Archive of Prominent Section 106 Cases:
New Mexico: Construction of El Rancho Electric Substation
On February 1, 1999, the Council executed a Memorandum of Agreement (MOA) for the El Rancho Electric Substation Project, thus completing Section 106 consultation on a project built with Bureau of Indian Affairs (BIA) and Rural Utilities Service (RUS) approval almost eight years ago. The final MOA was developed after the Council objected to an MOA submitted by BIA in August 1998. That document called for construction of a large concrete screening wall on two sides of the substation, a measure that did not fully address concerns of the local community.
Council members visited the site in conjunction with their November 1998 meeting in Sante Fe, and staff subsequently met with the local community to explore other mitigation measures. As a result, the MOA was revised. While the local community remains opposed to the substation at its present location and declined to sign the MOA, the final document incorporates nearly all of their recommendations for screening the substation.
The MOA includes a clear statement objecting to the substation’s location by the members of El Rancho La Comunidad de Tres Culturas (El Rancho); a requirement that natural earthen berms and vegetation be used to screen the substation from the dance site and the entry to the community; and a provision for $7,500 to be made available to El Rancho to either improve an alternate dance location or to undertake other efforts to promote and protect the continuing vitality of the community’s matachines dance tradition. The agreement calls for additional consultation between the Jemez Mountains Electric Cooperative, Inc. (JMEC) and El Rancho on the vegetative screening plan and Council approval of the final plan and use of the $7,500.
During 1991-1992, JMEC built a new electric substation on San Ildefonso Pueblo land in the vicinity of El Rancho, New Mexico. The one-acre substation was needed to replace a nearby temporary facility. The San Ildefonso Tribal Council and BIA approved a lease with JMEC in 1989, and the Rural Electrification Administration (now RUS) approved financial assistance for the project one year later. Both actions were conditioned on the JMEC completing a cultural resource survey (as required by Section 106) prior to the start of construction.
Construction of the substation began in November 1990 without the required survey. It was subsequently determined that the parking lot of a local cantina, used for the performance of traditional Hispanic matachines dances, was eligible for inclusion in the National Register of Historic Places. Construction of the substation immediately adjacent to the dance site created a significant visual intrusion and prompted objections by local residents.
Los Matachines de El Rancho, New Mexico, dance ground and cantina
In 1991, El Rancho, representing the local community and users of the dance site, filed suit to stop construction. The district court judge issued a temporary restraining order to stop further construction and ordered BIA and RUS to comply with the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA). (For additional information on the lawsuit, see the Council’s publication Federal Historic Preservation Case Law, 1966-1996; pages 153-155.)
Although the Council contacted both RUS and BIA during developments in early 1991, both agencies indicated an unwillingness to consider dismantling and/or relocating the substation because of the costs involved. The Council and the New Mexico State Historic Preservation Officer concurred that unless removal of the substation received serious consideration, meaningful consultation under Section 106 was impossible.
In order to comply with the judge’s order, BIA and RUS completed an Environmental Impact Statement and in 1997 issued a Record of Decision (ROD) under NEPA, selecting the existing location for the substation. However, NHPA compliance remained unfulfilled. In order to assist RUS and BIA in complying with the judge’s order, a compromise was struck. BIA suspended the ROD so that Section 106 consultation could proceed. Reversing its earlier position, BIA indicated a willingness to consider a full range of options for treating the adverse effects of the substation on the dance site, including locating the facility elsewhere. Consultation proceeded, but the consulting parties were unable to identify a reasonable alternative location.
By challenging orthodox views of what constitutes an historic resource, properties of traditional cultural significance can confront project planners and the Section 106 process with unique issues. As illustrated in this case, this challenge is even more difficult to resolve if such properties are identified late and after project decisions have already been made. Early outreach to affected communities is the most effective way to avoid these problems.
Staff contact: Carol Gleichman
October 1998 report on this case
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