Geothermal appeal heard

Deborra Brannon

An appeal was heard in the 9th Circuit Court of Appeals in San Francisco on March 12 regarding lower court rulings on lawsuits challenging energy lease renewals by the Bureau of Land Management in 1998 for geothermal development on national forest land in the Medicine Lake Highlands.

Native American and environmental plaintiffs in the lawsuits assert in that lawsuit that “industrial energy development would desecrate and pollute the area” and would pose risks to the area’s aquifer, according to protectmedicinelake.org.

The Pit River Tribe is the lead plaintiff in the suit, joined by the Native Coalition for Medicine Lake Highlands Defense, Mount Shasta Bioregional Ecology Center, Save Medicine Lake Coalition, and Medicine Lake Citizens for Quality Environment.

The U.S. Bureau of Land Management (Department of Interior), the U.S. Forest Service (Department of Agriculture), and the Calpine Corporation are the defendants.

Law students supervised by attorney Deborah A. Sivas, director of the Stanford Environmental Law Clinic and professor of environmental law at the university, presented oral arguments in the March 12 appeal.

Sivas said the lower court had ruled that the tribe, environmental groups, and property owners bringing the suit did not have “prudential standing” in the matter and so could not bring the matter to court.

Prudential standing, she explained, means that a plaintiff is in the zone of interest covered by the statute the plaintiff is trying to enforce. The relevant statute in this case is the Geothermal Steam Act.

“Our main appeal arguments were that, while the Geothermal Steam Act is about leasing, it also recognizes the need for the BLM to manage lands in a manner consistent with mandated multiple use of public land – which includes tribal interests and environmental values,” Sivas said.

Her legal team argued that the language of the statute indicated Congress intended these other interests to be considered in the GSA’s zone of interest, she said.

The government’s opposing argument in the appeal, according to Sivas, was based on a narrower application of the statute concerning the leases themselves.

A second issue covered during the appeal was the plaintiff’s claim that the BLM should have done environmental review per the National Environmental Policy Act and also should have talked with the tribes before renewing the geothermal leases for an additional 40 years, Sivas said.

The lower court ruled that the BLM had no “discretion” in the matter of lease renewal, meaning it had no choice but to renew the leases as written.

“The court said that since there was no discretion, there could be no argument that there should have been consultation and review,” Sivas said.

Her team argued in the appeal that the BLM did have discretion. The opposing side argued that it did not.

Morning Star Gali, Tribal Historic Preservation Officer for the Pit River Tribe, said a rally held prior to the appeal began in San Francisco’s Yerba Buena Park at a sunrise gathering of about 50 tribal members.

“That park was developed on a sacred site of the Ohlone Tribe. Ohlone tribe members attended along with members of the Pit River and other tribes. Each tribe offered prayers and sang songs,” she reported.

The group then marched down Market Street to the courthouse where they were joined by members of other tribes from areas surrounding the Medicine Lake Highlands.

“We had a full courtroom, with about 125 supporters,” Gali said. “In fact they moved the proceedings to a larger courtroom to accommodate everyone.”

Director of the Medicine Lake Citizens for Quality Environment Janie Painter was in the courtroom during the appeal and said she was pleased with the presentations made by the Stanford Environmental Law Clinic students on behalf of the plaintiffs.

“There’s no telling how the judges will find, but we’re hopeful they’ll find in our favor,” she said.