(March 27, 2025)—Friends, you find me cautiously optimistic after my day (as a spectator) in court: The Ninth Circuit panel was skeptical about federal government and industry claims for the legality of the approval process for the SunZia powerline.
Yesterday, March 26, in Phoenix’s Sandra Day O’Connor Courthouse, a panel of Ninth Circuit judges heard the appeal of District Court Judge Jennifer Zipps’ April 16, 2024, dismissal of the case brought by Tribes and conservationists.
The four plaintiffs—Tohono O’odham Nation, San Carlos Apache Tribe, Archaeology Southwest, and Center for Biological Diversity—allege that
1) US Bureau of Land Management’s (USBLM) approval of the SunZia powerline failed to comply with key provisions of Section 106 of the National Historic Preservation Act, and
2) USBLM’s 2023 Notice to Proceed with SunZia construction, issued to Pattern Energy, not the USBLM’s 2015 Record of Decision, constituted the final agency action. Last spring USBLM and Pattern Energy convinced Judge Zipps that the plaintiffs missed the opportunity to challenge SunZia’s construction when the six-year statute of limitations expired in 2021.
Pattern Energy is currently building the $11B, 550-mile high-voltage, direct-current project, previously scheduled for completion in 2026, to transport 3,515 MW of wind, solar, and fossil fuel-generated power from New Mexico to central Arizona, then on to California’s seemingly bottomless markets.
Beginning in 2009, Tribes and other parties advised against any consideration of the San Pedro Valley as part of the SunZia route. The National Trust for Historic Preservation and the Center for Desert Archaeology advised USBLM on November 25, 2009, to locate SunZia within existing industrial corridors and to “avoid the unique, intact and regionally significant natural and cultural resources and landscapes in the … San Pedro River Valley.”
Read more about the timeline here and here.
In at least 21 separate emails and meetings between 2009 and 2023, Tohono O’odham Nation officials advised USBLM of the need for cultural landscape studies to assess and avoid SunZia’s threats to their homelands.
In an October 17, 2012, letter to USBLM, Barnaby Lewis of the Gila River Indian Community stated, “The project would be very intrusive to the tribe’s cultural landscape… ‘don’t build it.’ Archaeological sites are not just physical remains of the past, but they also entail ancestral and religious values.”
Terry Rambler, the San Carlos Apache Tribe Chairman’s letter of August 22, 2012, expressed “concerns regarding Apache cultural sites, sacred areas, plant gathering areas and identification of remains.”
Instead of heeding the Tribes’ advice and following Section 106 requirements to seek agreement with Tribes and to match the scope of their assessments to SunZia’s landscape-scale impacts, USBLM endorsed an archaeology-only cultural resource assessment process.
Apparently emboldened by Judge Zipps’s dismissal, USBLM and Pattern Energy have continued to disregard multiple peer-reviewed studies that establish the San Pedro Valley as a cultural landscape, as a home to diverse Indigenous Peoples for more than 12,000 years, and as an irreplaceable source of distinctive benefits to diverse living human communities.
Yesterday, the three-judge panel—Michael Bennett, Marsha Berzon, and Susan Graber—raised multiple questions about the fairness of selecting SunZia’s route in 2015 without ever completing the required landscape-scale assessment of cultural resource impacts.
Read Joe Duhownik’s reporting on the hearing at the Tucson Sentinel.
In respectful engagements with Elizabeth Lewis, the plaintiffs’ attorney, the judges seemed to recognize the timeliness of the complaint and to share frustrations with what Lewis described as the “sleight of hand” USBLM used to comply with Section 106.
In contrast, Judge Graber immediately challenged US Department of Justice attorney Ezekiel Peterson, saying that the USBLM and Pattern Energy position was, to her, “completely puzzling.” Each of the three judges questioned Peterson and Svend Brand-Erickson, the lawyer appearing for Pattern Energy, about their clients’ continued suggestions that Tribes should have sued earlier, apparently in anticipation that USBLM and Pattern Energy would refuse to conduct a cultural landscape study or any other assessment proportional to SunZia’s landscape-scale alterations.
