Winter / Spring 2011

Ninth Circuit Court Ruling
Opens New Process

by Michelle Berditschevsky and Peggy Risch

As volcanic areas and huge water sources, both the Medicine Lake Highlands and Mount Shasta remain prime targets for industrial geothermal development. We continue to hold ground at the Highlands, where we’re challenging two 50-megawatt projects that would bring blight to fourteen square miles (with a potential for eight additional projects covering as much as 100 square miles) within a sacred Native American Traditional Cultural District.

Our goal is to prevent this polluting and landscape-fragmenting industry from taking hold in our region, so that these sacred lands and the waters they hold may retain their pristine beauty and integrity for all time.

Glass Mountain from Mount Hoffman Photo by Peggy Risch

Ninth Circuit Court declares Fourmile Hill lease extensions invalid, but leases hold

The August 2010 Ninth Circuit Court of Appeals decision on the Fourmile Hill case only gave us part of what we wanted. The court reaffirmed that BLM had illegally extended these leases for 40 years, and that the agency now needs to do more environmental review.

The court also affirmed that BLM has full discretion to deny (or heaven forbid, approve) the lease extensions once the agency completes more environmental review that explicitly considers the impacts of and alternatives to extending the leases. The previous environmental review process failed to take the required “hard look” at real alternatives to industrializing the area, such as land lease exchanges, lease buy outs, or other measures that would protect the unique qualities of the Medicine Lake Highlands. Under the ruling, the agencies (BLM and the Forest Service) also must undertake additional consultations with the Pit River Tribe and the Native Coalition on the effect development would have on the Traditional Cultural District.
We had hoped that the court would conclude that invalidation of the lease extensions means that Calpine no longer holds any development rights so that Calpine would have to start from scratch with a whole new leasing process. Only then would the federal agencies be nburdened of Calpine’s threats of being sued for a decision contrary to the corporation’s interests. (Note: As our readers may recall, this was the corporate response when the agencies denied the Telephone Flat project in the heart of the Medicine Lake caldera in 2000.

Instead of challenging the $100 million “takings” claim, the government reversed their previous denial of the project!)

While the present ruling is disappointing in that the court did not require an entirely new leasing decision where Calpine truly starts with “nothing,” as was stated in the origi nal Ninth Circuit decision, the struggle to protect the sacred Highlands continues. Our attempts to convince BLM against any further extension of the leases remain.

Telephone Flat litigation is poised to proceed

Our separate litigation challenging the Telephone Flat project and all remaining leases in the Medicine Lake Highlands is poised to proceed. We had informally agreed to hold this second case in abeyance while Calpine was in bankruptcy and until the Ninth Circuit ruled on the latest appeal in the Fourmile Hill case. The lease issues in the Telephone Flat case are similar to those at issue in the first case.

Current discussions…the challenge goes on

Since the ruling by the Ninth Circuit Court, we have been in communications with Calpine and the government agencies about whether the potential exists for resolving the outstanding litigation.

In the best outcome, we naturally hope to convince all the parties to resolve the issue in such a way as to fully protect the Medicine Lake Highlands. We envision a win-win solution that would eliminate the need for further litigation and free the agencies to once again be managers of the land for its optimal wellbeing. This could happen through a mutual recognition that the Medicine Lake Highlands and its Traditional Cultural District are too valuable to industrialize, and through adequate compensation for Calpine’s efforts to date. In short, we envision a solution that will leave intact this beautiful sensitive environment and huge aquifer that is of prime importance to Native American cultures near and far, and to California’s wildlands and water future.