CHAPTER 5 LAKE POWELL PIPELINE PROJECT: TRADITIONAL CULTURAL PROPERTIES DESIGNATION AND PROTECTION OF KAIBAB PAIUTE TRIBAL RESOURCES
| Jurisdiction | United States |
(Apr 2012)
LAKE POWELL PIPELINE PROJECT: TRADITIONAL CULTURAL PROPERTIES DESIGNATION AND PROTECTION OF KAIBAB PAIUTE TRIBAL RESOURCES
Gregg de Bie
McElroy, Meyer, Walker & Condon, P.C.
Boulder, Colorado
ALICE E. WALKER is the managing partner with the law firm of McElroy, Meyer, Walker & Condon, P.C. Her practice is limited to the representation of Indian tribes concentrating primarily on the litigation and negotiation of natural resource disputes, treaty rights, water rights, regulatory issues, and matters related to tribal gaming and federal acknowledgment. Ms. Walker received her B.A. degree from Earlham College in 1983, her M.S. from Georgetown University in 1992, and her J.D. from Georgetown University Law Center in 1992.
Rocky Mountain Mineral Law Institute
2012 Conference
Denver, Colorado
April 26, 2012
I. INTRODUCTION.
This paper examines the issue of the protection of traditional cultural properties ("TCPs") and other culturally significant properties and sites1 in the context of determining whether the Lake Powell Pipeline Project (sometimes referred to herein as "Project") should receive a hydroelectric power license from the Federal Energy Regulatory Commission ("FERC" or "Commission"). The preparation of the environmental impact statement ("EIS") required by the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-70h , to determine whether the benefits of the project outweigh the environmental costs requires the consideration of TCPs and other culturally significant sites that may be affected by the project which are also protected by various federal statutes, regulations, and executive orders. This paper examines the protection of TCPs and other culturally significant resources from the perspective of the Kaibab Band of Paiute Indians ("Kaibab Tribe") whose reservation and aboriginal lands lie in the path of the proposed Project.
The Kaibab Tribe's approach to confronting the Lake Powell Pipeline Project and the forces that are pushing it to come to fruition raises myriad questions. In this paper, we examine the process by which TCPs and other culturally significant sites are identified and protected, the importance of tribal consultation throughout the analysis of whether the project may proceed, the consequences of the failure to engage in tribal consultation, and the experience of the Kaibab Tribe with respect to the Lake Powell Pipeline Project. We conclude with some recommendations on how developers of major projects such as the Lake Powell Pipeline Project can work with Indian tribes to identify and develop methods to protect TCPs and other culturally significant resources, and minimize potential impediments to project development.
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II. LAKE POWELL PIPELINE PROJECT PARTIES.
A. STATE OF UTAH.
In 2007, the State of Utah filed a notice of intent with FERC to construct a pipeline, known as the Lake Powell Pipeline Project, to transport water from storage in Lake Powell to St. George and Cedar City, Utah. See Notice of Application Accepted for Filing and Soliciting Motions to Intervene, Protests, and Comments, Utah Board of Water Resources, Lake Powell Hydroelectric Project No. P-12966 (Nov. 2, 2007).2 Geographically, it would appear that putting Colorado River water in St. George and Cedar City is untenable, but Utah has two significant problems that a conveyance of water from Lake Powell in the east to Utah cities in the west will solve. First, and most obviously, St. George and southwestern Utah communities need water to serve agricultural needs as well as provide municipal supplies. The local sources, which include the Virgin River and the Santa Clara River, are fully appropriated, and Utah has closed those groundwater basins to additional claims. Second, Utah has an unused allocation of water from the Colorado River. Under Article III of the Upper Colorado River Basin Compact (Oct. 11, 1948) among the states of Colorado, Wyoming, New Mexico, Arizona3 and Utah, Utah is entitled to 23% of the available flow of the Colorado River in the Upper Basin. The Colorado River Interim Guidelines for Lower Basin Shortages and Coordinated Operations for Lake Powell and Lake Mead, which regulate the operation of Lake Powell to mitigate the impacts of shortages in water availability to the Lower Basin States of California, Nevada and Arizona, will become permanent in 2026. Thus, the State of Utah has determined that the Lake Powell Pipeline must be operational before the 2026 date.4 As proposed, the entire length of the pipeline will be 177 miles.5
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B. KAIBAB BAND OF PAIUTE INDIANS.
The Kaibab Tribe is a federally recognized Indian tribe whose permanent homeland is the Kaibab Indian Reservation ("Reservation").6 The Reservation was established by the Department of the Interior in 1907,7 confirmed by Executive Orders in 1913 and 1917, and lies within the Kaibab Tribe's much larger aboriginal territory in the Arizona Strip in northern Arizona. See Constitution of the Kaibab Band of Paiute Indians of the Kaibab Indian Reservation, Arizona art. II, § 1; Findings of Fact ¶ 2, S. Paiute Nation v. United States, 14 Indian Cl. Comm'n 618, 619 (1965) ("Findings of Fact"); Traditional Southern Paiute Territory: Band Divisions (2001) (map showing Southern Paiute tribes' aboriginal territories) (Attachment 1 hereto). Arizona Highway 389 traverses the entire length of the Reservation for a distance of about 12 miles. The most logical route for constructing a portion of the Project would be to follow Highway 389 as it crosses the Reservation, since the route is flat and access already exists. The route identified by the State of Utah, however, lies to the south of the Reservation where there is no access road, and the terrain is very difficult. The southern route includes the significantly important Kanab Creek Canyon that the pipeline would have to cross. Additionally, the Bureau of Land Management ("BLM") considers the area to the south of the Reservation to be an Area of Critical Environmental Concern and wishes to avoid disturbance of that area. In short, the easiest and preferred route by the State and the BLM would be to cross the Reservation. Nevertheless, the State of Utah has identified the southern route as the route for the Project because as of the date of this paper, the Kaibab Tribe has not expressly agreed that the Project may cross the Reservation.
Whether the Project utilizes a corridor that runs through the Reservation or skirts the Reservation to the south, it will affect the Tribe's interests. As determined by the Indian Claims Commission, the lands that will be affected by the proposed pipeline are entirely within the Kaibab Tribe's aboriginal territory, which the Tribe has occupied since time immemorial. See Findings of Fact ¶ 2. The Kaibab Tribe is the entity with the most familiarity of the existing environment that would be affected by the proposed pipeline in and around the Reservation. See Richard W. Stoffle et al., Ethnographic Assessment of Kaibab Paiute Cultural Resources in Grand Staircase-Escalante National Monument, Utah 39 (Bureau of
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Applied Research in Anthropology, Univ. of Ariz., Tucson Oct. 2004). On a more specific note, the Kaibab Tribe is the only entity with special expertise to identify TCPs in the vicinity of the proposed pipeline in and around its Reservation. The Kaibab Tribe, then, is the entity best suited to ensure historic and cultural protection in the face of the Project.
C. FEDERAL ENERGY REGULATORY COMMISSION.
A two-pronged licensing process, following FERC's Integrated Licensing Process ("ILP") regulations, 18 C.F.R. pt. 5, is underway to determine first, whether the pipeline may produce hydroelectric power as it conveys water from Lake Powell to the west, and second, whether the benefits of the Project will outweigh the environmental harm caused by the construction, operation and maintenance of the pipeline, including the withdrawal of water from Lake Powell to serve Utah's needs. The ILP regulations combine the environmental, social, economic, cultural and other studies that are required for both FERC licensing of a hydropower project, as well as for compliance with NEPA, such that a project proponent only engages in one set of studies. The ILP regulations are relatively new (about eight years old), and the Lake Powell Pipeline Project is among the first original hydroelectric licenses to which the ILP regulations have been applied. The majority of the twenty-three required studies are now complete, which will serve both the FERC licensing requirements as well as NEPA analysis in the EIS. Significantly, the twenty-three completed studies will also play a central role in tribal decision-making regarding the location of the Project.8
III. IDENTIFICATION AND PROTECTION OF TCPs.
As stated, FERC required Utah to conduct twenty-three studies to analyze the impacts of the Project on environmental, economic and social resources in the region that will be affected by the Project. Two of the required studies - archaeological and ethnographic resources - relate to the question whether the identification and designation of TCPs in the Project's area of potential effect ("APE") can assist the Kaibab Tribe in the protection of those resources vis-a-vis such development projects, and whether examination of TCPs alone is sufficient to protect tribal interests that may lie in the path of a proposed development project. This question is especially important since TCPs are a special kind of historic property "defined generally as one that is eligible for inclusion in the National Register [of Historic Places] because of its association with cultural practices or beliefs of a living community that (a) are rooted in that community's history, and (b) are important in maintaining the continuing...
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