Fall / Winter 2008 - 2009

Successful Ninth Circuit ruling now before District Court Judge for remedy

by Michelle Berditschevsky and Peggy Risch

The first snows have already fallen and the Highlands landscape begins its peaceful and stormy winter sleep. The waters of Medicine Lake are in their fall turnover mode, a mixing of upper and lower layers, as the cooling surface waters sink into the deeper strata. While nature's mysterious forces continue unimpeded, we persevere in our decade-long efforts to protect this superlative landscape in its pristine condition for generations to come.

In the slow river of time that is the federal court system, the first Medicine Lake case lingers in U.S. District Court, awaiting a place on Judge John Mendez' calendar. A hearing was scheduled twice already this fall, only to be postponed.

As our readers know, the Ninth Circuit ruled that geothermal leases awarded in 1988 for the Fourmile Hill industrial geothermal project were renewed by BLM in 1998 illegally because the agency failed to conduct environmental review and also ignored their trust responsibility to the Pit River and other Tribes, who value this highly sacred cultural landscape in its natural state. The Ninth Circuit case was remanded to District Court for a remedy.

Attorneys for both sides the Ecology Center, Pit River Tribe, and the Native Coalition for Medicine Lake Highlands Defense on the one hand, and BLM and Calpine Corporation on the other have submitted briefs to the judge. The position our attorneys at Stanford University Environmental Law Clinic are taking is that since the leases were illegally renewed, they expired on their own terms, and now there are no leases. BLM and Calpine maintain that only the lease renewals were illegal, and the underlying leases remain in force. If Judge Mendez agrees with BLM and Calpine, they would only need to rectify the lease renewal process. If the judge agrees with our side, Calpine would need to start from square one and apply for new leases. At this point, it is unknown when the hearing and subsequent ruling will take place. Our position remains firm: the leases expired in 1998.

Environmental groups join the Telephone Flat case

For the second case, a coalition of environmental groups comprised of Medicine Lake Citizens for Quality Environment, the Klamath Forest Alliance, and the Fall River Wild Trout Foundation, have recently joined with the Ecology Center and the Pit River Tribe under the legal representation of Deborah Sivas, Director of the Stanford Environmental Law Clinic. The environmental groups had separate legal representation until now. This new alliance will strengthen our stand against Calpine and BLM's intent to industrialize the Medicine Lake Highlands.

Deborah Sivas and the legal team at Stanford continue to prepare an expanded case against approval of the Telephone Flat geothermal project, which would be located in the heart of the Medicine Lake Caldera. This project was originally denied by the Forest Service and BLM in 2000, and then reversed by the Bush administration two years later. We hope of course that the more favorable climate of the new administration will bring another reversal in order to defeat this blighting, damaging and polluting project and protect the largest fresh water spring system in the state.

Looking beyond a legal solution

Together with the legal team, we have produced a first draft of a Forest Plan Amendment, which aims at achieving stronger management prescriptions for the Medicine Lake Highlands, to preserve the qualities that contribute to the sacred features of the Medicine Lake Traditional Cultural District, which is eligible for the National Register of Historic Places based on its high significance to Native American Tribes. However, unless the leases are defeated, the property rights they confer will continue to override other values in the Highlands.

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