'Case -WVG Document1 7 ORIGINAL Cory I. Briggs (State Bar no. 176284) Mekaela M. Gladden (State Bar no. 253673) 99 East Street, Suite 111 Upland, CA 91786 Telephone: 909-949?7115 - FacSImile: 909-949-7121 LA CUNA DE AZTLAN SACRED SITES PROTECTION CIRCLE ADVISORY CALIFORNIANS FOR RENEWABLE ALFREDO ACOSTA PHILLIP, PATRICIA RONALD VAN and CATHERINE OHRIN-GREIPP, Plaintiffs, . VS. UNITED STATES DEPARTMENT OF THE KEN SALAZAR, in the of?cial capacity of Secretary of the United States Department of the' Interior; UNITED STATES BUREAU OF LAND ROBERT ABBEY, in the official capacity of Director of the United States Bureau of Land Management; TERI RAML, in the official; capaclty of District Manager of the California Desert District of the United States Bureau of) Land Management; MARGARET GOODRO, in the official capacity of Field Manager of the El Centro Field Office ofthe United States Bureau of Land Management; JOHN KALISH, in the official capacity Of Field Manager of the Palm 1 Spring South Coast Field Office of the United States Bureau of Land Management; RUSTY LEE, in the official ca acity of Field Manager ofthe Needles Field 0 fice ofthe United States Bureau of Land Management; and ROXIE TROST, in the official ca acity of Field Manager of the BarstowFie Office of the United States Bureau of Land Management, Defendants. BRIGGS LAW CORPORATION 1190.03] Attorneys for Plaintiffs La Cuna de Aztlan SacredSit?s Protection Circle Advisory Committee, CAlifornianS for Renewable Energy, Alfredo Acosta Figueroa, Phillip Smith, Patricia Figueroa, Ronald Van Fleet, and Catherine Ohrin-Greipp Filed 12/27/10 Page 1 of 68 ED 10 015027 A1111: 10~ 1.4.8. DISTRICT CI DISTRICT OF WENT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA WVG CASE NO. COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF UNDER THE ADMINISTRATIVE PROCEDURES ACT, THE NATIONAL HISTORIC PRESERVATION . ACT, THE NATIONAL, ENVIRONMENTAL POLICY ACT, THE FEDERAL LAND POLICY AND MANAGEMENT ACT, AND THE NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT 00V 266.1; h, IxCase -WVG- Document 1 - Filed 12/27/10 Page 2 of 68 Plaintiffs LA CUNA DE SACRED SITES PROTECTION CIRCLE ADVISORY COMMITTEE, CALIFORNIANS FOR RENEWABLE ENERGY, ALFREDO ACOSTA FIGUEROA, PHILLIP SMITH, PATRICIA FIGUEROA, RONALD VAN FLEET, and CATHERINE OHRIN-GREIPP allege as follows: Parties 1. Plaintiff La Cuna de Aztlan'Sacred Sites Protection Circle Advisory Committee is a non-profit, 501 organization and a party to that'certainAmendmentNo. I to Memorandum ofUnderstanding Between United States Department ofthe Interior Bureau ofLand Management and the Southern Low Desert Resource Conservation and Development Council. LA CUNA is comprised of 15 indigenous and culturally aware individuals who are dedicated to physically protecting the Giant Intaglios, other and several hundred sacred sites that are located along the Colorado River from Needles, California, to Yuma, Arizona. (A true and correct'copy of Amendment No. 1 is attached to this pleading as Exhibit 2. Plaintiff CAlifornians for Renewable Energy is a non?profit organization formed to promote public education concerning the responsible deveIOpment of renewable energy and in the preservation of and respect for Native American culture. 3. Plaintiffs Alfredo Acosta Figueroa, Phillip Smith, Patricia Figueroa, Ronald Van Fleet. and Catherine Ohrin-Greipp are individuals who'reside in the areas affecting by the actions challenged in this lawsuit and have an interest in the responsible developmentof . renewable energy and in the preservation of and respect for Native American culture. I 4. The United States Department of the Interior and the United States Bureau of Land Management are agencies or instrumentalities ofthe United States. 5. A The following Defendants arebeing sued in their official capacities: Ken Salazar, in the of?cial capacity of Secretary of the United States Department of the Interior; Robert Abbey, in the official capacity of Director of the United States Bureau of Land Management; Teri Ram], in the official capacity of District Manager ofthe California Desert District of the United States Bureau of Land Management; Margaret Goodro,'in the official capacity of Field COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Rage 2 u?I a?d o?I in.? u?Case -WVG Document 1 Filed 12/27/10 Page?3 of 68 Manager ofthe El Centro Field Office ofthe-United States Bureau of Land Management; John Kalish, in the official capacity of Field Manager of the Palm Spring South Coast Field Office ofthe United States Bureau of Land Management; Rusty Lee, in the official capacity of Field Manager of theNeedles Field Office ofthe United States Bureau of Land Management; and Roxie Trost, in the official capacity ofField Manager ofthe Barstow Field Office ofthe United States Bureau of Land Management. I Background Information 6. Generally speaking, this lawsuit challenges Defendants?iactions in connection with six solar-electricity generation projects taking place on federal (public) land: namely, Ivanpah Solar Electric Generating System Project andAssociatedAmendment to the California Desert Conservation Area Plan (?Ivanpah Project?), approximately 3,472 acres in size; Genesis Solar Energy Project and Amendment to the California Desert Conservation Area Plan (?Genesis Project?), approximately 1,950 acres in size; Imperial Valley Solar Project and Amendment to the California Desert Conservation Area Land Use ManagementPlan (?Imperial Project?), approximately 6,360 acres in size; Chevron Energy Solutions Lucerne Valley Solar Project andAmendment to the California Desert Conservation Area Plan (?CheVron Project?), approximately 422 acres in size; Calico Solar Project and Amendment to the California Desert Conservation Area Land Use Management Plan (?Calico Project?), approximately 4,613 acres in size; and Solar Power Project and Amendment to the California Desert Conservation Area Plan Project?), approximately 7,025 acres in size. The records of decision adopted. by and the approvals given by Defendants for each of the challenged projects (collectively, ?Projects?) are as follows: A. For the Ivanpah Project, Defendants have (among other things) approved an amendment to the California Desert Conservation Area Plan Plan?) to include the Ivanpah Project as'aln approved power generation location under the Energy Production and Utility Corridors Element ofthe CDCA Plan; and granted four right-of?way authorizations] The-right-of-way authorizations are for the Construction Logistics sitel(CACA-49502) to Solar Partners 1, II, and for the Ivanpah 1 site (GAGA-49504) to Solar Partners 11, for Ivanpah 2 site (CACA-48668) to Solar Partners 1, and for Ivanpah 3 site (GAGA-49503) to Solar COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 3 I?Case -WVG Document 1 Filed 12/27/10 Page 4 of ?68. B. For the Genesis Project, Defendants have (among other things) approved an amendment to_the CDCA Plan to include the Genesis Project as an approved power generation location under the Energy Production and UtilityCorridors Element ofthe CDCA Plan; and granted a right?of?way authorization. C. i For the Imperial Project, Defendants have (among other things) approved an. amendment to the CDCA Plan to include the Imperial Project as an approved power generation location under the Energy Production and Utility Corridors Element ofthe CDCA Plan; and granted a right-of-way authorization. D. For the Chevron Project, Defendants have(among other things) approved an amendment to the CDCA Plan to include the Chevron Project as an approved power generation location under the Energy Production and Utility Corridors Element ofthe CDCA Plan; and granted a right-of-way, authorization. E. For the Calico Project, Defendants have (among other things) approved an amendment to the CDCA Plan to include the Calico Project as an approved power generation location under the Energy Production and Utility Corridors Element of the CDCA Plan; and granted a right?of?way authorization. I F. For the Project, Defendants have (among other things) approved an amendment to the CDCA Plan to include the Project as an approved power generation loCation under the Energy Production and Utility Corridors Element of the CDCA Plan; and granted a right-of?way authorization. I I 7. Plaintiffs challenge the Projects on a variety of grounds. By way of example and not limitation: I I A. For each of the Projects, Defendants failed to properly engage in the consultations required for the Project under the National Historic Preservation Act 16 U.S.C. 470 etseq. B. i For each ofthe Projects, Defendants failed to conduct an adequate analysis of the cumulative impacts, failed to prepare a programmatic environmental impact statement, Partners LLC, Page 4 COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. failed to adequately identify and evaluate the signi?cance of the affected cultural environment, and failed to conduct an adequate analysis of alternatives to the Projects under the National Environmental Policy 42 U.S.C. 4321 et seq. C. For the Projects collectively, Defendants failed to prepare a programmatic environmental impact statement for the broad major federal action contemplated by the Projects, in violation In a presentation delivered at Defendants? National Land Use Planning Conference in 2009, Defendants announced publicly that they were in the process ofpreparing a programmatic statement covering the Projects (and other solar-electricity generation projects). It turns out, however, that Defendants failed to complete the programmatic statement before approving the Projects. (A true and correct copy ofthe presentation is attached to this pleading as Exhibit I D. For each-ofthe Projects, Defendants violated the Federal Land Policy and Management Act of 1976 43 1701 etseq., by authorizing solar-electricity generation activities on lands designated in the CDCA Plan as Class (Limited Use) lands even though such-activities are permitted under the CDCA Plan only on Class (Moderate Use) or Class I (Intensive Use) lands, and by allowing the permanent impairment ofthe lands affected by the Projects and allow unnecessary or undue degradation on these lands. .E. Defendants? approval of the Projects will result in the intentional excavation, disposal, or other removal of Native American cultural items (including human remains) known to be or strongly suspected of being on the Projects? sites, in violation ofthe Native American Graves Protection and Repatriation Act 25 U.S.C. 3001 et seq. . Jurisdiction, Venue, and Exhaustion of Remedies? 8. This Court has jurisdiction over this proceeding pursuant to Sections 1331 and 1361 of Title 28 of the US. Code because this pleading alleges violations of federal law and seeks to compel Defendants to perform duties owed to Plaintiff, its members, and other members ofthe public; The Court also hasjurisdiction over this proceeding pursuant to Section - 551 at sea. of Title 5 ofthe US. Code, commonly known as the Administrative Procedure Act COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. PageS Case -WVG Document 1 Filed 12/27/10 Page 6 of 68 because the pleading seeks judicial review of actions taken by one or mere agencies or officers ofthe United States. I i 9. Venue is proper in this Court under Section 139 1 of Title.28 ofthe US. Code, because Defendants are either officers, employees, or agencies of the United States and/or (ii) both a substantial part of the events or omissions giving rise to this proceeding were committed in this judicial district and a substantial part of the property at issue in this proceeding is located in this judicial district. I I 10. Plaintiffs have satisfied each and every exhaustion;of-remedies requirement that must be satisfied?in order to maintain this proceeding. Alternatively, no exhaustion-of-remedies requirement may be applied to Plaintiffs. 1 l. Plaintiffs have no plain, speedy, adequate remedy in the ordinary course of law since Plaintiffs, their respective members, and other members of the public will suffer irreparable harm as a result of Defendants' violations of federal law as alleged in this pleading. Defendants? violations rest on the failure to satisfy a clear, present, ministerial duty to act in accordance with federal law. 12. Plaintiffs have a beneficial right and interest in Defendants? ful?llment of-all their legal duties, as alleged in this pleading. I FIRST CLAIM: Violation of National Himion Act--Ivanpah Project (Against All Defendants except Kalish, Goodro, and Trost) 13. Paragraphs 1 through 12 are fully incorporated into this paragraph. 14. NHPA Section 101(d)(6)(Bj provides as-follows: Properties oftraditional religious and cultural importance to an Indian tribe or Native Hawaiian organization may be determined to be eligible for inclusion on the National Register. (B) Incarrying out its responsibilities under section 106 ?of this Act, a Federal agency shall consult With any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to properties described in subparagraph NHPA Section 106 provides as follows: ?The head of any Federal agency having direct or indirectjurisdiction over a proposed Federal or federally assisted undertaking in any State and the head ofany Federal department or?independent agency COMPLAINT FOR INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 6 Case -WVG Document 1- Filed 12/27/10 Page 7 of 68 having authority to license any undertaking shall, prior to the approval ofthe expenditure ofany Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect ofthe undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any 'such?Federal agency shall afford the Advisory Council on Historic Preservation established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking.? 15. Plaintiffs, both separately and collectively, attach religious and cultural significance to the federal (public) land that will be affected by the Ivanpah Project. This land - has traditional religious and cultural importance to Indian tribes and to Plaintiffs. Consequently, - Plaintiffs will be seriously harmed by Defendants? failure to comply with NHPA. 16. Under AmendmentNo. 1 (Exhibit Defendants were required to perform the I NHPA?prescribed consultations with Plaintiff LA CUNA. Even in the absence ofAmendment No. 1, Defendants were required to perform the NHPA-prescribed consultations for the benefit of Plaintiffs (among others). i i I 17. Defendants failed to perform the NHPA-prescribed consultations for the Ivanpah Project; Their failure in this regard was contrary to NHPA and arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law as required by the APA. 18. Plaintiffs, their respective members, and other members ofthe public have been harmed as a result of Defendants? violations of NHPA and the APAI'because they have been denied the bene?ts and protections provided by compliance with those laws. By way of example and without limitation, Plaintiff, its members, the public,-and the decision-makers who approved and are carrying out the Ivanpah Project were not fully informed about the traditional religidus and cultural importance attached by Plaintiffs and Indian tribes to the federal (public) land that will be affected by the Ivanpah Project. SECOND CLAIM: I Violation of National Environmental Policy Act--Ivanpah Project (Against All'Defendants except Kalish, Goodro, and Trost) 19. Paragraphs 1 through 18 are fully incorporated into this paragraph. COMPLAINT FOR AND MANDAMUS RELIEF ETC. Page 7 cooqmmawm Case -WVG Document 1 Filed 12/27/10 Page 8 of 68 20. NEPA requires every federal agency to prepare an environmental impact- statement for every major action significantly affecting the quality of the human environment that the agency proposes to approve or carry out. ?In general, the EIS must adequately address the proposed action?s environmental impact, (it) any adverse environmental effects that cannot be?avoided? if the proposed action is implemented, alternatives to the proposed action, (iv) the relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity, any irreversible and irretrievable commitments of resources that would be involved in the proposed action ifimplemented, (vi) mitigation measures for the proposed action, and (vii) cumulative impacts for the proposed action. 21. Defendants have not prepared an adequate EIS for the Ivanpah Project even though it is a major action proposed to be approved and carried out by at least one federal agency and has the potential to affect the quality ofthe human environment, including but not limited to the environment in the California Desert Conservation Area. 22. Defendants? failure to prepare an adequate EIS for the Ivanpah Project was contrary to NEPA and arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law as required by the APA. I 23. I Plaintiffs, their reSpective members, and other members ofthe public have been harmed as a result of Defendants? violations of NEP?rand the APA because they have been denied the benefits and protections provided by compliance with those law's. By way of example and without limitation,P1aintiff, its members, the public, and the decision-makers who approved and are carrying out the Project were not fully informed about the impacts of, mitigation measures for, and alternatives to the Projectprior to the decision to approve and-carry out the Project. THIRD CLAIM: Violation of National Enmicy Act--Ivanpah Project (Against All Defendants except Kalish, Goodro, and Trost) 24. Paragraphs 1 through 23 are fully incorporated into this paragraph. COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 8 amigo-stun.th Ca?se -WVG Document 1 Filed 12/27/10. Page 9 of 68 25. NEPA (under Kleppe v. Sierra Club, 427 U.S. :390 (1976)) requires the . environmental consequences of several proposals that will have. cumulative or synergistic environmental impacts upon a region to be considered together in a programmatic EIS. Section 1502.4(b) of Title 40 of the Code of Federal Regulations provides that federal agencies ?shall prepare statements on bread actions so that they are relevant to policy and are timed to coincide with meaningful points in agency planning and decisionmaking.? 26. Each ofthe Projects is a major federal action, and together they constitute broad action by Defendants. 27. Defendants did not prepare a programmatic EIS for the Projects. 28. With regard to the Ivanpah Project, Defendants? failure to prepare a programmatic EIS for the Projects was contrary to NEPA and arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law as required by the APA. 29. Plaintiffs, their respective members, and other members ofthe public have been harmed as a result of Defendants? violations of NEPA and the APA because they have been denied the benefits and'protections provided by compliance with those laws. By way? of example and without limitation, Plaintiff, its members, the public, and the decision-makers who - approved and are carrying out the Project were not fully informed about the programmatic impacts of, mitigation measures for, and alternatives to the Projects prior to the decision to approve and carry out the Ivanpah Project. FOURTH CLAIM: Violation of Federal Land my an anagement Act--Ivanpah Project (Against All Defendants except Kalish, Goodro, and Trust) 30. Paragraphs 1 through 29 are fully incorporated into this paragraph. 31. FLPMA Section 302(b) provides as follows: ?In managing the public lands, the Secretary shall, subject to this Act and other applicable law and under such terms and conditions as are consistent with such law, regulate, through easements, permits, leases,_licenses_, published rules, or other instruments as the Secretary deems appropriate, the use, occupancy, and development of the public lands, including, but not limited to, long?term leases to permit individuals to utilize public lands for habitation, cultivation, and the development ofsmall trade COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 9 00 CYUI b) Case -WVG Document 1 Filed 12/27/10 Page 10 of 68 or manufacturing concerns: Provided, That unless otherwise provided for by law, the Secretary may permit Federal departments and agencies to use, occupy, and develop public lands only through rights-of-way under section 507 ofthis Act, withdrawals under section 204 ofthis Act, and, where the prOposed use and development are similar or closely related to the programs of the Secretary for the public lands involved, cooperative agreements under subsection of section 307 of this Act: Provided further, That nothing in this Act shall be construed as authorizing the Secretary concerned to require Federal permits to hunt and fish on public lands or on lands in the National Forest System and adjacent waters or as enlarging or diminishing the responsibility and authority of the States for management of fish and resident wildlife. However, the Secretary concerned may designate areas of public land and of lands in the National Forest System where, and establish periods when, no hunting'or fishing will be permitted for reasons of public safety, administration, or compliance with provisions of applicable-law. Except in emergencies, any regulations ofthe Secretary Concerned relating to hunting and fishing pursuant to this section shall be put into effect. only after consultation with A the appropriate State fish and game department. Nothing in this Act shall modify or change any provision of Federal law relating to migratory birds orto endangered or threatened species. Except as provided in section 314, section 603, and subsection of section 601 ofthis Act and in the last sentence cfthis paragraph, no provision ofthis section or any other section ofthis Act. shall in'any way amend the Mining Law of 1872 or impair the rights of any locators or claims under that Act, including, but not limited to, rights of ingress and egress. In managing the public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation ofthe lands.? 32. FLPMA Section 601(d) provides as follows: ?The Secretary [ofthe Interior], in accordance with section 202 ofthis Act, shall prepare and implement a comprehensive, long- range plan for the management, use, development, and protection ofthe public lands within the California'Desert Conservation Area. Such plan shall take into account. the principles of multiple use and sustained yield in providing for resource use and development, including, but i not limited to, maintenance ofenvironmental quality, rights-of-way, and mineral development. COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS ETC. Page 10 00 ON U) Case -WVG Document 1 Filed 12/27/10 Page 11 of 68 Such plan shall be completed and implementation there-ofinitiated on or before September 30, 1980.? I .33. FLPMA Section 601(f) provides as follows: ?Subject to valid existing rights, nothing in this Act shall affect the applicability ofthe United-States mining laws on the public lands within the california Desert Conservation Area, except that all mining claims located on public lands within the California Desert Conservation Area shall be subject to such reasonable regulations as the Secretary may prescribe to effectuate the purposes ofthis section. Any patent issued on any such mining claim shall recite this limitation and continue to be subject to such regulations. Such regulations shall provide for such measures as may be reason-able to protect the scenic, scientific, and environmental values of the public lands of the California Desert Conservation Area againstundue impairment, andto assure against pollution ofthe streams and waters-within the California Desert Conservation Area." i 34. Defendants have not compliedwith FLPMA as it relates to the Ivanpah Project even, though it is located on federal (public) land and is within the California Desert Conservation Area and subject to the CDCA Plan. I 35. Defendants? failure to comply with the CDCA Plan and take all action necessary to prevent-unnecessary oriundue degradation of the federal (public) land affected when they approved the Ivanpah Project wascontrary to FLPMA and arbitrary, capricious, an abuse of discretion, or otherwise not-in accordance with law as requiredtby the APA. 36. Plaintiffs, their respective members, and other members ofthe public have been harmed as a resultof Defendants? violations of FLPMA and the APA because they have been denied the benefits and protections provided by compliance with those laws. By way of example and without limitation, Plaintiff, its members, and the .public will have to endure unnecessary or undue degradation ofthe federal. (public) land affected by the Ivanpah Project and will lose the?protections-provided for this land by the CDCA Plan. 1 . . I FIFTH CLAIM: I Violation of Native American Gravm Re atriation Act--Ivanpah Project (Against AllDefendants except Kalish, .oodro, and Trost) 37. Paragraphs 1 through-V36 are fully incorporated into this paragraph. COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 11 n?i -- 0? o?I I Case -WVG Document 1 Filed 12/27/10 Page 12 of 68 38. Section 3(b) of the NAGPRA provides as follows: ?Native American cultural items not claimed under subsection ofthis section shall be disposed of in accordance with regulations promulgated. by the Secretary [of the Interior] in consultation with the review committee established under section ofthis [Act], Native American groups, representatives of museums and the scientific community? -3 9. Section 3(c) ofthe NAGPRA provides as follows: ?The intentional removal from or excavation of Native American cultural items from Federal or tribal lands for purposes of discovery, study, or removal of such items is permitted only if-- I such items are excavated or removed pursuant to a permit issued .under section 470cc of Title 16 [ofthe U.S. Code] which shall be consistent with this [Act]; I items are excavated or removed after consultationwith or, in the case of tribal. lands, consent of the appropriate (if any) Indian tribe or Native Hawaiian organization; the ownership and right of control of. the disposition of such items shall be. as provided in subsections and ofthis section; and proof of consultation or consent under paragraph (2) is shown.? . 40. Defendants? approval of the Ivanpah Project will result in the intentional excavation, disposal, or other removal of Native American cultural items (including human remains) known to be or strongly suspected of being on thesite of the Project without compliance with the conditions necessary for excavation, disposal, or other removal. By way of example and not limitation, Defendants have not consulted with or obtained the consent of the Indian tribe whose cultural remains or located on the site ofthe Project. 41. Defendants? failure to consult with and obtain the consent of the appropriate Indian tribe prior to excavating, disposing of, or otherwise removing Native American cultural items?(including human remains) known to be or strongly suspected of being on the site of the COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 12 Case -WVG Document 1' Filed 12/27/10 Page 13 of 68 Ivanpah Project was contrary to the NAGPRA and arbitrary, capricious, an abuse ofdiscretion, or otherwise not in accordance with law as required by the APA. 42. Plaintiffs, their respective members, and other members ofthe public have been harmed as a result of Defendants? violations ofthe NAGPRA and the APA because they have been denied the benefits and protections provided by compliance with those laws. By way. of example and Without limitation, Plaintiff, its members, and the public (including the appropriate Indian tribe) will have to endure the excavation, disposal, or other removal ofNative American cultural items (including human remains) located on the site ofthe Ivanpah Project without the necessary consultation and consent prior to Defendants? approval ofthe Project. 7 SIXTH CLAIM: Violation of National Himion Act--Genesis Project (Against All Defendants except Lee, Goodro, andTrost) 4'3. - Paragraphs 1 through 42 are fully incorporated into this paragraph. 44. NHPA Section lOl(d)(6)(B) provides as follows: PrOperties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization may be determined to be eligible for inclusion on the National Register. (B) In ,carrying out its responsibilities under section 106 of this Act, a Federal agency shall consult with any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to properties described in subparagraph NHPA Section 106 provides 'as follows: ?The head. of any Federal agency having direct or indirectjurisdiction over a proposed Federal or federally assisted undertaking in any State and the head ofany Federal department or independent agency having authority to license any undertaking shall, prior to the approval ofthe expenditure ofany Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect ofthe undertaking onany district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any'such Federal agency. shall afford the Advisory Council on Historic Preservation established under TitleII of this Act a reasonable opportunity to comment with regard to such undertaking.? 45. Plaintiffs, both separately and, collectively, attach religious and cultural significance to the federal (public) land that will be affected by the Genesis Project. This land COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. - Page 13 OO ON kn 45 U3 r?d- u?u u?n HA o?n t-d I?n a?n Case -WVG Document 1 Filed 12/27/10 Page 14 of 68 has traditional religious and cultural importance to Indian tribes and to Plaintiffs. Consequently, Plaintiffs will be seriously harmed by Defendants? failure to comply with NHPA. 46. UnderAmendmentNo. 1 (Exhibit-?AU, Defendants were required to perform the NHPA-prescribed consultations with Plainti?ffLA CUNA. Even in the absence ofAmendment No. 1, Defendants were required to perform the NHPA-prescribed consultations for the benefit of Plaintiffs (among others). I I 47. Defendants failed to perform the NHPA-prescribed consultations for the Genesis Project. Their failure in this regard was contrary to NHPA and arbitrary, capricious, an abuse ofdiscretion, or otherwise not in accordance with law as required by the APA. 48._ Plaintiffs, their respective members, and other members ofthe public have been harmed as a result of Defendant's? violations of NHPA and the APA because they have been denied the benefits and protections providedby compliance with those laws, By way of example and without limitation, Plaintiff, its members, the public, and the decision?makers who approved and are carrying out the Genesis Project were not fully informed about the traditional religious and cultural importance attached by Plaintiffs and Indian tribes to the federal (public) land that will be affected by the Genesis Project. I SEVENTH CLAIM: Violation ofNational Environmental Policy Act--Genesis Project (Against All Defendants except Lee,'Goodro, and Trost) 49. . Paragraphs 1 through 48 are fully incorporated into this paragraph. 50. NEPA requires every federal agency to prepare an environmental impact statement for every, major action significantly affecting the quality of the human the agency proposes to approve or carry out. In general, the EIS must adequately address, the proposed actio?n?s environmental impact, (it) any adverse environmental effects that cannot be. avoided if the proposed action is implemented, alternatives to the?proposed action, (iv) the relationship between local short-term uses of the environment and the maintenance and enhancement of long?term productivity, any irreversible and irretrievable commitments ofresources that would be involved in the proposed COMPLAINT FOR DECLARATORY, MANDAMUS RELIEF ETC. Page 14 .45- I . Case -WVG Document 1 Filed 12/27/10 Page 15 of 68 action ifimplemented, (vi) mitigation measures for the proposed action, and (vii) cumulative impacts for the proposed action. A I 51. Defendants have not prepared an adequate EIS for the Genesis Project even though it is a major action proposed to be approved and carried out by at least one federal agency and has the potential to affect the quality ofthe human environment, including but not limited to the environment in the California Desert Conservation Area. 52. Defendants? failure to prepare an adequate EIS for the Genesis Project was contrary to NEPA and?arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law as required by the APA. 53. Plaintiffs, their respective members, and other members ofthe public have been harmed as a result of Defendants? violations of NEPA and the APA because they have been denied, the benefits and protections provided by compliance with those laws. By way of example-and without limitation, Plaintiff, its members, the public, and the decision-makers who approved and 'are carrying out the Project wereinot fully informed about the impacts? of, mitigation measures for, and alternatives to the Project prior to the decision to approve and carry out the Project. . EIGHTH CLAIM: . Violation of NatiOnal Environmental Policy Act--Genesis Project (Against All Defendants except Lee,xGoodro, and Trost) 54. Paragraphs 1 through 53 are fully incorporated into this paragraph. 55. I NEPA (under Kleppe v. Sierra Club, 427 US. 390 (1976)) requires the environmental consequences of several proposals that willhave cumulative or synergistic environmental impacts upon a region to?be considered together in a programmatic EIS. Section 1502.4(b) of Title 40 ofthe Code ofFederal Regulations provides that federal agencies ?shall prepare statements on broad actions so that they are relevant to policy and are timed to coincide with meaningful points in agency planning and decisionmaking.? I 56. Each ofthe Projects is amajor federal action, and together they constitute broad action by Defendants. 57. Defendants did not prepare a programmatic EIS for the Projects. COMPLAINT FOR DECLARATORY, AND MANDAMUS RELIEF ETC. Page 15 Case -WVG Document 1 Filed 12/27/10 Page 16 of 68 58. With regard to the Genesis Project, D?efendants? failure to prepare a programmatic EIS for the Projects was contrary to NEPA and arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law as required by the APA. 59. Plaintiffs, their respective members, and other members ofthe public have been harmed as a result of Defendants? violations of NEPA and the APA because they have been denied the benefits and protections provided by compliance with those laws. By way of example and without limitation, Plaintiff, its members, the public, and the decision-makers who approved and are carrying out the Project were not fully informed about the programmatic impacts of, mitigation'measures for, andialternatives to the Projects prior to the decision to approve and carry out the Genesis Project. I NINTH CLAIM: Violation of Federal Land PWgement Act--Genesis Project (Against All Defendants except Lee, Goodro, and Trost) 60. Paragraphs 1 through 59? are fully incorporated into this paragraph. 61. FLPMA Section 302(b) provides as follows: ?In managing the public lands, the Secretary shall, subject to this Act and other applicable law and under such terms and conditions as are consistent with such law, regulate, through easements, permits, leases, licenses, published rules, or other instruments as the Secretary deems appropriate, the use, occupancy, and development of the public lands, including, but not limited to, long?term leases to permit individuals to utilize public lands for habitation, cultivation, and the development ofsmall trade or manufacturing concerns: Provided, That unless otherwise provided for by law, the Secretary may permit Federal departments and agencies to use, occupy, and develop public lands only through rights-of-way under section 507 ofthis Act,?ywithdrawals under section 204 ofthis Act, and, where the proposed use anddevelopment are similar or closely related to the programs of the Secretary for the public lands involved, cooperative agreements under, subsection of section 307 of this Act: Provided further, That nothing in this Act shall be construed as- authorizing the Secretary concerned to require Federal permits to hunt and fish on public lands or on lands in the National Forest System and adjacent waters or as enlarging or diminishing the responsibility and authority of the States for management of fish'and resident wildlife. COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 16 t?I Case -WVG Document 1 Filed 12/27/10 Page 17 of 68 However, the Secretary concerned may designate areas of public land and of lands in the National Forest System where, and establish periods when, no hunting or fishing will be permitted for reasons of public safety, administration, or compliance with provisions of applicable law. Except in emergencies, any regulations ofthe Secretary concerned relating to hunting and fishing pursuant to this section shall be put into effect only after consultation with the apprOpriate' State ?sh and game department. Nothing in this Act shall modify or change any provision of Federallaw relating to migratory birds or to endangered or threatened species. Except as provided in section 314, section 603, and subsection of section 601 ofthis Act'and in the last sentence of this paragraph, no provision ofthis section or any other section ofthis Act shall in any way?amend the Mining Law of 1872 or impair the rights of any locators or claims under that Act, including, but not limited to, rights of ingress and egress. In managing the public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue d?gradatidn i'ofthe lands.? I 62. FLPMA Section 601(d) provides as follows: ?The Secretary [ofthe Interior], in accordance with section .202 ofthis Act, shall prepare and implement a comprehensive, long- range plan for the management, use, development, and protection ofthe public lands within the California Desert Conservation Area. Such plan shall take into account the principles of multiple use and sustained yield in providing for resource use and development, including, but not limited to, maintenance ofenvironmerital quality, rights-of?way, and mineral development. Such plan shall be completed and implementation there-?ofinitiated on or before September 30, 1980.? 63. FLPMA Section 601(f) provides as follows: ?fSubject to valid existing rights, nothing?in this Act shall affect the applicability ofthe United States mining laws on' the public lands within the California Desert Conservation Area, except that all mining claims located on public lands within the California Desert Conservation Area shall'be subject to such reasonable regulations as the Secretary may prescribe to effectuate the purposes ofthis section. Any patent issued on any such mining claim shall recite this limitation and continue to be subject to_such regulations. Such regulations shall provide for such measures as may be reason-able .to protect COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 17 hCase -WVG Document 1 Page 18 of 68 the scenic, scienti?c, and environmental values of the public lands of the California Desert Conservation Area against undue impairment, and to assure against pollution ofthe streams and waters within the California Desert Conservation Area.? 64 Defendants have not complied with FLPMA as itrelates to the Genesis. Project even though .it is located on federal (public) land and is within the California Desert Conservation Area and subject to the CDCA Plan. 65. Defendants? failure to comply with the Plan and take all action necessary to prevent unnecessary or undue degradation of the federal (public) land affected when they approved-the Genesis Project was contrary to and arbitrary, capricious, an abuse iof discretion, or otherwise not in accordance with law as required by the APA. 66. Plaintiffs, theirrespective members, and other members ofthe public have been harmed as a result of Defendants? violations of FLPMA and the APAbecauseythey have been denied the benefits and protections provided by compliance with those laws. By way of example and without limitation, Plaintiff, its members, and the public will have to endure unnecessary or undue degradation ofthe federal (public) land affected by the Genesis Project and will lose the protections provided for this land by the CDCA Plan. a TENTH CLAIM: Violation of Native American Gram Repatriation Act--Genesis Project (Against All Defendants except Lee, Goodro, and Trost) I 67. Paragraphs 1 through 66 are fully incorporated into this paragraph. 68. Section 3(b) of the NAGPRA provides as folloWs: ?Native American-cultural items not claimed under subsection ofthis section shall be disposed of in accordance with regulations promulgated by the Secretary-[of the Interior] in consultation with the review committee established under section. ofthis [Act], Native American groups, representatives of museums and the scientific community.? 69. Section 3(0) ofthe provides as follows: ?The intentional removal from or excavation of Native American cultural items from Federal or tribal lands for purposes of discovery, study, or removal of such items is permitted only if-- COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 13 Case -WVG Document 1 Filed 12/27/10 Page 19 of 68 such items are excavated or removed pursuant to a permit issued under section 470cc ofTitle 16 [ofthe U.S. Code] which shall be consistent with this [Act]; such items are excavated or removed after consultation with or, in the case of tribal lands, consent of the appropriate (if any) Indian tribe or Native Hawaiian organiiation; the ownership and right of control of the disposition of such items shall be as provided in subsectidns and of this section; and proof of consultation or consent under paragraph (2) is shown.? 70. Defendants? approval of the .Genesis Project will result in the intentional excavation, disposal, or other removal of Native American cultural items (including human remains) known-to be or strongly suspected of being on the site of the Project without compliance with the conditions necessary for excavation, disposal, or other removal. By way of example and not limitation, Defendants have not consulted with or obtained the consent of the Indian tribe whose cultural remains or located on the siie of the Project; 71. Defendants? failure to consult with and obtain the consent of the appropriate Indian tribe prior to excavating, disposing of, or. otherwise removing Native American cultural items (including human remains) known to be or strongly suspected of being on the site ofthe Genesis Project was contrary to the NAGPRA and arbitrary, capricious, an abuse of discretion, .or otherwise not in accordance with' law as required by the APA. 72. Plaintiffs, their respective members, and other members of the public have been harmed as a result of Defendants? violations ofthe NAGPRA and the APA because they have been denied the benefits and protections provided by compliance with those laws. By way of example and without limitation, Plaintiff, its members, and the public (including the apprOpriate Indian tribe) will have to endure the exCavation, disposal, or other removal ofNative American cultural items (including human remains) located on the site ofthe Genesis Project without the necessary consultation and consent prior to Defendants? approval of the Project. COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 19 \DOO?leNM-bwwr?n t? 0? 'uLII 45- Case -WVG Document 1 Filed 12/27/10 Page 20 of 68 ELEVENTH CLAIM: Violation of National Historic Preservation Act--Imperial Project (Against All Defendants except Lee, Kalish, and Trust) 73. Paragraphs 1 through 72 are fully incorporated into this paragraph. 74. . NHPA Section 101(d)(6)(B) provides as follows: Properties of traditional - religious and cultural importance to an Indian tribe or Native Hawaiian organization may 'be determined to be eligible for inclusion on the National Register. (B). In carrying out its responsibilities under section 106 of this Act, a Federal agency shall consult with any Indian tribe or Native Hawaiian organization that attaches religious and cultural signi?cance to properties described in subparagraph NHPA Section 106 provides as follows: ?The head ofany Federal agency having direct or indirectjurisdiction over a proposed Federal or federally assisted undertaking in any State and the head ofany Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any . Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect ofthe undertaking on any district, site, building, structure, or object that is included in orleligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under Title II of this Act a reasonable opportunity to commentwith regardto such undertaking.? 75. Plaintiffs, both separately and collectively, attach religious and cultural significance to the federal (public) land that will be affectedby the Imperial Project. This land has traditional religious and cultural importance to Indian tribes and to Plaintiffs. Consequently, Plaintiffs will be seriously harmed by Defendants? failure to comply with NHPA. 76. Under AmendmentNo. 1 (Exhibit Defendants were required to perform the NHPA-prescribed consultations with Plaintiff LA CUNA. Even in the absence ofAmendment No. 1, Defendants were required to perform the NHPA-prescribed consultations for the benefit 'of Plaintiffs (among others). 77. Defendants failed to perform the NHPA-prescribed consultations for the Imperial Project. Their failure in this regard was contrary to NHPA and arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law as required by the APA. COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 20 N-H Case -WVG Document 1 Filed 12/27/10 Page 21 of 68 78. Plaintiffs, their respective members, and other members of the public have been I harmed as a result of Defendants? violations of NHPA and the APA because they have been denied the benefits and protections provided by compliance with those laws. By way of example and without limitation, Plaintiff, its members, the public, and the decision-makers who approved and are carrying out the Imperial Project were not fully informed about the traditional religious and cultural importance attached by Plaintiffs and Indian tribes to the federal (public) land that will be affected by the Imperial Project. . TWELFTH CLAIM: Violation of National Environmental Policy Ac't--Imperial Project (Against All Defendants except Lee, Kalish, and Trost) 79,. Paragraphs 1 through 78 are fully incorporated into this paragraph. 8f). NEPA requires every federal agency to prepare an environmental impact statement for every, major action significantly affecting the quality of the human environment that the agency-proposes to approve or carry out. In general, the EIS must adequately address the proposed action?s environmental impact, (it) any adverse environmental effects that cannot be avoided if?the proposed action is implemented, alternatives to the proposed action, (iv) the relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity, any irreversible and irretrievable commitments of resources that would be involved in the proposed action if implemented, (vi) mitigation measures for the proposed action, and (vii) cumulative impacts for the proposed action. 81. Defendants have not prepared an adequate EIS for the Imperial Project even though it is ?a-major action proposed to be approved and carried out?by at least one federal agency and has the potential to affect the quality ofthe human environment, including but not. limited to the environment in the California Desert Conservation Area. 82. Defendvants? failure to prepare an adequate EIS for the Imperial Project was contrary to NEPA and arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law as required by the APA. COMPLAINT FOR DECLARATORY, AND MANDAMUS RELIEF ETC. Page 21 00 \1 ON U) \On 00 \1 ON LII Case -WVG Document 1 Filed 12/27/10 Page 35 of 68' alternatives to the propOsed action, (iv) the relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity, any irreversible and irretrievable commitments of resources that would be involved in the proposed action if implemented, (vi) mitigation measures for the proposed action, and (vii) cumulative impacts for the proposed action. 141.. Defendants have not prepared an adequate EIS for the Calico Project even though it is a major action proposed to be approved and carried out by at least one federal agency and has the potential to affect the quality ofthe human environment, including but not limited to the environment in the California Desert Conservation Area. 142. Defendants? failure to prepare an adequate EIS for the Calico Project was contrary to NEPA and arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law as required by the APA. 143. Plaintiffs, their respective members, and other members of the public have been harmed as a result of Defendants? violations of NEPA and the APA because they have been denied the bene?ts and proteCtions?provided by compliance with those laws. By way of example and without limitation, Plaintiff, its members, the public, and the decision-makers who approved and are carrying out the Project were not fully informed about the impacts of, mitigation measures for, and alternatives to the Project prior to the decision to approve and carry out the Project. TWENTY-THIRD CLAIM: Violation of National Environmental Policy Act--Calico Project (Against All Defendants except Lee, Kalish, and Goodro) 144. Paragraphs 1 through 1'43 are fully incorporated into this paragraph.- 145. NEPA (under Kleppe v. Sierra Club, 427 U.S. 390 (1976)) requires the environmental consequences of several proposals that will have cumulative or synergistic environmental impacts upon a region to be considered together in a programmatic EIS. Section 1502.4(b) of Title 40 ofthe Code of Federal Regulations provides that federal agencies ?shall prepare statements on broad actions so that they are relevant to policy and are timed to coincide with meaningful points in agency planning and decisionmaking.? COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND .MANDAMUS RELIEF ETC. Page 35 Case -WVG Document 1 Filed 12/27/10 Page 36 of 68 146. Each ofthe Projects is a major federal action, and together they constitute broad action by Defendants. 147. 148. Defendants did not prepare a programmatic EIS for the Projects. With regard to the calico Project, Defendants? failure to prepare a programmatic EIS for the Projects was contrary to NEPA and arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law as required by the APA. I 149. Plaintiffs, their respective members, and other members ofthe public have been harmed as a result of Defendants? violations of NEPA and the APA because they have been denied the benefits and protections provided by compliance with those laws. By way of example and without limitation, Plaintiff, its members, the public, and the decision-makers who approved and are carrying out the Project were not fully informed about the programmatic impacts of, mitigation measures for, and alternatives to theProjects prior to the decision to approve and carry out the Calico Project. TWENTY-FOURTH CLAIM: Violation of FederalLand Policy and Management Act--Calico Project (Against All Defendants except Lee, Kalish, and Goodro) 150. Paragraphs 1 through 149 are fully incorporated into this paragraph. 151. FLPMA Section 302(b) provides?as follows: ?In managing the public lands, the Secretary shall, subject to this Act and other applicable law and under such terms and conditions as are consistent with such-law, regulate, through easements, permits, leases, licenses, published rules, or other instruments as the Secretary deems appropriate, the use, occupancy, and development of the public lands, including, but not limited to, long-term leases to permit individuals to utilize public lands for habitation, cultivation, and the development of'small trade or manufacturing concerns: Provided, That unless otherwise provided for by law, the Secretary may permit Federal departments and agencies to use, occupy, and develop public lands. only through rights-of?way undersection .507 ofthis Act, withdrawals under section 204 ofthis Act, and, where theproposed use and development are similar or closely related to the programs'of the Secretary for the public lands involved, cooperative agreements under subsection of section 307 of this Act: Provided further, That nothing in this Act shall be construed as COMPLAINT FOR AND MANDAMUS RELIEF ETC. Page 36 Case -WVG Document 1 Filed 12/27/10 Page 37 of 68 authorizing the Secretary concerned to require Federal permits to hunt and fish on public lands or on lands in the National Forest System and adjacent waters or as enlarging or diminishing the responsibility and authority of the States for management or fish and resident wildlife. However, the Secretary concerned may designate areas of public land and of lands in the National Forest System where, and establish periods when, no hunting or fishing will be permitted for reasons of public safety, administration, or compliance with provisions 0f applicable law. Except in emergencies, any regulations ofthe Secretary concerned relating to hunting and fishing pursuant to this section shall be put into effect only after consultation with the appropriate State fish and game department. Nothing in this Act shall modify or change any provision of Federal law relating to migratory birds or to endangered or threatened species. Except as provided in section 314, section 603, and subsection of section 601 ofthis Act and .in the last sentence ofthis paragraph, no provision ofthis section or any other section ofthis Act shall'in any way amend the Mining Law of 1872 or impair the rights of any locators or claims under that Act, including, but not limited to, rights of ingress and egress.? In managing the I public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands.?- 152. FLPMA Section 601(d) provides as follows: ?The Secretary [ofthe Interior], in accordance with section 202 of this Act, shall prepare and implement a comprehensive, long- range plan for the management, use, development, and protection ofthe public lands within the . California Desert Conservation Area. Such plan shall take into account the principles of multiple use and sustained yield in providing for resource use and development, including, but . not limited to, maintenance of environmental quality, rights-of-way, and mineral development. Such plan shall be completed and implementation there-ofinitiated on or before September30, 1980.? 153. FLPMA Section 60l(f) provides as'follows: f?Subject to valid existing rights,. nothing in this Act shall affect the applicability ofthe United States mining laws on the public lands within the California Desert Conservation Area, except that all mining claims located on public lands within the California Desert Conservation Area shall be subject to such reasonable COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. .Page 37 b?d h?l u?Case -WVG Document 1 Filed 12/27/10 Page 38 of 68 regulations as the Secretary may prescribe to effectuate the purposes ofthis section. Anypatent issued on any such mining'claim shall recite this limitation and continue to be subject to such regulations. Such regulations shall provide for such measures as may be reason-able-to protect the scenic, scienti?c, and environmentalvalues of the public lands of the California Desert Conservation Area against undue impairment, and to assure against pollution of the Istreams and waters within the california'Desert Conservation Area.? 154. Defendants have not complied with FLPMA as it relates to the Calico Project even though it is located on federal (public) land and is within the California Desert . Conservation Area and subject to the CDCA Plan. 155. Defendants? failure to comply with the CDCA Plan and take all action necessary to prevent unnecessary or undue degradation of the federal (public) land affected when they approved the Calico, Project was contrary to FLPMA and arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law as required by the APA. 156. Plaintiffs, their respective members, and other members ofthe public have been harmed as a result of Defendants? violations of FLP-MA and the APA because they have been denied the benefits and protections provided by compliance with those laws. By way of example and. without limitation, Plaintiff, its members, and the public will have to endure unnecessary or undue degradation ofthe federal (public) land affected by the calico Project and will. lose the protections provided for this land by the CDCA Plan. TWENTY-FIFTH CLAIM: Violation of Native American Graves Protection Repatriation Act--Calico Project (Against All Defendants except Lee, Kalish, and Goodro) 157. Paragraphs 1 through 156 are fully incorporated into this paragraph. 158. "Section 3(b) of the NAGPRA provides as fol-lows: ?Native American cultural items not claimed under subsection ofthis section shall be disposed of in accordance with regulations promulgated by the Secretary [of the?Interior] in consultation with the review committee established under section ofthis[Act], Native American groups, representatives 4 of museums and the scientific community.? . Page 38 COMPLAINT FOR INJUNCTIVE, AND MANDAMUS RELIEF ETC. I?l Case -WVG Document 1 Filed 12/27/10 Page 39 of 68 1'59. Seetion 3(c) ofthe NAGPRA provides as follows: ?The intentional removal from or excavation of Native American cultural items from Federal or tribal lands for purposes of discovery, study, or removal of such items is permitted only if-- such items are excavated or removed pursuant to a permit issued under section 470cc ofTitle 16 [ofthe US. Code] which shall be consistent with this [Act]; such items are excavated or removed after consultation with or, in the case of tribal lands, consent of the appropriate (if any) Indian tribe or Native Hawaiian organization; I I the ownership. and right of control of the disposition of such items shall be as provided in subsections and ofthis section; and proof of consultation or consent under paragraph (2) is shown.? I 160. Defendants? approval of the Calico Project will result in the intentional excavation, disposal, or other removal of Native American cultural items (including human remains) known .to be or strongly suspected of being on the site of the Project without compliance with the conditions necessary for excavation, disposal, or other removal. By way of example and not limitation, Defendants-have not consulted with or obtained the consent of the Indian tribe whose cultural remains or located on the site oftheProject. 161?. Defendants? failure to consult with and obtain the consent of the appropriate Indian tribe prior to excavating,,disposing of, or otherwise removing Native American cultural items (including'human remains) known to be or strongly suspected ofbeing on the site ofthe Calico Project was contrary to the NAGPRA and arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law as required by the APA. 162. Plaintiffs, their respective members, and other members of the public have been harmed as a result of Defendants? ?violations ofthe and the APA because they have been denied the'benefits and protections provided by compliance with those laws. By way of example and without limitation, Plaintiff, its members, and the public (including the appropriate COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND M-ANDAMUS RELIEF ETC. Page 39 I Case -WVG Document- 1 Filed 12/27/10 Page 40 of 68 Indian tribe) willhave to endure the excavation, diSposal, or other removal ofNative American cultural items (including human remains) located on the site ofthe Calico Project without the necessary consultation and consent prior to Defendants? approval of the Project. TWENTY-SIXTH CLAIM: Violation of NationalHistoric Preservation Project (Against All Defendants except Lee, Trost, and Goodro) 163.. Paragraphs 1 through 162 are fully incorporated into this paragraph. 164. NHPA Section 101(d)(6)(B) provides as follows: Properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization may be determined to be eligible for. inclusion on the National Register. (B) In carrying out its responsibilities under section -106 ofthis Act, a Federal? agency shall consult with any Indian tribe or Native Hawaiian organization that attaches religious and cultural signi?cance to properties described in subparagraph NHPA Section 106 provides as follows: ?The head of any Federal agency having direct or indirectjurisdictidn over a proposed Federal or federally assisted undertaking in any State and the head ofany Federal department or independent agency having authority-to license any undertaking shall, prior to the approval ofthe eitpenditure ofany Federal funds on the undertaking or prior to the issuance ofany license, as the case may be, take into account the effect ofthe undertaking on any district, site,bui1ding, structure, or object that is included in or eligible for inclusion in the National'Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking.? I 165. Plaintiffs, both separately and collectively,"attach religious and cultural .significance to the federal (public), land that will be affected by the Project. This land has traditional religious and cultural importance to Indian tribes and to Plaintiffs. Consequently, Plaintiffs will be seriously harmed by Defendants? failure to comply with?NHPA. 166. UniderAmendmentNo. 1- (Exhibit were required to perform the NHPA-prescribed consultations with Plaintiff LA CUNA. Even in the abSence ofAmendment No. I, Defendants were required to perform the NHPA-prescribed consultations for the benefit of Plaintiffs (among others). COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 40 00 ?p U3 U) Case -WVG Document 1 Filed 12/27/10 Page 41 of-68 167. Defendants failed to perform the NHPA-prescribed consultations for the Project. Their failure'in this regard was contrary to NHPA and arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law as required by the APA. 168. Plaintiffs, their respective members, and other members ofthe public have been harmed as a result of Defendants' violations of NHPA and the APA because they have been denied the benefits and' protections provided by compliance with those laws. Byway of example and withoutlimitation, Plaintiff, its members, the public, and the decision-makers who approved and are carrying 'out the Project were not fully informed about the traditional religious and cultural importancearttached by Plaintiffs and Indian tribes to the'federal (public) land that will be affected by the Project. I TWENTY-SEVENTH Violation of National Environmental Policy Project (Against All Defendants except Lee, Trost, and Goodro) 169. Paragraphs 1 through 168' are fully incorporated into thisparagraph. 170. NEPA requires every federal agency to prepare an environmental impact statement for every major action signi?cantly affecting the quality of the human environment that the agency proposes to approve or carry out. In general, the EIS must adequately {address the pr0posed action?s environmental impact, (ii) any adverse environmental effects that cannot be avoided if the proposed action is implemented, alternatives to the proposed action, (iv) the relationshipbetween local short?term uses of the environment and the maintenance and enhancement of long-term productivity, any irreversible and irretrievable commitments Of resources that would be involved in the proposed action if implemented, (vi) mitigation measures for the proposed action, and (vii) cumulative impacts for the?proposed action. .171. Defendants have not prepared an adequate EIS for the Project even though it is a major action proposed to be approved and carried out by at least one federal agency and has the potential to affect the quality ofthe human environment, including but not limited to the environment in the California Desert Conservation Area. COMPLAINT FOR INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 41 wedge-rampage.? Case -WVG Document 1 Filed 12/27/10 Page 42 of 68 172. Defendants? failure to prepare an adequate EIS for the Project was contrary to NEPA and arbitrary, capricious, an abuse of discretion, or otherwise not in accordance With law as required by the APA. . 173. Plaintiffs, their respective members, and other members ofthe public have been harmed as a result of Defendants? violations of NEPA and the APA because they have been denied the bene?ts and protections provided by compliance with those laws. By way of example and without limitation, Plaintiff, its members, the public, and the decision?makers who approved: and are carrying out the'Project were not fully informed about the impacts of, - mitigation measures for, and alternatives to the Project prior to the decision to approve and carry out theProject. TWENTY-EIGHTH CLAIM: Violation of National Environmental Policy Project (Against All Defendants except Lee, Trust, and Goodro) 1.74. Paragraphs 1 through 173 are fully incorporated into this paragraph. 175. NEPA (under Kleppe v. Sierra Club, 427 US. 390 (1976)), requires the environmental consequences of several proposals that will have cumulative or synergistic environmental impacts upon a region to be considered together in a pregrammatic Section 1502.4(b) of Title 40 of the Code of Federal Regulations provides that federal agencies ?shall prepare statements on broad actions so that they are relevant to policy and are timed to coincide with meaningful points in agency planning and decisionmaking.? I 176. Each ofthe Projects is a major federal action, and together they constitute broad action by Defendants. I 7 - 177. Defendants 'did not prepare a programmatic EIS for the Projects. 178. With regard to the Project, Defendants? failure to prepare a programmatic EIS for the Projects was contraryto NEPA and arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law as required by the APA. 179. Plaintiffs, their respective members, and other members ofthe public have been harmed as a result of Defendants? violations of NEPA and the APA because they have been denied the benefits and protections provided by compliance with those laws. By way of COMPLAINTFOR DECLARATORY, INJUNCTIVB, AND MANDAMUS RELIEF ETC. Page 42 . ICase -WVG Document 1 Filed 12/27/10 Page 43 of 68 example and without limitation, Plaintiff, its members, the public, and the decision-makers who approved and are carrying out the Project were not fully informed about the programmatic impacts of, mitigation measures for, and alternatives to the Projects prior to the decision to approve and carryout the Project. I . TWENTY-NINTH CLAIM: . Violation of Federal Land Policy and Management Project (Against All Defendants except Lee, Trost, and Goodro) 180. Paragraphs 1 through 179 are fully incorporated into this paragraph. 7 - 181. FLPMA Section 30'2(b) provides as follows: ?In managing the public lands, the Secretary shall, subject to this Act and other applicable law and under such terms and conditions as are consistent with such law, regulate, through easements, permits, leases, licenses, published rules, or other instruments as the Secretary deems appropriate, the use, occupancy, and development of the public lands, including, but not limited to, long-term leases to permit individuals to utilize public lands for habitation, cultivation, and the development of small trade or manufacturing concerns: Provided, That unless otherwise provided for by law,lthe Secretary . may permit Federal departments and agencies to use, occupy, and develop public lands only through rights-of-way under section 507 ofthis Act, withdrawals under section 204 ofthis Act, and, where the proposed use and development are similar or closely related to the programs of the Secretary for the public lands involved, [cooperative agreements under subsection of section 307' of this Act: Provided further, That nothing in this Act shall be construed as authorizing the Secretary concerned to require Federal permits to hunt and fish on public lands or on lands in the National Forest System and adjacent waters or as enlarging or diminishing the responsibility and authority of the States for management of fish and resident wildlife. However, the Secretary concerned may designate areas of public land and of lands in the National Forest System where, and establish periods hunting or fishing will be permitted for reasons of public safety, administration, or compliance with provisions of applicable law. Except in emergencies, any regulations ofthe' Secretary concerned relating to hunting and fishing pursuant to this section shall be put into'effect only after consultation with the appropriate State fish and game department. Nothing in this Act shall modify or change any COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 43 provision of Federal law relating to migratory. birds or to endangered or threatened species. Except as provided in section 314, section 603, and subsection ofsection 601 ofthis Act and in the last sentence ofthis paragraph, no provision ofthis section or any other section ofthis Act shall in any way amend the Mining Law of 1872 or impair the rights of any locators or claims under that Act, including, but not limited to, rights of ingress and egress. In managing the public lands the Secretary shall,? by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands.? 182. FLPMASection 601(?d) provides as follows: ?The Secretary [of the Interior], in accordance. with section 202 ofthis Act, shall prepare and implement a comprehensive,'long- range plan for the management, use, development, and protection ofthe public lands within the California Desert Conservation Area. Such plan shall take into account the principles of multiple use and sustained yield in providing for resource use and development, including, but not limited to, maintenance of environmental quality, rights-of-way, and mineral development. Such plan shall be completed and implementation there-ofinitiate?d on or before September 30, 1980.? 183. FLPMA Section, 601(f) provides as follows: ?Subject to valid existing rights, nothing in this Act shall affect the applicability ofthe United States mining laws on the public lands within the California Desert Conservation Area, except that all mining claims located on public lands within the California Desert Conservation Area shall be subject to such reasonable regulations as the Secretary may prescribe to-effectuate the purposes ofthis section. Any?patent issued on any such mining claim shall recite this limitation and continue to be subject to such regulations. Such regulations shall provide for such measures as may be reason-able to protect .the scenic, scientific, and environmental values of the public lands ofthe California Desert Conservation Area against undue impairment, and to assure against pollution of the streams and waters within the California Desert Conservation Area.? - .184. Defendants have not complied with FLPMA as it relates to the Project even though it is located on federal (public) land and is within the California Desert Conservation Area and subject to the CDCA Plan. COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 44 Case -WVG Document 1 Filed 12/27/10 Page, 44 of 68 t?I r?n b?l n?h?o u?s b?I.o?A Case -WVG Document 1 Filed 12/27/10 Page 45 of 68 185. Defendants? failure to comply with the Plan'and take all action necessary to prevent Unnecessary or undue degradation of the federal (public) land affected when they approved 'the Project was contrary to FLPMA and arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law as required by the APA. I 186. Plaintiffs, their respective members, and other members ofthe public have been harmed as a result of'Defendants? violations of FLPMA and the APA because they have been denied the benefits and protections provided by compliance with those laws. By way of example and without its members, and the public will have to endure unnecessary or undue degradation ofthe federal (public) land affected by the Project and will lose the protections provided for this land by the CDCA Plan. I . THIRTIETH CLAIM: . Violation of Native American Graves Protection Repatriation Project (Against All Defendants except Lee, Trust, and Goodro) 187. Paragraphs 1 through 186 are'fully incorporated into this paragraph. 188. Section? 3(b) of the NAGPRA provides as follows: ?Native American cultural items not claimed under subsection ofthis section shall be disposed ofin accordance with regulations promulgated by the Secretary [of the Interior] in consultation with the review committee established under section ofthis [Act], Native American groups, representatives of museums and the scientific community.? I 189. Section 3(0) ofthe NAGPRA provides as follows: ?The intentional removal from or excavation of Native American cultural items from Federal or tribal lands for purposes of - discovery, study, or removal of such items is permitted only if-- $0011 items are excavated or removed pursuant to a permit issued under section 470cc ofTitle l6 [ofthe Code] which shall be consistent with this [Act]; suchitems are excavated or removed after consultation with or, in the case of tribal lands, consent of the appropriate (if any) Indian tribe or Native Hawaiian organization; COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 45 Case -WVG Document 1 Filed 12/27/10 Page 46 of 68 the ownership and right of control of the disposition of sach items shall be as provided in subsections and of this section; and proof of consultation or consent under paragraph (2) is shown.? . 190. Defendants? approval of the Project will result in the intentional excavation, disposal, ?or other remdval of Native American cultural items (including human remains) known to be or strongly suspected of being on the site of the Project without compliance with the conditions necessary for excavation, disposal, or other removal. By way of example and not limitation, Defendants have not consulted with or obtained the consent of the Indian tribe whose, cultural remains or located on the site of the Project; I 191.. Defendants? failure, to consult with and obtain the consent of the appropriate Indian tribe prior to excavating, disposing of, or otherwise removing Native American cultural items (including human remains) known to be or strongly suspected of being on the site of the Project was contrary to the NAGPRA and arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law as required by the APA. 192. Plaintiffs, their respective members, and other members ofthe public have been harmed as a result of Defendants? violations ofthe NAGPRA and the APA because they have been denied the benefits and protections provided by compliance with those laws. By way of example and without limitation, Plaintiff, its members, and the public (including the appropriate Indian tribe) will have to endure the excavation, disposal, or other removal ofNative American cultural items (including human remains) located .on the site ofthe Project without the necessary consultation and consent prior to Defendants? approval of the Project. [This space is intentionally blank] COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 46 Case -WVG Document 1 Filed 12/27/10 Page 47 of 68 PRAYER FOR RELIEF FOR ALL THESE REASONS, Plaintiffs respectfully pray for the following relief, conjunctiver or disjunctiver as the Court determines to be appropriate, against Defendants (and any and all other parties 'who may oppose Plaintiff in this proceeding): A. On the First, Sixth, Eleventh, Sixteenth, Twenty?First, and Twenty-Sixth Claims: 1. For each of the Projects, a judgment or other final order determining or declaring that Defendants failed to comply fully with the NHPA and the APA as they relate to the Project (including all associated entitlements and leases) and that the Project?s approval was - illegal in atleast one respect, rendering the approval null and void; 2. For each of the Projects, a judgment or other final order determining or declaring that Defendants must fully comply with the NHPA and the APA before final approval ofthe Project may be granted; and 3. For each ofthe Projects, injunctive reliefprohibiting Defendants (and any and all persons acting at the request of, in concert with, for the benefit of, in privity with, or under one or more of them) from taking any action on any aSpect ?of, in furtherance of, or otherwise based on the Project unless and until Defendants fully comply with all applicable provisions ofthe NHPA and the APA, as determined by the Court. B. On the Second, Third, Seventh, Eighth, Twelfth, Thirteenth, Seventeenth, Eighteenth, Twenty-Second, Twenty-Third, Twenty-Seventh, and Twenty-Eighth Claims: 1. I For each of the Projects, a judgment or other final order determining or declaring that Defendants failed to comply fully with NEPA and the APA as? they relate to the Project (including all associated entitlements and?leases). and that the Project?s approval was illegal in at least one respect, rendering the apprOval null and void; 2. For each of the Projects, a judgment or other final order determining or declaring that Defendants must prepare an EIS forthe Project fully in accordance with NEPA and the APA before final approval of the Project may be granted; and 3. For each ofthe Projects, injunctive reliefprohibiting Defendants (and any and all persons acting at the request of, in concert with, for the benefit of, in privity with, or Page 47 COMPLAINT FOR INJUNCTIVE, AND MANDAMUS RELIEF ETC. woodcut):th -WVG Document 1 Filed 12/27/10 Page 48 of 68 under one Or more of them) from taking any action on any aspectof, in furtherance of, or otherwise based on the Project unless and until Defendants fully comply with all applicable provisions of NEPA and the APA, as determined by the Court. . C. On theuFourth, Ninth, Fourteenth, Nineteenth, Twenty?Fourth, and Twenty-Ninth Claims: 1. For each ofthe Projects, a judgment or other final order determining or declaring that Defendants failed to comply fully with FLPMA and the APA as they relate to the Project (including all associated entitlements and leases) and that the Project?s approval was illegal in at least one respect, rendering the approval null and void; I 2. For each of the Projects, a judgment or other final order determining or declaring that Defendants must fully comply with FLPMA and the APA before final approval . ofthe Project may be granted; and 3. For each of the Projects, injunctive relief prohibiting Defendants (and any and all persons acting at the request of, in?concert with, for the benefit of, in privity with, or under onelor more of them) from taking any action on' any aspect of, in furtherance of, or otherwise based on the Project unless and until Defendants fully comply with all applicable provisions and the APA, as determined by the Court. . D. On the Fifth, Tenth, Fifteenth, Twentieth, Twenty-Fifth, and Thirtieth Claims: For each of the Projects, a judgment orvother final order determining or declaring that Defendants failed to comply fully with the NAGPRA and the APA as they relate to the Project (including all associated entitlements and leases) and that the Project?s approval was illegal in at least one respect, rendering the approval null and void; 2. For each of the Projects, a judgment or other final order determining or declaring that Defendants must fully comply with the NAGPRA and the APA beforefinal approval of the Project may be granted; and 3. For each ofthe Projects, injunctive relief prohibiting Defendants (and any and all persons acting at the request of, in concert with, for the benefit of, in privity with, or under one or more of them) from taking any-action on any aspect of, in furtherance of, or COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. Page 48 Case -WVG Document 1 Filed 12/27/10 Page 49 of 68 otherwise based on the Project unless and until Defendants fully comply with all applicable provisions ofthe NAGPRA and the APA, as determined by the Court. B. All legal fees. and other expenses incurred in connection with this proceeding, including but not limited to reasonable attorney fees as authorized by law; and F. Any and all further relief that this Court may deem appropriate. Date: December 27, 2010. COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF ETC. By: Respectfully submitted, BRIGGS LAW CORPORATION 6.. f) 1 Cory . Attorneys for Plaintiffs La Cuna de Aztlan Sacred- Sites Protection Circle Advisory Committee, CAlifornians for Renewable Energy, Alfredo Acosta . Figueroa, Phillip Smith, Patricia Figuerba, Ronald Van Fleet, and Catherine Ohrin-Grelpp Page 49 Case -WVG Document 1 Filed 12/27/10 Page 50 of 68 COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF UNDER THE ADMINISTRATIVE PROCEDURES ACT, THE NATIONAL HISTORIC PRESERVATION ACT, THE NATIONAL ENVIRONMENTAL POLICY ACT, THE FEDERAL LAND POLICY AND I MANAGEMENT ACT, AND THE NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT Exhibit Case -WVG Document 1 Filed 12/27/10 . Page 51 of 68 Amendment No.1 to Memorandum of Understanding . Between . United States Department of the Interior Bureau of Land. Management .- . . andthe, s; ,i Southern Low Desert Resource Conservation and Development Council .. This Amendment No. modi?es thecurrentMemorandum elf-Understanding (MOD) that was signedby the Bureau of. Land Management (BLM) andthe SouthernLow Desert - Resource Conservationand DevelopmentObuncil-(Cpuncil) in July 2006'-tolnclude the; La Cuna' '_de Aztlan sacred Sites Protection Circle Advisory. Committee the I Area Chamber of Commerce and Tourist Information Center (Chamberi-inthe partnership for protection of cultural resources in the BLM Yuma Field Of?ce planning area.? Section Definitions" is amended as follows: ELM: .The- Bureau of_ Land Management?s Yuma Field Of?ce, which has a management responsibility for the public-land area covered-under this MOU. 8. Council: The Southern Low. Desert Resource Conservation and Development Council (a 501(c)(3) non-pro?t! community . . I development organizationrd. spore irce-A vlso i" I ?Section ?ill. Statement of MDU i5urpose? is amended as follows: This Memorandum of Understanding (MOU) will provide a means for mom . to workin partnership to enhance cultural resources protection. conservation, and interpretation efforts on ELM-lands within the Yuma- Field Of?ce's Jurisdiction and the Southern Low Desert R0820. area. The purpose-of this-:MOUis to assist the BLM with its responsibilities under Section 110 of the National Historic Preservation Act z" -- a The ELM. agree that all projects conducted under this MOU will be carried out by qualified, specialists. Contractors'hired for projects must meet Page 1? 014 Case -WVG Document 1 . Filed 12/27/10 Page 52 of 68 ELM-standards; Projects that?may be conductedunder-thls' MOU include hitters not limited to cultural resources survey, archaeological site recordation. National Register of Historic Places nominations, ethnographic studies with interested Native American tribes, design" and installation of site protection and interpretation measures, and the production of it interpretivegmaterlals for the public. All projects will be coordinated with and approved by the BLM. . - - - The have a common ?objective of helping to bring, . about the conservation. development. and wise use of archaeological and historical resources in the southeastern California desert area. Therefore, teatime-8W. WW deem this' effort of mutual bene?t to both g?vpartles. We herebyagreeasfollows: The Council agrees to: 1. .Work cooperatively with coordinate and facilitate the development of plans for the conservation. protection., and interpretation of desert resources. Speci?cally. the Council?ag'rees to diligently work and future protection of cultural resources. including the lntagllos. for the public good. . - I 2. Assist with any environmental documents deemed necessary for-the completion of joint projects within the mutual boundary of the Council and BLM. - 3. Provide a public outreach programtc encourage and promote active publlc_ . participation .in the protection of desert resourcesthe solicitation of funds and egenciesto" . I complete agreed upon projects or Work Items mutual boundaries of the .BLM and the Council. - work googeratlvely w" to coordinate and eating tg thie'ggyelogmegt sets it an: i -- complete-agree uggn grgiggts or wgzig heme: . . Page2 'of4 Case -WVG Document 1 Filed 12/27/10 Page 53 of.68 The Chamber egress to: i . 1. Work cooperatively with to Coordinate end fagillggig the gene lggment of 9- - I: - ce Speci?cally. the thmber agrees tordiligently work toward the im_medigte'end future protection of chum] a, ithuding the Eiythe fertile. MW 3, Assist in the solicitation of funds from outside organizations ?nd to 'comg iete agreed upon projects or work items. . agrees to: Work cooperatively with-the on projects of mutual benefit to We Geese? the M09 gig hgto?es. - 2. Provide technical and planning assistance for projects of mutual bene?tto the I WMOU signatoriesinitiate any environmentelessessment documents deemed necessary for the completion of any agreed upon joint projects EIH.IH .L .. 4. Assist with the preparation of statements of work and hiring of contractors to complete the agreed upon projects. - 5. Cooperate and assist (when appropriatei with seeking funds to complete agreed upon joint projects. - Section Terms of the is amended as toiiows: A. The following individuals?are designated as the liaison between 1. Bureau of Land Management - Yuma Field Office T. Shoaff. Fieid Manager 2555 Gila Ridge Road - Yuma. AZ 85365 PH (928) 31?-?3200 FX: 928-317-3250 2. Southern Low Desert Resource Conservation 8: Deveiopm?ent Council Thomas Burgin, President i - 53990 Enterprise Way, 68 . Page 3 01?4- Case -WVG Document 1 Filed 12/27/10 Page 54 of. 68 Coachella, CA 92236 760-391-9002 760-691-9813 I Alfre 913.- igerge Escugla de la Razg unidg W. PH: (760) 922-6?; . - E-mall: lacunadge?lgn?aoiggm 4. Area Chamber of Comm. erge end Tout List information" Center Li'imSHinBroadway CA 92225 mega-4919 E?mgii; gly?tnecocfgyanoogom B. I-Nothino herein is intended to con?ict with existing ELM. Departmentof the interior orders. or Council directives. if any terms or conditions of this MOU are inconsistent with existing BLM orders or Council directives, those portions of this MOU'ere - invalidSigning. below. the-?partners show their agreement-to MOU Amendment No; 1 as- described in this document. .. . - Thomas Burgin, President oftheSoUthern Low Desert Resource Conservation and Development Council. - A - I Signed: Date in? a 2068' Alfredo. Figueroa. La Cuna'de Aztlan Sacred Sites Protection Circle Advisory Committee; Signed? - . Date gzg?. ?g ,355) I Jim Shipiey, Area rnber of Commerce and Tourist information Center. nae/5%; ,3 Rwy-g I of the Boreou of Land Management Yurne Field Office. . Dete art/mat l?-i ?00? . James T-. Signed: Page 4' 07,4 - Case -WVG Document 1 Filed 12/27/10 Page 55 of 68 COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF UNDER THE ADMINISTRATIVE PROCEDURES ACT, THE NATIONAL HISTORIC PRESERVATION ACT, THE NATIONAL ENVIRONMENTAL POLICY ACT, THE FEDERAL LAND POLICY AND MANAGEMENT ACT, AND THE NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT Exhibit -, - .. .4 xu-P with ?3 BLM2009 National Land Use Planning Conference ?Keeping Pace with Change? ndi ng Lan 5e Case -WVG Document 1 a Q. FL 0 Session @verview Programmatic ElSs and Tiering (S. Stewart) BLM Programmatic ElSs (S. Stewart) Programmatic ElSs Lessons Learned (K. Winthrop) Programmatic vs. Site?Specific ElSs Case -WVG Document 1 Filed 12/27/10 Page 57 of 68 What is a Progr:_mmatic EIS CEQ regUIations do not define the term ?Programmatic Analyses? separately. 40 CFR 502.4(b) ElSs may be prepared for broad Federal actions such'as the adoption of new agency programs or regulations. 40 CFR 1502.4(c) When preparing statements on- broad actions agencies may find it useful to evaluate proposals in one of the following Ways: - Geographically, actions occurring in the same general-location - Generically, actiOns that have relevant similarities - By Stage of technological development Case -WVG Document 1 Filed 12/27/10 Page 58 0f 68 Ty?pes Actions that PEISS 514999?- Adopting Official Policy 0 National?level rulemaking 0- AdoptiOn of agency?wide policy 9 *AdOpting Formal Plan 0 Adoption of an agency plan for a group of related projects a Adopting Agency Program- 0 A new agency mission orinitiative' Redesign of existing programs ?p-Approving Site?Wide or Area?Wide Actions 0 Similar actions in a region . 0 Multiple actions that share a c0mmon geOgraphy or timing *Case -WVG Document 1 Filed 12/27/10 Page 59 0f 68 Used for broad geographic areas a'Assess impacts across a span of conditions (facilities, geographic regions or multi?project programs) Emphasize cumulativeimpacts a Emphasize policy. level alternatives EmphaSize program level mitigation measures and?BMPs 5 Do not define facilitiesor specific sites Tend to be more generic and conceptual than project?- specific ElSs Case -WVG Document 1 Filed 12/27/10 Page 60 of 68 Tiering In cases where a broad policy, plan, 'program or project will later be translated into site?specific projects, subsequent analyses are referred'to as ?tiered? analyses. - .40 CFR 1508.28 ?Tierihg? refers to the coverage of general matters in a broader EIS with subsequent narrower ElSs. or EAs incorporating-by reference the - general'discussiOns andconcentrati'ng solely on the issues specificto the statement'subsequently prepared. "Case -WVG Document 1 Filed 12/27/10 Page 61 of 68 of Focus on issues ripe for decision at each leVelof environmental review (40 CFR 1502.20) Opportunity to evaluatepotential cumulative impacts of the reasonably foreseeable actions under aprogram (40 CFR Reduce paperwork (40 CFR 1 500.4) Reduce delay (40 CFR 1 500.5) Opportunity to prepare for indiViduaI actions-when there are no new significant impacts . (NEPA Handbook 5.2.2) Case -wvo Document 1 Filed 12/27/10 Page 62 of 68 Challenges Scope I Content Specificity of Analysis Alternatives Addressing Deferred Issues Handling Proposals while Preparing a PEIS Case -WVG Document 1 Filed 12/27/10. Page 63 of 68 solo -., pl - ?are, . a (-0 wk, ?90; AA, . I V995 ,4994 .Wind Energy AZAmend 52 land use plans to identify lands suitable for wind energy development ROW applications (no plans amended in AZ or CA). BLM Inky-I rt- . . ywo?c?o?g 9? enc r= -. ., t?A ROD signed December, 2005 Oil Shaleand Tar sands CO, UT, WY Amend 10 land use plans to allocate lands suitable for consideration of? leasing proposals. BLM ROD signed November, 2008 Geothermal Leasing AKAmend 114 land use plans to identify lands as open or closed to geothermal leasing and to adopt stipulations, BMPs and procedures for leasing. BLM, FS ROD signed December, 2008 West-Wide Energy Corridors AZ, CA, .00Amend'130 land use plans to designate energy transport corridors on federal lands suitable for proposed pipeline and transmission line ROW applications. BLM, FS, DOD, DOE, FWS, NPS signed January, 2009 (BLM, FS) Solar Energy Development AZ, CA, CO, NM, NV, UT Goal'is to amend land use plans to identify lands suitable for solar energy development ROW applications.- BLM Draft PEIS scheduled for Summer, 2009 Filed 12/27/10 Page 64 of 68 Case -WVG Document 1 - Allocate lands as open or closed to leasing or right?of way authorizations; designate energy transport corridors 5 Develop a reasonably foreseeable development scenario Adopt stipulations, BMPs, mitigation measures-and Interagency operating procedures applicable to future projects. - a AdOpt standard processes and procedures for leasing or rig ht?of way-authorizations Amend BLM land use plans-toadopt all of the above Case -WVG Document 1 Filed 12/27/10 Page 65 of 68 I all ELM Implementation do not authorize any on?the?ground activities - or waive environmental review for subsequent individual actions. - - a All future development projects must be in conformance with theexisting land use plan as amended. 0 Land use plan amendments via a adopt the resource allocations, reasonably foreseeable development?scenario, stipulations, BMPs and procedures. a Site?specific concerns and the development of additional mitigation measures will be addressed in project?level reviews tiered to the analysis in the PEIS. Case 3 -WVG Document 1 Filed 12/27/10 Page 66 of 68 Ca H-WVG Documeriti Filed12/27/1O Page 67 of 68 N344 (Rev. - CIVIL COVER SHEET - The 18 44 cover sheet and the information contained herein neither re lace nor sugplement the ?ling and service hfpleadtn or other papers as reamed by law.? except as prov1ded by local rules of court. This form, approved by the Judicial Conference 0 the United tales in September 1974, is required fort use oft rk of the purpose of initiating the ctvtI docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.) 3 I. PLAINTIFFS DEFE-NDANTS - i? i? La Cuna do Aztlan Sacred Sites Protection. Circle Advisory - Committee at al. County of Residence of First Listed Plaintiff San Diego (EXCEPT IN U.S. PLAINTIFF CASES) United States Depanww?tgmteimq H: County of Residence of Defendath S. tr? 1' I in (IN ?Uta? CASES diam)? l. t" 0 it A NOTE: IN LAND CONDEMNATION CASES. USE THE LOCATION OF THE LAND INVOLVED. n. weasel 2 as i was their WW5 Attorney's (Firm Name. Address. and Telephone Number) Briggs Law Corporation, 99 East Street, Suite 111, Upland, II. BASIS OF JURISDICTION (Place'an in One Box Only) CITIZENSHIP 0F PRINCIPAL an in One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant) 1 US. Government El 3 Federal Question PTF DEF DEF Plaintiff (US. Government Not a Party) Citizen of This State El 1 I incorporated or Principal Place E) 4 CI 4 of Business In This State 3 2 US. Government El 4 Diversity Citizen of Another State CI 2 El 2 Incorporated and Principal Place El 5 CI 5 Defendant (Indicate Citizenship of Parties in Item orausmess In Anomer sum Citizen or Subject of at - El 3 3 Foreign Nation CI 6 CI 6 I Foreign Country IV. NATURE OF SUIT (Place an in One Box Only.Togrs m: I t- . - . 9513531.)qu El 110 Insurance PERSONAL INJURY PERSONAL INJURY CI 610 Agriculture Cl 422 Appeal 28 USC l58 Cl 400 State Reapportionment CI 120 Marine Cl 3l0 Airplane 362 Personal Injury - 620 Other Food Drug CI 423 Withdrawal CI 410 Antitrust CI ISO Miller Act [3 315 Airplane Product Med. Malpractice 625 Drug Related Seizure 28 USC 157 430 Banks and Banking CI 140 Negotiable Instrument Liability Cl 365 Personal Injury - of Property 21 USC 881 - 450 Commerce CI 150 Recovery of Overpayment I3 320 Assault. Libel EL Product Liability CI 630 Liquor Laws El 460 Deportation Enforcementof Judgment Slander El 368 Asbestos Personal CI 640 R.R. 3r. Truck I3 820 Copyrights CI 470 Racketeer Influenced and CI [51 Medicare Act El 330 Federal Employers? Injury Product CI 650 Airline Regs. CI 830 Patent Corrupt Organizations Cl [52 Recovery of Defaulted Liability - Liability CI 660 Occupational 840 Trademark 480 Consumer Credit Student Loans CI 340 Marine PERSONAL PROPERTY Safety/Health El 490 CabIeISat TV (Excl. Veterans) Cl 345 Marine Product CI 370 Other Fraud 690 Other El 819 Selective Service 153 Recovery of Overpayment Liability CI 371 Truth in Lending -- - . . CI 850 Securities/Commodities! of Veteran's Benefits 350 Motor Vehicle [3 380 Other Personal CI 710 Fair Labor Standards CI 861 HIA ([395ft) Exchange El 160 Stockholders' Suits CI 355 Motor Vehicle Property Damage Act CI 862 Black Lung (923) CI 876 Customer Challenge CI 190 Other Contract Product Liability El 385 Property Damage El 720 Labor/Mgmt. Relations CI 863 (405(3)) 12 USC 3410 El 195 Contract Product Liability Cl 360 Other Personal Product Libility 730 Labor/Mgmt.Reporting CI 864 SSID Title XVI CI 890 Other Statutory Actions CI I96 Franchise Injury Disclosure Act El 865 RSI 405 891 Agricultural Acts . I -- REAL PROPERTY A CIVIL PETITIONS El 740 Railway Labor Act FEDERAL CI 892 Economic Stabilization Act 210 Land Condemnation El 441 Voting CI 510 Motions to Vacate Cl 790 Other Labor Litigation [3 870 Taxes (US. Plaintiff 893 Environmental Matters CI 220 Foreclosure 442 Employment Sentence El 791 Empl. Rot. Inc. or Defendant) 894 Energy Allocation Act CI 230 Rent Lease 8t. Ejectment 443 Housing! Habeas Corpus: Security Act 871 IRS?Third Party El 895 Freedom of Information CI 240 Torts to Land Accommodations 530 General 26 USC 7609 Act El 245 Tort Product Liability El 444 Welfare Cl 535 Death Penalty IMMIGRATION El 900Appeal of Fee Determination Cl 290 All Other Real Property Cl 445 Amer. w/Disabilities - CI 540 Mandamus Other CI 462 Naturalization Application Under Equal Access Employment 0 550 Civil Rights 463 Habeas Corpus - to Justice CI 446 Amer. w/Disabilities - 555 Prison Condition Alien Detainee El 950 Constitutionality of Other CI 465 Other Immigration State Statutes 440 Other Civil Rights Actions V. ORIGIN (Place an in One Box Only) cai?to Dismc? 81 Original [3 2 Removed from 3 Remanded from 4 Rainsmted 0' 5 ngi?liggrdisdtrigim 6 M-u-Md-isma 7 Muagiesn'riagq] Proceeding State Court Appellate Court Reopened . a? ecim Litigation Judgment VI. CAUSE OF ACTION VII. REQUESTED IN COMPLAINT: 3001 et. seq. Declare ory. Brief description of cause: an El CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23 RELATED (See instructions): 0 Mandamus DEMAND JURY DEMAND: CHECK YES only if demanded in complaint: Yes i No IF ANY JUDGE Larry A. Burns DOCKET NUMBER (CAB) DATE SIGNATUR OF ATTORNEY OF RECORD 12/27/2010 ,1 #44 a FOR OFFICE USE ONLY I AMOUNT i Ego/)9 APPLYINGIFP . A 61/ iZ-Z?-l0 JUDGE MAG. JUDGE Case -WVG Document 1 Filed 12/27/10 Page 68 of 68- Court Name: 0300 California Southern 3 .Racetpt Number: CA8021574 Cashter ID: nstefken Transactton Date: 12/27/2010 Payer Name: BRIGGS LAW CORP LCIVIL FILING FEE For: LA CUNA 0E AZTLAN US DEPARTM . I Case/Party: Amount: $350.00 CHECK i Check/Money Order Num: 80414 1 Amt Tendered: $350.00 Total Due: $350.00 Total Tendered: $350.00 Change Amt: $0.00 llhare be a fee of $45.00 charged for any returned check.