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Pit River Tribe v. Bureau of Land Management

November 3, 2010

PIT RIVER TRIBE; NATIVE COALITION FOR MEDICINE LAKE HIGHLANDS DEFENSE; AND MOUNT SHASTA BIOREGIONAL ECOLOGY CENTER, PLAINTIFFS,
v.
BUREAU OF LAND MANAGEMENT; UNITED STATES DEPARTMENT OF THE INTERIOR; U.S. FOREST SERVICE; ADVISORY COUNCIL ON HISTORIC PRESERVATION; AND CALPINE CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Hon. John A. Mendez United States District Judge

STATUS REPORT FOR THE FEDERAL AGENCY DEFENDANTS, WITH ORDER TO AMEND ORDER OF DECEMBER 23, 2008

STATUS REPORT

In an opinion issued on August 2, 2010, the court of appeals affirmed the order entered by this court on December 23, 2008, and directed this court on remand: (1) to clarify that the 1998 lease extensions and subsequent agency decisions did not take effect, but the original 1988 leases are nonetheless capable of extension, and (2) to correct a typographical error in a passage that was intended to read as follows: "BLM shall issue a decision which shall... state that BLM reserves the absolute right to deny lease extensions, unit commitment, and/or development of the leases." All that remains to be done in this case is to carry out those instructions.

Accordingly, the federal agency defendants submit herewith a proposed order to carry out the appellate mandate. The only changes from the Order of December 23, 2008, are an introductory paragraph explaining why the new order is to be entered, correction of the typographical error in paragraph 3(e), and a new paragraph 6 providing the clarification directed by the court of appeals.

Government counsel provided the proposed order to counsel for the other parties a month ago, on October 1, 2010. Defendant Calpine Corporation consents to entry of the proposed order. Plaintiffs have not responded to requests for their position.

Dated: November 2, 2010

PROPOSED ORDER

This matter comes before the court on remand from Pit River Tribe v. U.S. Forest Service, No. 09-15385, ___ F.3d ___ (9th Cir. August 2, 2010). The court of appeals affirmed the order entered in this case on December 23, 2008, and directed this court to make one correction and provide one clarification. Having considered the decision of the court of appeals, the court hereby amends the Order of December 23, 2008, in two respects: (1) to correct a typographical error (paragraph 3(e) below), and (2) to clarify that the 1998 lease extensions and all subsequent decisions did not take effect, but the original leases are nonetheless capable of extension (new paragraph 6 below), and reissues the corrected order as set forth below.

The court hereby enters summary judgment for plaintiffs on the Fourth, Fifth and Ninth causes of action in their complaint and, accordingly, orders:

1. Defendant Calpine Corporation ("Calpine") is enjoined from conducting any surface-disturbing activities on Leases CA 21924 and 21926 ("the leases") pending the following actions by defendants Bureau of Land Management ("BLM") and U.S. Department of Agriculture, Forest Service ("the Forest Service") (collectively, "the agencies") as provided below:

(a) further environmental analysis and documentation pursuant to the National Environmental Policy Act ("NEPA");

(b) further analysis and documentation concerning the impacts to cultural resources and historic properties pursuant to the National Historic Preservation Act ("NHPA"); and

(c) further consultation with Native American Tribes, including plaintiff Pit River Tribe.

2. The Record of Decision ("ROD") issued by BLM and the Forest Service on May 31, 2000 is remanded to the agencies to be vacated. In addition, BLM's May 8, 1998 decision extending the leases, and BLM's May 2, 2002 forty-year additional ...


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