Pit River Tribe v. Bureau of Land Mgmt.

• Decision Date: 19 September 2019
• Docket Number: No. 17-15616,17-15616
• Parties: 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-Appellees, v. BUREAU OF LAND MANAGEMENT; U.S. Department of the Interior, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

939 F.3d 962

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-Appellees,

v.BUREAU OF LAND MANAGEMENT; U.S. Department of the Interior, Defendants-Appellants.

No. 17-15616

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 14, 2019 Seattle, Washington

Filed September 19, 2019

Mary Gabrielle Sprague (argued) and Ellen J. Durkee, Appellate Section; Eric Grant, Deputy Assistant Attorney General; Jeffrey Bossert Clark, Acting Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.

Samuel Lazerwitz (argued) and Caleb G. Wright (argued), Certified Law Students; Alicia E. Thesing, Isaac C. Cheng, and Deborah Ann Sivas, Supervising Attorneys; Environmental Law Clinic, Mills Legal Clinic at Stanford Law School, Stanford, California; for Plaintiffs-Appellees.

Before: William A. Fletcher and Morgan Christen, Circuit Judges, and Roslyn O. Silver,^* District Judge.

CHRISTEN, Circuit Judge:

The Bureau of Land Management and the Department of the Interior (collectively, BLM) appeal the district court’s order granting summary judgment in favor of the Pit River Tribe and several local and regional environmental organizations (collectively, Pit River). We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm the district court’s judgment.

I. Background

Pit River filed this action against the federal agencies responsible for administering twenty-six unproven geothermal leases located in California’s Medicine Lake Highlands. We refer to these leases as "unproven" because BLM has not determined that they are capable of producing geothermal steam in commercial quantities. See Pit River Tribe v. Bureau of Land Mgmt. , 793 F.3d 1147, 1149–50 (9th Cir. 2015) (Pit River III ).¹ Calpine Corporation, the current leaseholder, was also named as a defendant but it did not appeal the judgment the district court entered on remand from our court. The operative complaint alleges that BLM’s decision to continue the terms of the unproven leases for up to forty years violated the Geothermal Steam Act (GSA), the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), and the Indian-fiduciary-trust doctrine.² Id. at 1148.

The subject leases are located within the Glass Mountain Unit Plan. The parties agree that the GSA requires that any lease be allowed to continue if it is producing geothermal steam in commercial quantities, or is shown to be capable of doing so, within its primary ten-year term. See 30 U.S.C. § 1005(a) (1994).³ The parties’ dispute centers on whether all leases committed to a "unit plan" may be collectively continued for up to forty years if any single lease in the unit becomes productive during the primary term. Pit River argues that § 1005(a) allows production-based continuations to be granted only on an individual basis. BLM argues that § 1005(a) allows production-based continuations to be granted to all leases in a unit if any one of them becomes productive during the primary term. BLM’s interpretation of the GSA is heavily informed by its view that the Mineral Leasing Act (MLA), 30 U.S.C. §§ 221i– 236a (1964), provides an important backdrop against which the GSA must be analyzed.⁴

II. Procedural History

This is the second time our court has addressed the controversy concerning the duration of the leases in the Glass Mountain Unit. See Pit River III , 793 F.3d at 1148. In July of 2013, the district court granted judgment on the pleadings in favor of BLM on the grounds that Pit River lacked prudential standing to assert its GSA claim. Id. at 1154–55. We reversed the district court’s judgment, ruling that Pit River’s claim fell within the GSA’s "zone of interests," id. at 1155–58, and we remanded to the district court so it could consider the merits of the claims.

On remand from Pit River III , the district court granted summary judgment in favor of Pit River. The court ruled that, as it was written in 1994, the GSA’s primary term provision was unambiguous and did not authorize BLM to continue the twenty-six unproven leases for forty years simply because they were part of a unit that contained a single proven lease. The district court reasoned that because Congress referred to "unit plans" in § 1005(c) and (g), but omitted this term from § 1005(a), "Congress did not contemplate the additional [forty]-year term for nonproductive leases committed to a unit plan under [§] 1005(a)." In an amended judgment, the district court vacated and set aside BLM’s May 18, 1998 decision granting the lease continuations, and remanded the proceedings to the agency to determine whether to extend or cancel the twenty-six leases pursuant to the GSA and the implementing regulations in effect as of May 1998. The district court observed that its judgment did not affect BLM’s decision to continue the single proven lease, and that Pit River’s NEPA, NHPA, and fiduciary duty claims were mooted by the court’s vacatur of BLM’s 1998 decision letters. BLM appeals the district court’s judgment.

III. Standard of Review

We review de novo an order granting summary judgment. Cty. of Amador v. U.S. Dep’t of the Interior , 872 F.3d 1012, 1020 (9th Cir. 2017).

IV. Jurisdiction

We must first assure ourselves of our jurisdiction to hear this appeal because the district court’s order granting summary judgment vacated BLM’s 1998 decision letters and remanded to the agency. See Pit River Tribe v. U.S. Forest Serv. , 615 F.3d 1069, 1075 (9th Cir. 2010). "[R]emand orders are generally not ‘final’ decisions for purposes of section 1291 [,]" id. , but a remand order is considered final and appealable where: "(1) the district court conclusively resolves a separable legal issue, (2) the remand order forces the agency to apply a potentially erroneous rule which may result in a wasted proceeding, and (3) review would, as a practical matter, be foreclosed if an immediate appeal were unavailable." Id. (quoting Alsea Valley All. v. Dep’t of Commerce , 358 F.3d 1181, 1184 (9th Cir. 2004) ). Here, because the district court determined that 30 U.S.C. § 1005(a) did not authorize BLM to continue the unproven leases based on the single proven lease, BLM will be constrained by this interpretation on remand. If the district court’s interpretation is incorrect, the remand will result in a wasted proceeding. Moreover, review of the district court’s interpretation will be foreclosed absent immediate appeal because, after remand to the agency, BLM cannot later appeal the result of its own agency decision. See Alsea Valley All. , 358 F.3d at 1184 ; Chugach Alaska Corp. v. Lujan , 915 F.2d 454, 457 (9th Cir. 1990). For these reasons, we conclude that we have jurisdiction to hear this appeal.

V. Discussion

A. The Geothermal Steam Act

This appeal requires us to interpret the GSA, 30 U.S.C. §§ 1001 – 1028 (1994). Congress enacted the GSA in 1970 "to promote the development of geothermal leases on federal lands." Geo-Energy Partners-1983 Ltd. v. Salazar , 613 F.3d 946, 949 (9th Cir. 2010). Geothermal resources include "the heat or energy found in steam, hot water, or geothermal formations." Id. The GSA was adopted in the wake of the MLA, which governs oil and gas leases on federal lands. BP Am. Prod. Co. v. Burton , 549 U.S. 84, 87, 127 S.Ct. 638, 166 L.Ed.2d 494 (2006). A brief explanation of the MLA’s unitization provision provides helpful background.

When Congress enacted the MLA, oil and gas were extracted under the common-law "rule of capture," which encouraged landowners to drill wells on individual leases to capture as much oil or gas as possible. See Frank Sylvester & Robert W. Malmsheimer, Oil and Gas Spacing and Forced Pooling Requirements: How States Balance Energy Development and Landowner Rights , 40 U. Dayton L. Rev. 47, 49 (2015). The rule of capture encouraged overdrilling that dissipated reservoir pressure and ultimately led to inefficient oil and gas recovery. See Northcutt Ely, The Conservation of Oil , 51 Harv. L. Rev. 1209, 1219–22 (1938). The practice of unitization emerged in response to these inefficiencies. See Sylvester, et al., supra at 49–50. Unitization allows an entire oil or gas field "to be operated as a single entity, without regard to surface boundary issues," see Norfolk Energy, Inc. v. Hodel , 898 F.2d 1435, 1438 (9th Cir. 1990) (internal quotation marks omitted), i.e., it allows drilling and production operations occurring on a single lease within a unit to be deemed performed on all other leases within the unit for purposes of showing that bona fide development efforts have been made, or for sharing royalties. See, e.g. , 30 U.S.C. § 1017 ; 30 U.S.C. § 226(j) ; 43 C.F.R. §§ 3280–3287 (1997). By limiting the need to drill on each lease within a unit, unitization lessens the likelihood that an oil or gas reservoir will suffer from overdrilling and depleted reservoir pressure. Congress incorporated the unitization concept into the MLA, granting the Secretary of the Interior the authority to approve unit plans of development when doing so is in the public interest. See Pub. L. No. 71-853, 46 Stat. 1523. Although significant differences exist between the MLA and the GSA, the GSA also permits lessees to join together under unit plans of development. See 30 U.S.C. § 1017 ; 43 C.F.R. § 3280.0–2 (1997).

The GSA refers to production-based "continuations" and drilling-based "extensions"—concepts articulated in the MLA—but neither the MLA nor the GSA explicitly define these terms. See 30 U.S.C. §§ 221i– 236a ; 30 U.S.C. § 1001. The parties agreed at oral argument that, like the MLA, the GSA allows for lease continuations based on production, and lease extensions based on exploratory drilling activities.⁵

Pit River’s claims implicate §§ 1005 and 1017 of the GSA, so we discuss...