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; SAVE MEDICINE LAKE

COALITION; MEDICINE LAKE

CITIZENS FOR QUALITY

ENVIRONMENT,

Plaintiffs-Appellants,

v.

BUREAU OF LAND MANAGEMENT;

U.S. DEPARTMENT OF THE INTERIOR;

UNITED STATES FOREST SERVICE;

UNITED STATES DEPARTMENT OF

AGRICULTURE; CALPINE

CORPORATION,

Defendants-Appellees.

No. 13-16961

D.C. No.

2:04-cv-00956-

JAM-JFM

OPINION

Appeal from the United States District Court

for the Eastern District of California

John A. Mendez, District Judge, Presiding

Argued and Submitted

March 12, 2015—San Francisco, California

Filed July 20, 2015
2 PIT RIVER TRIBE V. BLM

Before: William A. Fletcher and Morgan Christen, Circuit

Judges, and Roslyn O. Silver,* Senior District Judge.

Opinion by Judge Christen

SUMMARY**

Environmental Law

The panel reversed the district court’s order granting

judgment on the pleadings in an action brought by

environmental organizations challenging the Bureau of Land

Management’s continuation of 26 geothermal leases in

northeastern California’s Medicine Lake Highlands.

The panel held that the district court incorrectly treated

the environmental organizations’ claims as arising under only

§ 1005(a) of the Geothermal Steam Act. BLM’s 1998

decision to continue the 26 unproven leases in the Glass

Mountain Unit under § 1005(a) was issued simultaneously

with its decision to reverse and vacate its earlier decision to

extend those leases on a lease-by-lease basis under § 1005(g).

The panel held, thus, that the environmental organizations’

challenge to BLM’s decisions issued on May 18, 1998

implicated both § 1005(a) and § 1005(g).

* The Honorable Roslyn O. Silver, Senior District Judge for the United

States District Court for the District of Arizona, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
PIT RIVER TRIBE V. BLM 3

Because BLM must conduct environmental, historical,

and cultural review under the National Environmental Policy

Act and the National Historic Preservation Act before

granting lease extensions under § 1005(g), the panel held that

the environmental organizations’ claim fell within

§ 1005(g)’s zone-of-interests, and the organizations had

stated a claim under § 1005(g).

The panel declined the environmental organizations’

invitation to rule on the merits of its Geothermal Steam Act

claims, and remanded for further proceedings.

COUNSEL

Jason S. George (argued), Evan H. Stein (argued), Certified

Law Students, Palo Alto, California; Deborah Ann Sivas,

Matthew J. Sanders, and Alicia E. Thesing, Mills Legal

Clinic of Stanford Law School, Stanford, California, for

Plaintiffs-Appellants.

David Taylor Shelledy (argued), Assistant United States

Attorney, and Benjamin B. Wagner, United States Attorney,

Sacramento, California, for Defendants-Appellees Bureau of

Land Management, United States Department of the Interior,

United States Forest Service, and United States Department

of Agriculture.

Rosemary Antonopoulos, Dublin, California; Thomas L.

Sansonetti, Holland & Hart LLP, Cheyenne, Wyoming, for

Defendant-Appellee Calpine Corporation.
4 PIT RIVER TRIBE V. BLM

OPINION

CHRISTEN, Circuit Judge:

The Pit River Tribe and several regional environmental

organizations (collectively Pit River) appeal from the district

court’s order granting judgment on the pleadings on Pit

River’s action challenging the Bureau of Land Management’s

(BLM) continuation of 26 geothermal leases in northeastern

California’s Medicine Lake Highlands. Pit River’s complaint

alleged that BLM’s decision violated the Geothermal Steam

Act, the National Environmental Policy Act (NEPA), the

National Historic Preservation Act (NHPA), and the

government’s fiduciary trust obligation to Indian tribes. The

district court concluded Pit River lacked prudential standing

to bring its Geothermal Steam Act claims because the claims

did not fall within the zone of interests of the Act’s

lease-continuation provision, 30 U.S.C. § 1005(a).1 The

district court rejected Pit River’s other claims on the basis

that BLM had no discretion to consider environmental,

historical, or cultural interests before continuing the leases

under §1005(a).

We conclude that the district court incorrectly treated Pit

River’s claims as arising under only § 1005(a) of the

Geothermal Steam Act. BLM’s 1998 decision to continue the

26 unproven leases in the Glass Mountain unit under

§ 1005(a) was issued simultaneously with its decision to

1

In light of the Supreme Court’s recent case, Lexmark International,

Inc. v. Static Control Components, Inc., the zone-of-interests inquiry may

no longer be considered an element of “prudential standing,” but the

substance of the test remains unchanged for the purposes of this case. 

134 S. Ct. 1377, 1387–88 (2014).
PIT RIVER TRIBE V. BLM 5

reverse and vacate its earlier decision to extend those leases

on a lease-by-lease basis under § 1005(g). Thus, Pit River’s

challenge to the decisions issued on May 18, 1998 implicates

both § 1005(a) and § 1005(g). Because BLM must conduct

environmental, historical, and cultural review under NEPA

and NHPA before granting lease extensions under § 1005(g),

Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 780–84,

787–88 (9th Cir. 2006) (“Pit River I”), Pit River’s claim falls

within § 1005(g)’s zone of interests and Pit River has stated

a claim under § 1005(g). Accordingly, we reverse the district

court’s decision.

BACKGROUND

I. The Plaintiffs’ Interests

The Medicine Lake Highlands are part of the Pit River

Tribe’s ancestral homeland. Tribal members “consider the

region sacred and continue to use numerous important

spiritual and cultural sites within the highlands.” Pit River I,

469 F.3d at 772. The complaint alleges that exploration of

and development on geothermal leases will interfere with

tribal members’ use of the Medicine Lake Highlands “for a

variety of spiritual and traditional cultural purposes” that

“depend on the physical, environmental, and visual integrity

of these areas, and their quietude.” The complaint alleges

that the non-tribal plaintiffs have environmental, recreational,

aesthetic, and scientific interests in the Medicine Lake

Highlandsthat are inconsistent with geothermal development.

II. The Geothermal Steam Act

When interest in geothermal power development first

began to grow in the 1960s, the United States Department of
6 PIT RIVER TRIBE V. BLM

the Interior determined that it lacked statutory authority to

dispose of geothermal resources on federal land. Robert B.

Keiter, The Old Faithful Protection Act: Congress, National

Park Ecosystems, and Private Property Rights, 14 Pub. Land

L. Rev. 5, 9 (1993). Congress recognized the necessity of

creating a legal framework governing the development of

geothermal resources on federal land, see Wagner v. Chevron

Oil Co., 321 F. Supp. 2d 1195, 1198 (D. Nev. 2004), and in

1970 it enacted the Geothermal Steam Act for the express

purpose of “promot[ing] the development of geothermal

leases on federal lands.”2 Geo-Energy Partners-1983 Ltd. v.

Salazar, 613 F.3d 946, 949 (9th Cir. 2010) (citing 30 U.S.C.

§ 1001, et seq; Wagner, 321 F. Supp. 2d at 1198).

The Geothermal Steam Act authorizes “the Secretary of

the Interior to ‘issue leases for the development and

utilization of geothermal steam’ on federal land and in

national forests.” Pit River I, 469 F.3d at 772–73 (quoting

30 U.S.C. § 1002). Geothermal leases on federal land have

a primary term of ten years. 30 U.S.C. § 1005(a) (1998). At

the end of that term, the Secretary must grant a continuation

of the lease for a term up to 40 additional years if

“geothermal steam is produced or utilized in commercial

quantities.” Id. Section 1005(d) defines “produced or

utilized in commercial quantities” to include “the completion

of a well capable of producing geothermal steam in

commercial quantities so long as the Secretary determines

2 Congress amended the Geothermal Steam Act in 1998 and 2005. 

Except where otherwise noted, we refer to the statute and regulations in

effect when the challenged lease continuations were approved in May

1998. See Pit River I, 469 F.3d at 781 (holding that amendments to lease

continuation and extension provisions of the Geothermal Steam Act

should not be applied retroactively). Both parties acknowledge that this

version of the statute and regulations apply in this case.
PIT RIVER TRIBE V. BLM 7

that diligent efforts are being made toward the utilization of

the geothermal steam.” Where geothermal steam has not

been produced or utilized in commercial quantities by the end

of the initial, ten-year lease term, the Secretary may extend

the lease for successive five-year terms if certain conditions

are met. Id. § 1005(g). Under § 1005(g)’s five-year

extension provision, BLM must conduct a review pursuant to

NEPA and NHPA considering the cultural, historical, and

environmental effects of its leasing decision before making

its lease-extension determination. Pit River I, 469 F.3d at

781, 784–89.

The Geothermal Steam Act also authorizes the Secretary

to approve “cooperative or unit plan[s]” under which multiple

leases are managed as a unit. 30 U.S.C. § 1017 (1998); 43

C.F.R. § 3280.0-2 (1997). The purpose of cooperative or unit

plans is to “conserv[e] natural resources,” 43 C.F.R.

§ 3280.0-2 (1997), and “provide for more efficient

development and production of geothermal resources.” 

Geo-Energy Partners-1983, 613 F.3d at 949. The Secretary

has relatively broad discretion to set the terms of a unit plan

and to regulate the leases within the plan. 30 U.S.C. § 1017

(1998). The Secretary must review unit plans every five

years “and, after notice and opportunity for comment,

eliminate from inclusion in such plan any lease or part of a

lease not regarded as reasonably necessary to cooperative or

unit operations under the plan.” Id.

III. The Glass Mountain Leases

The Department of the Interior issued a programmatic

environmental impact statement (EIS) in 1973 addressing

nationwide implementation of the Geothermal Steam Act. Pit

River I, 469 F.3d at 773. With several exceptions not relevant
8 PIT RIVER TRIBE V. BLM

here, the EIS did not address geothermal development in

particular locations. Rather, the EIS suggested that issuing

individual leases mayrequire subsequent, more particularized

EISs. Id. In 1981, BLM and the Forest Service issued an

Environmental Assessment (EA) evaluating “whether to

allow geothermal leasing and casual use exploration on

approximately 266,800 acres of National Forest land in the

Medicine Lake Planning Unit, and an adjacent 26,750 acres.” 

Id. After completion of this EA, the Forest Service issued a

Finding of No Significant Impact for potential geothermal

leasing in the Medicine Lake Planning Unit of the Modoc,

Klamath, and Shasta-Trinity National Forests.

In 1982, BLM entered into a “Unit Agreement for the

Development and Operation of the Glass Mountain Area,”

which eventually included the 26 unproven leases at issue in

this appeal. The Unit Agreement included exhaustive rules

governing the management of leases within the unit. Among

many other provisions, the Unit Agreement required the unit

operator to submit a plan of operation establishing deadlines

for progress in exploration and ensuring “proper protection of

the environment and conservation of the natural resources of

the Unit Area.” Article 17.4 of the Unit Agreement provided

that “[d]rilling and/or producing operations performed . . .

upon any tract of Unitized Lands will be accepted and

deemed to be performed upon and for the benefit of each and

every tract of Unitized Land.”

BLM and the Forest Service issued a supplemental EA in

1984, this time addressing “the exploration, development and

production phases of the geothermal program.” Id. at 774. 

This document recognized the cultural and historical

importance of the Medicine Lake area to modern Native

American groups. Id. at 774–75. Following completion of
PIT RIVER TRIBE V. BLM 9

the 1984 EA, BLM issued the “Glass Mountain Geothermal

Decision Record,” authorizing leasing on an additional

41,500 acres within the Medicine Lake Highlands.

Between 1982 and 1988, BLM granted the 26 leases that

are the subject of this appeal. In 1989, BLM determined that

a different lease within the Glass Mountain Unit was capable

of producing geothermal steam in commercial quantities (the

“paying-well determination”). In November 1990, one of

Calpine Corporation’s predecessors3requested five-year

extensions for 23 leases it owned within the Glass Mountain

Unit pursuant to 43 C.F.R. § 3203.1-4(c).4

In the course of processing this lease-extension

application, BLM’s California State Office communicated

with the Nevada State Office, which advised that 40-year

lease continuations should be granted to all of the unproven

Glass Mountain leases pursuant to Article 17.4 of the Unit

Agreement. The California Office disagreed, concluding that

under § 1005 and its implementing regulations, “the 40 year

extension [under § 1005(a)] may only be applied to the lease

with the well capable of production and not to the other

committed leases in the unit.” The California Office reasoned

that the statute and its “implementing regulations refer

specifically to individual leases . . . , not leases within a

3 At various times relevant to this discussion, other entities owned some

or all of the leases at issue here. Calpine was preceded as the Glass

Mountain Unit operator by Union Oil Company and California Energy

General Corporation. To avoid confusion, and because it does not affect

our analysis, we refer to all unit operators and lease owners as “Calpine”

or “Calpine’s predecessor” throughout this opinion.

4

43 C.F.R. § 3203.1-4(c) implements the lease-extension requirements

of 30 U.S.C. § 1005(g)(1).
10 PIT RIVER TRIBE V. BLM

‘cooperative plan, communitization agreement, or a unit plan

of development or operation’ as provided for lease extensions

under 43 CFR 3203.1-4(b).” See 43 C.F.R. §§ 3203.1-3,

3203.1-4 (1997). The California Office requested an opinion

from the Department of Interior Solicitor General to resolve

this difference of interpretation, but it appears that such

opinion was never issued.

In July 1991, under § 1005(a), BLM continued for up to

40 additional years the one lease in the Glass Mountain Unit

on which the paying-well determination had been made. 

Under § 1005(g), it also continued for five years the 22 other

leases in the Glass Mountain Unit owned by Calpine’s

predecessor. In September 1991, Calpine requested five-year

extensions for two other leases it held within the Glass

Mountain Unit.5In October 1991, Calpine’s predecessor

requested that BLM rescind the five-year lease extensions

granted in July of that year and instead grant 40-year lease

continuations to all of the unproven leases within the Glass

Mountain Unit pursuant to Article 17.4 of the lease

agreement. BLM granted extensions for Calpine’s two leases

in March 1992, but declined to grant Calpine’s predecessor’s

request for 40-year lease continuations.

In 1995, BLM found Calpine’s predecessor “in default of

meeting reasonable diligence in the unit,” but approved the

1994/1995 plan of operation on the condition that the unit

operator “will drill at least one well on a federal lease within

and committed to the Glass Mountain Unit” before May 17,

5 No party requested extension of two additional Glass Mountain Leases,

CACA 21929 and 21933 in 1991. Presumably this is because BLM issued

these leases in 1988, so their primary terms were not scheduled to end

until 1998.
PIT RIVER TRIBE V. BLM 11

1996. BLM later rescinded the requirement to drill a well,

but noted that the unit operator should have submitted a

Participating Area designation based on the 1989 paying-well

determination by February 13, 1994. Though that date had

passed, BLM gave the unit operator 60 days to submit a

participating area designation.6

InNovember 1996, Calpine’s predecessor again requested

that BLM rescind its lease extensions and retroactively grant

40-year continuations of the unproven Glass Mountain leases

pursuant to Article 17.4 of the Unit Agreement. In two

decision letters, BLM reversed course and granted this

request on May 18, 1998. One letter vacated the 24, five-year

lease extensions granted in 1991 and 1992:

On July 18, 1991, and March 20, 1992, based

upon lessee’s requests, this office issued

decisions granting five year extensions under

43 CFR 3203.1-4(c) to 25 geothermal leases.7

This decision applies to the 24 leases which

are currently committed to the Glass

Mountain Unit . . . . However, the Glass

Mountain Unit contains a well capable of

production, and it has been determined

through a careful review and interpretation of

the regulations that the decision to grant 24 of

the 25 extensions was in error.

 

6 The record does not indicate whether a participating area designation

was ever submitted.

 

7

 The 25th lease extension applied to lease CACA 11707, which is not

a part of the Glass Mountain Unit and not part of this appeal.
12 PIT RIVER TRIBE V. BLM

The other letter granted 40-year continuations to the 268

unproven Glass Mountain leases:

This decision affects 26 of the 27 geothermal

leases currently committed to the Glass

Mountain Unit and Unit Agreement . . . . One

lease committed to the Unit, CACA 12372,

has been determined to be capable of

production, as the result of a paying well

determination, effective February 13, 1989,

and was granted an additional term under 43

[C.F.R. §] 3203.1-3.9

Based upon the paying well determination and

the subsequent granting of an additional term

to lease CACA 12372 under 43 [C.F.R. §]

3203.1-3, all leases committed to the Glass

Mountain Unit at that time should also have

been granted additional terms as a result of

Article 17.4 of the Glass Mountain Unit

Agreement, which states:

“Drilling and/or producing

operations performed hereunder upon

any tract of Unitized Lands will be

accepted and deemed to be performed

upon and for the benefit of each and

every tract of Unitized Land.”

8 This number includes the two unproven leases that were not extended

in 1991 or 1992.

9

43 C.F.R. § 3203.1-3 implements the lease-continuation requirements

of 30 U.S.C. § 1005(a) and (d).
PIT RIVER TRIBE V. BLM 13

Therefore, based on the above, it is the Bureau

of Land Management’s determination that the

26 leases which are committed to the Glass

Mountain Unit be granted an additional term

[up to 40 years], effective February 13, 1989.

(Emphasis in original.). BLM did not explain its legal

rationale for this changed statutory interpretation in either of

the letters issued May 18, 1998. An internal BLM memo

recommending the change reflected the agency’s uncertainty

regarding whether the Geothermal Steam Act and its

implementing regulations required lease continuation and

extension determinations to be made on a lease-by-lease

basis, and noted that there was disagreement between the

California and Nevada offices on this point, but it does not

explain the rationale for adopting the view advanced by the

Nevada office.

IV. Procedural History

A. Pit River I

In 2002, some of the plaintiffs here, including the Pit

River Tribe, filed suit challenging a separate decision made

by BLM in 1998 granting five-year extensions under

§ 1005(g) to two leases in a different unit not at issue here.

Pit River I, 479 F.3d at 777–78. The plaintiffs alleged that

granting these extensions without conducting environmental

review violated NEPA, NHPA, the Geothermal Steam Act,

the National Forest Management Act, and the federal

government’s trust obligations to the Pit River Tribe. Pit

River Tribe v. BLM, 306 F. Supp. 2d 929, 934 (E.D. Cal.

2004). The district court entered summary judgment in favor

of BLM on all claims. Pit River I, 479 F.3d at 778.
14 PIT RIVER TRIBE V. BLM

On appeal, a panel of our court first considered whether

Pit River had Article III standing to bring its claims. Id. at

778–80. BLM argued that Pit River suffered no injury in fact

and that its claims regarding the 1998 lease extensions were

not redressable because the 1998 lease extensions were

supplanted by new extensions in 2002. Id. at 779. We

rejected these arguments, holding that Pit River adequately

demonstrated injury in fact and redressability.

10

Id. at

779–80. The panel then considered whether, under the 1998

version of the Geothermal Steam Act, BLM was required to

conduct review under NEPA and NHPA before granting lease

extensions under § 1005(g). Id. at 780–88. Pit River I

observed that the 1998 version of § 1005(g) provided that

geothermal leases “may be extended for successive 5-year

periods,” and concluded that the use of “may” rather than

“shall” gave BLM discretion whether to grant lease

extensions. Id. at 780 (quoting 30 U.S.C. § 1005(g)(1)

(1998)). Pit River I held that, because the decision to grant

the extensions under § 1005(g) was discretionary, and

because earlier programmatic and general leasing EISs did

not adequately consider the effects of geothermal

development on specific leases, “[t]he agencies violated their

duties under NEPA and NHPA and their fiduciary duty to the

Pit River Tribe by failing to complete an environmental

impact statement before extendingCalpine’s leases in 1998.” 

Id. at 788.

On remand, the parties disputed whether the leasing

process would need to begin anew, thereby necessitating a

new competitive bidding process. Pit River Tribe v. U.S.

Forest Serv., 615 F.3d 1069, 1074 (9th Cir. 2010). The

district court concluded that the lease extensions should not

 

10 The court did not address prudential standing. See id. at 778–80.
PIT RIVER TRIBE V. BLM 15

be vacated, but remanded the case to the agencies to conduct

proper NEPA and NHPA review, and to permit tribal

consultation. Id. Pit River appealed, but we upheld the

district court’s order.11 Id. at 1085.

B. Pit River II

In 2004, while Pit River I was pending, the plaintiffs here

filed two separate complaints challenging BLM’s May 18,

1998 decisions to vacate its earlier-granted lease extensions

for the 26 unproven Glass Mountain leases and to grant lease

continuations instead. Pit River Tribe v. BLM, Case No. 04-

0956 (E.D. Cal., filed May 17, 2004) and Save Medicine Lake

Coal. v. BLM, No. 04-0969 (E.D. Cal., filed May 18, 2004). 

Adjudication of these cases was delayed pending the

resolution of Pit River I and while the parties engaged in

settlement negotiations. In 2012, the district court

consolidated Pit River Tribe and Save Medicine Lake, and the

plaintiffs agreed to file an amended complaint. Pit River

stipulated that it would “only assert causes of action related

to the May 18, 1998 lease extensions and to Federal

Defendants’ alleged failure to provide public records in

response to Plaintiffs’ Freedom of Information Act request.”

Pit River’s amended complaint alleged that BLM’s 1998

decision to continue the leases violated the Geothermal Steam

Act, NEPA, NHPA, and the agency’s fiduciary trust

obligation to Indian tribes. Pit River’s Geothermal Steam Act

claims, which are set out in Paragraph 107 of the amended

complaint, specifically alleged:

11 We reversed in part only to correct two minor errors in the district

court’s order. Id. at 1085.
16 PIT RIVER TRIBE V. BLM

Federal Defendants BLM and Department of

the Interior violated the Geothermal Steam

Act, 30 U.S.C. § 1001 et seq., and its

implementing regulations in that they:

a. Unlawfully failed to terminate or eliminate

the Leases from the Glass Mountain Unit

Agreement when the Unit Operator failed to

comply with the reasonable diligence

requirements of the approved Plan of

Operation in 1995, and this violation is

ongoing and continues to this day;

b. Unlawfully failed to contract the Glass

Mountain Unit Agreement to include only

Lease CA12372 when the Unit Operator

failed to submit a schedule for establishing the

Participating Area for Well No. 31-17, as

required by the Unit Agreement, by the fifth

anniversaryof BLM’s determination that such

well was capable of commercial production,

and this violation is ongoing and continues to

this day;

c. Unlawfully failed to terminate the 26

Leases identified in paragraph 1 hereof for

failure to comply with the “due diligence” and

“bona fide efforts” requirements of the GSA,

and this violation is ongoing and continues to

this day;

d. Unlawfully and retroactively continued the

26 Leases identified in paragraph 1 hereof for

an additional period of 40 years in May 1998
PIT RIVER TRIBE V. BLM 17

in the absence of any commercial production,

as defined by the GSA, on those Leases

during the primary lease term; and

e. Unlawfully failed to ensure that activities

and operations authorized by the 1998 Lease

Continuation Decision for the Leases

identified in paragraph 1 would protect the

quality of natural, cultural, and scenic

resources; accommodate other land uses;

protect people and wildlife from unacceptable

noise levels; and prevent undue degradation of

the land.

The amended complaint also alleged that BIA violated the

Freedom of Information Act (FOIA). Defendant Calpine

moved for summary judgment on Pit River’s FOIA claims

and for judgment on the pleadings under Federal Rule of

Civil Procedure 12(c) on all other claims.

The district court granted summary judgment on Pit

River’s FOIA claims,12and entered judgment on the

pleadings on the remaining claims. The court concluded that

Pit River waived all of the claims alleged in Paragraph 107 of

the complaint except for the claim in subparagraph (d) that

BLM unlawfully continued the 26 unproven leases in May

1998. The court then concluded Pit River lacked prudential

standing to bring its Paragraph 107(d) claim because Pit

River did not fall within the “zone of interests” of the

Geothermal Steam Act’s lease-continuation provision,

§ 1005(a). The court dismissed Pit River’s NEPA, NHPA,

and fiduciary duty claims on the basis that BLM lacked

 

12 Pit River does not appeal the dismissal of the FOIA claims.
18 PIT RIVER TRIBE V. BLM

discretion to consider environmental, cultural, or historic

factors, or to consult with Indian tribes in considering

whether to grant lease-continuations under § 1005(a). A

pivotal conclusion in the district court’s ruling was its

decision that Pit River’s challenge to BLM’s 1998 decision

rested on only the lease-continuation provision, § 1005(a).

STANDARD OF REVIEW

This court reviews a motion for judgment on the

pleadings under Rule 12(c) de novo. Goldstein v. City of

Long Beach, 715 F.3d 750, 753 (9th Cir. 2013). “Analysis

under Rule 12(c) is ‘substantially identical’ to analysis under

Rule 12(b)(6) because, under both rules, a court must

determine whether the facts alleged in the complaint, taken as

true, entitle the plaintiff to a legal remedy.” Chavez v. United

States, 683 F.3d 1102, 1108 (9th Cir. 2012) (citations and

internal quotation marks omitted).

DISCUSSION

I. Pit River’s Geothermal Steam Act Claims

Because the Geothermal Steam Act does not expressly

provide for a private right of action, Pit River relied on the

Administrative Procedure Act (APA) to bring its challenge to

BLM’s 1998 decisions to vacate its lease extension decisions

and continue the 26 unproven Glass Mountain leases as a

unit. Under § 10(a) of the APA “[a] person suffering legal

wrong because of agency action, or adversely affected or

aggrieved by agency action within the meaning of a relevant

statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. 

BLM does not dispute that Pit River has Article III standing
PIT RIVER TRIBE V. BLM 19

to bring its claims.13In addition to Article III standing, in

order to bring a cause of action under § 10(a), the interests a

plaintiff asserts “must be ‘arguably within the zone of

interests to be protected or regulated by the statute.’” MatchE-Be-Nash-She-Wish Band of Pottawatomi Indians v.

Patchak, 132 S. Ct. 2199, 2210 (2012) (quoting Ass’n of Data

Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153

(1970)). The district court reasoned that because “[t]he

statute and regulations applicable here . . . do not permit,

much less require, consideration of environmental concerns

or competing land uses when BLM acts on continuation of an

existing lease,” Pit River’s interests do not fall within the

statutory lease-continuation provision’s “zone of interests.”

A. The “zone of interests” test

The Supreme Court first articulated the zone-of-interests

test in 1970 in Data Processing. 397 U.S. at 153. The Court

stated that standing “concerns, apart from the ‘case’ or

‘controversy’ test, the question whether the interest sought to

be protected by the complainant is arguably within the zone

of interests to be protected or regulated by the statute or

constitutional guarantee in question.” Id. In 1987, the

Supreme Court explained in Clarke v. Securities Industry

Association, that:

13 Pit River I establishes that the requirements of Article III standing are

met here: Pit River suffered an injury in fact that is fairly traceable to

BLM’s conduct and that would likely be redressed by a favorable

decision. See 469 F.3d at 778–80 (holding that Pit River had standing to

challenge BLM’s extension of geothermal leases in Medicine Lake

Highlands).
20 PIT RIVER TRIBE V. BLM

The ‘zone of interest’ test is a guide for

deciding whether, in view of Congress’

evident intent to make agency action

presumptively reviewable, a particular

plaintiff should be heard to complain of a

particular agency decision. In cases where the

plaintiff is not itself the subject of the

contested regulatory action, the test denies a

right of review if the plaintiff’s interests are

so marginally related to or inconsistent with

the purposes implicit in the statute that it

cannot reasonably be assumed that Congress

intended to permit the suit. The test is not

meant to be especially demanding; in

particular, there need be no indication of

congressional purpose to benefit the would-be

plaintiff.

479 U.S. 388, 399–400 (1987) (footnotes omitted). The

zone-of-interests test should be applied consistent with

Congress’s intent “to make agency action presumptively

reviewable” under the APA. Match-E-Be-Nash-She-Wish,

132 S. Ct. at 2210 (quoting Clarke, 479 U.S. at 399).

The Supreme Court has often characterized the zone-ofinterests test as a “prudential standing” requirement. See,

e.g., Fed. Election Comm’n v. Atkins, 524 U.S. 11, 20 (1998);

Bennett v. Spear, 520 U.S. 154, 163 (1997). But last year, in

Lexmark International, Inc. v. Static Control Components,

Inc., the court rejected the “prudential standing” label and

made clear that whether a plaintiff’s claims are within a

statute’s zone of interests is not a jurisdictional question. 

134 S. Ct. 1377, 1387–88 (2014); see also Chaudhry v. City

of L.A., 751 F.3d 1096, 1109 (9th Cir. 2014) (“[U]nlike
PIT RIVER TRIBE V. BLM 21

standing, ‘the absence of a valid . . . cause of action does not

implicate subject-matter jurisdiction.’” (quoting Lexmark,

134 S. Ct. at 1387 n.4)). The Court explained:

Although we admittedly have placed [the

zone-of-interests] test under the “prudential”

rubric in the past, it does not belong there . . . . 

Whether a plaintiff comes within “the zone of

interests” is an issue that requires us to

determine, using traditional tools of statutory

interpretation, whether a legislatively

conferred cause of action encompasses a

particular plaintiff’s claim. As Judge

Silberman of the D.C. Circuit recently

observed “prudential standing is a misnomer”

as applied to the zone-of-interests analysis,

which asks whether “this particular class of

persons ha[s] a right to sue under this

substantive statute.”

Id. at 1387 (citations omitted) (quoting Ass’n of Battery

Recyclers, Inc. v. EPA, 716 F.3d 667, 675–76 (D.C. Cir.

2013) (Silberman, J., concurring)).

Because Lexmark addressed a claim arising under the

Lanham Act rather than under § 10 of the APA, the Supreme

Court did not directly revisit its APA zone-of-interests

precedent. Id. at 1383. But in discussing the Court’s prior

APA decisions, Lexmark reaffirmed its consistent statement

“that the [zone-of-interests] test ‘forecloses suit only when a

plaintiff’s interests are so marginallyrelated to or inconsistent

with the purposes implicit in the statute that it cannot

reasonably be assumed’ that Congress authorized that
22 PIT RIVER TRIBE V. BLM

plaintiff to sue.” Id. at 1389 (quoting Match-E-Be-Nash-SheWish, 132 S. Ct. at 2210).

B. Pit River’s claims fall within the applicable zone of

interests.

The pivotal question here is whether Congress intended

to create a cause of action encompassing Pit River’s claims

when it enacted the Geothermal Steam Act. See id. at 1387. 

The parties dispute whether the court may look to the

Geothermal Steam Act’s overall statutory scheme to

determine whether Pit River’s claims fall within the Act’s

zone of interests, but Bennett v. Spear clearly answered this

question. Bennett held, “[w]hether a plaintiff’s interest is

‘arguably . . . protected . . . by the statute’ within the meaning

of the zone-of-interests test is to be determined not by

reference to the overall purpose of the Act in question . . . ,

but by reference to the particular provision of law upon which

the plaintiff relies.” 520 U.S. at 175–76 (first two alterations

in original) (quoting Ass’n of Data Processing Serv. Orgs.,

Inc. v. Camp, 397 U.S. 150, 153 (1970)). We agree with the

district court that, contrary to Pit River’s argument, Pit

River’s ability to challenge the subject leases cannot be

determined by looking to the broad objectives of the

Geothermal Steam Act. But we do not agree that Pit River’s

claims can be fairly described as arising only from § 1005(a).

In 2012, when Pit River’s two cases were consolidated

into one, Pit River stipulated that it would “only assert causes

of action related to the May 18, 1998 lease extensions” in its

amended complaint. At the hearing on BLM’s and Calpine’s

motions for judgment on the pleadings, Pit River explained

that the amended complaint’s allegations regarding inclusion

of the unproven leases within the Glass Mountain Unit were
PIT RIVER TRIBE V. BLM 23

pleaded only as facts, not as distinct legal challenges. The

district court interpreted this explanation as meaning that Pit

River waived all of its Geothermal Steam Act claims except

those in Paragraph 107(d) of the amended complaint, which

alleged BLM “[u]nlawfully and retroactively continued the

26 Leases . . . for an additional period of 40 years in May

1998 in the absence of any commercial production.” The

district court concluded that Pit River’s remaining

Geothermal Steam Act claim relied on only the Act’s leasecontinuation provision, § 1005(a). But neither the stipulation

nor the amended complaint expressly limited Pit River’s

claims to any particular provision of the Geothermal Steam

Act, and Pit River never limited its claims only to § 1005(a). 

The transcript from the hearing on the motion for judgment

on the pleadings makes this clear.

First, the district court inquired about the nature of the

claims in Pit River’s amended complaint. Pit River’s counsel

stated that Pit River was not merely challenging BLM’s lease

continuation decision under § 1005(a), but was also

challengingBLM’s decision to reverse course and decide that

the leases could be continued under § 1005(a) as a unit rather

than being subject to lease-by-lease extensions under

§ 1005(g). As counsel explained:

Our view is twofold. One is a legal issue and

one is a factual issue. First of all, on the legal

issue, . . . BLM had taken the position the

leases were not under this mandatory

extension but under a discretionary extension

and then changed [its] mind[].

. . .
24 PIT RIVER TRIBE V. BLM

[A]t the time the decisions were made, there

was a provision, 1005(g), that allowed for

these five-year extensions, and that’s, in fact

what the BLM believed it was originally

extending these leases under. . . .

. . .

So the first question is whether they were

properly under 1005(a) or 1005(g) as it

existed at the time . . . . [W]e believe that

decision whether to renew under § 1005(a) or

1005(g)is a challengeable decision. But even

if we were under Section 1005(a), . . . the

agency has to find that geothermal steam is

produced or utilized in commercial quantities.

(Emphasis added.).

The district court acknowledged this argument, asking

BLM’s counsel: “Why don’t the plaintiffs have a right to

challenge that determination? That’s the legal question she

says exists now. I grant your motion if 1005(a) applies. If

1005(g) applies, that presents different issues and problems

for you.” After BLM responded that it was “precisely the

application of 1005(a) that the plaintiffs challenge here,” the

district court pressed further:

How do they challenge then the decision of

BLM then to . . . , as [Pit River’s counsel]

argues, at one point BLM is proceeding under

1005(g) and then a second opinion comes out

and says: No, no. 1005(a) applies. Why don’t

they have a right to challenge that decision?
PIT RIVER TRIBE V. BLM 25

If they disagree, someone should have a right

to challenge it, shouldn’t they?

BLM’s counsel’s answer was not especially responsive:

Not necessarily. It is not necessarily the case

that any party has standing to challenge a

particular administrative action. That is the

Doctrine of Standing. Because they lack

standing, the question: How do they challenge

it just doesn’t arise. They don’t. They cannot

challenge a decision under that provision of

the statute.

The district court concluded that Pit River had actually

abandoned its challenge to BLM’s decision to apply

§ 1005(a) rather than §1005(g). The court said to Pit River’s

counsel:

You’re arguing to me, again, the evidence is

going to show that they didn’t qualify, that the

secretary or the solicitor or whoever makes

the decision, that the leases should be

extended got it completely wrong. Again, as

I understand the government’s response to

that is: Too late. It doesn’t matter. You’ve

abandoned those claims. You should have

challenged those, that decision earlier. Again,

it comes back to me—there’s two decisions

here: Were those conditions actually met?

Second, do we have to grant the lease

extensions? This lawsuit is only about: Were

the lease extensions legal? And so, again, I’m

having a hard time getting past how we started
26 PIT RIVER TRIBE V. BLM

this argument, which is, none of that is

relevant.

But Pit River did not concede that it had abandoned its

challenge to BLM’s May 18, 1998 change of course; instead,

it made clear, as it stated in the district court hearing, that it

thought “the court needs to look at what was done here in

order to determine whether the BLM’s last-minute reversal to

make this a ministerial, rather than a discretionary decision,

was proper under the law.” Additionally, contrary to the

district court’s suggestion, Pit River could not have

challenged the decision earlier because it appears that BLM

first communicated its changed interpretation of § 1005 and

the implementing regulations when it issued the 1998 letter

retroactivelycontinuing the unproven Glass Mountain leases.

Pit River’s challenge plainly included whether BLM

lawfully vacated its earlier § 1005(g) extension decisions and

changed its interpretation of § 1005 to continue the leases for

up to 40 years. Because Pit River’s operative complaint

challenges BLM’s announcement that the leases were subject

to continuation rather than extension, we conclude that Pit

River’s claims include a challenge under § 1005(g). Pit River

I held that BLM must conduct NEPA and NHPA review

before granting discretionary extensions under the 1998

version of §1005(g).14 469 F.3d at 788.

14 Amendments to the Geothermal Steam Act in 2005 eliminated BLM’s

discretion to consider environmental and cultural factors in making leaseextension decisions under § 1005(g). Pit River I, 469 F.3d at 780. Thus,

if Calpine elected to have its leases subject to the updated regulations, see

43 C.F.R. § 3200.7 (2007), future extensions of these leases may not be

subject to NEPA or NHPA review. Id.
PIT RIVER TRIBE V. BLM 27

II. The merits of Pit River’s Geothermal Steam Act

claims

Pit River argues it is entitled to judgment on the merits of

its Geothermal Steam Act claims, in particular its claim that

BLM improperly continued other leases within the Glass

Mountain Unit rather than addressing the leases within the

Unit one-by-one to determine whether extensions of those

leases should be granted. Pit River asks our court to remand

to the district court with instructions to enter judgment in its

favor. We decline to do so. The district court did not

consider the merits of Pit River’s Geothermal Steam Act

claims, and determining whether BLM violated provisions of

the Geothermal Steam Act will require careful analysis. The

district court should undertake that task in the first instance. 

See, e.g., U.S. Auto Parts Network, Inc. v. Parts Geek, LLC,

692 F.3d 1009, 1021 (9th Cir. 2012) (directing district court

to examine in the first instance issues not previously reached

that might require factual development). Moreover, under

Federal Rule of Civil Procedure 12(c), a plaintiff is not

entitled to judgment on the pleadings if the defendant’s

answer raises issues of fact or affirmative defenses. Gen.

Conference Corp. of Seventh-Day Adventists v. Seventh-Day

Adventists Congregational Church, 887 F.2d 228, 230 (9th

Cir. 1989). In this case, the defendants’ answers do both. We

therefore decline Pit River’s invitation to rule on the merits of

its Geothermal Steam Act claims.

III. Pit River’s NEPA, NHPA, and Fiduciary Duty

Claims

The district court concluded that Pit River’s NEPA,

NHPA, and fiduciary duty claims failed because § 1005(a) is

non-discretionary—BLM is not permitted to consider
28 PIT RIVER TRIBE V. BLM

environmental factors in making lease continuation decisions

and any environmental review would be superfluous. We

agree with the district court that § 1005(a) is

non-discretionary, see Pit River I, 469 F.3d at 780 (citing

Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 768 (2004)),

but, as discussed, the district court incorrectly circumscribed

Pit River’s claims. If Pit River prevails on its claim that the

leases here were eligible only for extension under § 1005(g),

BLM will be required to comply with NEPA and NHPA,

including by consulting with affected tribes. Id. at 787–88. 

Therefore the district court erred by granting judgment on the

pleadings on Pit River’s NEPA, NHPA, and fiduciary duty

claims.

CONCLUSION

We REVERSE the district court’s judgment and

REMAND for further proceedings consistent with this

opinion.