Tribal Fight Over Steam Leases Gets New Life

SAN FRANCISCO (CN) - An Indian tribe's challenge to federal approval of 26 geothermal lease continuations in California was incorrectly treated in court and must be reevaluated, the Ninth Circuit ruled Monday.

The Bureau of Land Management granted the leases for the production of geothermal steam between 1982 and 1988. In 1998 it vacated earlier extensions for those leases and granted retroactive 40-year continuations, according to the three-judge panel's opinion.

The Pit River Tribe and several regional environmental organizations sued the bureau in federal court, claiming that the agency's continuation of the leases in the Medicine Lake Highlands - part of the tribe's ancestral homeland - violated the Geothermal Steam Act, the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA).

A federal judge dismissed those claims on the basis that the bureau "lacked discretion to consider environmental, cultural or historic factors, or to consult with Indian tribes in considering whether to grant lease-continuations" under the Geothermal Steam Act's lease-continuation provision.

Writing for a three-judge panel of the Ninth Circuit, Circuit Judge Morgan Christen said in an opinion issued Monday the federal judge's decision to rest its ruling on that provision was a "pivotal conclusion."

"The pivotal question here is whether Congress intended to create a cause of action encompassing Pit River's claims when it enacted the Geothermal Steam Act," she wrote.

Christen said that neither the stipulation nor Pit River's amended complaint "expressly limited" the tribe's claims to any particular provision.

But the court wrongfully concluded on that basis that the tribe had abandoned its challenge to BLM's "change of course," although the tribe never conceded such. Instead, Christen said, "the court needs to look at what was done here in order to determine whether the BLM's last-minute reversal to make this a ministerial, rather than a discretionary decision, was proper under the law."

Because Pit River's operative complaint challenges the bureau's announcement that the leases were subject to continuation rather than extension, the tribe's allegations include a challenge under another of the Geothermal Steam Act's provisions," Christen wrote.

The court must therefore reconsider the claims, Christen said, because it "incorrectly circumscribed" them.

But the panel declined the tribe's request for judgment on the merit of its claims under the act, since determining whether BLM violated provisions of the act "will require careful analysis" since the government raises issues of fact and affirmative defenses, Christen wrote.

Neither side could be reached for comment on Monday.

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