The Keweenaw Bay Indian Community is a key partner in the Friends of the Huron Mountains’ effort to stop a proposed industrial wind farm project in Michigan’s Upper Peninsula on a site that includes the state’s highest wilderness scenic points. This article sums up the federal government’s obligation – guaranteed by treaty – to consult with the tribe. The issue at hand is the FAA’s clearance procedure, which the tribe argues involves more than just turbine tower height considerations
Wind farm foes seek response from shut-down federal agency
JAN 5, 2019 | JOSHUA VISSERS | The Mining Gazette
Wind turbines have to be evaluated by the Federal Aviation Administration and approved under the Michigan Tall Structures Act, which also regulates radio towers.
A member of the Keweenaw Bay Indian Community (KBIC) has submitted a formal request for discretionary review of the obstruction evaluation of the Summit Lake Wind Project.
The evaluation was performed by the Federal Aviation Administration (FAA) in support of the KBIC Tribal Council resolution against the project.
Jeff Loman cited three major reasons in his petition, which was accepted by the FAA on Dec. 18, days before the ongoing federal government shutdown began.
With thousands of FAA workers on furlough, validation of the petition and any action is on hold indefinitely, according to the FAA.
Loman’s highlights the federal government’s responsibilities to American Indian tribes, KBIC rights under the 1842 Treaty of La Pointe, and lack of government-to-government consultation with the KBIC.
Government-to-government consultation is required under FAA policy 1210, which was adopted in 2004 as “an effective process to consult with American Indian and Alaska Native Tribes,” according to its own foreword.
The 1842 Treaty of La Pointe guarantees KBIC members to right to hunt on territory ceded to the United States in the agreement. In the KBIC resolution the Tribal Council stated the community “continues to rely on the treaties’ hunting, fishing, trapping and gathering rights for subsistence, religious and cultural practices…”
Both the KBIC resolution and Loman’s petition to the FAA claim the construction and operation of a wind farm within the territory ceded in the 1842 treaty would threaten the hunting and gathering rights guaranteed to the Ojibwe tribes under the treaty.
Specific threats cited include spinning blades of turbines and habitat destruction, degradation and fragmentation.
The KBIC resolution also cites the potential destruction of burial mounds and culturally significant view scapes and patrimony.
Loman’s petition points out the federal trust responsibility the FAA has but local governments lack. The FAA “cannot simply decide that it represents the U.S. government strictly for the purpose of considering aeronautical hazards, thus shedding any and all of the federal government’s role as a trustee for the Indian beneficiary,” he summarized in his petition.
Other authorities like the Michigan government and local governments that control zoning do not have the same responsibilities to the tribe the federal government has. However, many of their regulation, like the Michigan Tall Structures Act, rely on FAA standards, evaluations and authorizations.
Loman concludes the FAA must, at a minimum, comply with its own policy to consult with the KBIC government-to-government.