By Howard Fischer
Capitol Media Services
PHOENIX -- A federal appeals court is giving the Tohono O'odham Nation and others a new chance to argue that federal officials broke the law in allowing the construction of a power line across the San Pedro Valley.
In a new ruling, Judge Mark Bennett, writing for the 9th Circuit Court of Appeals, said a trial judge erred in concluding that the objections to the plan approved by the Department of Interior came too late. He said the foes, also including the San Carlos Apache Tribe and two environmental groups, fiiled their claim within the legal time limits.
More to the point, Bennett said the foes presented enough evidence to conclude that the agency violated the National Historic Preservation Act by giving SunZia Transmission permission to begin construction of the 515-mile project across federal, state and private lands, including about 180 miles of land managed by the Bureau of Land Management.
The new ruling does not mean that foes will win the case -- or even that construction has to stop. In fact, Howard Shanker, attorney for the Tohono O'odham Nation, said much of the power line already is in place.
That, however, leaves the question of whether, if the courts conclude that the Interior Department broke the law, a judge could order the lines removed.
"Technically, you could,'' Shanker said. But he told Capitol Media Services that's not necessarily the goal.
"The relief is to get them to comply with their obligations under the National Historic Preservation Act,'' Shanker said. "And then, once they've done that, we'll find out. But that is something that is certainly available.''
A spokesman for Pattern Energy, which owns the project, said the company was reviewing the ruling.
"Construction on SunZia continues and the project remains on track for commercial operation in 2026,'' the statement reads.
The case goes back to 2015 when the BLM approved a specific route for the transmission line originating in Lincoln County, New Mexico, and terminating in Pinal County. The width of the route varies between 400 and 1,000 feet.
What is at issue here is the part of the route that runs through the San Pedro Valley north of Benson.
According to challengers, the valley is of historic and culturally important to several tribes and, more specifically, that several sites within it are what are known as "traditional cultural places.''
Bennett, in the 29-page ruling, said the claims by the foes provide a sufficient basis to conclude that the BLM violated the terms of the "programmatic agreement'' which governs the implementation of the project.
"Since at least 2009, the BLM knew that the tribes considered the San Pedro Valley to be a `traditional cultural place,' '' he wrote.
In fact, the judge said, the agency assured consulting parties -- including three of the challengers -- that it would evaluate the valley under a new "treatment plan'' to determine whether the area should be designated as historic property.
"But the BLM then failed to provide a second treatment plan to the consulting parties,'' Bennett said. "These allegations raise a plausible claim that the BLM violated the programmatic agreement's requirement that the BLM consult with the consulting parties by providing them with a copy of the treatment plan for review and comment.''
Bennett also said that agreement also required the Department of Interior to determine that there are no historic properties present, that there will be no adverse effects to historic properties, or that treatment has been completed to mitigate any adverse effects.
"We must infer that a proper consultation via the treatment plan process consultation via the treatment plan process would have resulted in the valley's designation as a historic process,'' the judge said. And that, he said, requires the trial judge to consider the allegations.
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