Public Employees for Environmental Responsibility
Coalition To Protect America’s National Parks
Western Watersheds Project
Basin and Range Watch
and John W. Hiscock
December 19, 2024
BLM Pahrump Field Office
Attn: Copper Rays Solar Project
4701 N. Torrey Pines Drive
Las Vegas, Nev. 89130
BL***********************@bl*.gov
Comments – Copper Rays Solar Project – Draft Environmental Impact Statement and Draft Resource Management Plan Amendment DOI-BLM-NV-S030-2022-0009-EIS
Public Employees for Environmental Responsibility and John W. Hiscock submit these comments in regard to the Bureau of Land Management (BLM), Project/NEPA # DOI-BLM-NV-S030-2022-0009-EIS Draft Environmental Impact Statement (DEIS) and Draft Resource Management Plan Amendment (DRMPA). Our comments focus on the sufficiency of the DEIS/DRMPA to assess the potential impacts of this action to protect the Old Spanish National Historic Trail (OSNHT).
Despite BLM’s cursory attention to the existence of the OSNHT, various shortfalls exist in Department of the Interior (DOI) and BLM OSNHT planning and proper management and protection of its resources, values, and opportunities, and in the analysis of the subject DEIS/DRMPA. As explained below, due to these shortfalls the proposed project should be withdrawn from consideration and approval, or if not, amended to include comprehensive analysis on potential impacts on the OSNHT.
If executed as proposed, this project will likely detrimentally affect the cultural and natural resources, landscape qualities (including historic landscape qualities), and values of the Trail corridor. BLM’s proposed action may, as a result, adversely affect our, and our members’, ability to continue to use and enjoy the OSNHT corridor as intended by the National Trails System Act (NTSA) – including adverse modification of the landscape and the viewshed, drastically changing the natural resources (vegetation and wildlife) and cultural resources associated with that landscape, and eliminating opportunities for vicarious experience of the historic landscape most similar to the time period 1829 – 1848. DOI and BLM have failed to effectuate statutory and policy requirements for planning, management, and protection of the OSNHT.
Background
The National Trails System (NTS) was created in law, by Congress, in 1968. National Trails System Act, Pub. L. No. 90-543 (codified as amended in 16 U.S.C. §§1241-1251). In 1978, Congress amended such law, and the National Trails System to include congressionally established National Historic Trails (NHTs). National Parks and Recreation Act of 1978, Pub. L. No. 95-625 (codified as amended in 16 U.S.C. §§1241-1251).
The Federal Lands Policy and Management Act (FLPMA) governing the management of public lands administered by the Secretary of the Interior through the BLM was passed as federal statutory law in 1976. Federal Land Policy and Management Act of 1976, Pub. L. 94-579 (codified as amended in 43 U.S.C. §§1701 – 1785). FLPMA generally mandates that public lands are to be managed under the principles of multiple use and sustained yield, however, it also states that “except that where a tract of such public land has been dedicated to specific uses according to any other provisions of law it will be managed in accordance with such law.” 43 U.S.C. §1732. Although FLPMA authorizes the BLM to grant right-of-way leases for “systems for generation, transmission, and distribution of electric energy” (see 43 U.S.C. 1761(a)(4)) on public lands, as proposed in the Copper Rays project, such authority is limited by the aforementioned overriding limitation applicable to tracts of land “dedicated to specific uses according to any other provisions of law” – in this situation, the NTSA.
The Old Spanish National Historic Trail was statutorily added to the National Trails System in 2002. Old Spanish Trail Recognition Act of 2002, Pub. L. No. 107-325 (codified as amended in 16 U.S.C. §1244). Overarching administration of the OSNHT was assigned by the Act to the Secretary of the Interior. Id. at §1244(a)(23)(C). The Secretary of the Interior subsequently delegated administration of the OSNHT jointly to the National Park Service (NPS) and the BLM. Memorandum, Secretary of the Interior (Gale A. Norton) to Director, National Park Service, and Director, Bureau of Land Management – Administrative Responsibility for the Old Spanish National Historic Trail, June 5, 2003.1It is worthy of note that the Secretary’s memorandum stated: “Coadministration of the Trail is a continuation of the commitment already shown by each agency and will be a great asset in assuring optimum preservation, enhancement, and public access for this outstanding, nationally significant resource.” (emphasis added).
BLM resource management plans (RMPs) for individual BLM management units) have been formally put in place over an extensive period of time. The relevant BLM RMP to the current action is the Las Vegas Field Area RMP. It was put in effect in October, 1998 prior to the establishment of the OSNHT by Congress, and in its original form, did not, therefore, address the existence and management of the Trail. In 2019, the BLM released an “Updated Record of Decision for the Approved Las Vegas Resource Management Plan and Final Environmental Impact Statement BLM/LV/LP-99/002+1610” for the Las Vegas and Pahrump Field Office areas. This “Updated Record of Decision” did acknowledge the existence of the OSNHT (17 years after its establishment by Congress) and attests to plan for the Trail’s management and protection, however fails to do so in comprehensive fashion or in accordance with BLM policy, or NTSA requirements.
The OSNHT, and in fact any National Historic Trails (NHTs) and National Scenic Trails (NSTs) “administered by the Bureau of Land Management” were added to a newly established federal system of conservation lands, the National Landscape Conservation System (NLCS) in 2009. Omnibus Public Lands Management Act of 2009, Pub. L. No. 111-11, Subtitle A (codified in 16 U.S.C. §7202(b)). Congress expressed the purpose of the Act as follows: “In order to conserve, protect, and restore nationally significant landscapes that have outstanding cultural, ecological, and scientific values for the benefit of current and future generations, there is established in the Bureau of Land Management the National Landscape Conservation System.” Id. at §7202(a). Furthermore, Congress directed that:
“The Secretary shall manage the system—
(1) in accordance with any applicable law (including regulations) relating to any component of the system included under subsection (b); and
(2) in a manner that protects the values for which the components of the system were designated.”
16 U.S.C. 7202©. Most importantly to this discussion the NLCS enabling statute recognized conservation, protection, and restoration of the “landscapes” of national historic trails, and their “cultural, ecological, and scientific values,” emphasizing and clarifying the nature and purposes of NHTs first outlined in the NTSA.
BLM Authority and Limitations on Authority for Allowing Solar Development
As outlined above, the BLM’s authority for permitting solar development on public lands stems from FLPMA – 43 U.S.C. 1761(a)(4). However, as also discussed, that authority is limited by FLPMA at 43 U.S.C. §1732. In the present case, the “tract of land” where FLPMA authorizations are limited by “other provisions of law” are the lands encompassed by the statutory establishment of the OSNHT, and the allowances and limitations of the NTSA.
The NTSA states that all “selected land and water based components of a historic trail which are on federally owned lands and which meet the national historic trail criteria established in this Act are included as Federal protection components of a national historic trail.” (16 U.S.C. §1242(a)(3)). Congress found that the 2700 miles of routes presented in the NPS “Old Spanish Trail – National Historic Trail Feasibility Study and Environmental Assessment” of July, 2021, met “national historic trail criteria” established in the NTSA and, therefore statutorily added those routes to the National Trails System as the OSNHT. Therefore, all portions of the OSNHT crossing federally owned lands, including the lands in question under the subject action, are “Federal protection components” of the Trail.
The NTSA spells out land use allowances and disallowances along NHTs as follows:
- “Within the exterior boundaries of areas under their administration that are included in the right-of-way selected for a national recreation, national scenic, or national historic trail, the heads of Federal agencies may use lands for trail purposes . . .” (16 U.S.C. §1246(d)).
- “National scenic or national historic trails may contain campsites, shelters, and related- public-use facilities,” “retracement” routes, trail “markers,” and “interpretation sites” within the Trail right-of-way (16 U.S.C. §1246(c)).
- “Other uses along the trail, which will not substantially interfere with the nature and purposes of the trail, may be permitted by the Secretary charged with the administration of the trail” (Id. emphasis added). Therefore, other uses along the Trail which would substantially interfere with the Trail’s nature and purposes are disallowed (Id.).
- The disallowance of “activities incompatible with the purposes for which such trails were established” (Id.);
- The limitation of the use of motor vehicles to those “which will not substantially interfere with the nature and purposes of the trail and which at the time of designation, . . . [were] allowed by administrative regulations” (Id.)
The “nature and purposes” of the OSNHT are:
- “to provide for the ever-increasing outdoor recreation needs of an expanding population and in order to promote the preservation of, public access to, travel within, and enjoyment and appreciation of the open-air, outdoor areas and historic resources of the Nation” (16 U.S.C.
§1241(a)); - to include “the identification and protection of the historic route and its historic remnants and artifacts for public use and enjoyment” (16 U.S.C. §1242(a)(3));
- the purpose of affording the public “an opportunity to vicariously share the experience of the original users of a historic route.” (Id. at §1251(2); and,
- the conservation and protection of the “landscape” of the Trail (Id. & 16 U.S.C. §7202(a)).
In summation, the conservation of the nature and purposes of the Trail entails protection of its cultural and natural resources and natural environment (including natural soundscapes and night skies), the protection of, or restoration of its landscape reminiscent of the period of significance of 1829 – 1848, and the protection of public opportunities for experiential recreation and education.
The Copper Rays Solar Project DEIS Fails to Properly Address Potential Impacts to the OSNHT
The DEIS categorizes its analysis of impacts to the OSNHT as insignificant and states:
This issue was not analyzed in detail because there is no potential for significant impacts as the Project site is over 5 miles from the Old Spanish National Historic Trail and would not directly or indirectly impact the trail. The centerline of the Old Spanish National Historic Trail (designated December 2002) is located more than 5 miles from the Project site. The trail corridor is informally considered by the National Park Service to extend 5 miles on either side of the centerline of the trail alignment to include the nearest elements of the viewshed, parts of the cultural landscapes, landmarks, and traditional cultural properties near the trail (NPS and BLM 2017).
DEIS at p. 1-13.
It is worth reiterating that the Secretary of the Interior’s authority to allow uses along NHTs is limited to such uses “which will not substantially interfere with the nature and purposes of the trail.” 16 U.S.C. §1246(c).
The DEIS states that because the project is more than five miles from the centerline of the Trail it is exempt from analysis regarding its potential impacts on the Trail. This conclusion is contrary to BLM policies regarding NT management (see generally BLM Manual 6250 – National Scenic and Historic Trail Administration (2012) and Manual 6280 – Management of National Scenic and Historic Trails (2012)) which are intended to effectuate BLM’s administrative and management responsibilities under the NTSA.
In order to fulfill the purposes of the NTSA, including protection of the Trail, it is necessary to delineate a zone of related resources and values adjacent to the pencil thin linear trace of the historic routes of travel recommended by the NPS Feasibility Study and enacted by Congress. There is no other way to manage and protect the Trail, and its landscape, as envisioned by Congress.
In fact, Congress recognized this need in its mandate to the Secretary of the Interior to establish an NTSA ROW for each NHT. The NTSA states that: “[p]ursuant to section 5(a), the appropriate Secretary [for the OSNHT, the Secretary of the Interior] shall select the rights-of-way for national scenic and national historic trails and shall publish notice thereof of the availability of appropriate maps or descriptions in the Federal Register . . . .” 16 U.S.C. 1246(a)(2). The NTSA also makes it clear that such ROWs are to have designated “width.” Id.
BLM policies on administration and management of NTs recognize the importance of the designation of NTSA ROWs, and exacting “trail corridors” for management and protection purposes. BLM Manual 6250 – National Scenic and Historic Trail Administration (2012) states:
The National Trail Right-of-Way . . . is selected by the National Trail administering agency in the trailwide Comprehensive Plan and includes the area of land that is of sufficient width to encompass National Trail resources, qualities, values, and associated settings in order to further the purposes for which the trail was designated by Congress. In selecting the right-of-way, the BLM, through the Secretary, shall include the resources, qualities, values, and associated settings, (comprised of the scenic, historic, cultural, recreation, natural, and other landscape values of the land areas through which such National Trails may pass), and the primary use or uses. Id.at p. 1-8.
To date, the Secretary of the Interior nor his/her OSNHT Co-Administrators have selected or published “appropriate maps or descriptions” of such rights-of-way for the OSNHT in the Federal Register in accordance with this statutory mandate.
BLM policies on NT management contained in Manual 6280 – Management of National Scenic and Historic Trails (2012) even go further and direct the agency’s field office RMPs to conduct comprehensive inventories of NT resources, values, and opportunities on their respective lands, and identify “trail corridors” encompassing those resources, values and opportunities for management and protection purposes. See id. at Chap. 3 (re: inventories) and Chap. 4 (re: land use planning for “trail management corridors).
To date, there is no indication that BLM has conducted the referenced, comprehensive OSNHT inventories in the Las Vegas Field Office area, or established a “trail management corridor” in that area.
The BLM DEIS reliance on a “suggested” yet unfounded protective zone of five miles from the centerline of the OSNHT limiting its responsibilities for assessing potential impacts on the Trail is neglectful and arbitrary. As justification for that statement and finding the BLM cites the “Old Spanish National Historic Trail Comprehensive Administrative Strategy” (CAS) issued by the BLM and NPS Co-Administrators in 2017. The CAS is nothing more than an internal, administrative “strategy” that does not meet the requirements of the NTSA for a comprehensive management plan, was not intended to replace an NTSA comprehensive management plan, and was not subjected to NEPA release and review. Therefore, its contents, while providing some degree of advice from the Co-Administrators to land management agencies such as the BLM, is not formal or binding. Furthermore, it is disingenuous that the BLM DEIS would cite the NPS Co-Administrator’s language concerning the “informal,” possible width of a trail management corridor, given that the CAS goes on to explain “[t]he BLM follows direction from their trail administration manual to establish a trail corridor” (CAS at p.5) and generally, that although “trail protection corridors range from zero to five miles (or more) on either side of the trail route” “[t]hese are arbitrary and conceptual approaches”, and that “[t]rail administrators will encourage a landscape- or viewshed based approach for trail corridor establishment and protection.” (Id. at p.21). Clearly, the BLM DEIS has “selectively” cited the CAS, and ignored its contextual discussion of Trail protection corridors, and BLM policy on Trail inventories and corridor establishment via said inventories and RMP amendments.
BLM’s DEIS also states that the project is outside of the viewshed landscape of the OSNHT, and therefore the project does not potentially impact Trail resources, values, and opportunities. But, the BLM has only assessed the viewshed landscape from one point along the Trail, at Stump Spring.2It should be noted that a contact with the Basin and Range Watch organization contests BLM’s assertion that the project is not in the viewshed from Stump Spring. BLM states that from that point the project will not be visible. However, if the project is visible from any point on the OSNHT in the area, even at a distance greater than five miles it will arguably impact the nature and purposes of the Trail, and, therefore possibly “interfere with the nature and purposes of the trail. ” BLM should double check possible disruptions of the OSNHT viewshed landscape from multiple points along the OSNHT in the broader area.3For instance: checking the viewshed from a point along the OSNHT where it crosses the 3400 ft. contour east of Stump Spring at a distance of 10.44 miles from the project; and, checking the viewshed from a point along the OSNHT where it crosses the 3000 ft. contour southwest of Stump Spring on a ridgeline between the Pahrump and California Valleys in CA at a distance of 9.75 miles from the project.
It is also worthy of note that BLM Manual 6280 states “[t]o retain or improve the integrity of the associated settings and scenic values for which the National Trail was designated, the BLM should consider establishing VRM classes at the most protective level practicable to meet National Trail scenery management objectives”, and strongly encourages a “VRM Class I or II designation for . . . National Historic Trail Federal Protection Components” (BLM Manual 6280 at p.4-8) as in the case of the OSNHT in the Pahrump Valley. However, neither the Las Vegas Field Office RMP, yet to be amended in accordance with Manual 6280, calls for such classification, or does the DEIS acknowledge such policy guidance.
A final factor worth pointing out is the proposed solar policy embodied in the BLM’s Programmatic Environmental Impact Statement for Utility-Scale Solar Energy Development (#DOI-BLM-HQ-3000- 2023-0001-RMP-EIS) applicable to BLM lands in all of the six states crossed by the OSNHT (New Mexico, Colorado, Arizona, Utah, Nevada, and California). That programmatic plan and its intended amendments to all BLM RMPs throughout its area of applicability, including Nevada, calls for exclusion of solar development projects within a 30 mile wide “trigger” zone – 15 miles on either side of the centerline of NHTs (and, national scenic trails as well). Solar development proponents are allowed to submit right-of-way development proposals within said zone, however, such applications will “trigger” a requirement for a BLM/proponent comprehensive trail corridor inventory. Then with the inventory in hand, BLM will assess whether any such proposed projects may “substantially interfere with the nature and purposes of the trail” to ascertain whether the project should be approved given that NTSA limitation. The aforementioned “Solar PEIS” excluded all projects for which applications were already received, such as, presumably, the subject Copper Rays project, however, importantly, it formally recognizes BLM’s responsibilities already existing in the law, and its policies, such as the 2012 Manual 6280, which implicitly and explicitly reinforce that such analysis should apply regardless of the “grandfathered” project exception.
Requested Withdrawal or Revision of the Copper Rays DEIS
The individuals and organizations submitting these comments request the withdrawal of the DEIS for the Copper Rays project on the following basis:
- Due to the failure of the DOI to complete a statutorily required comprehensive management plan for the OSNHT in accordance with NEPA requirements, and therefore, a partial lack of guidance and direction concerning said Trail existing within the BLM and its field offices, the existing DEIS is deficient in its assessment of potential impacts to the Trail.4A lawsuit has been filed – Public Employees for Environmental Responsibility, et. al. v. United States Department of the Interior, et. al. (United States District Court for the District of Columbia)( Civil Action No. 24-cv-3420) requesting declaratory and injunctive relief, including DOI’s preparation of a OSNHT CMP, DOI’s designation of a OSNHT NTSA ROW, and enjoining defendants (DOI, BLM, and NPS) from considering any development or use proposals that would affect federal lands within fifteen miles of either side of the Old Spanish Trail center line until defendants establish a right-of way and complete and submit to Congress a Comprehensive Management Plan for the Old Spanish Trail. The Copper Rays solar project is referenced in the Complaint as a project that may potentially impact the Trail, and would, therefore, possibly be precluded or delayed should plaintiffs prevail. BLM should take the ramifications of this lawsuit into account in its ongoing processing of the Copper Rays solar development project.
- Due to the failure of the DOI to designate a statutorily required NTSA right-of-way for the OSNHT, the existing DEIS is deficient in its assessment of potential impacts to the Trail.5See Footnote #4.
- Due to the failure of the BLM Las Vegas/Pahrump Field Office area RMP to include a comprehensive inventory of OSNHT resources, values, and public opportunities in accordance with BLM policy (Manual 6280), the existing DEIS is deficient in its assessment of potential impacts to the Trail.
- Due to the failure of the BLM Las Vegas/Pahrump Field Office area RMP to include a designated OSNHT Trail Management and Protection Corridor in accordance with BLM policy (Manual 6280), the existing DEIS is deficient in its assessment of potential impacts to the Trail.
-
Due to the failure of the DEIS to properly analyze the cumulative potential impacts of the totality of solar development projects in the Pahrump Valley, the DEIS is deficient in its assessment of potential impacts to the Trail.
Should the BLM inadvisably decide to proceed with finalization of the project EIS we strongly request the following steps and revisions:
- A comprehensive inventory of all OSNHT resources, values, and public opportunities including cultural and natural resources and natural environment (including natural soundscapes and night skies), the protection of, or possibilities of restoration, of its landscape reminiscent of the period of significance of 1829 – 1848, and the protection of public opportunities for experiential recreation and education. Such inventory should be subject to public release and opportunity for comment.
- A RMP designation of a OSNHT Trail Management and Protection Corridor in accordance with BLM Manual 6280, and subject to NEPA.
- A complete assessment of the potential cumulative impacts of existing, proposed and speculative solar development projects on BLM lands in the Pahrump Valley on the cultural and natural resources and natural environment (including natural soundscapes and night skies), the protection of, or possibilities of restoration, of its landscape reminiscent of the period of significance of 1829 – 1848, and the protection of public opportunities for experiential recreation and education of the OSNHT Corridor.
Sincerely,
| John W. Hiscock, JD johnwhiscock@gmail.com 435-689-1630 Laura Dumais Staff Counsel PEER ldumais@peer.org 202-792-1277 Laura Cunningham California Director Western Watersheds Project lcunningham@westernwatersheds.org | Chandra Rosenthal Public Lands Director Public Employees for Environmental Responsibility (PEER) crosenthal@peer.org 303-898-0798 Philip A. Francis Chair Coalition to Protect America’s National Parks editor@protectnps.org 202-819-8622 Kevin Emmerich CoFounder Basin and Range Watch atomicquailranch@gmail.com 775-764-1080 |