. If either action “cannot or will not proceed without the other,” then they would be “connected” under NEPA and should be evaluated accordingly in the DEIS.
Comment # 6: The DEIS should fully consider a range of “reasonable alternatives” to the proposed action, as required under sections 102(2)(C)(iii) and 102(2)(E) of NEPA.
“Reasonable alternatives” means a reasonable range of alternatives that are technically and economically feasible, meet the purpose and need for the proposed action, and, where applicable, meet the goals of the applicant. See 40 CFR §1508.1(z). We offer the following suggestions related to reasonable alternatives:
- We suggest that BLM and/or MVE use geographic information system (GIS) mapping technology to identify potential project sites on BLM land that: 1) avoid major conflicts with greater sage grouse habitat; 2) are located in areas with average annual winds of 6.5 meters per second or greater at 80 meters; 3) are within an appropriate distance of the proposed but yet to be completed Idaho segment of SWIP; and 4) are located at least 30 miles from Minidoka NHS. Such sites, if found, should be considered “prime” wind farm locations to fully consider as action alternatives.
- In the event no such “prime” sites are found, we defer to BLM’s judgment as to which two alternate sites would generally present the less environmentally damaging and sufficiently feasible locations to consider in addition to the proposed action. Obviously, BLM should explain its site selection methodology in the DEIS.
- The DEIS should identify BLM’s preferred alternative, as required under 40 CFR § 1502.14(d); and, in the interest of transparency, the DEIS should also identify the environmentally preferable alternative.
- While it may be “reasonable” to consider variations of the proposed action (such as different combinations of mitigation measures proposed at the same site), these variations should be presented as “alternative elements” under the proposed action, rather than as distinctly different alternatives.
- In practical terms, there should be at least two action alternatives considered that would be located distinctly outside of (i.e., away from) the project area for the proposed action. In practical terms, “distinctly outside” as used here means located at least 30 miles from Minidoka NHS so as to generally avoid adverse visual impacts to Minidoka.
- The descriptions of each action alternative, including the proposed action, should include a Class 4 construction cost estimate. We suspect that at some point MVE and/or BLM will use cost differences between action alternatives as justification, in part, for selecting the proposed action, so having a baseline cost estimate for each is essential for comparison purposes.
- While it is premature to discuss compensatory mitigation for the proposed action under Section 106 of the NHPA, based on other federal projects that have resulted in significant visual impacts to units of the National Park System and/or National Register properties, compensatory mitigation for the Lava Ridge Wind Project at the proposed location could conceivably run into hundreds of millions of dollars. In our view, it would be better project management if BLM were to choose a far less damaging location for the wind farm in the first place, even if construction costs were relatively higher than for the proposed action. For example, if a reasonable alternative located 30+ miles away from Minidoka NHS were to cost $40, $50, or even $75 million or more to construct than the proposed action, it would still be a more cost effective alternative since it would avoid significant adverse effects to Minidoka NHS and the need for costly compensatory mitigation, and possibly litigation.
Comment # 7: The DEIS should include a section that specifically analyzes impacts to resources and values at Minidoka NHS; and NPS should prepare this section of the DEIS, as provided in 40 CFR § 1501.8 of the CEQ NEPA implementing regulations.
40 CFR § 1501.8 provides that the lead agency may request a cooperating agency with “special expertise” to prepare portion(s) of the NEPA review document(s). In this case, NPS has special expertise regarding the management and conservation of resources and values at Minidoka NHS.
The analysis to be prepared by NPS should include a detailed analysis of visual resource (or viewshed) impacts, including “to scale” photo simulations, as seen from 3-4 key viewpoints within the NHS boundary. We defer to NPS to identify key viewpoints that are representative of the historical landscape setting of the internment camp and important resource values to be conserved, as described in the NPS Foundation Document. These values include views of open fields and distant mountains that create a sense of isolation on the vast landscape where Minidoka once stood. Experiencing this environmental setting allows visitors to better understand and connect to the daily lives of the Nikkei who were unjustly incarcerated at Minidoka.
As part of preparing this impact analysis for the DEIS, NPS should also prepare an “impairment analysis” as described in NPS Management Policies 1.4.7 to determine and document whether the Proposed Action would cause unacceptable impacts to park resources and values, which is certain, or impairment, which seems likely. Such analysis should be incorporated into the DEIS as an appendix.
Comment # 8: There should also be an analysis of visual impacts to Minidoka NHS and the surrounding landscape based on BLM’s Visual Resources Management (VRM) classification system. However, apparently BLM has never conducted a baseline VRM classification for the project area. In order for such as assessment to be credible at this stage of the planning process, BLM and NPS should hire an independent third-party contractor (e.g., Argonne National Laboratory 31https://www.anl.gov/) to conduct the baseline VRM assessment and classification.
In principle, BLM should already have prepared a baseline VRM assessment and classification during one of its previous land use planning processes for the area. However, as noted previously, the grossly outdated 1986 Monument RMP and the 1994 ROD for the Southwest Intertie Project (SWIP) contained no such assessment; and we can find no such information in any of the other “plans that are in effect” for the Twin Falls District listed on BLM’s Idaho Plans and NEPA webpage. 32https://www.blm.gov/programs/planning-and-nepa/plans-in-development/idaho As explained on the BLM Visual Resource Management (VRM) Classes website33https://blmwyomingvisual.anl.gov/vr-mgmt/blm/
As explained on the BLM Visual Resource Management (VRM) Classes website34https://blmwyomingvisual.anl.gov/vr-mgmt/blm/, “[w]hen Visual Resource Management (VRM) class objectives are designated for the lands in an RMP, management actions and allowable uses are determined that reflect the VRM class objectives.” (Emphasis added.) In other words, it is important to conduct the VRM classification process prior to proposed development; so that the respective VRM class objectives can be fully considered in determining whether the proposed development is appropriate or not. Unfortunately, that does not appear to be the case for the Lava Ridge project.
From the perspective of Minidoka NHS, a unit of the National Park System and a listed property on the National Register of Historic Places, one would reasonably expect the proper BLM VRM classification for the surrounding landscape to be either:
- VRM Class I, with the objective: To preserve the existing character of the landscape. Allowed Level of Change: This class provides for natural ecological changes; however, it does not preclude very limited management activity. The level of change to the characteristic landscape should be very low and must not attract attention; or
- VRM Class II, with the objective: To retain the existing character of the landscape. Allowed Level of Change: The level of change to the characteristic landscape should be low. Management activities may be seen, but should not attract the attention of the casual observer. Any changes must repeat the basic elements of form, line, color, and texture found in the predominant natural features of the characteristic landscape.
To be frank, if BLM were to conduct a baseline VRM classification for the project area now after a massive wind farm has already been proposed, the classification results will be controversial regardless of outcome. The results will be viewed either as “unfair” by the project proponent if a VRM Class I or II determination is made that essentially precludes the project from occurring at this site; or will be seen as “lacking credibility” by the Nikkei and conservation communities if a VRM Class III or IV determination is made that, in effect, minimizes or dismisses legitimate concerns about visual impacts to Minidoka NHS.
As a result, we strongly recommend that BLM and NPS hire an independent third-party contractor (e.g., Argonne National Laboratory35Ibid.) to conduct such a baseline assessment and VRM classification.
Comment # 9: Studies 36https://www.usgs.gov/faqs/how-are-bats-affected-wind-turbines? have shown that wind turbines and associated infrastructure can adversely affect wildlife, directly through collisions with turbines and indirectly because of noise pollution, habitat loss, and reduced survival or reproduction.
The species groups most likely to be negatively affected in the areas adjacent to the Lava Ridge Wind Farm are birds and bats. Many species of birds and bats migrate seasonally between habitats and along corridors where they are exposed to wind turbines.
At Minidoka NHS and Craters of the Moon National Monument and Preserve (NMP) bats have been documented to occur, or are likely to occur as both areas are within the species’ known ranges. The most vulnerable bat species are migratory hoary bats (Lasiurus cinerus), which are documented to be killed by wind turbines, and resident Townsend’s big-eared bats (Corynorhinus townsendii) and little brown bats (Myotis lucifugus). Both resident bat species occur and reproduce in Craters of the Moon NMP, especially in the lava tubes, and likely forage in and around Minidoka.
Migratory birds, protected under the Migratory Bird Treaty Act, often migrate along corridors and are attracted to water courses such as occur in and around Minidoka. Golden and Bald eagles are also specifically at risk to collision with wind turbines, and mortalities have been broadly reported. Greater sage-grouse (Centrocercus urophasianus) have been documented in Craters of the Moon and their habitat occurs in both parks.
There is some uncertainty regarding the potential effects on wildlife species and their habitats in and around the project area because baseline studies are incomplete and insufficient to verify species presence/absence or distributions. However, spillover effects from proposed wind industry operations are of notable concern because of close proximity to Minidoka NHS and Craters of the Moon NMP; and because wildlife species likely travel through or feed within park boundaries.
Spillover effects can also occur to native vegetation, including effects related to non-native plants or pollutants such as pesticides. We are particularly concerned to what extent, if any, “kipukas” within Craters of the Moon National Monument and Preserve may be subject to spillover effects of the proposed action. Kipukas37https://www.nps.gov/crmo/learn/nature/kipukas.htm are “islands” of vegetation surrounded by more recent lava flows within the greater Craters of the Moon landscape. There are over 500 kipukas in the area, which are vulnerable to spillover of nonnative species. Their ecological uniqueness and value is described in Proclamation 7373 of November 9, 200038https://www.blm.gov/sites/blm.gov/files/Craters-of-the-moon_proclamation.pdf, by NPS, to create the much larger national monument and preserve with portions managed by BLM and NPS respectively. As stated in the Proclamation:
The kipukas provide a window on vegetative communities of the past that have been erased from most of the Snake River Plain… [K]ipukas represent some of the last nearly pristine and undisturbed vegetation in the Snake River Plain, including 700-year-old juniper trees and relict stands of sagebrush that are essential habitat for sensitive sage grouse populations. These tracts of relict vegetation are remarkable benchmarks that aid in the scientific study of changes to vegetative communities from recent human activity as well as the role of natural fire in the sagebrush steppe ecosystem.
In general, the DEIS should analyze potential impacts of the proposed action and other action alternatives on affected wildlife species, including bird and bats; and potential impacts to native plant species, including plants within the ecologically unique areas known as kipukas. We encourage BLM to also identify and include appropriate mitigation measures and monitoring requirements related to species protection within each of the action alternatives considered.
Comment # 10: Section 106 compliance under the NHPA and Section 107 compliance under the ESA should be fully integrated into the DEIS are required under 40 CFR § 1501.2 of the CEQ NEPA implementing regulations.
We have heard that BLM may have considered preparing its NEPA review in advance of and separately from its NHPA Section 106 and ESA Section 107 consultations. However, the guidance in the CEQ NEPA implementing regulations is clear – the respective consultation requirements should be conducted coincident with the NEPA review. And the resulting documentation should be integrated into one document, the DEIS, subject to public comment at the same time as the NEPA analysis.
Comment # 11: The potential for significant adverse effects to visual resources at National Register-listed Minidoka NHS and on the surrounding agricultural landscape are of utmost concern during the Section 106 consultation and evaluation process. The agencies, the Idaho SHPO, and the Nikkei community should formally request the Advisory Council on Historic Preservation (ACHP) to actively early participate in the Section 106 consultation process.
While comments # 7 and 8 above focus on analyzing visual impacts under the NEPA review process, this comment (#11) focuses on the Section 106 consultation process and assessment of adverse effects under the NHPA.
As discussed previously, the number and size of wind turbines proposed at Lava Ridge by MVE will dominate the landscape and overwhelm the scenic vistas immediately north and northeast of Minidoka National Historic Site, which is listed on the National Register of Historic Places. As a result, the adverse effects of the Proposed Action are essentially unavoidable and unmitigable. BLM should not pretend otherwise. Key questions during the Section 106 consultation process include:
- Will the proposed undertaking directly or indirectly alter characteristics of Minidoka NHS (or the potentially eligible rural historic landscape encompassing the original 33,000 acre footprint of the camp) that qualify (or potentially qualifies) the site (s) for inclusion in the National Register?
- Will the Proposed Action diminish the integrity of the property’s location, design, setting, materials, workmanship, feeling, or association?
We believe the answers to these questions are obvious, based on the size and extent of the proposed wind farm illustrated on the several site maps included in this letter. As a result, early participation by ACHP in the consultation process is not only beneficial, it is essential!
As described on ACHP’s Office of Federal Agency Programs (OFAP) website39https://www.achp.gov/sites/default/files/whitepapers/2019-10/OfficeFedAgencyFactSheet2019_100319.pdf “a project may have substantial adverse effects or if important policy or procedural questions are raised, the ACHP may elect to participate in the consultation process.” OFAP manages the ACHP’s participation in Section 106 consultation and provides guidance, advice, and technical assistance to federal agencies and other participants in the Section 106 process. When historic properties will be adversely affected by a federal undertaking, the review usually concludes with the execution of a legally binding agreement that outlines how the federal agency will resolve those effects. In rare circumstances where agreement cannot be reached, the ACHP issues advisory comments to the head of the federal agency who must then consider them in making a final decision about whether the project will proceed.
We urge BLM, NPS, the Idaho SHPO and the Nikkei community to formally request the early participation of the ACHP in the Section 106 consultation process consistent with ACHP regulations in 36 CFR Part 80040https://www.achp.gov/sites/default/files/regulations/2017-02/regs-rev04.pdf. For example, 36 CFR Section 800.2(b)(1) addresses “Council entry into the section 106 process”, as follows: When the Council determines that its involvement is necessary to ensure that the purposes of section 106 and the act are met, the Council may enter the section 106 process. Criteria guiding Council decisions to enter the section 106 process are found in Appendix A to this part. The Council will document that the criteria have been met and notify the parties to the section 106 process as required by this part.
In addition, Appendix A, section (b), states, in part: “The Council may choose to exercise its authorities under the section 106 regulations to participate in an individual project pursuant to the following criteria.” The criteria listed under section (c) for ACHP involvement includes when an undertaking: (1) Has substantial impacts on important historic properties. (2) Presents important questions of policy or interpretation. (3) Has the potential for presenting procedural problems. This may include cases with substantial public controversy that is related to historic preservation issues; with disputes among or about consulting parties which the Council’s involvement could help resolve; [or] that are involved or likely to be involved in litigation on the basis of section 106.
In this case, more than one, if not all, of the criteria have been or will be met. Therefore, ACHP involvement throughout the Section 106 consultation process is appropriate; and, we believe, essential to successful project management that reduces the likelihood of costly compensatory mitigation and/or litigation.
Comment #12: Consistent with NHPA Section 110 requirements, the DEIS should also include a section identifying National Register eligible cultural resources within the project area and describe what steps, if any, BLM has taken to protect those resources. If appropriate, BLM should prepare National Register nominations for any eligible but unlisted historic properties within the area.
In general, the Monument RMP description of BLM’s management of cultural resources within the RMP area is remarkably brief. All it says is: “BLM will manage cultural resources so that representative samples of the full array of scientific and socio-cultural values are maintained or enhanced, consistent with State and Federal laws.” See RMP p. 16.
While the NPS-managed Minidoka NHS encompasses only about 500 acres of the original 33,000-acre footprint of the Minidoka War Relocation Center, a significant portion of the larger footprint of Minidoka overlaps thousands of acres of public lands administered by BLM. See BLM map below that illustrates the overlap.
Section 110 of the NHPA requires federal agencies “to manage and maintain historic properties under the jurisdiction or control of the agency in a way that considers the preservation of their historic, archeological, architectural, and cultural values. These responsibilities include the identification, evaluation, nomination to the National Register of Historic Places, and protection of historic resources.” (Emphasis added.)
As a result, BLM should specifically determine whether the broader agricultural landscape of Minidoka is eligible for listing as a rural historic landscape on the National Register of Historic Places. See National Register Bulletin (NRB) 30: Guidelines for Evaluating and Documenting Rural Historic Landscapes.41https://www.nps.gov/subjects/nationalregister/upload/NRB30-Complete.pdf If this landscape is found eligible for the National Register, then BLM should submit a nomination to that effect to the Idaho SHPO in accordance with the Bureau’s affirmative responsibilities under Section 110 of the NHPA.
V. CLOSING COMMENTS
BLM’s proposed action raises numerous concerns, including the following:
- Through its actions and information presented thus far in the planning process, BLM has failed to fully acknowledge the history and injustice of Nikkei incarcerations at internment camps like Minidoka. In doing so, BLM has also failed to comply with a number of laws, executive orders, and secretary’s orders regarding preservation of Japanese American confinement sites, and recognition of and consultation with communities with environmental justice concerns;
- BLM has failed to reasonably, periodically update applicable management planning documents (such as the Monument RMP) – documents that should normally provide useful guidance about appropriate or inappropriate locations for the siting of wind and solar energy facilities on public lands, but in this case do not;
- BLM has also apparently failed to conduct baseline VRM assessments for the Monument RMP area – such information is essential for determining the appropriate or inappropriate locations of wind and solar energy facilities on public lands;
- With regard to portions of Minidoka’s rural landscape located on public lands, BLM has failed to comply with NHPA Section 110 requirements that federal agencies “manage and maintain historic properties under the jurisdiction or control of the agency in a way that considers the preservation of their historic, archeological, architectural, and cultural values.”
Our key recommendations include the following:
- First and foremost, BLM must recognize that the 120,000 Nikkei, who were unjustly incarcerated at the 10 internment camps operated by the War Relocation Authority during World War II as well as their descendants, constitute a “community with environmental justice (EJ) concerns.” Once that recognition is made, then BLM must follow applicable federal guidance and fully embrace consultation with the Nikkei community;
- BLM should disclose its communications with Magic Valley Energy regarding possible locations for the project; and explain factors considered or not considered in determining the proposed project location;
- BLM should explain the “connection” between the proposed completion of the SWIP Phase III high voltage transmission line project and the proposed action. These two projects appear to be “connected actions” under NEPA and, if so, should be described and analyzed as such;
- Under CEQ NEPA implementing regulations, NPS is a cooperating agency with “special expertise” regarding certain topics that should be included in the DEIS. As a result, BLM should request NPS to prepare sections of the DEIS related to: 1) an environmental justice analysis; and 2) impacts to resources and values at Minidoka NHS;
- In the absence of baseline VRM classification information for the project area, please explain how BLM determined it is appropriate to consider and potentially allow a massive wind energy development in the immediate vicinity of Minidoka NHS, a unit of the National Park System;
- BLM and NPS should hire a mutually acceptable third party contractor (such as Argonne National Laboratory) to conduct a baseline VRM assessment and classification for the project area;
- BLM should consider at least two action alternatives located at least 30 miles from Minidoka NHS. Such alternatives could be identified by geographic information system (GIS) mapping to identify potential sites with adequate wind resources, minimal conflicts with greater sage grouse habitat, no conflicts with visual resources at Minidoka NHS, and reasonable proximity to the proposed SWIP Phase III transmission line project;
- Last but not least, BLM should conduct an initial evaluation and, if appropriate, prepare a National Register nomination as a “rural historic landscape” for the thousands of acres of BLM-managed public lands that are part of the original 33,000 acre landscape footprint of the Minidoka internment camp.
In closing, we appreciate the opportunity to comment on this important issue.
Philip A. Francis, Jr., Chair
Coalition to Protect America’s National Parks
2 Massachusetts Ave NE, Unit 77436
Washington, DC 20013
Wade Vagias, Superintendent, Minidoka NHS, National Park Service
Cindy Orlando, Acting Regional Director, Regions 8, 9, 10, and 12, National Park Service
Joy Beasley, Associate Director, Cultural Resources, Partnerships and Science, NPS
Ray Sauvajot, Associate Director, Natural Resource Stewardship and Science, NPS
Shawn Benge, Acting Director, National Park Service
Tracy Stone-Manning, Director, Bureau of Land Management
Nada Culver, Deputy Director, Bureau of Land Management
Janea Scott, Office of the Assistant Secretary
Janet Gallimore, Executive Director, Idaho State Historic Preservation Office
Robyn Achilles, Executive Director, Friends of Minidoka
Mia Russell, Coordinator, Japanese American Confinement Sites Coalition