More controversy likely is in the offing for decisions affecting landscapes in the National Park System. One seems to settle a long-standing dispute over religious symbols on public lands, the other wind farms.
In the first, a U.S. Supreme Court ruling today did not find outright that a simple white cross rising above the Mojave National Preserve is an unconstitutional display of religion on public lands and a violation of the Establishment Clause, which prohibits the government from favoring specific religions. In the second, Interior Secretary Ken Salazar cleared the way for a wind farm to be erected in Nantucket Sound not far from Cape Cod National Seashore.
In the cross case, the high court directed a lower court to revisit the question of whether Congress could diffuse the debate over religion by transferring the land under the cross to private hands.
The cross, a simple unadorned one, dates to 1934, when a wooden one was raised atop Sunrise Rock in honor of Americans who died during World War I. It later was replaced by a more enduring metal cross. In 2001 Frank Buono, a former National Park Service assistant superintendent at the preserve, filed a lawsuit, supported by the American Civil Liberties Union, to have the cross removed because it offended him. In a lower court ruling on the matter, a U.S. District judge ordered the cross removed, saying that it was indeed an unconstitutional federal endorsement of Christianity.
Congress became involved in the case at various times by prohibiting the National Park Service from spending money to move the cross, by designating it a national memorial in 1994, and by trying to transfer the acre of land it stood upon to a private Veterans of Foreign Wars group.
In writing on the 5-4 decision, Supreme Court Justice Anthony Kennedy said the cross should not be construed as favoring one religion over another.
"Here one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten," he wrote.
But other justices said a "starkly sectarian" symbol was inappropriate to honor those who died in the service of the country.
As for wind energy, Interior Secretary Salazar today approved a wind farm for Nantucket Sound. The secretary became involved in the matter when the National Park Service’s Keeper of the National Register of Historic Places determined that the sound was eligible for listing on the register because for of its significant archeological, historic, and cultural values. Those values, Secretary Salazar said back in March, must be considered in the Minerals Management Service's review process regarding a permit for the Cape Wind project proposed to be built in Horseshoe Shoals.
The Mashpee and Aquinnah Wampanoag tribes, the "People of the First Light," had sought the listing determination, arguing that the proposed wind farm would impact sacred rituals they conduct on the sound by obscuring the sunrise. The tribes also have contended the project would impact submerged tribal burial grounds. Others object to the project because they believe it would blight the viewshed and create environmental and navigational impacts.
Cape Wind Associates, LLC wants to construct and operate a commercial wind energy facility on the Outer Continental Shelf offshore of Massachusetts. The project calls for 130 turbines of 3.6 megawatts, each with a maximum blade height of 440 feet, to be arranged in a grid pattern in 25 square miles of Nantucket Sound in federal waters off Cape Cod, Martha’s Vineyard, and Nantucket Island. The projected maximum electric output would be 468 megawatts (average of 183 MW) and serve communities in the Nantucket Sound area.
When those for and against the wind farm couldn't come up with a compromise, Secretary Salazar said he would make the final decision.
“The time has come to bring the reviews and analysis of the Cape Wind Project to a conclusion,” the secretary said in March. “It is clear to me that the consulting parties are not able to bridge their divides and reach agreement on actions to minimize and mitigate the Cape Wind Project’s effects on historic and cultural resources. I am asking the Advisory Council on Historic Preservation for their comments and I will then make a final decision on the proposal. The parties, the public, and the permit applicants deserve resolution and certainty.”
While he cleared the way for the project to move forward, Secretary Salazar also called for additional binding measures to minimize the potential adverse impacts of construction and operation of the facility.
“After careful consideration of all the concerns expressed during the lengthy review and consultation process and thorough analyses of the many factors involved, I find that the public benefits weigh in favor of approving the Cape Wind project at the Horseshoe Shoal location,” Salazar said today in an announcement at the State House in Boston. “With this decision we are beginning a new direction in our nation’s energy future, ushering in America’s first offshore wind energy facility and opening a new chapter in the history of this region.”
The decision was not welcomed by the American Bird Conservancy, "because the science collected for the project on bird collision threats is inadequate, and the site will reduce prime offshore sea-duck foraging habitat."
"Further, there are data to suggest that loons will likely abandon the area for years to come, and there may be significant impacts to endangered Roseate Terns , which breed in nearby Buzzard’s Bay and feed in Nantucket Sound,” said Dr. Michael Fry, director of conservation advocacy for American Bird Conservancy.
But Secretary Salazar emphasized that Interior officials had taken extraordinary steps to fully evaluate Cape Wind’s potential impacts on traditional cultural resources and historic properties, including government-to-government consultations with the Wampanoag Tribe of Gay Head (Aquinnah) and the Mashpee Wampanoag Tribe and that he was “mindful of our unique relationship with the tribes and carefully considered their views and concerns.”
Because of concerns expressed during the consultations, the Interior Department has required the developer to change the design and configuration of the wind turbine farm to diminish the visual effects of the project and to conduct additional seabed surveys to ensure that any submerged archaeological resources are protected prior to bottom disturbing activities.
Under these revisions, efforts must be made to reduce the visual impacts from the Kennedy Compound National Historic Landmark; to reconfigure the array to move it farther away from Nantucket Island; and to reduce its breadth to mitigate visibility from the Nantucket Historic District. Regarding possible seabed cultural and historic resources, a Chance Finds Clause in the lease requires the developer to halt operations and notify Interior of any unanticipated archaeological find.
Secretary Salazar said he understood and respected the views of the tribes and the Advisory Council on Historic Preservation, but noted that as secretary of the Interior, he must balance broad, national public interest priorities in his decisions.
“The need to preserve the environmental resources and rich cultural heritage of Nantucket Sound must be weighed in the balance with the importance of developing new renewable energy sources and strengthening our Nation’s energy security while battling climate change and creating jobs,” Mr. Salazar said.