Pit River Tribe v. U.S. Forest Service

• Citation: 469 F.3d 768
• Decision Date: 06 November 2006
• Docket Number: No. 04-15746.,04-15746.
• Parties: PIT RIVER TRIBE; Native Coalition for Medicine Lake Highlands Defense; Mount Shasta Bioregional Ecology Center, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE; Advisory Council on Historic Preservation; United States Bureau of Land Management; Calpine Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

469 F.3d 768

PIT RIVER TRIBE; Native Coalition for Medicine Lake Highlands Defense; Mount Shasta Bioregional Ecology Center, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE; Advisory Council on Historic Preservation; United States Bureau of Land Management; Calpine Corporation, Defendants-Appellees.

No. 04-15746.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 14, 2006.

Filed November 6, 2006.

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Deborah A. Sivas, Earthjustice, Stanford, CA, for the plaintiffs-appellants.

Thomas L. Sansonetti, Andrew Mergen, Todd S. Aagaard, Andrea L. Berlowe, Dep't of Justice, Washington, D.C., for the defendants-appellees.

Robert A. Maynard, Richard W. Oehler, Perkins Coie LLP, Boise, ID, for defendant-appellee Calpine Corporation.

Stephan C. Volker, Joshua A.H. Harris, Marnie E. Riddle, Law Offices of Stephan C. Volker, Oakland, CA, for Amici Curiae Save Medicine Lake Coalition, Medicine Lake Citizens for Quality Environment, Fall River Wild Trout Foundation, Klamath Forest Alliance, and California Wilderness Coalition in support of appellants.

Appeal from the United States District Court for the Eastern District of California; David F. Levi, District Judge, Presiding. D.C. No. CV-02-01314-DFL.

Before: WALLACE, THOMAS, and WARDLAW, Circuit Judges.

WALLACE, Circuit Judge:

The Pit River Tribe, the Native Coalition for Medicine Lake Highlands Defense, and the Mount Shasta Bioregional Ecology Center (collectively Pit River) appeal from the district court's summary judgment on their claims against the Bureau of Land Management, the United States Forest Service, and the Department of the Interior (collectively agencies). Pit River alleges that the procedures followed by the agencies in extending certain leases in the Medicine Lake Highlands, and the subsequent approval of a geothermal plant to be built there, violated the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), the National Forest Management Act (NFMA), and the Administrative Procedure Act (APA). Pit River also contends that the agencies violated their fiduciary obligations to Native American tribes. We have jurisdiction pursuant to 28 U.S.C. § 1291. We conclude that the agencies did not take a "hard look" at the environmental consequences of the 1998 lease extensions and never adequately considered the no-action alternative. We therefore reverse.

I.

Medicine Lake and the highlands surrounding it are of great spiritual significance to the Pit River Tribe and to the other Native American tribes in the region. Although the highlands are within the Pit River Tribe's ancestral homelands, they are not part of the tribe's reservation. Tribe members, however, consider the region sacred and continue to use numerous important spiritual and cultural sites within the highlands.

This litigation concerns the efforts of Calpine Corporation (Calpine),¹ a California power company, to develop a geothermal power plant at Fourmile Hill near Medicine Lake. The Geothermal Steam Act of 1970, 30 U.S.C. §§ 1001-1025 (2005) (as amended), allows the Secretary of the Interior to "issue leases for the development and utilization of geothermal steam" on federal land and in national forests. Id. § 1002. Pursuant to the Geothermal Steam Act in effect at the time, the federal government designated the general area of the Medicine Lake Highlands as the Glass Mountain Known Geothermal Resource Area (Resource Area).

In 1973, the Department of the Interior issued a programmatic environmental impact statement (EIS) considering how to implement the Geothermal Steam Act nationwide (1973 EIS). Except for three California locations not at issue in this litigation, the 1973 EIS did not address the environmental implications of geothermal development in particular locations. Rather, the 1973 EIS provided for tiered environmental review because of the wide geographical distribution of potentially affected lands. "Specific details will be identified, evaluated, and described in the environmental analysis record prepared for each lease area prior to any leasing action."

The 1973 EIS repeatedly discussed the interplay between NEPA and the Geothermal Steam Act, admitting that issuing geothermal leases "may constitute major Federal action significantly affecting the quality of the human environment," thus requiring the preparation of subsequent EISs under NEPA. That EIS further provided that "[w]here the interdisciplinary evaluations or studies of any lease program reveal that a particular activity may constitute major Federal action significantly affecting the human environment, . . . an environmental statement will be prepared and circulated in accordance with Section 102(2)(c) of the National Environmental Policy Act." The 1973 EIS stated that, in addition to review of leasing decisions, "[p]rior to the construction of power plants and transmission lines, and possibly of by-product water and mineral extraction facilities, further environmental evaluation will be made. If there are significant potentially adverse environmental impacts not previously considered, an additional environmental statement may be necessary."

Subsequently, in April 1981, the Bureau of Land Management (Bureau) and the Forest Service released an environmental assessment (1981 EA) for "casual use" exploration of the Resource Area. The stated purpose of the EA was "to decide 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." The EA stated that "[o]ne of the Management Directives in the Land Management Plan [was] to provide for geothermal development where it is compatible with other uses," and recommended leasing "in all areas with special stipulations applied to sensitive areas." It contained no discussion of the cultural or tribal impacts of the proposed leasing.

The 1981 EA acknowledged that, in general, "[a] decision to lease carries with it the right to develop a discovered resource, subject to the limitations of the lease." It also made clear that "[t]he details of future exploration and development cannot be evaluated prior to leasing," and that "[f]urther analysis will be required for the later stages of exploration and, if a resource is discovered, development." The 1981 EA observed that "[a]t each step in the process there are numerous environmental safeguards required by the system, including EAs or EISs, and public participation." In an appendix to the 1981 EA, the EA made clear that several staged EAs or EISs would be required to proceed to subsequent phases of the project.

In 1984, the Bureau and the Forest Service jointly issued a Supplemented Environmental Assessment for leasing activity in the Medicine Lake area (1984 EA). While the 1981 EA focused on casual use exploration, the 1984 EA explicitly addressed "the exploration, development and production phases of the geothermal program," with an eye to "deciding which lands should be leased and what measures are required to protect valuable resources." The 1984 EA also required "[t]he lessee [to] file an operating plan for subsequent activities in exploration, development, and operation of the lease. Each operating plan will require an additional environmental analysis and approval. Additional site-specific conditions are then required before the lessee can begin activities." The document was tiered to the 1973 EIS and specifically incorporated its evaluation of geothermal exploration, development effects, and related issues.

Unlike the 1973 EIS or the 1981 EA, the 1984 EA considered the possible effects of development on the cultural, recreational, and spiritual significance of certain features in the Medicine Lake area. For example, although the 1984 EA acknowledged that "[n]atural attractions could be impaired by construction and development so as to lose their recreational appeal," it suggested that "geothermal production could become an attraction itself."

The document stated that the area remained culturally significant to modern-day Native Americans. The discussion of the area's modern-day cultural significance read, in its entirety, as follows:

The modern Native American peoples who have cultural traditions extending back to the prehistoric period, continue to use resources found in the study area in an effort to preserve their cultural identities. These resources not only include tangible materials such as food and ceremonial items but some natural features of the landscape have spiritual significance as well. These areas have not yet been completely recorded, nor are they likely ever to be. Some general areas of spiritual significance known to be of concern to local Native Americans include: Mt. Shasta, Black Fox Mountain, Little Black Fox Mountain, Medicine Lake, Medicine Mountain and various other peaks, mountains and springs. The American Indian Religious Freedom Act of 1979[] requires ongoing consultation with local Native American organizations and individuals during all phases of land-surface altering activities for protection of the sites and areas important to the preservation of these cultural traditions.

The 1984 EA also discussed the historical significance of the area: "Although no sites in the study area are currently on the National Register of Historic Places, many have been judged eligible and several are in the process of being nominated. Nomination and/or acceptance is, however, no obstacle to a site's removal by scientific excavation."

The 1984 EA's entire discussion of the effects of the proposed leasing on cultural and historical resources is as follows:

Any ground surface-disturbing activity within the boundaries of a prehistoric, protohistoric or historic site will disturb and/or destroy the patterning of surface and subsurface artifacts...