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My collegue Michael O’Connell issued the legal alert below on a recent significant Interior Board of Land Appeals decision concerning the intersection of tribal cultural resources and a BLM geothermal lease application:

The Interior Board of Land Appeals (IBLA or Board) decision, Earth Power Resources, 181 IBLA 94 (May 12, 2011), deals with BLM action on a geothermal lease application in Nevada. Citing National Historic Preservation Act (NHPA) section 304, 16 U.S.C. § 470w-3, BLM withheld from a geothermal lease applicant an ethnographic study of Ruby Valley that identified a tribal traditional cultural property (TCP) important to an Indian Tribe and disapproved the lease application in order to protect the TCP. The Board overturned BLM’s decision and remanded the case for further action.Continue Reading The Bureau of Land Management, Tribal Cultural Resources and Renewable Energy Development

From our colleague Michael O’Connell:

On April 2, 2010, the Advisory Council on Historic Preservation (ACHP) issued recommendations on Department of the Interior (Interior) procedures for coordination of energy project development and protection of historic properties. Among other measures, the ACHP recommended that: (a) Interior agencies “engage in effective tribal consultations early in the project planning and review process to enable full understanding and appreciation of tribal views on energy development and its potential to affect properties of religious and cultural significance to them;” (b) give “due deference” to the views of Indian tribes regarding the impact on historic properties that are integral to the cultural and religious identify of tribes; (c) ACHP develop guidance with the Council on Environmental Quality on coordination of National Historic Preservation Act (NHPA) and National Environmental Policy Act review processes; (d) ACHP and Interior develop guidance to assist other federal agencies in assessing effects of energy projects, “especially wind and solar projects,” on historic properties that comprise large areas, with special emphasis on properties of cultural and religious importance to Indian tribes; and (e) ACHP clarify the distinction between “direct” and “indirect” effects to historic properties and when visual effects may constitute “direct” effects.Continue Reading Advisory Council on Historic Preservation Recommendations Regarding Procedures for Energy Project Development

Stoel Rives partner Michael O’Connell reports:

On January 4, 2010, the Keeper of the National Register determined that Nantucket Sound is a traditional cultural property (TCP) of two Indian tribes that is eligible for listing in the National Register of Historic Places, even though the area is submerged. The Keeper made that determination in response to a request from the Mineral Management Service (MMS), which is considering a request for a lease of outercontinental shelf land for 130 wind turbines for the Cape Wind Project. MMS and the Massachusetts State Historic Preservation Officer (SHPO) disagreed on whether Nantucket Sound was eligible for listing.Continue Reading Interior Secretary Salazar Invites Parties Interested in Cape Wind Project to Resolve Impact of Determination that Nantucket Sound Is Eligible for Listing as an Historic Property