Spring / Summer 2007

BLM and Calpine Challenge Ninth Circuit Victory

by Michelle Berditschevsky and Peggy Risch

After our startling November victory in the Ninth Circuit Court of Appeals, which ruled that the leases for one of the two geothermal projects in the Medicine Lake Highlands were invalid, BLM and Calpine have petitioned for a rehearing before the same court that rendered the decision.

O ur case was heard by a panel of three Ninth Circuit judges, who ruled unanimously to reverse the earlier District Court decision, in which the federal agencies and Calpine had prevailed. The Ninth Circuit panel found that the federal agencies never took the requisite “hard look” at whether the Highlands should be developed for energy at all. As a result, the panel rejected the extension of leases that would have allowed Calpine to develop geothermal plants at Fourmile Hill, one of the two projects that Calpine has planned for the Medicine Lake Highlands.

This same Ninth Circuit panel will now have to decide whether to grant the petition for a rehearing based on the arguments in the petition. In addition, Calpine has also petitioned for an en banc rehearing by all fifteen judges in the Ninth Circuit Court. This type of rehearing is generally only granted where the case concerns a matter of exceptional public importance or the panel’s decision appears to conflict with a prior decision of the court.

Given the unanimity of the November decision, our brilliant victorious attorneys, Deborah Sivas and the team at Stanford Environmental Law Clinic are saying that it is highly unlikely that the Ninth Circuit will grant a rehearing.

We should know whether the Ninth Circuit Court will reject or accept the petition for rehearing within a relatively short time. If left unchallenged, the case will proceed back to District Court, which was directed to enter summary judgement consistent with the Ninth Circuit’s decision.

Vision for sacred lands remains high

Naturally the Ecology Center, Pit River Tribe, and Native Coalition are all holding the vision that the decision to invalidate the leases at Fourmile Hill will not be reopened!

There have been several Native American protests—at the Calpine offices in San Jose, at the Department of Justice in San Francisco, and at the BLM field office in Alturas—demanding that Calpine drop their decade-long attempt to build polluting power plants in the sacred Medicine Lake Highlands and that the Department of Justice, which represents BLM in the case, not appeal the Ninth Circuit decision.

“The important cultural and natural area where Native peoples have retreated since time immemorial to gather medicine and strength and receive healing would be cut down to make space to house toxic sump ponds, roads, pipelines and cooling towers,” said Mark LeBeau, one of the Pit River Tribe leaders of the protests. “Ironically, the geothermal energy extracted would be peddled as ‘green energy,’ creating a false image of health and safety.”

Telephone Flat case still stayed by bankruptcy court

Our second lawsuit, which challenges Calpine’s Telephone Flat geothermal project in the Medicine Lake Highlands, remains in limbo pending resolution of the first case and a stay by the bankruptcy court in New York, where Calpine’s Chapter 11 proceedings are being played out.

The Telephone Flat lawsuit was automatically stayed when Calpine filed Chapter 11 bankruptcy proceedings in 2005 and became the eighth largest public company to file for bankruptcy in history with a debt exceeding $22.5 billion.

Given that Calpine lacks funds to begin the first phase of this project and the surety bonding requirements, it does not appear that development at Telephone Flat would be attempted anytime soon, and we will be watchful. Calpine states that its “reorganization” plans are proceeding and that they should be out of bankruptcy by the first quarter of 2008. However, similar predictions in the past proved to be optimistic.

We Appeal Water Board Permit

On November 27, 2006 our attorneys filed an appeal to the State Water Resources Board challenging the Regional Water Board’s October 2006 decision to approve Calpine’s Waste Discharge permit to Calpine. The grounds for our appeal are that the approved permit allows toxic acidification of an approved geothermal well without requiring environmental review under the California Environmental Quality Act (CEQA), and that the permit falls short of the monitoring requirements prescribed by the Regional Board’s own staff.

The high quality waters of the Medicine Lake Highlands are at great risk of contamination from geothermal development. Calpine’s Waste Discharge Permit currently allows the dumping of more than 60,000 gallons of very toxic hydrofluoric and hydrochloric acids at one approved geothermal well, endangering the pristine shallow and deep fresh water aquifer that feeds the largest spring system in California, comprising at least one-fourth of the waters in the California system.

While our team’s input at two hearings in 2006, including the expert testimony of Dr. Robert Curry, a volcanic hydrogeologist, resulted in some concessions, the level of risk for activities allowed by the permit is still unacceptable. Besides the acidification of one well, the permit would allow Calpine to drill as many as 20 other wells, as well as discharge and pipe geothermal fluids that contain arsenic, mercury and other dissolved heavy metals into million-gallon sumps the size of football fields.

We are of course hoping that this petition, unlike the Dannon petition that was dismissed in its entirety in 2002, will receive a fair hearing. The State Water Resources Board has nearly a year to decide our current petition, and may hold a hearing in order to obtain more information.

The outcome could deny the permit, result in a modification that would require more CEQA analysis and/or additional monitoring wells, or (heaven forbid!) confirm the permit.
Meanwhile, the Regional Water Board and Calpine are moving forward as required by the adopted permit that we are challenging.

On April 4th, Dr. Robert Curry was the Ecology Center’s and Pit River Tribe’s technical expert at a meeting we attended, together with Calpine, the US Geological Service, and the Regional Water Board, to decide the shape Calpine’s monitoring program would take, assuming the permit isn’t halted at the State level. There were different positions regarding the hydrogeology of the region, with Calpine conveniently maintaining that the geothermal reservoir is isolated by an “impermeable seal” from the fresh water aquifer; while Dr. Curry gave testimony that the layers of the Medicine Lake volcano are interrelated, and that a toxic accident could take up to 42 years to wind its way into the Fall River Springs, far too late to prevent contamination. He stated that not enough is known about the hydrogeology of the system to be able to make accurate predictions as to structure and flow direction, and that a monitoring program needs to be in place to give baseline information before project activities can even begin. The upshot of the meeting was that, given the level of significance of the Medicine Lake volcano aquifer for California waters, the monitoring system proposed by Calpine doesn’t come close to protecting the fresh water resource.

Medicine Lake Cultural Management Plan Nears Completion

Wellpad 31-17 approved for acidification–photo by Peggy Risch

For over six years, surrounding Native merican Tribes, including the Pit River, Modoc and Klamath Tribes, have been working with the Forest Service and historic preservation agencies on a cultural management plan that is designed to preserve the values that make the Medicine Lake Highlands eligible for the National Register of Historic Places.

The plan is in final draft form and has been reviewed by the supervisors of the three national forests spanned by the Highlands—the Modoc, Klamath and Shasta-Trinity. However, Tribal representatives find that th management prescriptions authored by the Forest Service are too vague to constitute enforceable standards. The Tribes are therefore requesting more time to develop Tribal standards to provide some measurable criteria so that any potential impacts could be prevented or monitored.

The cultural management plan will cover the full 113 square miles, or 70,000 acres, that have been determined to be eligible for the National Register of Historic Places. In 2005, the Tribes obtained an increase over the previous designation, which covered the 32 square mile Medicine Lake Caldera. The increased area covers the entire Medicine Lake volcano uplift, excluding private lands, down to an elevation of 6,000 feet.
The determination that the Medicine Lake Highlands are eligible for the National Register of Historic Places is a recognition that these traditional cultural properties are considered important nationally because of their significance to local Tribes, and also because the Medicine Lake Highlands and the cultural practices exercised here express a world view that is of benefit to humanity and to future generations.

As the summer season approaches, the Medicine Lake Highlands are re-emerging from winter sleep in their full pristine glory, again with a notable absence of destructive industrial geothermal activities…. Please renew your membership so that we can say this in perpetuity!