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The Rise of Tribes and the Fall of Federal Indian Law
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Judge won't block drilling near sacred site in Calif.
Thursday, March 11, 2004

A federal judge last month refused to overturn the Bush administration's approval of a power plant on sacred land in California even though two federal agencies acknowledge the project will have significant "adverse" impacts on several tribes.

A coalition led by the Pit River Tribe is fighting Calpine Corporation's proposed geo-thermal plant in the Medicine Lake Highlands. The area is home to the sacred Medicine Lake, which the Pit River, Modoc, Shasta, Karuk and Wintun tribes use for healing powers and where traditional healers from other tribes go for guidance.

In May 2000, the Bureau of Land Management and the U.S. Forest Service issued a joint decision denying development in the Telephone Flats part of the highlands while allowing exploration at a location known as Fourmile Hill. However, the agencies imposed a five-year moratorium on drilling in Fourmile Hill pending further studies of the impacts on traditional cultural sites and the environment.

But in June 2001, after significant lobbying and a lawsuit by Calpine, the 10th largest energy company in the U.S., the Bush administration not only lifted the moratorium in Fourmile Hill, it reversed the Telephone Flat denial. Officials cited new policy, then-fresh from the White House energy task force led by Vice President Dick Cheney, that called for more development on federal lands and expedited review of drilling projects.

The Pit River Tribe and the Native Coalition for Medicine Lake Highlands filed an administrative challenge but it was rejected, leading to the federal court lawsuit on the Fourmile Hill issue. After holding a hearing last September, U.S. District Judge David F. Levi issued a ruling February 13 concluding that the coalition failed to show why the geo-thermal plant should be blocked.

In rejecting several challenges the tribal plaintiffs raised, Levi said he was not commenting on the merits of the project. He noted that federal officials admitted the plant would impact how tribal members use the area and could end up preventing them from exercising their religions.

But he said his role was "not to review the substance" of a project that would impact the sacred area. "The court's role is to review compliance with these procedures," he wrote, referring to several federal laws governing historic sites, environmental policy, forest management and energy development.

The Pit River Tribe also contended that the government violated its trust responsibilities. Levi, however, said two agencies do not have a specific duty to protect sacred sites on land that is owned by the federal government and not held in trust for the tribe.

"Although there may e a general fiduciary duty of the federal government owed to Indians, 'unless there is a specific duty that has been placed on the government with respect to Indians, this responsibility is discharged by the agency’s compliance with general regulations and statutes not specifically aimed at protecting Indians,'" he wrote, citing a 1998 decision involving another California tribe.

The Mount Shasta Bioregional Ecology Center, another plaintiff in the case, said the coalition was considering an appeal to the 9th Circuit Court of Appeals. A separate lawsuit challenging the Telephone Flat reversal is being re-evaluated.

At a June 2003 hearing before the Senate Indian Affairs Committee, Gene Preston, a Pit River council member, testified against the development. He said the power plant will yield very little power at the expense of his tribe's cultural survival.

"Where is the equation that says trading our culture is worth the gain?" he told the committee. "The profit is privatized while the impacts become the burden of Native Americans, society, animals and future generations."

Get the Decision:
Pit River Tribe v. BLM (February 13, 2004)

Relevant Documents:
Proposed Geothermal Development Project for Medicine Lake Highlands - Records of Decision (Bureau of Land Management [note: does not include reversal of decisions])

Relevant Links:
Medicine Lake Video - http://www.medicinelakevideo.org
Medicine Lake Information - http://www.sacredland.org/medicine_lake.html
Calpine Corporation - http://www.calpine.com

Related Stories:
Bush judicial nominee blasted by Democrats (02/06)
Lawsuit seeks to stop drilling in sacred Mount Shasta (10/20)
Calif. tribes oppose power plant (07/17)
Protections for sacred sites called inadequate (06/19)
Norton reopens sacred site controversy (09/30)
Sacred site bill increases tribal voice (07/19)
Senate dives into sacred site debate (06/05)
Congress considering sacred sites (5/21)
Tribes push action on sacred sites (3/21)
Tribe prevails on sacred site case (3/19)
Norton denies politics played role in drilling (6/7)
Norton hit on exploration of sacred site (6/6)
Myers reversing sacred site opinion (10/25)
Bush nominee has no 'agenda' on Clinton decisions (6/21)

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