Tribe v. Bureau of Land Mgmt.
| Decision Date | 29 July 2013 |
| Docket Number | NO. 2:04-CV-0956-JAM-JFM,NO. 2:04-CV-0969-JAM-JFM,2:04-CV-0956-JAM-JFM,2:04-CV-0969-JAM-JFM |
| Court | U.S. District Court — Eastern District of California |
| Parties | PIT RIVER TRIBE; et al., Plaintiffs, v. BUREAU OF LAND MANAGEMENT; et al., Defendants. |
The federal agencies submit this proposed order pursuant to the Court's instructions during the hearing on July 10, 2013. In addition, the agencies respectfully suggest that the order be designated for publication. Other courts may find the order helpful, especially the analysis of Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, ____ U.S. _____, 132 S. Ct. 2199 (2012).
Counsel for defendant Calpine Corporation has authorized the undersigned to state that Calpine joins the proposed order. The undersigned attempted without success to obtain plaintiffs' approval as to form. Their counsel responded that she is in a location where she is unable to download the proposed order for review and so is not in a position to agree or disagree as to form. Initially, she proposed to request an extension of time for filing of the proposed order; but in her last email, she advised the undersigned to go ahead with this filing.
Respectfully submitted,
BENJAMIN B. WAGNER
United States Attorney
________
DAVID T. SHELLEDY
Assistant U.S. Attorney
This matter came before the Court on July 10, 2013 for hearing on the federal agency defendants' motion for partial judgment on the pleadings and for partial summary judgment and on Calpine's motion for partial judgment on the pleadings or for partial summary judgment. Deborah A. Sivas appeared on behalf of plaintiffs. Assistant U.S. Attorney David T. Shelledy appeared on behalf of defendants U.S. Department of the Interior, Bureau of Land Management ("BLM"), U.S. Department of Agriculture, and the Forest Service. Craig D. Galli appeared on behalf of defendant Calpine Corporation.
In a First Amended Complaint filed on March 8, 2013, plaintiffs challenge a decision by the Bureau of Land Management ("BLM") in May 1998 announcing that twenty-six federal geothermal leases on the Klamath and Modoc National Forests were entitled to continuation for up to forty years. Plaintiffs claim that the lease continuation violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., the National Historic Preservation Act ("NHPA"), 16 U.S.C. § 470 et seq., the Geothermal Steam Act, 30 U.S.C. §§ 1001 et seq., and the government's fiduciary duty to the Pit River Tribe. In addition, plaintiff Mount Shasta Bioregional Ecology Center ("MSBEC") asserts a claim under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq.: specifically, that BLM and the Department of the Interior failed to issue a complete decision on a request for certain documents submitted by MSBEC in May 2003.
Defendant Calpine joins the motion filed by the federal agencies. In addition, Calpine's counsel explained at the hearing that Calpine's own motion which included alternative grounds for relief need not be decided if the Court grants the motion filed by the agencies. By this order, the Court grants the motion filed by the agencies, grants judgment on the pleadings for all defendants on the First, Second, Third, and Fourth Causes of Action, and grants summary judgment in favor of the Department of the Interior and BLM on the Fifth Cause of Action. Accordingly, the motion filed by Calpine is moot and will not be decided.
The following discussion is solely to provide context for the claims asserted by the plaintiffs. As explained below, on all claims except FOIA, the Court's decision is based solely on the applicable law and the factual allegations of the First Amended Complaint.
The Geothermal Steam Act authorizes the Secretary of the Interior to lease federal lands for geothermal power development. Sierra Club v. Hathaway, 579 F.2d 1162, 1164 (9th Cir. 1978). A lessee is entitled to use so much of the surface of the land covered by the geothermal lease as necessary for production, utilization, and conservation of geothermal resources. 30 U.S.C. § 1013 (1998); 43 C.F.R. § 3200.0.6 (1997). The statute has been amended multiple times since its original enactment in 1970. The claims in this case are governed by the statute as codified in the 1998 edition of the United States Code and BLM regulations set forth in the 1997 edition of the Code of Federal Regulations.1 All citations are to those editions unless otherwise noted.
The statute and implementing regulations authorize BLM to issue leases for geothermal exploration and development on National Forest lands with consent from USDA. 30 U.S.C. § 1014; 43 C.F.R. § 3201.1-3. Geothermal leases have a primary term of ten years. 30 U.S.C. § 1005; 43 C.F.R. § 33203.1-2. As of 1998, a lease would continue for up to forty years beyond the primary term if the lessee was producing or using the geothermal resource, or had drilled a well capable of production in commercial quantities and was making diligent efforts toward commercial production or utilization, as determined by BLM. 30 U.S.C. § 1005(a); 43 C.F.R. § 3202.1-3. Commercial production is defined as including "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." Id. § 1005(d); 43 C.F.R. § 3200.0-5(x). If the requirements for continuation were not satisfied, the primary term could be extended for five years based on (a) diligent efforts and commencement of drilling during the primary term, or (b) bona fide efforts and payments in lieu of commercial production. 43 C.F.R. §1005(c)-(i). The statute and regulations also authorize BLM to approve operation of multiple leases under a unit plan for exploration and development of a commongeothermal resource pool or field, whenever BLM determined this to be in the public interest. 30 U.S.C. § 1017; 43 C.F.R. § 3280.0-2. For at least some purposes, leases committed to a geothermal unit benefit from drilling and commercial production or bona fide efforts on other leases committed to the same unit. See 30 U.S.C. § 1005(c), (g); 43 C.F.R. § 3286.1 Art. 17.3-17.4.
With consent from the Forest Service, BLM issued the leases in this case between 1982 and 1988. 1st Amend. Compl. ¶¶ 32, 34, 39. Also in the 1980s, BLM approved the Glass Mountain Unit Agreement and commitment of twenty-seven leases to the Unit. In 1989, BLM issued what the parties refer to as "the paying well determination" - i.e., a determination that one of the leases had a well capable of commercial production. In July 1991, BLM issued a decision (a) recognizing that the lease with the paying well was entitled to continuation for up to forty years, and (b) granting five-year extensions to other leases committed to the Glass Mountain Unit. Five-year extensions were granted for two additional leases in March 1992. Record Excerpts ("RE") at 27-31.
Six years later, on May 18, 1998, BLM concluded that instead of five-year extensions, all leases committed to the Glass Mountain Unit should have received lease continuations based on the paying-well determination made in 1989. Accordingly, BLM announced that the twenty-six leases committed to the Glass Mountain Unit that had not already received a continuation were "granted an additional term, effective February 13, 1989" (the date of the paying well determination), which would continue for up to forty years after the end of the primary term, so long as the unit operator or lessee submitted an annual report describing diligent efforts. RE 57-59. The same day, BLM announced that the five-year extensions previously granted in error were rescinded. RE 60-61.
In 1997, the Glass Mountain Unit operator submitted a plan of operation for some of the leases in issue here, proposing to construct a power plant and related facilities called the "Telephone Flat Geothermal Development Project." 1st Amend. Compl. ¶ 80. BLM and the Forest Service prepared a joint environmental impact statement on the proposal (id. ¶ 82) and subsequently approved the project. Id. ¶ 91. However, last year, in response to a request from Calpine, the agencies withdrew their Telephone Flat Project approvals, and all permits and licenses issued pursuant to the approvals, for further environmental analysis and tribal consultation in light of Pit River Tribe v. U.S. Forest Service, 469 F.3d 768 (9th Cir. 2006) ("Pit River I"), which adjudicated environmental claims pertaining togeothermal leases other than the ones in this case. 1st Amend. Compl. ¶ 97. That action rendered moot some of the claims previously asserted in this case and resulted in a stipulation and order for the filing of an amended complaint challenging only the May 18, 1998 lease continuation. Stipulation and Order filed March 8, 2013 (Dkt. 45).
Under Rule 12(c), Fed. R. Civ. P., "[j]udgment on the pleadings is properly granted when, accepting all factual allegations in the complaint as true, there is no issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law." Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (). The analysis is "substantially identical" to that for a motion to dismiss for failure to state a claim: the Court "must determine whether the facts alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy." Id. In considering a Rule 12(c) motion, the court must generally limit its review to the pleadings themselves. Yakima Valley Mem'l Hosp. v. Washington State Dept. of Health, 654 F.3d 919, 925 (9th Cir. 2011). Documents attached to the...
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