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U.S. Court Backs Tribe in Fight Over Calpine Plant
Reuters News Service
November 6, 2006

SAN FRANCISCO - A U.S. federal appeals court backed an Indian tribe on Monday in a fight in which the bankrupt power producer Calpine Corp had sought to build a geothermal plant in an area Native Americans consider sacred.

San Jose, California-based Calpine planned to erect a plant on leased U.S. Forest Service land in the northern Mount Shasta region of California after more than a decade of planning.

The Pit River Tribe sued in federal court over the plan in 2002, saying the 66-square-mile Medicine Lake Highlands is sacred ground even if not part of the tribe's reservation.

The tribe lost its initial legal fight, but on Monday the 9th U.S. Circuit Court of Appeals overturned a lower court and ruled against U.S. government agencies, saying they had improperly extended the leases to Calpine for the land.

"We conclude that the agencies did not take a 'hard look' at the environmental consequences of the 1998 lease extensions and never adequately considered the no-action alternative," Judge Clifford Wallace wrote for a three-judge panel.

"The agencies violated their duties...and their fiduciary duties to the Pit River Tribe by failing to complete an environmental impact statement before extending Calpine's leases in 1998," he continued. "Hence, both the five-year lease extensions and the subsequent forty-year extensions must be undone."

California, Nevada, Oregon and other Western U.S. states are seeking to boost geothermal and other renewable electricity like solar and wind to reduce emissions of heat-trapping gases linked to global warming.

Geothermal developers drill wells into underground reservoirs to tap steam heated by the earth. The steam spins turbine generators, producing electricity.

In accordance with Title 17 U.S.C. Section 107, and as defined under the provisions of "fair use", any copyrighted material herein is distributed without profit or payment for non-profit research and for educational use by our membership.


Ninth Circuit Reverses Lower Court Ruling at Medicine Lake
A Scribe Newswire
November 9, 2006

Halts Development on 10,000-Year-Old Sacred Site

MOUNT SHASTA, Calif., -- The Pit River Tribe won a major victory in their long-term struggle to protect a sacred site near Medicine Lake in Northeastern California from energy development this week, when the U.S. Court of Appeals for the Ninth Circuit reversed a lower court ruling and rejected renewed energy leases made by the federal government to a private company. The Pit River Tribe is plaintiff along with the Native Coalition for Medicine Lake Highlands Defense and the Mount Shasta Bioregional Ecology Center. The group is represented by the Stanford Legal Clinic at Stanford Law School.

In an opinion issued by Judge J. Clifford Wallace, the U.S. Court of Appeals for the Ninth Circuit determined that the U.S. Bureau of Land Management (BLM) and U.S. Forest Service unlawfully failed to consult with the Pit River Tribe and undertake appropriate environmental review before deciding to execute energy leases in 1998 to a private company on this 10,000-year-old sacred landscape. The leases had granted Calpine Corporation rights to develop geothermal power near Fourmile Hill in the Medicine Lake Highlands, about 30 miles northeast of Mount Shasta in northern California.

The Ninth Circuit's decision reverses a 2004 adverse decision from the U.S. District Court for the Eastern District of California, and orders the lower court to enter summary judgment in favor of the Pit River Tribe on all issues on appeal. The decision agreed with arguments presented by the Environmental Law Clinic within the Stanford Legal Clinic, which had argued that BLM and the U.S. Forest Service had violated environmental and cultural preservation laws when the agencies granted a 40-year extension on the leases.

"The Court's decision vindicates the Pit River Tribe's decade-long struggle to protect the sacred Medicine Lake landscape from unreflective industrial development," said Deborah Sivas, director of the Environmental Law Clinic at Stanford Law School, and counsel of record. "The area has been an integral part of the Tribe's cultural and spiritual traditions for over 10,000 years, and the federal government plainly owes a high fiduciary duty to the region's Indian Tribes when managing the National Forests there. The Court agreed with the Native American and environmental plaintiffs that, of course, the federal agencies must formally consult with the Pit River Tribe and undertake appropriate environmental review before irrevocably leasing the public's resources for private energy development."

Judge J. Clifford Wallace, who wrote the opinion on behalf of the three-circuit-judge panel that also included judges Kim McLane Wardlaw and Sidney R. Thomas, acknowledged the "great spiritual significance" of the Medicine Lake Highlands to the Pit River Tribe and to the other Native American tribes in the region, who "continue to use numerous important spiritual and cultural sites within the highlands."

Gene Preston of the Pit River Tribal Council said, "We are only the transient stewards of this land, picking up the sacred thread from our ancestors, and making sure it stays sacred for generations to come. This decision is significant locally, nationwide and even internationally, through all the friends who have given their support - the National Congress of American Indians all the way to International Indian Treaty Council. We hope this ruling will help in other similar cases where sacred lands are in jeopardy."

The case involved a 49-megawatt geothermal project proposed by San Jose-based Calpine Corporation on leases covering about eight square miles near Fourmile Hill, just over the edge of the Medicine Lake Caldera. But the Ninth Circuit decision has implications for a much greater area. After the leases were renewed, the Medicine Lake Highlands--an area covering about 113 square miles--were designated as eligible for the National Register of Historic Places as a Traditional Cultural Area. Calpine's total lease holdings cover about half the area, or 66 square miles, and were approved through a similar process as the Fourmile Hill leases. Calpine has stated plans to generate 500 to 1,000 megawatts in the Highlands by exploiting hot magma and fluids believed to exist 9,000 to 11,000 feet underground.

A second geothermal project located at Telephone Flat within the pristine Medicine Lake Caldera was at first denied by local decision makers, and then approved in 2002 at the Washington, D.C. level. The plaintiffs have a pending lawsuit challenging the Telephone Flat project on similar grounds as the current Fourmile Hill case. 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 U.S. history with assets reported at $26.6 billion, but the tribe and environmentalists have plans to reactivate that claim.

The geothermal projects have been hotly debated ever since they came to public attention in 1997. Native American and environmental plaintiffs see the Fourmile Hill project as only the first of many projects that would permanently damage this geologically unique and pristine area, transforming the Medicine Lake Highlands into an the industrial wasteland with multiple power plants, noisy 24-hour drilling, landscape-fragmenting pipelines, toxic plumes exuding dangerous levels of arsenic, mercury and hydrogen sulfide, and would constitute a major threat to the huge pure aquifer that feeds California's largest spring system.

Over 90 percent of public comment letters have opposed the projects, and the Advisory Council on Historic Preservation, commenting on the Telephone Flat project, stated, "The costs to the historic resources of Native Americans and our nation are too high."

"We have fought these projects for a decade because we cannot let this desecration happen. The Medicine Lake Highlands are a landscape of the spirit," said Michelle Berditschevsky, Environmental Coordinator for the Pit River Tribe and Director of the Mount Shasta Bioregional Ecology Center. "This area is critical to the cultural continuity of tribes near and far, as well as to people from all over the nation, because it symbolizes a world view that must be preserved at a time when resource extraction seeks to infringe on everything sacred. It is a place where mystery can be tangibly felt, where industrial blight and noise have not drowned out spiritual qualities. It exudes a feeling of eternity. It represents our sanity and healing, our commitment to keeping beauty and peace alive in our world."

In accordance with Title 17 U.S.C. Section 107, and as defined under the provisions of "fair use", any copyrighted material herein is distributed without profit or payment for non-profit research and for educational use by our membership.


Court Pulls Plug on Power Plant
By Dylan Darling, Redding Record Searchlight
November 14, 2006

9th Circuit ruling ends Calpine leases for geothermal work on Medicine Lake

For now, the Medicine Lake highlands will remain free from geothermal power development.

The 9th U.S. Circuit Court of Appeals in San Francisco last week reversed a lower court ruling, rejecting federal leases for a proposed geothermal power plant near a volcano about 30 miles east of Mt. Shasta.

The leases are held by Calpine, a San Jose-based energy company. While opponents of the plant, called the Fourmile Hill project, said the ruling was a major victory, representatives for the U.S. Forest Service and Calpine said their attorneys are still reviewing it to determine what to do next.

"Our attorneys have advised us not to make any comments about the ruling," said Matt Mathes, spokesman for the Forest Service in California. "We are not sure what our next step will be."

The Forest Service and the U.S. Bureau of Land Management, which had issued the leases to Calpine, were listed as defendants with the energy company in the lawsuit brought by the Pit River tribe and some environmental groups. Possible next steps include taking the case to the U.S. Supreme Court or starting the lease process anew, with environmental and cultural reviews 9th Circuit Judge Clifford Wallace said the original leases lacked.

Calpine is also reviewing the ruling and will discus its options with the Forest Service and BLM, said spokeswoman Katherine Potter.

The Pit River Tribe opposes plans for power plants in the Medicine Lake highlands -- another Calpine project, called Telegraph Flat, also could be stalled by the ruling -- not only because of pollution fears, but also the damage they would do to the serenity of the land, said Michelle Berditschevsky, environmental coordinator for the tribe.

"A lot of people use it for healing," she said. "That's why it is called Medicine ake."

Along with the Pit River Tribe, the Shasta and Modoc tribes use the Medicine Lake highlands for ceremonies and vision quests, said Deborah Sivas, an attorney who represents the project's opponents though the Environmental Law Clinic at Stanford University.

"I would argue that it is the most important Native American cultural site in California," she said.

The effort to capture geothermal power from the Medicine Lake highlands has spanned decades, starting in the 1980s when energy companies first got leases and began studying the land's geothermal potential. Medicine Lake sits in the caldera of the Medicine Lake volcano, a low-lying, far-spread mound that is the biggest volcano by volume in the Cascades.

While geothermal power plants, which tap into the heat and steam that boil within a volcano, often are considered to be a source for green energy, the plants proposed for Medicine Lake would bring more harm than good, said Peggy Risch, environmental research associate at the Mount Shasta Bioregional Ecology Center, which joined the Pit River Tribe in the lawsuit.

She said the plants would release polluted air and tainted water.

"I think we have destroyed enough landscapes," Berditschevsky said. "We should preserve this one that is still intact."

In accordance with Title 17 U.S.C. Section 107, and as defined under the provisions of "fair use", any copyrighted material herein is distributed without profit or payment for non-profit research and for educational use by our membership.


Court Rules Medicine Lake Geothermal Plant Void
By Paul Boerger, Mt. Shasta Herald
November 15, 2006

In a Nov. 6 decision, the US Ninth Circuit Court of Appeals ruled that the 40 year extension of leases in 1998 awarding Calpine Corporation the right to build geothermal plants at Medicine Lake violated federal laws and are null and void. The decision reversed an earlier district court decision.

The opinion, written by Judge J. Clifford Wallace, found the U.S. Bureau of Land Management and U.S. Forest Service failed to consult with the Pit River Tribe and undertake appropriate environmental reviews before deciding to extend the leases.

Medicine Lake is located approximately 30 miles northeast of Mount Shasta, and Calpine had begun preliminary work on a 49 megawatt geothermal plant near Fourmile Hill, including digging exploratory wells and land clearing. Calpine has plans for an additional plant in the area that has also been challenged in court.

The project's decades long history includes a lease suspension due to environmental concerns, reinstatement of the leases after a $100 million Calpine suit, a finding by the Federal Advisory Council on Historic Preservation that the projects be cancelled, numerous environmental assessments by federal, state and county agencies, and other court challenges.

The current suit was brought by the Pit River Tribe, Native Coalition for Medicine Lake Highlands Defense, and Mount Shasta Bioregional Ecology Center. The group was represented by the Stanford Legal Clinic at Stanford Law School.

Among the court's reasons for invalidating the leases were a failure to recognize the historic and cultural values of the area and not completing an Environmental Impact Statement before extending the leases. In addition, the court found the 1981 and 1984 Environmental Assessments were insufficient.

“The agencies violated their duties under the National Environmental Protection Act and National Historic Preservation Act and their fiduciary duty to the Pit River Tribe by failing to complete an environmental impact statement before extending Calpine's leases in 1998. Hence, both the five-year lease extensions and the subsequent forty-year extensions must be undone,” Judge Wallace wrote. “Because the 1998 EIS was premised on the notion that the leases were valid and granted development rights to Calpine, the 1998 EIS cannot substitute for an EIS evaluating the decision to extend the underlying lease rights as an initial matter. The agencies never took the requisite ‘hard look' at whether the Medicine Lake Highlands should be developed for energy at all.”

Calpine director of corporate communications Katherine Potter said Calpine is evaluating the decision.

“At this time, Calpine is reviewing the District Court's opinion and will be discussing options for the Fourmile Hill geothermal project with the U.S. Bureau of Land Management and Forest Service, the permitting agencies named in the case,” Potter said.

Ecology Center director and Pit River Tribe environmental coordinator Michelle Berditschevsky praised the decision.

“We have fought these projects for a decade because we cannot let this desecration happen. The Medicine Lake Highlands are a landscape of the spirit,” Berditschevsky said. “This area is critical to the cultural continuity of tribes near and far, as well as to people from all over the nation, because it symbolizes a world view that must be preserved at a time when resource extraction seeks to infringe on everything sacred.”

Pit River Tribal Council spokesperson Gene Preston also praised the decision and hopes it sets a precedent for future cases.

“We are only the transient stewards of this land, picking up the sacred thread from our ancestors, and making sure it stays sacred for generations to come,” Preston said. “This decision is significant locally, nationwide and even internationally, through all the friends who have given their support-the National Congress of American Indians all the way to International Indian Treaty Council. We hope this ruling will help in other similar cases where sacred lands are in jeopardy.”

Geothermal power is generated by drilling deep wells, 9,000 to 11,000 feet in the Medicine Lake area, to tap underground reservoirs of hot water created by molten magma deep within the earth's crust. Steam is separated from the water and used to turn an electricity producing turbine.

Opponents claim that harmful chemicals in the water, such as arsenic, hydrogen sulfite and mercury are released by the process. Native Americans claim the Medicine Lake area for spiritual and healing purposes and insist the plants will desecrate a sacred area. Additional concerns are that the plants require leveling approximately 3 to 5 acres of forest per well and that electrical power lines will blight the viewshed.

Proponents say the energy is essentially clean and renewable, and emissions from geothermal energy are insignificant when compared to fossil fuel emissions such as carbon dioxide. In addition, proponents claim geothermal is a far better alternative to nuclear and coal fired plants.

In accordance with Title 17 U.S.C. Section 107, and as defined under the provisions of "fair use", any copyrighted material herein is distributed without profit or payment for non-profit research and for educational use by our membership.