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Ninth Circuit Reverses Lower Court Ruling and Halts Development on 10,000 Year Old Sacred Site at Medicine Lake

Publication Date: 
November 09, 2006
Source: 
Stanford Law School

MOUNT SHASTA, Calif., November 9, 2006-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 1000 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 DC 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% 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."

About the Pit River Tribe

The PIT RIVER TRIBE (Ahjumawi-Atsuge Nation) is a federally recognized sovereign Indian Tribe consisting of eleven autonomous bands. The Tribe is located in parts of Shasta, Siskiyou, Modoc and Lassen Counties, and its ancestral territory includes Medicine Lake and the surrounding Highlands.The Tribe has a long history of use of Medicine Lake and the Highlands for religious and cultural purposes. For at least 10,000 years, members of the Pit River Tribe have used (and continue to use) Medicine Lake and the Highlands for religious activities such as vision quests, religious prayers and teaching, traditional shaman/doctoring practices, life cycle ceremonies, collection of traditional foods, medicines, and materials, spiritual renewal, and quiet contemplation. These benefits depend on the physical, environmental, and visual integrity of these areas, and their quietude.

About the Mount Shasta Bioregional Ecology Center

The Mount Shasta Bioregional Ecology Center is a grassroots nonprofit organization dedicated to protecting and restoring the exceptional natural and cultural values of Mount Shasta, one of the sacred mountains of the world, of the Medicine Lake Highlands, and of the surrounding bioregion. This region is valuable as a major source of pure waters to the entire state of California. It is important locally, nationally and internationally in providing pristine natural sanctuaries that contain rich biodiversity and sacred areas of high significance to Native American cultures near and far. The Ecology Center’s website is at www.mountshastaecology.org

About Stanford Law School

Stanford Law School is one of the nation's leading institutions for legal scholarship and education. Its alumni are among the most influential decision makers in law, politics, business, and high technology. Faculty members argue before the Supreme Court, testify before Congress, and write books and articles for academic audiences, as well as the popular press. Along with offering traditional law school classes, the school has embraced new subjects and new ways of teaching. The school's home page is located at www.law.stanford.edu

About the Environmental Law Clinic at Stanford

The Environmental Law Clinic enables students to provide legal assistance to nonprofit organizations on a variety of environmental issues, focusing primarily on natural resource conservation. The clinic's clients include large national environmental organizations and a variety of regional and local grassroots groups. Students in the clinic work under the supervision of practicing environmental attorneys on a variety of tasks, including: screening and investigating new matters; assisting clients in the development of legal strategies; drafting comment letters; petitions, complaints and briefs; and presenting testimony or argument before administrative boards and state and federal courts. Students routinely argue cases in state and federal courts and before administrative agency tribunals.

Contacts

Pit River Tribe: Michelle Berditschevsky, Pit River Tribe Environmental Coordinator 530 335.5062 ext.1, or Sharon Elmore, Cultural Information Officer, 530 335.5062 ext.2

Mount Shasta Bioregional Ecology Center: Peggy Risch 530.926.5655, or Michelle Berditschevsky 530 926.3397

Stanford Legal Clinic: Deborah Sivas, Director of the Environmental Law Clinic and Lecturer in Law 650 723.0325, dsivas@stanford.edu

Stanford Law School: Judith Romero, Associate Director of Media Relations, 650 723.2232, Judith.romero@stanford.edu