On September 19, 2019, the Ninth Circuit Court of Appeals handed down a crucial decision in favor of clinic clients Pit River Tribe and several environmental organizations in one of the Environmental Law Clinic’s longest-running cases. Affirming the district court’s ruling, the Ninth Circuit held that the Bureau of Land Management’s decision to continue 26 unproven geothermal leases in California’s Medicine Lake Highlands violated the Geothermal Steam Act.
The Ninth Circuit decision is the product of substantial investment by many students over many years, most recently by Sam Lazerwitz (JD ’20) and Caleb Wright (JD ’20), who argued the case before the Ninth Circuit in May 2019. The video of the oral argument is available here.
History of the case
In the 1980’s, the Bureau of Land Management (“BLM”) issued over three dozen geothermal leases in the Medicine Lake highlands under the Geothermal Steam Act, without adequate environmental review or any consultation with affected tribes. In 1998, BLM illegally continued 26 of those leases for an additional 40 years – simply because they were part of a larger unit that contained a single proven lease. ELC filed suit to challenge that decision and BLM’s failure to undertake environmental review or tribal consultation. After years of delay and procedural battles, the federal district court effectively invalidated those 26 geothermal lease continuations in 2016.
Ninth Circuit Ruling and Its Significance
On appeal, BLM argued that it could continue 26 non-productive leases within a much larger unit area for 40 years on the basis that one lease in that area was productive. The Clinic argued instead that Section 1005(a) of the Geothermal Steam Act only authorizes a 40-year continuation of the single lease that is capable of producing geothermal steam. The Ninth Circuit agreed, holding that 30 U.S.C. §1005(a)’s production-based continuation is only available on a lease-by-lease basis, not on a unit-wide basis, and invalidated the 26 lease continuations.
This decision is critical: it ensures that going forward, BLM cannot tie up tens of thousands of acres of public land for decades without appropriate consultation and environmental review. If BLM wants to go back and try to extend the leases under another provision of the Geothermal Steam Act or to issue new leases, it will now have to engage in government-to-government consultation with the Tribe and will have to undertake environmental review – which is what plaintiffs have been seeking since the outset of this litigation. Environmental review is more important than ever given recent water studies showing the importance of the Medicine Lake Highlands for the Sacramento River watershed. Finally, Clinic clients are hopeful that this decision will convince BLM and Calpine to walk away from any future leasing or development of the Highlands, where 30+ years of exploratory efforts have not identified any serious commercial development potential, and that the Forest Service will consider placing special protections on this area.
For more background on this case and on the significance of this region to the Pit River Tribe, see Environmental Law Clinic Returns to the Ninth Circuit to End Geothermal Development on Sacred Tribal Lands.