Archive for December, 2015

Indigenous Tribes & ‘Green’ Energy Exploitation in California Desert

Sunday, December 13th, 2015

This paper was presented in a Geography class studying the DRECP plan for Southern California. Since this was written the plan has been announced. There is a comment period in December 2015 before the Plan is finalized for Federal Lands in the California Desert. It allows for fast track development of Green energy in designated areas.

The Tribal Perspective on the Draft DRECP and EIR/EIS
By Gary Crethers, Nicole Beatty, Cheyenne Armstead, Cassandra Casapulla, and Derek Sanders
December 10, 2015.

Abstract: The draft Desert Renewable Energy Conservation Plan (DRECP), proposes to give renewable energy companies a fast track to cutting red tape by creating Development Focus Areas (DFA’s), where environmental impacts will be the least harmful. The affected regional tribes have concerns that Cultural impacts have taken a back seat and that the tribes were invited late to the process of critiquing the proposals. The Tribes have concerns over a lack of access to data from the Bureau of Land Management (BLM), responsible for the plan, and have been pitted against one another in attempts to mitigate impacts on traditional lands due to the nature of the process of designation of one area of greater value over another. This paper addresses the concerns of the Tribes focusing on the Colorado River Indian Tribes (CRIT), and the San Manual Band of Mission Indians (SMBMI).
Key Words: Desert Renewable Energy Conservation Plan, Native American Tribes, Renewable Energy, Colorado River Indian Tribes, San Manuel Band of Mission Indians, Bureau of Land Management.

Introduction: In 2010 the BLM agreed to permit a 709 Megawatt solar farm to be built in the Imperial Valley desert, it would have taken up 6000 acres of public land. Problem was, the tribes were not consulted and The Quechan Tribe of the Fort Yuma Indian Reservation opposed on those grounds, citing section 106 of the National Historic Preservation Act (NHPA), the National Environmental Policy Act (NEPA), among others. They claimed some 459 cultural resources were affected and they sued. Quechan Tribe v. U.S. Dep’t of Interior, (755 F. Supp. 2d 1104, 1108-11 (S.D. Cal. 2010)). (Dreveskracht 2013, 433). The project, which would have been the largest in the nation, suffered a severe setback and lost most of its backing. The tribal complaint was one of procedure. The tribe had not been invited to the table and stood by their legal rights, making the point that they were not opposed to alternative energy, but to the lack of consultation, a costly error on the part of the BLM (Dreveskracht 2012). The Colorado River Indian Tribes have sued over the Blythe Solar Power Project known as the Genesis Project for a “mass disturbance” of cultural artifacts, in this case the BLM claims to have consulted the tribes but evidently the consultation was inadequate, costing additional millions to the project. In this case there was mitigation which Daniel McCarthy claims to have been adequate CRIT may beg to differ (Copley 2014; McCarthy pers. comm. 2015; Dreveskracht 2012; Patch 2015). Clearly litigation causes the development of alternative energy resources setbacks, for energy development to proceed in the future, the tribes must be consulted and sensitivity to cultural factors must be maintained through the entire process. On the other hand in the suit against the Ocotillo Wind Energy Facility Project, Quechan Tribe of the Fort Yuma Indian Reservation v. United States Department of the Interior, (43 ELR 20047 No. 12cv1167-GPC, (S.D. Cal., 02/27/2013) (Curiel, J.)), the tribe lost.
The validity of tribal claims to the spiritual inheritance associated with sacred spaces has been acknowledged by the government and is part of law in “the American Indian Religious Freedom Act (AIRFA 1979), the Native American Graves Protection and Repatriation Act (NAGPRA 1990), Section 106 of the National Historic Preservation Act (NHPA 2004), and California Senate Bill 18 (SB 18 2004)” yet sacred sites are still not respected fully by government authorities and private industry (Greenberg and Greenberg 2013, 30). The ethical care of the environment is imbedded in Native American beliefs and with traditional notions of the sacredness of nature lending itself to ecologically oriented belief systems, which due to the lack of “pro-environmental” views of faiths such as that of the Puritan founders of New England, make it hard sometimes for non-natives to understand the significance of sacred sites and artifacts (35). This miss communication has led to legislation meant to alleviate some of that misunderstanding with indigenous consultations mandated by the NHPA Section 106 whenever Federal lands use changes on tribal lands or significant cultural resources are affects. Further SB 18 mandates tribal consultation at the beginning of these procedures (32, 35). The violation of these Federal and State mandates partially are due the fact that consultation is not the same as legislated rights prior interest, leading to being ignored, or lengthy legal wrangling and lawsuits (Dreveskracht 2012, Greenberg and Greenberg 2013, Patch 2015). This seems counter intuitive when Native belief systems have a profound propensity to favor environmentally sensitive perspectives with their “sense of autochthony – the spiritual experience of belonging to a place” (Greenberg and Greenberg 2013, 33).
The Native peoples who live in the Southeastern California Desert have a vested interest in how the development of alternative energy impacts their tribal lands and their traditional cultural environment. The California Environmental Quality Act (CEQA) requires that the impact on any historically significant resources be submitted for an Environmental Impact Report (EIR), and the Native American Heritage Commission (NAHC) determined from their NAHC Sacred Site data base that the tribes would be affected and as the State body responsible for oversight of Native Interests in that regard, submitted to the DRECP in 2011, a list of Native tribal contacts and a copy of a recommended guidelines for consulting tribes that had been submitted to the California Department of Fish and Game Renewable Energy Action Team in 2009 (Singleton 2011). The process of contacting the tribes on the state level had thus become part of the bureaucratic process in meeting the State of California goals for renewable energy initiated under Governor Schwarzenegger wherein some 33 percent of the state energy had to come from renewable sources by 2020 (Singleton, 2011). Tribes cultural concerns had not been in the original planning for the DRECP, and many tribes perceived their interests as being “a late ‘add on’ to the core biological goals and have been given short shrift in the Plan” (Coyle 2015, 1). This view was reiterated by Daniel McCarthy in a personal interview (McCarthy pers. comm. 2015).
Even though the planners of the DRECP had been notified of a legal and procedural basis for tribal input, the tribes themselves have indicated a lack of ability to participate or contribute to the outcomes, with the “deferral of in depth cultural resource studies until after project developer has submitted an application to develop a specific project inevitably results in the destruction or removal of such cultural resources and landscapes” (Patch 2015, 6). Thus the tribes have deep reservations about the efficacy of the DRECP process and advocate that the cultural resources be put on the same level as the biological resources for the tribes to consider that their interests are being taken seriously (4). It is our interest in this paper to develop and advocate for the interests of the native peoples affected by the DRECP.
Methodology: Interviewing at least one interested party, and reading the submitted testimony of several of the tribes to the California Energy Commission comments, as well as some of the relevant literature on the subject, including the portions of the DRECP draft report related to the Native American Issues, provided the majority of the material from which the research was developed and conclusions arrived.
Results: The propensity for the BLM to not consult the tribes, ignoring statutes such as Section 106 of the NHPA, the provisions for consultation in NEPA, the Federal Land Policy Management Act (FLPMA), American Indian Religious Freedom Act (AIRFA), Archeological Resource Protection Act (ARPA), and Native American Graves Protection and Repatriation Act (NAGPRA), Religious Freedom Restoration Act (RFRA), Omnibus Public Lands Management Act of 2009, Executive Order 12898 Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (1994), and the Council on Environmental Quality’s Environmental Justice Guidance Under the National Environmental Policy Act (CEQ), the National Policy Issuance 94-10 USFWS Native American Policy (1994), Executive Order 13007 Indian Sacred Sites (1996), Executive Order 13175 Consultation and Coordination With Indian Tribal Governments (2000) and Secretarial Order 3206 American Indian Tribal Rights and the Endangered Species Act (1997) to mention only a partial list of Federal regulations and laws regarding relations with Native people, should provide an exhaustive basis for covering the interests and concerns of the tribes (Draft DRECP III.9 2014, 2-9). In fact the legislation only claims the Native American rights to be consulted, not to completely block Government action which is a critical issue that the CRIT brought up in their critique of the DRECP as having sham effectiveness (Dreveskracht 2013, 435; Patch 2015, 4). The approach of the tribes has been less than welcoming although repeatedly they all claim to support the need to develop renewable energy and have expressed interest in participation in the process especially if granted control of the development of their own resources, something that is currently severely restricted by federal law (Dreveskracht 2012; McCarthy pers. comm. 2015; Paresa 2015; Patch 2015).
The BLM has accumulated enough data to understand that renewable solar and wind energy can be “especially harmful to biodiversity, scenic landscapes, water supplies, natural quiet and cultural resources” (Nagle 2013, 62). The evidence shown in the case of the Native Americans regarding cultural resources, natural quiet, and the scenic landscape in particular have been shown to be causes for concern acknowledged in the Draft DRECP with a listing of potential impacts that would require site specific environmental impact statements (EIS). Tribal concerns being listed in terms of cultural resources impacts, specifically physical destruction of cultural resources, isolation of cultural resources from access or alteration significant to be considered under the standards of NRHP, CRHR, or CEQA by tribal members, introduction of sights, smells, or other atmospheric elements that are not characteristic to a site. Excessive impacts to sites linked to tribal identity and “disproportionate impact to places that play an essential role in the perpetuation of the generations” (Draft DRECP IV.9, 6).
It is critical to note that there are some 50 tribes listed in the DRECP as having an interest as defined by the various laws, statutes, and executive orders. Each of these tribes has specific concerns, cultural resources, and histories that may go back for some 10,000 years (Draft DRECP 2014 III.9, 14-16; McCarthy 2015). CRIT is concerned about the I-10 Corridor being developed which contains many sacred sites. None of the plans in the Draft DRECP addressed their concerns and past experience had led them to believe that litigation was the path to take. Tribes historically have been ignored. Beginning in 1970’s legislation was passed to empower the tribal governments to be treated as sovereign powers. Over the past half century legislation has been passed, in which the standard of living has increased but at painfully slow rates. There has been little headway in terms of the development of alternative energy within the Reservations due in part to a lack of capital and expertise but also due to the lack of Federal legislation to empower the tribes to make their own decisions. Tribes are still, treated paternalistically and thus their sense of autonomy been constrained by a tradition of treating the Tribes as wards of the state (McCarthy pers. comm. 2015; Dreveskracht 2012; Patch 2015).
Historically the tribes have lost continuity due to the disruption caused by colonization, and genocide on the part of the colonizing powers, Spain, Mexica and finally the United States. Indians early on were treated to Christian civilization where “Spaniards… acting like ravening beasts, killing, terrorizing, afflicting, torturing, and destroying the native peoples … to such a degree that this Island of Hispaniola, once so populous (I estimated to be more than three millions), has now a population of barely two hundred” (Las Casas 2004, 36). Later the Americans hunted Indians like wolves, as one hunter said “the best buckskin I ever seed was tanned with Injun brains” (Smith 2011, 84). The disappearance of history, and languages, have left the Native Peoples unable to locate ancient remains, leaving them dependent upon surviving traditions and archeology. As McCarthy stated the BLM expects the Tribes to have complete data bases, while the BLM was not forthcoming in providing access to data (McCarthy pers. comm. 2015). The “cumbersome structure and extensive cross referencing thereby undermining the Executive Summary’s claim of a ‘transparent’ approach” indicated to tribes that the BLM may not have been taking tribal concerns seriously, with the entire process called in to question (Coyle 2015, 1). The lack of access to adequately trained cultural survey persons, professional geologists, anthropologists, archeologists, geographers among others to both adequately respond to the demands of the Draft DRECP or to implement their own Renewable Energy Programs through the Tribal Energy Resource Agreement (TERA), which is supposed to bypass many of the onerous regulatory stipulations of the Department of the Interior and Bureau of Indian Affairs (BIA), with the tribes setting up their own equivalents to the EPA, something of a hurdle that no tribe had been able to successfully negotiate (McCarthy pers. comm. 2015; Draft DRCECP III and IV 2014; Dreveskracht 2012, 444-446).
The lack of a truly comprehensive listing of cultural resources has compounded problems associated with the Draft DRECP. The CRIT noted that the DRECP has based its analysis on the “online list of California Historical Resources” which admittedly “includes only as a small portion of the resources that may actually be present” (Patch 2015, 5). Tribes have repeatedly requested that there be an extensive cultural resources inventory taken before leases are granted instead of the due diligence after. The tribes want comprehensive surveys done (Patch 2015, Coyle 2015). Once a lease is in motion it becomes very hard to stop a multi-million dollar project and tribal concerns become downgraded or even presenting the tribes with a false conception that there will be “significant and unavoidable impacts on all sites for energy development” (Patch 2015, 4). Independent scientific reviews of earlier phases of the project cited poorly handled data and a lack of adequately rigorous science in the Draft DRECP process. ”The panel unanimously concluded that DRECP is unlikely to produce a scientifically defensible plan without making immediate and significant course corrections, including strengthening leadership of the scientific program, increasing transparency in decision-making and documentation, improving scientific and technical foundations and analyses, and improving integration and synthesis of all analytical processes and products” (The DRECP Independent Science Panel 2012, 2). Interestingly there was not one mention of cultural resources in the report, reinforcing the position of the tribes regarding the focus of the DRECP.
Tribes with different approaches and specific needs are vulnerable to manipulation from the process by which the DRECP process has given the benefit to tribes and groups that are well funded as opposed to those that have limited resources. Complaints that the BLM was not forthcoming with cultural resource data, plus the lack of adequately trained cultural resource workers and professionals in the related fields of renewable energy development and the ecologically focused sciences has led to a situation in .which the tribes with greater scientific, legal, and financial resources are pitted against those without. The lack of comprehensive regional cultural resource surveys with the BLM depending largely on a 1980 data base, has led to a situation in which those in areas where the cultural resources have been not examined thoroughly face greater pressure as the DFA’s have been located on BLM land where the perception is that less damage will occur. The lack of specific data being available or released in a meaningful manner is problematic and undermines the fairness of the process (McCarthy pers. comm. 2015; Dreveskracht 2012; Patch 2015; Draft DRECP 2014).
The Draft DRECP plan expects that specific sites within the DFA’s will undergo the EIR/EIS process once potential developers have been granted the right to access a particular site. As has been noted once the lease has been granted the likelihood of the tribes to be able to stop the project or move it becomes greatly reduced and the expectation built into the process that damage will occur makes the mitigation process more of a remedy that often is acceptable to tribes with many tribes refusing to accept what are seen as bribes (McCarthy pers. comm. 2015; Patch 2015). The inability of the plan to perceive that some cultural resources may have very great value even if they are few in number as opposed to perhaps an area with many resources of which there may be few of any value, has caused a weighting to sheer numbers which is also problematic (Copley 2015; Draft DRECP 2014; Patch 2015).
Conclusions: The Tribal position is clearly one in which there is reason to suspect the methodology of the DRECP as noted in the comments by the tribes (Copley 2015; Paresa 2015; Patch 2015). The science has been criticized by the scientific review panel established by the DRECP, as well by the advocates for the tribal positions. There is an imperative to get the process of development of renewable resources done right as the process is in its early stages to avoid unnecessary litigation. The tribes are willing to participate in the process but their concerns must be taken seriously and respected for all parties to benefit.
Recommendations: 1.) A thorough and scientific evaluation of the cultural resources in all the areas being considered for DFA designation before the process of allocating leases has begun.
2.) Training of cultural resource workers and assignment of adequate resources to the tribes to adequately determine their best interests in the development process, including access to BLM data, training and resources for tribal representatives to process and interpret the data.
3.) A focus on preventing the necessity for mitigation by adequately determining site acceptability based on protocols that are agreed upon by the tribes affected.
4.) A fair and holistic process that incorporates environmental justice to remove the tendency to pit tribes against one another in the attempt to protect valued cultural resources.
5.) Development of the ability for the tribes to become stakeholders in the process by streamlining of TEFA to allow tribes access to participation in renewable energy development.
6.) Respecting the legislation and statutes already in place and treating the cultural resources on the same level as the biologically impacted ones originally considered by the Draft DRECP.

References Cited.
2014. Draft DRECP and EIS/EIR. Native American Interests III.9. Draft DRECP and EIS/EIR. Accessed November 3, 2015. http://www.drecp.org/draftdrecp/files/d_Volume_III/III.09_Native_American_Interests.pdf
2014. Draft DRECP and EIS/EIR. Native American Interests IV.9. Draft DREP and EIS/EIR. Accessed November 3, 2015. http://www.drecp.org/draftdrecp/files/e_Volume_IV/IV.09_Native_American_Interests.pdf
Copley, Michael. 2014. Tribe Suing Federal Government to Block Construction of Blythe Solar Project. SNL Energy Power Daily.
Coyle, Courtney. 2015. Re: DRECP NEPA/CEQA, Tribal Comments on Draft EIS/EIR. Carmen Lucas, Kwaaymii Laguna. Courtney Coyle Attorney for Carmen Lucas. Energy Docket Optical System, Docketed 09-Renew EO-1 TN 75066 February 23, 2015. Accessed November 21, 2015. http://www.drecp.org/draftdrecp/comments/Kwaaymii_Laguna_Band_of_Indians_comme nts-2015-02-23.pdf
Dreveskracht, Ryan D. 2012. Alternative Energy in American Indian Country: Catering to Both Sides of the Coin. Energy Law Journal. 33, no. 2: 431.
Greenberg, Joy, and Gregory Greenberg. 2013. Native American Narratives as Ecoethical Discourse in Land-Use Consultations. Wicazo Sa Review. 28, no. 2: 30-59.
Las Casas, Bartolome de. 2004. The Devastation of the Indies: A Brief Account (1542). Voices of a people’s history of The United States. Ed. Howard Zinn and Anthony Arnove. New York: Seven Stories Press. 35-42.
McCarthy, Daniel. 2015. Personal Communications. Director of Cultural Affairs San Manuel Band of Mission Indians. Interviewed November 18, 2015.
Nagle, John Copeland.2013.Green Harms of Green Projects. 27 Notre Dame Journal of Law, Ethics & Public Policy 59. Notre Dame Legal Studies Paper No. 1332. Accessed November 21, 2015. Available at SSRN: http://ssrn.com/abstract=2275373
Paresa, Jerry, J. 2015. Re: San Manuel Band of Mission Indians Comments on Desert Renewable Energy Conservation Plan “DRECP”. San Manuel Band of Mission Indians. Email: to David Harlow March 10, 2015. Accessed November 21, 2015. http://www.drecp.org/draftdrecp/comments/San_Manuel_Band_of_Mission_Indians_com ments_2015-03-10_late.pdf
Patch, Dennis. 2015. Re: Comments of the Colorado River Indian Tribes on Draft DRECP NEPA/CEQA Documents. Colorado River Indian Tribes. Colorado River Indian Reservation. California Energy Commission. Docketed 09-Renew EO-1 TN 75205 Feb. 23, 2015. Accessed November 21, 2015. http://www.drecp.org/draftdrecp/comments/Colorado_River_Indian_Tribes_comments_2 015-02-23.pdf
Singleton, David. 2011. California Energy Commission, Dockets Office, MS-4. Dear Mr. Chew. Native American Heritage Commission. Docket 09 Renew EO-1 August 8, 2011. Received October 5, 2011. California Energy Commission. Accessed November 21, 2015. http://www.drecp.org/nepaceqa/comments/Native_American_Heritage_Commission_co mments.pdf
Smith, David Livingstone. 2011. Less than Human Why We Demean, Enslave, and Exterminate Others. New York: St. Martin’s Press.
The DRECP Independent Science Panel. 2012. Final Report Independent Science Review for the California Desert Renewable Energy Conservation Plan. Renewable Energy Action Team. California Department of Fish & Game, U.S. Fish & Wildlife Service, U.S. Bureau of Land Management and the California Energy Commission. http://www.researchgate.net/profile/Wayne_Spencer/publication/273763679_Independe nt_Science_Review_for_the_California_Desert_Renewable_Energy_Conservation_Plan _%28DRECP%29/links/550b1ce60cf265693cef6859.pdf

Related Materials.
2010. California Energy Commission Selects Bureau Veritas as Delegate Chief Building Official for NextEra Energy Resources’ Genesis Solar Energy Project. Energy Weekly News. 422.
Morris, Amy Wilson, and Jessica Owley. 2014. Mitigating the Impacts of the Renewable Energy Gold Rush. Minnesota Journal of Law, Science & Technology. 15, no. 1: 293
Quechan Tribe of the Fort Yuma Indian Reservation v. United States Department of the Interior Citation: 43 ELR 20047 No. 12cv1167-GPC, (S.D. Cal., 02/27/2013) (Curiel, J.) Environmental Law Reporter. Accessed November 22, 2015. http://elr.info/litigation/43/20047/quechan-tribe-fort-yuma-indian-reservation-v-united- states-department-interior#content


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