PIT RIVER TRIBE; NATIVE COALITION FOR MEDICINE LAKE HIGHLANDS DEFENSE; MOUNT SHASTA BIOREGIONAL ECOLOGY CENTER; SAVE MEDICINE LAKE COALITION; MEDICINE LAKE CITIZENS FOR QUALITY ENVIRONMENT, Plaintiffs-Appellants,
BUREAU OF LAND MANAGEMENT; U.S. DEPARTMENT OF THE INTERIOR; UNITED STATES FOREST SERVICE; UNITED STATES DEPARTMENT OF AGRICULTURE; CALPINE CORPORATION, Defendants-Appellees
Argued and Submitted March 12, 2015 San Francisco, California
Appeal from the United States District Court for the Eastern District of California. D.C. No. 2:04-cv-00956-JAM-JFM. John A. Mendez, District Judge, Presiding.
The panel reversed the district court's order granting judgment on the pleadings in an action brought by environmental organizations challenging the Bureau of Land Management's continuation of 26 geothermal leases in northeastern California's Medicine Lake Highlands.
The panel held that the district court incorrectly treated the environmental organizations' claims as arising under only § 1005(a) of the Geothermal Steam Act. BLM's 1998 decision to continue the 26 unproven leases in the Glass Mountain Unit under § 1005(a) was issued simultaneously with its decision to reverse and vacate its earlier decision to extend those leases on a lease-by-lease basis under § 1005(g). The panel held, thus, that the environmental organizations' challenge to BLM's decisions issued on May 18, 1998 implicated both § 1005(a) and § 1005(g).
Because BLM must conduct environmental, historical, and cultural review under the National Environmental Policy Act and the National Historic Preservation Act before granting lease extensions under § 1005(g), the panel held that the environmental organizations' claim fell within § 1005(g)'s zone-of-interests, and the organizations had stated a claim under § 1005(g).
The panel declined the environmental organizations' invitation to rule on the merits of its Geothermal Steam Act claims, and remanded for further proceedings.
Jason S. George (argued), Evan H. Stein (argued), Certified Law Students, Palo Alto, California; Deborah Ann Sivas, Matthew J. Sanders, and Alicia E. Thesing, Mills Legal Clinic of Stanford Law School, Stanford, California, for Plaintiffs-Appellants.
David Taylor Shelledy (argued), Assistant United States Attorney, and Benjamin B. Wagner, United States Attorney, Sacramento, California, for Defendants-Appellees Bureau of Land Management, United States Department of the Interior, United States Forest Service, and United States Department of Agriculture.
Rosemary Antonopoulos, Dublin, California; Thomas L. Sansonetti, Holland & Hart LLP, Cheyenne, Wyoming, for Defendant-Appellee Calpine Corporation.
Before: William A. Fletcher and Morgan Christen, Circuit Judges, and Roslyn O. Silver,[*] Senior District Judge.
Morgan Christen, Circuit
The Pit River Tribe and several regional environmental organizations (collectively Pit River) appeal from the district court's order granting judgment on the pleadings on Pit River's action challenging the Bureau of Land Management's (BLM) continuation of 26 geothermal leases in northeastern California's Medicine Lake Highlands. Pit River's complaint alleged that BLM's decision violated the Geothermal Steam Act, the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), and the government's fiduciary trust obligation to Indian tribes. The district court concluded Pit River lacked prudential standing to bring its Geothermal Steam Act claims because the claims did not fall within the zone of interests of the Act's lease-continuation provision, 30 U.S.C. § 1005(a). The district court rejected Pit River's other claims on the basis that BLM had no discretion to consider environmental, historical, or cultural interests before continuing the leases under § 1005(a).
We conclude that the district court incorrectly treated Pit River's claims as arising under only § 1005(a) of the Geothermal Steam Act. BLM's 1998 decision to continue the 26 unproven leases in the Glass Mountain unit under § 1005(a) was issued simultaneously with its decision to reverse and vacate its earlier decision to extend those leases on a lease-by-lease basis under § 1005(g). Thus, Pit River's challenge to the decisions issued on May 18, 1998 implicates both § 1005(a) and § 1005(g). Because BLM must conduct environmental, historical, and cultural review under NEPA and NHPA before granting lease extensions under § 1005(g), Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 780-84, 787-88 (9th Cir. 2006) (" Pit River I" ), Pit River's claim falls within § 1005(g)'s zone of interests and Pit River has stated a claim under § 1005(g). Accordingly, we reverse the district court's decision.
I. The Plaintiffs' Interests
The Medicine Lake Highlands are part of the Pit River Tribe's ancestral homeland. Tribal members " consider the region sacred and continue to use numerous important spiritual and cultural sites within the highlands." Pit River I, 469 F.3d at 772. The complaint alleges that exploration of and development on geothermal leases will interfere with tribal members' use of the Medicine Lake Highlands " for a variety of spiritual and traditional cultural purposes" that " depend on the physical, environmental, and visual integrity of these areas, and their quietude." The complaint alleges that the non-tribal plaintiffs have environmental, recreational, aesthetic, and scientific interests in the Medicine Lake Highlands that are inconsistent with geothermal development.
II. The Geothermal Steam Act
When interest in geothermal power development first began to grow in the 1960s, the United States Department of the Interior determined that it lacked statutory authority to dispose of geothermal resources on federal land. Robert B. Keiter, The Old Faithful Protection Act: Congress, National Park Ecosystems, and Private Property Rights, 14 Pub. Land L.Rev. 5, 9 (1993). Congress recognized the necessity of creating a legal framework governing the development of geothermal resources on federal land, see Wagner v. Chevron Oil Co., 321 F.Supp.2d 1195, 1198 (D. Nev. 2004), and in 1970 it enacted the Geothermal Steam Act for the express purpose of " promot[ing] the development of geothermal leases on federal lands."  Geo-Energy Partners-1983 Ltd. v. Salazar, 613 F.3d 946, 949 (9th Cir. 2010) (citing 30 U.S.C. § 1001, et seq ; Wagner, 321 F.Supp.2d at 1198).
The Geothermal Steam Act authorizes " the Secretary of the Interior to 'issue leases for the development and utilization of geothermal steam' on federal land and in national forests." Pit River I, 469 F.3d at 772-73 (quoting 30 U.S.C. § 1002). Geothermal leases on federal land have a primary term of ten years. 30 U.S.C. § 1005(a) (1998). At the end of that term, the Secretary must grant a continuation of the lease for a term up to 40 additional years if " geothermal steam is produced or utilized in commercial quantities." Id. Section 1005(d) defines " produced or utilized in commercial quantities" to include " the completion of a well capable of producing geothermal steam in commercial quantities so long as the Secretary determines that diligent efforts are being made toward the utilization of the geothermal steam." Where geothermal steam has not been produced or utilized in commercial quantities by the end of the initial, ten-year lease term, the Secretary may extend the lease for successive five-year terms if certain conditions are met. Id. § 1005(g). Under § 1005(g)'s five-year extension provision, BLM must conduct a review pursuant to NEPA and NHPA considering the cultural, historical, and environmental effects of its leasing decision before making its lease-extension determination. Pit River I, 469 F.3d at 781, 784-89.
The Geothermal Steam Act also authorizes the Secretary to approve " cooperative or unit plan[s]" under which multiple leases are managed as a unit. 30 U.S.C. § 1017 (1998); 43 C.F.R. § 3280.0-2 (1997). The purpose of cooperative or unit plans is to " conserv[e] natural resources," 43 C.F.R. § 3280.0-2 (1997), and " provide for more efficient development and production of geothermal resources." Geo-Energy Partners-1983, 613 F.3d at 949. The Secretary has relatively broad discretion to set the terms of a unit plan and to regulate the leases within the plan. 30 U.S.C. § 1017 (1998). The Secretary must review unit plans every five years " and, after notice and opportunity for comment, eliminate from inclusion in such plan any lease or part of a lease not regarded as reasonably necessary to cooperative or unit operations under the plan." Id.
III. The Glass Mountain Leases
The Department of the Interior issued a programmatic environmental impact statement (EIS) in 1973 addressing nationwide implementation of the Geothermal Steam Act. Pit River I, 469 F.3d at 773. With several exceptions not relevant here, the EIS did not address geothermal development in particular locations. Rather, the EIS suggested that issuing individual leases may require subsequent, more particularized EISs. Id. In 1981, BLM and the Forest Service issued an Environmental Assessment (EA) evaluating " whether to allow geothermal leasing and casual use exploration on approximately 266,800 acres of National Forest land in the Medicine Lake Planning Unit, and an adjacent 26,750 acres." Id. After completion of this EA, the Forest Service issued a Finding of No Significant Impact for potential geothermal leasing in the Medicine Lake Planning Unit of the Modoc, Klamath, and Shasta-Trinity National Forests.
In 1982, BLM entered into a " Unit Agreement for the Development and Operation of the Glass Mountain Area," which eventually included the 26 unproven leases at issue in this appeal. The Unit Agreement included exhaustive rules governing the management of leases within the unit. Among many other provisions, the Unit Agreement required the unit operator to submit a plan of operation establishing deadlines for progress in exploration and ensuring " proper protection of the environment and conservation of the natural resources of the Unit Area." Article 17.4 of the Unit Agreement provided that " [d]rilling and/or producing operations performed . . . upon any tract of Unitized Lands will be accepted and deemed to be performed upon and for the benefit of each and every tract of Unitized Land."
BLM and the Forest Service issued a supplemental EA in 1984, this time addressing " the exploration, development and production phases of the geothermal program." Id. at 774. This document recognized the cultural and historical importance of the Medicine Lake area to modern Native American groups. Id. at 774-75. Following completion of the 1984 EA, BLM issued the " Glass Mountain Geothermal Decision Record," authorizing leasing on an additional 41,500 acres within the Medicine Lake Highlands.
Between 1982 and 1988, BLM granted the 26 leases that are the subject of this appeal. In 1989, BLM determined that a different lease within the Glass Mountain Unit was capable of producing geothermal steam in commercial quantities (the " paying-well determination" ). In November 1990, one of Calpine Corporation's predecessors requested five-year extensions for 23 ...