Pit River Tribe v. United States Forest Service

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PIT RIVER TRIBE; NATIVE 
COALITION FOR MEDICINE LAKE
HIGHLANDS DEFENSE; MOUNT
SHASTA BIOREGIONAL ECOLOGY
CENTER,
No. 04-15746
Plaintiffs-Appellants,
v.  D.C. No.
CV-02-01314-DFL
UNITED STATES FOREST SERVICE;
OPINION
ADVISORY COUNCIL ON HISTORIC
PRESERVATION; UNITED STATES
BUREAU OF LAND MANAGEMENT;
CALPINE CORPORATION,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
David F. Levi, District Judge, Presiding
Argued and Submitted
February 14, 2006—San Francisco, California
Filed November 6, 2006
Before: J. Clifford Wallace, Sidney R. Thomas, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Wallace
18185
PIT RIVER TRIBE v. USFS 18189
COUNSEL
Deborah A. Sivas, Earthjustice, Stanford, California, for the
plaintiffs-appellants.
Thomas L. Sansonetti, Andrew Mergen, Todd S. Aagaard,
Andrea L. Berlowe, Dep’t of Justice, Washington, D.C., for
the defendants-appellees.
Robert A. Maynard, Richard W. Oehler, Perkins Coie LLP,
Boise, Idaho, for defendant-appellee Calpine Corporation.
18190 PIT RIVER TRIBE v. USFS
OPINION
WALLACE, Circuit Judge:
The Pit River Tribe, the Native Coalition for Medicine
Lake Highlands Defense, and the Mount Shasta Bioregional
Ecology Center (collectively Pit River) appeal from the dis-
trict court’s summary judgment on their claims against the
Bureau of Land Management, the United States Forest Ser-
vice, and the Department of the Interior (collectively agen-
cies). Pit River alleges that the procedures followed by the
agencies in extending certain leases in the Medicine Lake
Highlands, and the subsequent approval of a geothermal plant
to be built there, violated the National Environmental Policy
Act (NEPA), the National Historic Preservation Act (NHPA),
the National Forest Management Act (NFMA), and the
Administrative Procedure Act (APA). Pit River also contends
that the agencies violated their fiduciary obligations to Native
American tribes. We have jurisdiction pursuant to 28 U.S.C.
§ 1291. 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. We therefore reverse.
I.
Medicine Lake and the highlands surrounding it are of
great spiritual significance to the Pit River Tribe and to the
other Native American tribes in the region. Although the
highlands are within the Pit River Tribe’s ancestral home-
lands, they are not part of the tribe’s reservation. Tribe mem-
bers, however, consider the region sacred and continue to use
numerous important spiritual and cultural sites within the
highlands.
This litigation concerns the efforts of Calpine Corporation
(Calpine),1 a California power company, to develop a geother-
1
Calpine, a nominal defendant in this litigation, recently sought Chapter
11 bankruptcy protection. That process does not affect this appeal.
PIT RIVER TRIBE v. USFS 18191
mal power plant at Fourmile Hill near Medicine Lake. The
Geothermal Steam Act of 1970, 30 U.S.C. §§ 1001-1025
(2005) (as amended), allows the Secretary of the Interior to
“issue leases for the development and utilization of geother-
mal steam” on federal land and in national forests. Id. § 1002.
Pursuant to the Geothermal Steam Act in effect at the time,
the federal government designated the general area of the
Medicine Lake Highlands as the Glass Mountain Known Geo-
thermal Resource Area (Resource Area).
In 1973, the Department of the Interior issued a program-
matic environmental impact statement (EIS) considering how
to implement the Geothermal Steam Act nationwide (1973
EIS). Except for three California locations not at issue in this
litigation, the 1973 EIS did not address the environmental
implications of geothermal development in particular loca-
tions. Rather, the 1973 EIS provided for tiered environmental
review because of the wide geographical distribution of
potentially affected lands. “Specific details will be identified,
evaluated, and described in the environmental analysis record
prepared for each lease area prior to any leasing action.”
The 1973 EIS repeatedly discussed the interplay between
NEPA and the Geothermal Steam Act, admitting that issuing
geothermal leases “may constitute major Federal action sig-
nificantly affecting the quality of the human environment,”
thus requiring the preparation of subsequent EISs under
NEPA. That EIS further provided that “[w]here the interdisci-
plinary evaluations or studies of any lease program reveal that
a particular activity may constitute major Federal action sig-
nificantly affecting the human environment, . . . an environ-
mental statement will be prepared and circulated in
accordance with Section 102(2)(c) of the National Environ-
mental Policy Act.” The 1973 EIS stated that, in addition to
review of leasing decisions, “[p]rior to the construction of
power plants and transmission lines, and possibly of by-
product water and mineral extraction facilities, further envi-
ronmental evaluation will be made. If there are significant
18192 PIT RIVER TRIBE v. USFS
potentially adverse environmental impacts not previously con-
sidered, an additional environmental statement may be neces-
sary.”
Subsequently, in April 1981, the Bureau of Land Manage-
ment (Bureau) and the Forest Service released an environ-
mental assessment (1981 EA) for “casual use” exploration of
the Resource Area. The stated purpose of the EA was “to
decide whether to allow geothermal leasing and casual use
exploration on approximately 266,800 acres of National For-
est land in the Medicine Lake Planning Unit, and an adjacent
26,750 acres.” The EA stated that “[o]ne of the Management
Directives in the Land Management Plan [was] to provide for
geothermal development where it is compatible with other
uses,” and recommended leasing “in all areas with special
stipulations applied to sensitive areas.” It contained no discus-
sion of the cultural or tribal impacts of the proposed leasing.
The 1981 EA acknowledged that, in general, “[a] decision
to lease carries with it the right to develop a discovered
resource, subject to the limitations of the lease.” It also made
clear that “[t]he details of future exploration and development
cannot be evaluated prior to leasing,” and that “[f]urther anal-
ysis will be required for the later stages of exploration and, if
a resource is discovered, development.” The 1981 EA
observed that “[a]t each step in the process there are numer-
ous environmental safeguards required by the system, includ-
ing EAs or EISs, and public participation.” In an appendix to
the 1981 EA, the EA made clear that several staged EAs or
EISs would be required to proceed to subsequent phases of
the project.
In 1984, the Bureau and the Forest Service jointly issued a
Supplemented Environmental Assessment for leasing activity
in the Medicine Lake area (1984 EA). While the 1981 EA
focused on casual use exploration, the 1984 EA explicitly
addressed “the exploration, development and production
phases of the geothermal program,” with an eye to “deciding
PIT RIVER TRIBE v. USFS 18193
which lands should be leased and what measures are required
to protect valuable resources.” The 1984 EA also required
“[t]he lessee [to] file an operating plan for subsequent activi-
ties in exploration, development, and operation of the lease.
Each operating plan will require an additional environmental
analysis and approval. Additional site-specific conditions are
then required before the lessee can begin activities.” The doc-
ument was tiered to the 1973 EIS and specifically incorpo-
rated its evaluation of geothermal exploration, development
effects, and related issues.
Unlike the 1973 EIS or the 1981 EA, the 1984 EA consid-
ered the possible effects of development on the cultural, recre-
ational, and spiritual significance of certain features in the
Medicine Lake area. For example, although the 1984 EA
acknowledged that “[n]atural attractions could be impaired by
construction and development so as to lose their recreational
appeal,” it suggested that “geothermal production could
become an attraction itself.”
The document stated that the area remained culturally sig-
nificant to modern-day Native Americans. The discussion of
the area’s modern-day cultural significance read, in its
entirety, as follows:
The modern Native American peoples who have cul-
tural traditions extending back to the prehistoric
period, continue to use resources found in the study
area in an effort to preserve their cultural identities.
These resources not only include tangible materials
such as food and ceremonial items but some natural
features of the landscape have spiritual significance
as well. These areas have not yet been completely
recorded, nor are they likely ever to be. Some gen-
eral areas of spiritual significance known to be of
concern to local Native Americans include: Mt.
Shasta, Black Fox Mountain, Little Black Fox
Mountain, Medicine Lake, Medicine Mountain and
18194 PIT RIVER TRIBE v. USFS
various other peaks, mountains and springs. The
American Indian Religious Freedom Act of 1979[ ]
requires ongoing consultation with local Native
American organizations and individuals during all
phases of land-surface altering activities for protec-
tion of the sites and areas important to the preserva-
tion of these cultural traditions.
The 1984 EA also discussed the historical significance of the
area: “Although no sites in the study area are currently on the
National Register of Historic Places, many have been judged
eligible and several are in the process of being nominated.
Nomination and/or acceptance is, however, no obstacle to a
site’s removal by scientific excavation.”
The 1984 EA’s entire discussion of the effects of the pro-
posed leasing on cultural and historical resources is as fol-
lows:
Any ground surface-disturbing activity within the
boundaries of a prehistoric, protohistoric or historic
site will disturb and/or destroy the patterning of sur-
face and subsurface artifacts and features from
which archaeologists infer past human behavior and
construct a record of past human lifeways. Any land-
scape altering activities have the potential to
adversely affect the spiritual significance of natural
features important to Native American groups.
To address these and other potential impacts, the 1984 EA
included a table of mitigating measures. The table indicated
that some of the measures would be required as lease stipula-
tions, while others would be analyzed further at the plan of
operation stage. The sole mitigation measure listed for the
impact on the “spiritual significance of landscape features”
was “[c]onsultation with local Native American groups.” The
1984 EA optimistically concluded that such consultation
would be “100% effective” as a mitigation measure. Never-
PIT RIVER TRIBE v. USFS 18195
theless, three pages later, the 1984 EA contained an alternate
finding in a listing of “Unavoidable Adverse Impacts”:
Cultural Resources. It is possible that geothermal
development will alter the character of the land-
scape, or certain features of the landscape, to such an
extent as to adversely affect those tangible and intan-
gible qualities that Native American groups feel are
of spiritual significance. Continuous consultation
with Native American groups throughout all phases
of the development process, from exploration
through design and actual development, may succeed
in minimizing such conflicts.
With regard to the impact on historical sites, the 1984 EA
remarked that “[t]he BLM provides a copy of all [proposed
plans of operation] to the State Historic Preservation Officer
(SHPO). The SHPO is asked to provide comments on each
proposal.”
The Bureau and the Forest Service subsequently mailed the
1984 EA to approximately one hundred individuals and orga-
nizations who were known to have been interested in the proj-
ect. It is uncertain whether the 1984 EA was mailed to Pit
River. The Bureau received only four letters in response, none
of which was from Pit River.
Following the 1984 EA, the BLM committed itself to leas-
ing 41,500 acres in the Resource Area in a Record of Decision
(ROD) adopted in 1985. The ROD stated that numerous envi-
ronmental concerns, including “that cultural resources be pro-
tected and that local Native American groups be consulted,”
would be “addressed at the Plan of Operation review stage.”
It then concluded “that with application of appropriate mitiga-
tion, geothermal development can take place in this area with-
out significant adverse impacts. The potential economic and
energy benefits from this relatively clean resource are
expected to outweigh any residual adverse impacts.” On Janu-
18196 PIT RIVER TRIBE v. USFS
ary 22, 1985, the Bureau’s California director approved the
leasing, concluding that “this action will result in no signifi-
cant impacts to the human environment and, therefore, . . . an
EIS is not necessary.”
In June 1988, the Bureau entered into the leases at issue in
this case, CA 21924 and CA 21926, without undertaking any
further environmental or cultural impacts analysis. The lessee
was Calpine’s predecessor in interest, Freeport-McMoran
Resource Partners Limited Partnership. The leases were for an
initial term of ten years effective June 1, 1988.2 Both leases
granted the lessee
the exclusive right to drill for, extract, produce,
remove, utilize, sell, and dispose of the geothermal
resources in the lands described in item 3 together
with the right to build and maintain necessary
improvements thereupon, for a primary term of 10
years. Rights granted are subject to applicable laws,
the terms, conditions, and attached stipulations of
this lease, the Secretary of the Interior’s regulations
and formal orders in effect as of lease issuance and,
when not inconsistent with lease rights granted or
specific provisions of this lease, regulations and for-
mal orders hereafter promulgated.
Both leases contained two additional stipulations:
1. Existing water in stock tanks, ponds, lakes, res-
ervoirs, springs, creeks or streams is not avail-
able for use in any activity unless specifically
permitted by the Forest Supervisor, except
where the lessee has water rights or the autho-
rized use of such water rights. Access for wild-
life at all natural water sources appropriated for
2
Freeport-McMoran designated Calpine its agent for exploration in
1994 and assigned the leases to Calpine in 1996.
PIT RIVER TRIBE v. USFS 18197
operational uses, must be provided. No surface
disturbance is allowed within 700 feet of
streams, lakes, ponds, springs, wet meadows or
other water sources unless specifically permitted
by the Forest Supervisor.
2. No surface-disturbing activities will be allowed
on the following described lands, unless the les-
see can demonstrate to the satisfaction of the
Forest Service and the Bureau of Land Manage-
ment through an appropriate Plan of Operation
or permit application that unacceptable environ-
mental impacts will not occur to areas with
exceptional visual qualities. [Description of
affected sections for respective lease areas]
In addition, CA 21926 contained a third stipulation:
3. No surface-disturbing activities will be permit-
ted from April 1 to August 30, unless the lessee
can demonstrate to the satisfaction of the Forest
Service and the Bureau of Land Management
through an appropriate Plan of Operation or per-
mit application that unacceptable environmental
impacts will not occur to Goshawk nesting habi-
tat in [specific sections of the parcel].
Neither lease contained any other stipulation or restriction
related to the use of the leasehold. The agencies did not com-
plete an EA or EIS, or consult with the interested tribes,
before issuing the leases.
Little activity occurred during the initial lease term. In
1994, the Bureau authorized two exploration core holes for
lease CA 21926. Calpine later proceeded with one tempera-
ture gradient core hole in the fall of 1994, and received
approval to deepen the hole in April 1995.
18198 PIT RIVER TRIBE v. USFS
In 1995, Calpine submitted a plan of operations for a pro-
posed Fourmile Hill Geothermal Exploration Project (Explo-
ration Plan) on the leased parcels, in the same general location
as the later-proposed power plant. The agencies conducted a
NEPA review and distributed an EA for public comment in
December 1995. The EA was sent to the Pit River Tribe. The
agencies received little public comment and no comment from
the Pit River Tribe. The agencies issued a Finding of No Sig-
nificant Impact and approved the project in April 1996.
Meanwhile, in September 1995, Calpine submitted a plan
of utilization for the power plant project at issue in this litiga-
tion: the Fourmile Hill Geothermal Development Project
(Fourmile Hill Plant). The proposed 49.9 megawatt plant was
to be located approximately three miles northwest of Medi-
cine Lake. The power plant itself would cover ten and a half
acres of land. The project would also involve construction of
five production well pads, each covering approximately two
and a half acres. The power plant and well field would disturb
about fifty acres of land. The bulk of the surface-disturbing
activity, some 338.8 acres, would be related to the construc-
tion of a 230-kilovolt transmission line, in a 125-foot-wide
corridor, to carry the power produced at the Fourmile Hill
Plant to an existing transmission line operated by the Bonne-
ville Power Administration, located twenty-four miles away.
After three years of construction, the plant would be expected
to generate electricity for forty-five years before being
decommissioned.
The agencies began preparing an EIS for the Fourmile Hill
Plant in June 1996, sending a notification letter to over 750
potentially interested agencies, groups, and members of the
public. Eventually, the agencies engaged in consultations with
tribes, including the Pit River Tribe. They also commissioned
an ethnographic report to consult local tribes “to identify cul-
tural resources located in the area of the Fourmile Hill
[plant].” A draft form of the Ethnographic Report was com-
pleted by December 1996. In July 1997, the agencies issued
PIT RIVER TRIBE v. USFS 18199
a draft EIS for the Fourmile Hill Plant. The draft EIS received
much criticism from the public, including criticism from Pit
River.
In May 1998, the Bureau extended Calpine’s leases for
another five years. It appears that no environmental review
was conducted with respect to this extension.
In September 1998, the agencies issued a final EIS for the
Fourmile Hill Plant (1998 EIS). The 1998 EIS considered var-
ious options for routing the transmission line. Alternatives to
the proposed structure and operations were considered earlier
in the environmental review. While the 1998 EIS mentioned
the “no action” alternative of denying the project entirely, it
was rejected because it “would not meet the purpose and need
for the proposed action.” The 1998 EIS defined the purpose
and need of the project as follows:
The purpose of the Fourmile Hill Geothermal Project
is to develop the geothermal resource on Calpine’s
Federal geothermal leases in order to economically
produce and deliver electrical energy to the Bonne-
ville Power Administration (BPA) and others. The
need for the project was stated by the U.S. Geother-
mal Steam Act of 1970, the Geothermal Energy
Research, Development, and Demonstration Act of
1974, the Federal Land Policy and Management Act
(FLPMA) of 1976, and the Energy Policy Act of
1992. The proposed project is consistent with these
Federal regulations which seek to foster and encour-
age private enterprise in the development of alterna-
tive energy resources.
The 1998 EIS maintained that all of the alternatives consid-
ered would have significant adverse effects on “traditional
cultural values” and “traditional cultural uses.” The alterna-
tive chosen was found to “have the least overall effect on the
environment . . . because it would . . . [m]inimize effects to
18200 PIT RIVER TRIBE v. USFS
traditional cultural values and uses (specifically, to avoid
effects near Medicine Lake and Timber Mountain).”
In July 1999, the Keeper of the National Register of His-
toric Places determined that the Medicine Lake caldera was
eligible for listing in the National Register. The report also
called for further studies on the eligibility of other areas in the
region. Also in July 1999, a briefing paper recommended that
the Fourmile Hill Plant project be denied because no mitiga-
tion could offset the significant impact to “the very nature and
intrinsic value of the Medicine Lake area.” The paper also
stated: “There is no mitigation that can offset the significant
impact, which was a premise under which the leases were
held.” However, the paper pointed out that “OGC and DOI
Solicitors advised that denial of the Projects would be a taking
of private property rights associated with the lease.”
The agencies issued a ROD approving the Fourmile Hill
Plant on May 31, 2000. The ROD stated that Calpine had
been issued “federal leases for the right to develop the geo-
thermal resource on federal lands,” and that this “vested prop-
erty interest” superceded an Executive Order on Indian Sacred
Sites. As part of the mitigation efforts, the Bureau “plac[ed]
a moratorium on further geothermal development in the
[Resource Area] for a minimum of five years until an analysis
of actual impacts of geothermal development can be com-
pleted by the authorizing agencies.” Based on the moratorium,
the Bureau suspended operations and production in multiple
leases in the Resource Area.
Pit River appealed the ROD to the Interior Board of Land
Appeals and the Regional Forester for the Pacific Southwest
Region. Both appeals were denied in their entirety.
While the appeals were pending, the Bureau unilaterally
lifted the moratorium on further development of the Resource
Area. The decision stated that “the energy situation in the
country, and particularly in the West, ha[d] changed.” The
PIT RIVER TRIBE v. USFS 18201
agency did not provide an opportunity for public review or
comment.
In May 2002, the Bureau extended Calpine’s leases for
another forty years. No additional environmental analysis was
undertaken in connection with this extension. The following
month, Pit River initiated this litigation in the Eastern District
of California, alleging various statutory violations throughout
the leasing and development process. The district court
entered summary judgment for the agencies on all claims on
February 17, 2004. Pit River Tribe v. Bureau of Land Man-
agement, 306 F. Supp. 2d 929 (E.D. Cal. 2004).
II.
We review the district court’s summary judgment de novo,
applying the same standards that applied in the district court.
Westlands Water Dist. v. U.S. Dep’t of Interior, 376 F.3d 853,
865 (9th Cir. 2004). Judicial review of agency decisions under
NEPA, NHPA, and NFMA is provided by the APA, which
maintains that an agency action may be overturned only when
it is “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A); see Ecol-
ogy Ctr., Inc. v. Austin, 430 F.3d 1057, 1062 (9th Cir. 2005)
(“Our review of agency actions challenged under NFMA and
NEPA is governed by the judicial review provisions of the
Administrative Procedure Act. Under the APA, we review to
determine if the agency’s actions were arbitrary, capricious,
an abuse of discretion, or otherwise contrary to law” (internal
quotation and citations omitted)); Morongo Band of Mission
Indians v. FAA, 161 F.3d 569, 573 (9th Cir. 1998)
(“Decisions regarding NHPA . . . are similarly reviewed under
the arbitrary and capricious standard”). “Because this is a
record review case, we may direct that summary judgment be
granted to either party based upon our de novo review of the
administrative record.” Ecology Ctr., 430 F.3d at 1062 (inter-
nal quotation marks and citation omitted).
18202 PIT RIVER TRIBE v. USFS
III.
We must answer two threshold questions before reaching
the merits of Pit River’s claims regarding the 1998 lease
extensions. First, we must consider whether Pit River has
Article III standing to raise the claims. Second, we must
decide whether the 2005 amendments to the Geothermal
Steam Act affected the justiciability of the claims. See Energy
Policy Act of 2005, Pub. L. No. 109-58, §§ 231(1), (2), 119
Stat. 594, amending 30 U.S.C. § 1005(g). We address these
issues in turn.
A.
[1] The Supreme Court has identified three constitutional
standing requirements: the plaintiff must have suffered an “in-
jury in fact,” the injury must be fairly traceable to the conduct
of the defendant, and the plaintiff must establish that a favor-
able federal court decision would be likely to redress the
injury. See Bennett v. Spear, 520 U.S. 154, 167 (1997). Pit
River relies on procedural harms to assert standing. The agen-
cies argue that Pit River does not satisfy the first or third part
of this test and consequently lacks standing.
[2] The agencies initially argue that Pit River did not suffer
an injury in fact. “To satisfy the injury in fact requirement, a
plaintiff asserting a procedural injury must show that the pro-
cedures in question are designed to protect some threatened
concrete interest of his that is the ultimate basis of his stand-
ing.” Beeman v. TDI Managed Care Servs., Inc., 449 F.3d
1035, 1038 (9th Cir. 2006), quoting Citizens for Better For-
estry v. USDA, 341 F.3d 961, 969 (9th Cir. 2003).
“[E]nvironmental plaintiffs adequately allege injury in fact
when they aver that they use the affected area and are persons
‘for whom the aesthetic and recreational values of the area
will be lessened’ by the challenged activity.” Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 183
PIT RIVER TRIBE v. USFS 18203
(2000), quoting Sierra Club v. Morton, 405 U.S. 727, 735
(1972).
[3] The first sentence of the 1996 draft ethnographic report
commissioned by the agencies reads: “Previous research has
indicated that the Medicine Lake Highland and Timber Moun-
tain areas have long been recognized by non-tribal scholars as
traditional cultural properties of . . . the Pit River Nation . . . .”
Pit River states that it has used the lands in question for cul-
tural and religious ceremonies “for countless generations.” Pit
River has adequately demonstrated an injury in fact for stand-
ing purposes.
“Once a plaintiff has established an injury in fact under
NEPA, the causation and redressability requirements are
relaxed.” Cantrell v. City of Long Beach, 241 F.3d 674, 682
(9th Cir. 2001). “[T]he members must show only that they
have a procedural right that, if exercised, could protect their
concrete interests . . . .” Defenders of Wildlife v. EPA, 420
F.3d 946, 957 (9th Cir. 2005) (emphasis in original).
[4] The agencies do not challenge the second part of the
test. In any event, we conclude that the harm Pit River com-
plains of is fairly traceable to the agencies’ conduct. The
agencies do contend, however, that Pit River’s challenge to
the 1998 lease extensions is no longer justiciable because the
extensions were supplanted by the 2002 lease extensions and
are thus not redressable. We conclude that the lease exten-
sions do not foreclose our ability to provide effective relief,
as “the relief [Pit River] has requested will remedy its harm.”
Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d
846, 860 (9th Cir. 2005) (as amended). “The procedural injury
would be redressed if the [agencies] followed proper proce-
dures.” Beeman, 449 F.3d at 1040. If we hold that the envi-
ronmental review was inadequate, “the agenc[ies] would have
to correct the decision-making process . . .” Columbia Basin
Land Prot. Ass’n v. Schlesinger, 643 F.2d 585, 591 n.1 (9th
Cir. 1981). We could therefore invalidate the leases as of
18204 PIT RIVER TRIBE v. USFS
1998, thus nullifying the 2002 extensions, or we could enjoin
any surface-disturbing activity until the agencies comply fully
with NEPA and other statutes. See Conner v. Burford, 848
F.2d 1441, 1462 (9th Cir. 1988) (as amended) (enjoining
surface-disturbing activity). Thus, Pit River can still receive
effective relief from this court.
[5] The agencies’ final argument about redressability is that
the preparation of the 1998 EIS forecloses relief on Pit
River’s claims. In Part IV.B. of this opinion we reject that
argument. Accordingly, Pit River has Article III standing.
B.
[6] In 2005, Congress amended the Geothermal Steam Act.
See Energy Policy Act of 2005, Pub. L. No. 109-58,
§§ 231(1), (2), 119 Stat. 594, amending 30 U.S.C. § 1005(g).
The amendments to the Act restrict the Bureau’s discretion to
deny geothermal lease extensions. Because these amendments
potentially render this appeal moot, we ordered supplemental
briefing on the effect of the amendments.
[7] “A case becomes moot whenever it ‘loses its character
as a present, live controversy of the kind that must exist if we
are to avoid advisory opinions on abstract propositions of
law.’ ” Cantrell, 241 F.3d at 678, quoting Hall v. Beals, 396
U.S. 45, 48 (1969). The relevant “question is whether there
can be any effective relief.” Id. (internal quotations and cita-
tion omitted).
Before August 8, 2005, the portion of the Act regarding
five-year lease extensions stated:
Any geothermal lease issued pursuant to this chapter
for land on which, or for which under an approved
cooperative or unit plan of development or opera-
tion, geothermal steam has not been produced or uti-
lized in commercial quantities by the end of its
PIT RIVER TRIBE v. USFS 18205
primary term, or by the end of any extension pro-
vided by subsection (c) of this section, may be
extended for successive 5-year periods . . . .
30 U.S.C. § 1005(g)(1) (repealed Aug. 8. 2005) (emphasis
added).
The amended Act provides as follows:
(2) Initial extension. The Secretary shall extend the
primary term of a geothermal lease for 5 years if, for
each year after the 10th year of the lease—
(A) the Secretary determined under sub-
section (b) that the lessee satisfied the work
commitment requirements that applied to
the lease for that year; or
(B) the lessee paid in annual payments
[sic] accordance with subsection (c).
(3) Additional extension. The Secretary shall
extend the primary term of a geothermal lease (after
an initial extension under paragraph (2)) for an addi-
tional 5 years if, for each year of the initial extension
under paragraph (2), the Secretary determined under
subsection (b) that the lessee satisfied the minimum
work requirements that applied to the lease for that
year.
30 U.S.C. § 1005(a) (2005) (emphasis added).
[8] By changing “may” to “shall,” the statute eliminated the
Bureau’s discretion in extending geothermal leases, provided
that certain conditions are met by the lessees. NEPA’s EIS
requirements apply only to discretionary federal decisions.
See Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 768
18206 PIT RIVER TRIBE v. USFS
(2004). Accordingly, if the statute’s effect is retroactive,
effective relief to Pit River would be foreclosed.
In Landgraf v. USI Film Products, 511 U.S. 244 (1994), the
Supreme Court considered whether to apply the Civil Rights
Act of 1991, enacted while Landgraf was on appeal, to a
cause of action that arose before the statute. The Court dis-
cussed in general terms when a statute should be given retro-
active effect:
When a case implicates a federal statute enacted
after the events in suit, the court’s first task is to
determine whether Congress has expressly pre-
scribed the statute’s proper reach. If Congress has
done so, of course, there is no need to resort to judi-
cial default rules. When, however, the statute con-
tains no such express command, the court must
determine whether the new statute would have retro-
active effect, i.e., whether it would impair rights a
party possessed when he acted, increase a party’s lia-
bility for past conduct, or impose new duties with
respect to transactions already completed. If the stat-
ute would operate retroactively, our traditional pre-
sumption teaches that it does not govern absent clear
congressional intent favoring such a result.
Id. at 280.
[9] Applying Landgraf to the 2005 geothermal amend-
ments, we conclude that we should not apply the statute retro-
actively. The Energy Policy Act does not expressly state
whether the statute is to be applied retroactively. The sole ref-
erence to potential retroactive application orders the Secretary
to create “transition rules for leases issued before . . . enact-
ment of this subsection . . . .” 30 U.S.C. § 1005(d) (2005).
These transition rules have not yet been issued. Moving to the
second half of the Landgraf analysis, we conclude that retro-
active application of the statute would impose new duties on
PIT RIVER TRIBE v. USFS 18207
Calpine, such as new minimum work or payment require-
ments. Landgraf makes clear that such retroactive operation
is heavily disfavored.
[10] Therefore, the 2005 amendments have not rendered
this case moot. We proceed to the merits of Pit River’s
claims.
IV.
Because the statute of limitations has run, Pit River does
not challenge the 1988 leasing decisions. Rather, Pit River
argues that the agencies violated NEPA, NHMA, and their
fiduciary trust obligations to the Pit River Tribe by failing to
undertake any environmental review before extending the
leases in 1998. The agencies respond that the 1973 EIS, the
1981 EA, and the 1984 EA were sufficient to cover the lease
extension. In the alternative, the agencies argue that we can-
not provide effective relief because of the preparation of the
1998 EIS.
A.
[11] “NEPA requires that a federal agency consider every
significant aspect of the environmental impact of a proposed
action and inform the public that it has indeed considered
environmental concerns in its decisionmaking process.” Earth
Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1153-54 (9th
Cir. 2006) (internal quotation marks and citation omitted).
The reviewing court must ensure that the agency took a “hard
look” at the environmental consequences of its decision.
Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976). The
statute dictates procedural safeguards rather than a certain
result. Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371
(1989); Salmon River Concerned Citizens v. Robertson, 32
F.3d 1346, 1355-56 (9th Cir. 1994). Because the statute is
procedural in nature, we “will set aside agency actions that
are adopted ‘without observance of procedure required by
18208 PIT RIVER TRIBE v. USFS
law.’ ” Natural Res. Def. Council v. U.S. Forest Serv., 421
F.3d 797, 810 n.27 (9th Cir. 2005), quoting 5 U.S.C.
§ 706(2)(D). Pit River argues that the agencies were required
to prepare an EIS before issuing the 1998 lease extensions to
Calpine.
In Conner, federal agencies sold oil and gas leases on
1,300,000 acres of national forest land in Montana. After
undertaking EAs, the agencies issued findings of no signifi-
cant impact, meaning that EISs were not required at the leas-
ing stage. 848 F.2d at 1443. The Bureau then sold over 700
leases for oil and gas exploration. Leases were of two basic
types. Some of the leases contained “no surface occupancy”
(NSO) stipulations, which, on their face, seemed to prohibit
the lessees from using the surface of the leased land without
specific approval from the Bureau. Other leases contained
standard stipulations authorizing “the government to impose
reasonable conditions on drilling, construction, and other
surface-disturbing activities;” however, unlike the NSO stipu-
lations, they did not appear to allow the government “to pre-
clude such activities altogether.” Id. at 1444.
The central issue in Conner was “whether the sale of any
of the . . . leases . . . constituted an irreversible and irretriev-
able commitment of federal forest land . . . that could have a
significant impact on the environment.” Id. at 1446. We held
that, in the case of the non-NSO leases, it did constitute such
a commitment: “[T]he non-NSO leases . . . do not reserve to
the government the absolute right to prevent all surface-
disturbing activity.” Id. at 1449. We continued:
[A]fter the lease is sold the government no longer
has the ability to prohibit potentially significant
inroads on the environment. By relinquishing the “no
action” alternative without the preparation of an EIS,
the government subverts NEPA’s goal of insuring
that federal agencies infuse in project planning a
thorough consideration of environmental values. The
PIT RIVER TRIBE v. USFS 18209
“heart” of the EIS — the consideration of reasonable
alternatives to the proposed action — requires fed-
eral agencies to consider seriously the “no action”
alternative before approving a project with signifi-
cant environmental effects. That analysis would
serve no purpose if at the time the EIS is finally pre-
pared, the option is no longer available.
Id. at 1451 (citation omitted).
[12] Bob Marshall Alliance v. Hodel, 852 F.2d 1223 (9th
Cir. 1988), involved similar oil and gas leases in another
Montana National Forest. As in Conner, the Bureau issued
several leases, some of which had NSO stipulations and some
of which did not. All of the leases contained “threatened or
endangered species” stipulations, stating that “surface-
disturbing activity may be restricted if it would have a detri-
mental effect on endangered or threatened species.” Id. at
1226. The district court granted summary judgment to plain-
tiffs, holding, among other things, that “the agencies violated
NEPA by failing to give meaningful consideration to the no-
leasing alternative.” Id. We affirmed, reiterating our recent
holding in Conner: “[S]ale of the . . . leases required prepara-
tion of an EIS unless the lease ‘absolutely prohibits surface
disturbance in the absence of specific government approv-
al.’ ” Id. at 1227, quoting Conner, 848 F.2d at 1447 n.15.
[13] In contrast, an EIS is not required in cases where the
government has not irretrievably committed resources. In
Friends of Southeast’s Future v. Morrison, 153 F.3d 1059
(9th Cir. 1998), we held that an EIS was not required where
the agency retained the ultimate right to decide how much
timber was to be harvested. Id. at 1063-64.
[14] We must therefore resolve whether the leases and
lease extensions at issue in this litigation reserve to the agen-
cies the right to preclude surface-disturbing activity alto-
gether. The 1988 leases and the 1998 lease extensions grant
18210 PIT RIVER TRIBE v. USFS
the lessee “the exclusive right to drill for, extract, produce,
remove, utilize, sell, and dispose of the geothermal resources
in the [leased] lands.” They do not reserve to the agencies an
absolute right to deny exploitation of those resources. All that
is reserved to the agencies is the right to limit development in
accordance with general statutory and regulatory require-
ments, and, critically, “when not inconsistent with lease rights
granted,” with later regulations and orders. While specific
stipulations attached to the leases provide some absolute lim-
its on surface-disturbing activities, these stipulations only
cover select sections of the lease parcels or certain periods of
the year.
The agencies have consistently interpreted this lease lan-
guage as a grant to Calpine of an absolute right to develop,
subject only to procedural regulatory restrictions. A 1999
agency briefing paper stated that the Bureau and Forest Ser-
vice Supervisors were “strongly considering selection of the
No Action Alternative” for the projects in the Medicine Lake
area. According to the briefing paper, Department of the Inte-
rior Solicitors advised that “denial of the Projects would be a
taking of private property rights associated with the leases.
. . . The decision makers would like to have the authority to
deny the geothermal Projects, which may require compensa-
tion to the leaseholders for the taking.” This language implies
that the decision makers did not have the authority to deny the
projects.
Similarly, the ROD for the Fourmile Hill Plant’s explicit
discussion of what were viewed as Calpine’s vested property
rights supports the conclusion that the agencies viewed the
leases as granting an absolute right to develop. The ROD ana-
lyzed the project’s compliance with Executive Order 13007,
entitled Indian Sacred Sites, and concluded that the leases ren-
dered the executive order without effect. In other words,
although adverse effects to sacred sites had not been avoided,
denial of the project was not possible without also denying
Calpine its vested rights as a leaseholder.
PIT RIVER TRIBE v. USFS 18211
This view of the leases is consistent with the earlier EISs
and EAs prepared by the agencies. The 1973 EIS on geother-
mal energy “recognized that the issuance of geothermal leases
. . . may constitute major Federal action significantly affecting
the quality of the human environment,” thus necessitating fur-
ther EISs. Similarly, the 1981 EA declared that “[a] decision
to lease carries with it the right to develop a discovered
resource, subject to the limitations of the lease. . . . Further
analysis will be required for the later stages of exploration
and, if a resource is discovered, development.” The 1985
ROD, in turn, stated that development within a conditional no
surface occupancy zone “will be permitted if [the agencies] so
concur. However, there is no guarantee to the lessee that pro-
posed operations will be found to be feasible within those
[NSO] areas . . . . There are, however, areas . . . where the
[NSO] stipulations do not apply.”
“A comprehensive programmatic impact statement gener-
ally obviates the need for a subsequent site-specific or
project-specific impact statement, unless new and significant
environmental impacts arise that were not previously consid-
ered.” Salmon River, 32 F.3d at 1356. However, the 1973 EIS
does not adequately address the potential impacts of leasing;
in fact, we have already held as much in Sierra Club v.
Hathaway, 579 F.2d 1162 (9th Cir. 1978). There, the plain-
tiffs sought an injunction to stop the government’s issuance of
“casual use” geothermal exploration leases, contending that
the 1973 EIS was insufficient. Casual use exploration “in-
volves practices which do not ordinarily lead to any apprecia-
ble disturbance or damage to lands, resources, and
improvements.” Id. at 1165. We held that a supplemental EIS
was unnecessary at that stage, affirming the district court’s
denial of an injunction, because the casual use leases did not
constitute “irreversible and irretrievable commitments” of
specific resources to development. Id. at 1168. However, our
ruling also depended on our conclusion that it was unlikely
“that the BLM and the USGS will permit the leasing program
to proceed into its advanced phases without fully considering
18212 PIT RIVER TRIBE v. USFS
their obligation to comply with the EIS requirements of
NEPA.” Id. at 1167.
The 1981 and 1984 EAs are also insufficient. They did not
consider the impacts of actual geothermal development, but
only of leases and casual use exploration; the actual leases
later granted, purportedly based on those EAs, are inconsis-
tent with their terms. We held in Salmon River that “when an
impact statement is prepared, site-specific impacts need not
be fully evaluated until a ‘critical decision’ has been made to
act on site development.” 32 F.3d at 1357. Once a critical
decision is made, though, any vague prior programmatic state-
ments are no longer enough. The lease language, and the
agencies’ interpretation of the lease language, make clear that
the “critical decisions” here occurred when the agencies
extended absolute development rights in 1988 and again in
1998.
The agencies urge that the 1998 lease extensions merely
preserved the status quo and do not require separate assess-
ment. “Discretionary agency action that does not alter the sta-
tus quo does not require an EIS.” Nat’l Wildlife Fed’n v. Espy,
45 F.3d 1337, 1344 (9th Cir. 1995). “In other words, an EIS
is not required in order to leave nature alone.” Kootenai Tribe
of Idaho v. Veneman, 313 F.3d 1094, 1114 (9th Cir. 2002)
(internal quotation marks and citation omitted). Because Pit
River did not challenge the 1988 leases, the agencies argue
that they were free to do as they wished in 1998.
In Espy, the government took title to a ranch from a delin-
quent borrower and subsequently sold the ranch. The new
owners continued to graze cattle on the land. We held that the
title transfer was not subject to NEPA because cattle had
grazed on the land before the title transfer. Espy, 45 F.3d at
1343-44. In Kootenai Tribe, though, we held that the Forest
Service’s plan to reduce human intervention in national for-
ests altered the status quo. We held that NEPA applied and
PIT RIVER TRIBE v. USFS 18213
that the initiative required an EIS. Kootenai Tribe, 313 F.3d
at 1115.
We conclude that the situation presented here is different
from the “continued use” scenario in Espy. Without the affir-
mative re-extension of the 1988 leases, Calpine would have
retained no rights at all to the leased property and would not
have been able to go forward with the Fourmile Hill Plant.
The status quo before the 1998 extensions was that Calpine
owned rights to produce geothermal steam valid through May
31, 1998, after which Calpine owned nothing. Instead of pre-
serving the status quo, the lease extensions gave Calpine an
extra five years to develop the land and the possibility of
obtaining a future lease extension of up to forty years.
[15] Like the original 1988 leases, the 1998 extensions of
Calpine’s leases did not reserve to the agencies the absolute
right to deny development and did not merely preserve the
status quo. Under NEPA and our case law, the agencies were
required to complete an environmental impact statement
before extending the leases. This obligation was not satisfied
by the earlier environmental reviews.
B.
Calpine urges that any deficiency in the environmental
review before the 1998 lease extensions has been rendered
moot by the preparation of the 1998 EIS for the Fourmile Hill
Plant. The district court held that the preparation of the 1998
EIS “mooted” the claim, because preparation of the EIS was
the relief sought by Pit River. Pit River Tribe, 306 F. Supp.
2d at 945-46. The issue is actually one of standing rather than
mootness, because the EIS was completed before the begin-
ning of this litigation. See Friends of the Earth, 528 U.S. at
189-90 (describing difference between standing and moot-
ness). The question is whether “the relief [Pit River] has
requested will remedy its harm.” Ocean Advocates, 402 F.3d
at 860.
18214 PIT RIVER TRIBE v. USFS
NEPA requires that federal agencies include a detailed
statement of “alternatives to the proposed action” in any rec-
ommendation or report on actions significantly affecting the
quality of the human environment. 42 U.S.C. § 4332(2)
(C)(iii). Additionally, the statute mandates that the agencies
“study, develop, and describe appropriate alternatives to rec-
ommended courses of action in any proposal which involves
unresolved conflicts concerning alternative uses of available
resources.” Id. § 4332(2)(E). The “alternatives” section is “the
heart of the environmental impact statement.” 40 C.F.R.
§ 1502.14. “The consideration of alternatives requirement . . .
guarantee[s] that agency decisionmakers have before them
and take into proper account all possible approaches to a par-
ticular project (including total abandonment of the project)
which would alter the environmental impact and the cost-
benefit balance.” Bob Marshall Alliance, 852 F.2d at 1228
(internal quotation marks, punctuation, and citation omitted)
(emphasis in original).
“The purpose of an EIS is to apprise decisionmakers of the
disruptive environmental effects that may flow from their
decisions at a time when they retain a maximum range of
options.” Conner, 848 F.2d at 1446 (internal quotation marks,
punctuation, and citation omitted). We have already con-
cluded that the agencies should have prepared an EIS at the
time of the 1998 lease extensions. To allow the later 1998 EIS
to compensate for the nonexistent earlier review would violate
both federal regulations and our case law.
[16] Federal regulations explicitly, and repeatedly, require
that environmental review be timely. “Agencies shall inte-
grate the NEPA process with other planning at the earliest
possible time to insure that planning and decisions reflect
environmental values, to avoid delays later in the process, and
to head off potential conflicts.” 40 C.F.R. § 1501.2 (2005).
Similarly, regulations mandate that an environmental impact
statement be commenced “as close as possible to the time the
agency is developing or is presented with a proposal.” 40
PIT RIVER TRIBE v. USFS 18215
C.F.R. § 1502.5 (2005). “The statement shall be prepared
early enough so that it can serve practically as an important
contribution to the decisionmaking process and will not be
used to rationalize or justify decisions already made.” Id.; see
also 40 C.F.R. § 1502.2(g) (2005) (“Environmental impact
statements shall serve as the means of assessing the environ-
mental impact of proposed agency actions, rather than justify-
ing decisions already made”).
[17] Consistent with these regulations, we have repeatedly
held that dilatory or ex post facto environmental review can-
not cure an initial failure to undertake environmental review.
In Save the Yaak Committee v. Block, the Forest Service
began construction of a section of a road without preparation
of an EA, and belatedly completed an EA two years later. 840
F.2d 714, 716-17 (9th Cir. 1988). We cited the federal regula-
tions in holding that the preparation of the EA and other envi-
ronmental documents was untimely. “The rationale behind
this rule is that inflexibility may occur if delay in preparing
an EIS is allowed: After major investment of both time and
money, it is likely that more environmental harm will be tol-
erated.” Id. at 718 (internal quotation marks and citations
omitted). We held that the agencies’ failure to comply with
NEPA’s timing requirements “seriously imped[ed] the degree
to which their planning and decisions could reflect environ-
mental values.” Id. at 718-19.
We reached a similar conclusion in Metcalf v. Daley, 214
F.3d 1135 (9th Cir. 2000). In that case, the Makah Tribe
sought approval to resume the hunting of gray whales. The
hunting of gray whales was regulated by the International
Convention for the Regulation of Whaling, to which the
United States was a party. Government agencies entered into
two written agreements with the Makah to support the
Makah’s proposal. Id. at 1139. Soon thereafter, the agencies
issued a final EA and a Finding of No Significant Impact. Id.
at 1140. The agencies thus did prepare an EA, undertake envi-
ronmental review, and issue a FONSI, “but they did so after
18216 PIT RIVER TRIBE v. USFS
already having signed two agreements binding them to sup-
port the Tribe’s proposal.” Id. at 1142. On the same day as the
release of the FONSI, the plaintiffs brought suit, alleging vio-
lation of NEPA and other statutes in supporting the Makah’s
proposal without first undertaking environmental review. Id.
at 1140. We agreed, holding that the agencies had made an
“irreversible and irretrievable commitment of resources” prior
to environmental review. Id. at 1143.
[18] In the present case, there is even less reason than there
was in Metcalf or in Save the Yaak to hold that the later
review cured the earlier failure. In Metcalf, the later review
actually addressed the issue of whether the government
should support the Makah’s proposal. Here, on the contrary,
the tardy EIS did not address the issue that should have been
addressed in 1988 and 1998: whether the land in question
should be leased at all.
[19] The 1998 EIS simply did not consider the no-action
alternative. The stated purpose of the project was “to develop
the geothermal resource on Calpine’s Federal Geothermal
Leases CA21924 and CA21926 to economically produce and
deliver electrical energy to BPA and others.” The 1998 EIS,
in its “alternatives” section, specifically stated that the only
alternatives under consideration were those “[l]ocated on the
Calpine Federal geothermal leases.” The sole mention of the
no action alternative stated that it “would not meet the pur-
pose and need for the proposed action.” The 1998 EIS failed
to take the requisite “hard look” at whether the leases should
have been extended; it therefore cannot possibly remedy the
earlier violation. To allow the 1998 EIS to cure the earlier
violation would mean using the EIS “to rationalize or justify
[a] decision[ ] already made,” although the EIS does not even
address that earlier decision. See Save the Yaak, 840 F.2d at
718, quoting 40 C.F.R. § 1502.5.
In West v. Secretary of the Department of Transportation,
when discussing mootness, we reiterated that if completion of
PIT RIVER TRIBE v. USFS 18217
the challenged action were sufficient to moot a NEPA claim,
an agency “could merely ignore the requirements of NEPA,
build its structures before a case gets to court, and then hide
behind the mootness doctrine. Such a result is not accept-
able.” 206 F.3d 920, 925 (9th Cir. 2000) (internal quotation
marks, citation, and emphasis omitted). Similarly, an agency
does not satisfy NEPA by ignoring the statute at the critical
stage, committing resources to development, and eventually
completing an EIS—however lengthy and exhaustive—that
simply asserts that the fundamental decision to develop has
already been made.
[20] Because the 1998 EIS was premised on the notion that
the leases were valid and granted development rights to Cal-
pine, 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. By the time the agencies completed the 1998
EIS, “the die already had been cast. The ‘point of commit-
ment’ to this proposal”— the extension of the leases—
“clearly had come and gone.” Metcalf, 214 F.3d at 1144.
Accordingly, in spite of the 1998 EIS, we hold that the 1998
lease extensions—and the entire Fourmile Hill Plant approval
process for development of the invalid lease rights—violated
NEPA.
V.
Pit River also argues that the agencies violated NHPA by
failing to identify traditional cultural properties on the lease-
holds before issuing or extending the leases. The district court
found that the preparation of the 1998 EIS provided all the
relief sought on these claims. See Pit River Tribe, 306 F.
Supp. 2d at 945-46. In the alternative, the district court held
that the lease extensions were not subject to NHPA because
they did not change the status quo. Id. at 946 n.10.
18218 PIT RIVER TRIBE v. USFS
[21] “The NHPA involves a series of measures designed to
encourage preservation of sites and structures of historic,
architectural, or cultural significance.” San Carlos Apache
Tribe v. United States, 417 F.3d 1091, 1093-94 (9th Cir.
2005) (internal quotation marks and citation omitted). To this
end, the statute “requires a federal agency to ‘take into
account the effect of [any] undertaking on any district, site,
building, structure, or object that is included in or eligible for
inclusion in the National Register.’ ” Morongo Band of Mis-
sion Indians v. FAA, 161 F.3d 569, 581 (9th Cir. 1998), quot-
ing 16 U.S.C. § 470(f). “When an undertaking may affect
properties of historic value to an Indian tribe on non-Indian
lands, the consulting parties shall afford such tribe the oppor-
tunity to participate as interested persons.” Muckleshoot
Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 806 (9th Cir.
1999), quoting 36 C.F.R. § 800.1(c)(2)(iii). The effort must be
“initiated early in the undertaking’s planning, so that a broad
range of alternatives may be considered during the planning
process for the undertaking.” 36 C.F.R. § 800.1(c). “NHPA is
similar to NEPA except that it requires consideration of his-
toric sites, rather than the environment.” United States v. 0.95
Acres of Land, 994 F.2d 696, 698 (9th Cir. 1993).
[22] It is undisputed that no consultation or consideration
of historical sites occurred in connection with the lease exten-
sions, although NHPA consultation did occur in the Fourmile
Hill Plant approval process. The agencies defend the lack of
NHPA analysis on the same grounds that they defended their
lack of NEPA analysis: that no analysis was required, and, in
the alternative, that the later analysis cured the earlier failure.
For the reasons discussed above, we hold that the extension
of the leases was a federal undertaking requiring review. Sim-
ilarly, the later NHPA review cannot cure the earlier viola-
tion, because it did not deal with the question of whether the
land should have been leased at all. Consequently, we hold
that the agencies violated NHPA by failing to complete the
necessary review before extending the leases.
PIT RIVER TRIBE v. USFS 18219
VI.
Pit River contends that the agencies violated their fiduciary
duty to the Pit River Tribe by failing to protect the Tribe’s
interests during the development process. The district court
held that the agencies fully satisfied their fiduciary duty
because they “did not violate any statutes during the approval
process for Fourmile Hill.” Pit River Tribe, 306 F. Supp. 2d
at 950.
[23] “The federal government owes a fiduciary obligation
to all Indian tribes as a class.” Inter Tribal Council of Ariz.,
Inc. v. Babbitt, 51 F.3d 199, 203 (9th Cir. 1995). We have
held that agencies must at least show “compliance with gen-
eral regulations and statutes not specifically aimed at protect-
ing Indian tribes.” Morongo Band, 161 F.3d at 574. Because
we conclude that the agencies violated both NEPA and NHPA
during the leasing and approval process, it follows that the
agencies violated their minimum fiduciary duty to the Pit
River Tribe when they violated the statutes. We therefore
need not reach any of the other fiduciary duty arguments
raised by Pit River. In particular, we do not reach the question
of whether the fiduciary obligations of federal agencies to
Indian nations might require more.
VII.
[24] The agencies violated their duties under NEPA and
NHPA and their fiduciary duty to the Pit River Tribe by fail-
ing 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. The rest of the project approval process,
including the 1998 EIS, was premised on Calpine’s posses-
sion of a valid right to develop the land and therefore must be
set aside. We do not reach Pit River’s three claims based on
agency actions subsequent to the 1998 lease extensions: the
agency decisions in 2000, the NFMA claims, and the APA
18220 PIT RIVER TRIBE v. USFS
claim related to the rescission of the development morato-
rium.
[25] We reverse the district court’s summary judgment in
favor of the agencies, and direct the district court to enter
summary judgment in favor of Pit River consistent with this
opinion.
REVERSED.