Coalition Signs on to Protect Minidoka from Lava Ridge Development

Congress reaffirms, declares, and directs that the promotion and regulation of the various System units shall be consistent with and founded in the purpose established by subsection (a), to the common benefit of all the people of the United States. The authorization of activities shall be construed and the protection, management, and administration of shall be conducted in light of the high public value and integrity of the System and shall not be exercised in derogation of the values and purposes for which the System units have been established, except as directly and specifically provided by Congress.

Id. at § 100101 (b)(2). In adopting this language, the House Committee on Interior and Insular Affairs noted that “the Secretary is to afford the highest duty or protection and care” to National Park lands. H.R. Rep. 95-581, at 21 (1978). The Senate Committee on Energy and Natural Resources concluded, “The Secretary has an absolute duty, which is not to be compromised, to fulfill the mandate of the 1916 Act to take whatever action and seek whatever relief as will safeguard the units of the National Park System.” S. Rep. No. 95-528, at 9.

Importantly, courts have found in these statutory requirements Secretarial authority to regulate non-federal activities and interests occurring off federal lands that pose threats to National Park lands. See, e.g., United States v. Vogler, 859 F.2d 638 (9th Cir. 1988) (regulation of vehicle use on claimed non-federal right-of-way within a National Park unit); United States v. Brown, 552 F.2d 817 (8th Cir. 1976) (prohibition of hunting on state-owned waters within external boundary of Voyageurs National Park). The DOI Solicitor has interpreted these statutory obligations to permit the Secretary to regulate activities on both federal and non-federal land outside the external boundary of a national park, if impacts can be felt within the park. Memorandum to Director, National Park Service, from Associate Solicitor, Division of Conservation and Wildlife (Sept. 20, 1985); M-Opinion M-36993 (April 16, 1993).

Under these authorities, it is our view that BLM is not free to approve the Lava Ridge project as currently proposed in Magic Valley Energy’s right-of-way application, especially because there is no dispute that the proposed wind turbines will harm the fundamental purposes, visual resources, and viewshed of the Minidoka NHS and Relocation Center. Accordingly, moving forward with the current decision-making process will generate needless risk and uncertainty and undermine the Administration’s Day One racial justice policies.

We support renewable energy, but believe that a more constructive approach would be for BLM to suspend the Lava Ridge EIS process. By taking a pause, BLM will have the opportunity to work with Magic Valley Energy, our organizations and local partners to update the area’s 37 year old out-of-date land use plan. By pausing, the BLM could explore responsible development of low-conflict renewable energy while at the same time protecting and preserving the visual, cultural and viewshed resources of the Minidoka Relocation Center and the Minidoka National Historic Site and other important multiple use public values.

Thus, we ask BLM to step back from the current decision-making process, honor this Administration’s commitment to environmental equity and justice and to update the Monument RMP before advancing further with an EIS on Lava Ridge.

BLM is under no obligation to consider Magic Valley Energy’s plan of development for the Lava Ridge project, especially because it runs counter to its legal obligations to protect and preserve the resources and values in and around Minidoka National Historic Site. See, e.g., BLM Decision relating to Sloan Canyon NCA, 2800 (NVs01000/NVS02000) (August 19, 2021) (denying right-of-way application because proposed project was inconsistent with BLM’s statutory obligations in managing public lands) (attached hereto as Exh.1.)

In the Federal Land Policy and Management Act (FLPMA), Congress found that “the national interest will be best realized if the public lands and their resources . . . and their present and future use is projected through a land use planning process.” 43 U.S.C. § 1701(a)(2). FLPMA directs BLM to develop and periodically revise lands use plans (also known as resource management plans), and RMPs are designed to guide resource management only for 15-20 years. See 43 U.S.C. § 1712(a) (Secretary “shall . . . develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands.”); Monument Resource Management Plan, at p. 1 (1985) (noting that the RMP was intended to “guide resource management in the Monument Planning Area for the next 15 to 20 years.”)

Despite these requirements, BLM continues to rely on the 1985 Monument RMP, even though this RMP is far past its expiration date. Moreover, the Monument RMP could not take into account the 2001 designation of the Minidoka Internment National Monument, the NPS’s 2006 General Management Plan and bipartisan 2008 Minidoka legislation as well as local land use planning and recent scientific information on cultural resources, wildlife species, vegetation communities, and other conservation-oriented resources.

We strongly recommend BLM immediately suspend all actions relating to the Lava Ridge project – including the on-going NEPA and Section 106 processes – and commence a holistic public process to revise the Monument RMP. Indeed, it is likely unlawful for BLM to engage in a decision-making process to permit a project on the scale and scope of the Lava Ridge project based on such a stale and out-of-date management plan.

BLM should therefore start anew, and examine the cultural, historic, and resource values of the public lands in and around the Minidoka NHS in a holistic way, providing for cultural resources, scenery, grazing, wildlife, recreation, renewable energy through “smart-from-the-start” siting principles and other important multiple uses. BLM has acknowledged its authority to pause action on applications for discretionary authorizations to undertake further analysis and study of possible impacts on lands. See M-36993, at 1 (interpreting Organic Act and 1978 Amendments to grant the Secretary “the legal authority . . . (2) to suspend action on the applications pending further study of possible impacts of [proposed action] on the park unit and on the environment generally”).

Indeed, the Secretary has recently taken similar approaches regarding the Crescent Peak wind project EIS at Ave Kwa Ame in Nevada, (DOI Letter to Eolus North America, Inc. dated November 19, 2018) and the Chaco Culture NHP in New Mexico, where BLM suspended discretionary actions while it prepares an updated and valid cultural resource assessment.

If BLM is unwilling to suspend the EIS process, at a minimum, it needs to add another Alternative to its Draft EIS and adopt administrative protections on lands not permitted for the wind project.

If BLM rejects our request to pause the Lava Ridge EIS process, while it updates the RMP, and decides to move forward with reviewing Magic Valley Energy’s application despite the dated and stale management plan, we strongly recommend that BLM, at a minimum, honor the requirements of Minidoka’s enabling legislation (discussed above) and President Biden’s Day One policies related to racial justice and the AANHPI community. Specifically, we request BLM to develop and analyze an additional alternative in the draft EIS that would avoid any adverse impacts on the Minidoka Relocation Center and Minidoka NHS.

While BLM’s current Alternative E represents an attempt to reduce the project’s adverse impacts, it would still have significant adverse impacts on Minidoka. We strongly encourage BLM to develop and analyze a new alternative that reduces adverse impacts on Minidoka not just to the maximum extent “practical” but rather to the maximum extent “possible.” Federal laws and regulations are filled with examples of the difference in meaning between those two standards and in order for the Lava Ridge EIS to include an analysis of a complete range of identifiable alternatives, an additional Alternative designed to minimize adverse effects to the maximum extent possible needs to be included.

Since we do not have access to spatial analysis expertise, we cannot definitively say whether the boundary lines of a new alternative should be two miles or more miles away from Alternative E. That sort of analysis should be conducted by the National Park Service with data and assistance from BLM and then be included in the Draft EIS for public comment.

Immediately Protect Minidoka’s Visual Resources and Viewshed via Administrative Action.

Irrespective of whether BLM agrees to suspend the decision-making process on Lava Ridge to update and modernize its management plan, BLM must also act immediately to protect – once and for all – Minidoka’s fundamental visual resources and viewshed via appropriate administrative action. Congress has already spoken, and required the Secretary (and implicitly, the BLM) to “protect [and] preserve” the historic, cultural, conservation, visual and viewshed resources across the 33,000 acres of the Minidoka Relocation Center. Despite this directive, Lava Ridge is now the second major energy project in 13 years to threaten the integrity of Minidoka.

We encourage BLM to use its broad discretionary planning authority to adopt a cultural protective designation for the Minidoka viewshed that will shield Minidoka and local partners from an endless future stream of additional proposed energy projects. We believe it would be unconscionable if BLM approved another energy project that has adverse impacts on the “unique and irreplaceable” resources at Minidoka without simultaneously adopting a protective cultural resource designation designed to protect Minidoka. We encourage BLM to consider protecting lands proposed for the Lava Ridge project in the Milner and Star Lake Grazing allotments along with a strip of BLM lands located to the south of the park (attached hereto as Exh. 2).

Accordingly, we would be pleased to work with the BLM, National Park Service, and local, regional, and national partners to develop an administrative approach to protect Minidoka from harmful activities on BLM lands on the north and south sides of Minidoka NHS. In addition to protecting the Minidoka Relocation Center and cultural landscape, this approach could also provide for public lands grazing, outdoor recreation and other traditional uses. We hope that we will be able to reach a mutually-agreeable resolution to this issue during the extant segregation on these lands, which lasts through August 20, 2023. See: Notice of Intent to Prepare an Environmental Impact Statement for the Proposed Lava Ridge Wind Project in Jerome, Lincoln, and Minidoka Counties, Idaho, 86 Fed. Reg. 46,867 (Aug. 20, 2021) (noting BLM initiated a temporary segregation of public lands subject to the proposed Lava Ridge project).

Along with the Amache NHS and the Commission to study a proposed new museum, Minidoka is a key tool to fight for racial justice, to combat the pandemic of racial hate and violence directed against the Asian American, Native Hawaiian and Pacific Islander (AANHPI) communities and to celebrate AANHPI contributions to our nation. We will not stand by and allow a second betrayal of the Japanese American community, as proposed by LS Power.

As stated by President Biden, “[m]y Administration is committed to maintaining these national parks and landmarks for future generations and to combating xenophobia, hate, and intolerance.” 2022 Day of Remembrance Proclamation.

We look forward to working with BLM and local partners to carry out the President’s commitment to racial justice and healing and ensure that the fundamental resources of the Minidoka and the surrounding landscape are protected for current and future generations.

Thank you for considering our views.

Sincerely,

Friends of Minidoka
Asian Americans Advancing Justice | AAJC
Asian Pacific American Labor Alliance, AFL-CIO
Bainbridge Island Japanese American Exclusion Memorial Association
Coalition to Protect America’s National Parks
Densho
Fred T. Korematsu Institute
Friends and Family of Nisei Veterans
Heart Mountain Wyoming Foundation
Japanese American Citizens League

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cc: Shannon Estenoz, Assistant Secretary for Fish, Wildlife and Parks
Laura Daniel-Davis, Principal Deputy Assistant Secretary, Lands and Minerals
Tracy Stone-Manning, Director, Bureau of Land Management
Chuck Sams, Director, National Park Service
Erika Moritsugu, Deputy Assistant to the President
Nathan Small, Chairman, Fort Hall Business Council, Shoshone Bannock Tribes