Pit River Tribe v. Bureau of Land Management
| Decision Date | 13 February 2004 |
| Docket Number | No. CIV-S-02-1314 DFL/JFM.,CIV-S-02-1314 DFL/JFM. |
| Citation | 306 F.Supp.2d 929 |
| Parties | PIT RIVER TRIBE; Native Coalition for Medicine Lake Highlands; and Mount Shasta Bioregional Ecology Center, Plaintiffs, v. BUREAU OF LAND MANAGEMENT; United States Department of the Interior; U.S. Forest Service; Advisory Council on Historic Preservation; and Calpine Corporation, Defendants. |
| Court | U.S. District Court — Eastern District of California |
Deborah Ann Sivas, Esq., Earthjustice Legal Defense Fund, Owen House, Stanford, CA, for Plaintiffs.
Edmund F. Brennan, Assistant U.S. Attorney, Sacramento, CA, for Defendant U.S. Forest Service and Bureau of Land Management.
Jeffery Donald Harris, Esq., Ellison, Schneider and Harris, Esq., Sacramento, CA, Richard Oehler, Esq., Perkins Coie, LLP, Seattle, WA, Robert A. Maynard, Esq., Perkins Coie, LLP, Boise, ID, for Defendant Advisory Council on Historic Preservation and Calpine Corp.
The Pit River Tribe, joined by two other groups, challenges the decision-making process followed by the Bureau of Land Management ("BLM") and the United States Forest Service in connection with a geothermal lease to Calpine Corporation on BLM lands near Medicine Lake, California. Calpine proposes to build a geothermal power plant on the lease lands, at a location known as Fourmile Hill. Plaintiffs ask the court to set aside the leases, thereby putting a stop to the proposed power plant. They bring suit under the National Environmental Policy Act ("NEPA"), the National Historic Preservation Act ("NHPA"), the Geothermal Steam Act, the National Forest Management Act ("NFMA"), and the Administrative Procedure Act ("APA"). Additionally, the Tribe alleges violations of the federal government's trust obligations. The parties have filed cross-motions for summary judgment.
The lead plaintiff is the Pit River Tribe ("Tribe"), a federally registered Indian tribe. The Tribe has lived in Northern California and Southern Oregon for thousands of years. (Pls.' Mot. for PSJ at 3.) The Medicine Lake Highlands ("Highlands") is an area located in Klamath, Modoc, and Shasta-Trinity National Forests, though its borders are not clearly defined. (FEIS Fig. S-1.) The area is within the Tribe's ancestral homeland; however, the Highlands are not tribal land, and the Tribe exercises no external sovereignty over the area. The Highlands are considered sacred by the Tribe and contain a number of important spiritual and cultural sites that are still used by members of the Tribe. (FEIS at 3-64.)
The federal government has designated the general area of the Highlands as the Glass Mountain Known Geothermal Resource Area ("KGRA"). The Glass Mountain KGRA may be capable of producing up to 500 megawatts of electricity. (Calpine's Reply at 20-22.) Under authority of the Geothermal Steam Act, 30 U.S.C. § 1001 et seq., the BLM leased the two parcels at issue in the Glass Mountain KGRA to the predecessor in interest of Calpine in 1988 for an initial term of 10 years. (FEIS at 1-12; AR 21274.) Calpine was assigned the leases in 1996, although it had obtained operating rights in 1994. (FEIS at 1-12.) The BLM extended the leases for terms of five years in 1998. (AR 21274.)
In 1994, Calpine drilled a temperature core hole well at the location of the proposed power plant, now in dispute, known as the Fourmile Hill Development Project ("Fourmile Hill"). (FEIS at 1-12.) The power plant would be built approximately three miles northwest of Medicine Lake in the Klamath National Forest, well within the area traditionally described as the Medicine Lake Highlands. (FEIS at 1-1.) In 1995, Calpine proposed a plan of operations that included drilling another exploration well at Fourmile Hill. (FEIS at 1-14.) In 1996, Calpine submitted a full development proposal for Fourmile Hill including a 50-megawatt power plant with power transmission lines from the plant to a main line 24 miles away. (FEIS at S-21, 22.) The clearance necessary for the power lines would disturb significantly more land (335 acres) than that needed for the plant itself (about 50 acres). (FEIS at 2-12.) The BLM considered several different routes for the power transmission lines, settling on the one that it determined would have the least adverse impact on the area.
In 2000, Calpine acquired CalEnergy, the other major geothermal lessee in the Glass Mountain KGRA. (Calpine's Answer ¶ 100.) CalEnergy was the owner and operator of a lease within the Glass Mountain KGRA that contains a well capable of producing geothermal steam in commercial quantities, known as a paying well. (Calpine's SUF ¶ 24.) Under the BLM's Geothermal Steam Act regulations, a paying well on one lease entitles that lessee to 40-year extensions on its other leases. Because Calpine acquired a paying well, the BLM granted a 40-year extension to Calpine for its other leases in the Glass Mountain KGRA on May 2, 2002. (Id. ¶ 25.)
The leasing and development process has led to the creation of a number of NEPA documents. To begin with, in 1973, the Department of the Interior prepared a programmatic Environmental Impact Statement ("EIS") for nationwide implementation of the Geothermal Steam Act. (AR 17071-19558.) In 1981, when the initial decision was made to issue leases in the Glass Mountain KGRA, the BLM completed an environmental assessment ("EA"), which addressed primarily the impacts of casual use exploration, including geologic mapping, soil sampling, and aerial surveys. (AR 19626, 19637.) A supplemental EA ("SEA") was completed in September 1984. The SEA addressed the exploration, development, and production phases. (Id.) Based on the SEA, the BLM made a Finding of No Significant Impact ("FONSI"), such that an EIS was deemed unnecessary before the initial letting of geothermal leases at the Glass Mountain KGRA. (AR 19621.) When Calpine submitted its exploration plan in 1995, the BLM completed an EA and issued a FONSI before approving the exploration plan. (FEIS at 1-14, 16.) No EA or EIS was completed when the leases were extended for five-year terms in 1998 or for 40-year terms in 2002. After Calpine submitted its Fourmile Hill project proposal in 1996, the federal defendants began work on an EIS. The agencies completed the Fourmile Hill final EIS ("FEIS") in September 1998.
The FEIS is organized into three main sections. The first describes the alternatives, including the proposed action. (FEIS at 2-1 to 2-80.) This section discusses the nature of the Fourmile Hill project, including all the various components of the power plant. It also lays out the proposed alternative routes for the power lines carrying electricity from the plant to the central transmission lines. The second significant section of the FEIS describes the environment affected by the project. (Id. at 3-1 to 3-216.) It discusses the natural environment, for example, vegetation and wildlife, as well as the human environment, for example, recreation and transportation. This section includes a discussion of "traditional cultural values." (Id. at 3-64 to 3-77.) Finally, the FEIS has a section devoted to the environmental consequences of the project and the mitigation measures adopted. (Id. at 4-1 to 4-340.) This section analyzes the impacts on all the various aspects of the natural and human environment discussed in the previous section. This section includes the FEIS' discussion of the unavoidable significant effects of the project, including those to traditional cultural values. (Id. at 4-335.)
The record is silent as to when consultation with the Pit River Tribe or any other tribe began. The Tribe received a copy of the 1995 EA concerning Calpine's proposed exploration plan. (Fed. Defs.' Opp'n at 14.) The Tribe did not appeal the BLM's FONSI. (Id.) The BLM and Forest Service consulted the Pit River and Klamath Tribes on a number of occasions during the preparation of the Fourmile Hill EIS. Between October 1995 and April 1998, the Forest Service and the BLM had six meetings with the Pit River Tribe and eight meetings with the Klamath Tribes. (FEIS at 3-66.) In addition, Calpine hired an ethnographic consultant to study the area's importance to local Indians. The consultant interviewed 31 local residents, mostly from the Pit River Tribe, and also made several site visits. (Id. at 3-66 to 3-68.) This study was incorporated into the FEIS.
After completion of the FEIS, the BLM and Forest Service issued a joint project Record of Decision ("ROD") approving the Fourmile Hill project on May 31, 2000.1 (AR 19982-20008.) However, the ROD contained a five-year moratorium on further development in the Glass Mountain KGRA, pending analysis of the actual impacts of the development of the Fourmile Hill project. (AR 19983.) On June 15, 2001, the BLM decided to lift the moratorium, citing: (a) the serious national energy shortage, (b) a new executive order directing agencies to expedite projects that increase energy production, and (c) the recommendations of the President's National Energy Policy Development Group for more geothermal power and for the streamlining of the geothermal leasing process. (AR 15471-15472.) By lifting the moratorium, the agency allowed potential further geothermal development on additional leases within the Glass Mountain KGRA, whether by Calpine or another lessee.
The ROD also announced a change in the Klamath Forest Plan Standard 24-25. (AR 19984.) The old Standard provided: "Protect traditional Native American rights and practices (Public Law (PL) 95-341) to insure the integrity of the site and...
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