March 12th Hearing in the Ninth Circuit Court for the Medicine Lake Highlands

Video from this hearing

The Threshold Question Never Asked

by Michelle Berditschevsky, Senior Conservation Consultant, MSBEC

Native Americans and environmentalists will come before the U.S. Court of Appeals for the Ninth Circuit on March 12th in San Francisco, to bring their case that energy leases were renewed illegally by federal agencies in 1998 for industrial development on national forest lands in the Medicine Lake Highlands, a near-pristine area about 30 miles northeast of Mount Shasta that has been designated a Native American Traditional Cultural District. The Native American and environmental plaintiffs claim that industrial energy development would desecrate and pollute the area and pose unacceptable risks to California’s largest fresh water aquifer. Contrary to the National Environmental Policy Act and other laws, the federal agencies never evaluated the threshold question of whether industrial geothermal development is even appropriate for this landscape.

The outcome of this hearing has huge implications not only for this spectacular remote landscape, but also for California’s waters and the Mount Shasta bioregion. The case may also set legal precedent regarding the ability of ordinary citizens and tribes to challenge how the government manages our public lands. On this date, a panel of three judges will hear the oral argument in the legal case brought by the Stanford Environmental Law Clinic on behalf of Native Tribes, the Mount Shasta Bioregional Ecology Center and Medicine Lake Citizens for Quality Environment.

Implications as a legal precedent

This case is about the way in which the Bureau of Land Management manages our public lands, specifically by committing those lands to decades of industrial geothermal development at the expense of other users and uses.

Our legal case asks three questions:

First, did BLM act lawfully under the Geothermal Steam Act (GSA) when it extended Calpine’s geothermal leases for 40 years? This question challenges whether Calpine met the due diligence requirements for lease renewals, and whether the minimal quantity of the geothermal resources produced at one well in one leased area justified renewing all of the leases over 60 square miles.

Second, was it legal to extend the leases without conducting review under the National Environmental Policy Act and the National Historic Preservation Act? If BLM can extend leases for another 40 years, without any public process and based on the very minimal review it did in the 1980s when there were no consultations with Tribes, is that level of compliance sufficient to commit public lands for a total of 60-70 years? This question is especially relevant in light of significant new information on cultural and environmental resources that was available and should have been considered at the time the leases were renewed in 1998.

The third question involves whether affected Native tribes and the public have statutory standing to challenge BLM’s compliance with our public land use management laws. To even ask this question seems absurd. How could tribes for whom this landscape has ancient spiritual and cultural value, landowners who will be directly affected by any development, and other citizens who rely on these lands for recreation and solitude not have standing to ask whether BLM’s decisions are the right ones? How could these public citizens not have standing to defend the integrity of public lands that have been designated as a Traditional Cultural District and are documented as having superlative environmental values and resources? The plaintiffs’ interests in this case are at the heart of the Geothermal Steam Act’s mandates, which direct BLM to manage lands for “multiple uses” and in “the public interest.” A decision agreeing with the government not only finds no support under the GSA or in the case law, it would mean that only Calpine could challenge BLM’s decisions (why would it do that?) and that public citizens do not have a say in how their government manages the lands those citizens collectively own and use.

These and no doubt many other questions will be raised at the hearing, and we will all be sitting on the edge of our seats witnessing how the arguments play out.

At the end of the hearing, the panel of three Ninth Circuit judges will take the case under advisement, and a decision can be expected within three to nine months, or perhaps even longer depending on the backlog of cases — a long time to be sitting on the edge of our seats!