F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

P I T R I V E R T R

I B E ; N A T I V E C O A L I T I O N F O R M E D I C I N E L A K E H I G H L A N D S D E F E

N S E ; M O U

N T S H A S T A B I O R

E G I O N A L E C O L O G

Y C E N T E R ; S A

V E M E D I C I

N E L A K E C O A L I T I O N ; M E D I C I

N E L A K E C I T I Z E N S F O R Q U

A L I T Y E N V I R O N M E N T , Plaintiffs-Appellants

,

v

.

B U R E A U O F L A N D M A N A G E M E N T ; U.S. D E P A R

T M E N T O F T H E I

N T E R I O R ; U N I T E D S T A T E S F O R

E S T S E R V I C E ; U N I T E D S T A T E S D E P A R T M E N T O F A G R I C U L T U R

E ; C A L P I

N E C O R P O R A T I O N , Defendants-Appellees

. N o. 13-16961

D.C. No. 2:04-cv-00956- J AM-J F M

OPI NI ON

A ppeal from the United States District Court for the Eastern District of California J ohn A. Mendez , District J udg e , Presiding

Arg ued and Submitted March 12, 2015—San F rancisco, California

F iled J uly 20, 2015P I T R I V E R T R I B E V

. B L M 2

B efore: W illiam A. F letcher and Morg an Christen, Circuit J udg es, and Rosly

n O. Silver, * Senior District J udg e.

Opinion by J udg e Christen

SUMMARY * *

Environm ental Law

The panel rev e rsed the district court’s order g ranting judg ment on the p l e ading s in a n action broug ht b y environmental org aniz ations challeng ing the B ureau of L a nd Manag ement’s c ontinuation of 26 g eothermal leases in northeastern California’s Medicine L ake Hig h lands.

T he panel held that the d istrict court incorrectly trea t e d the environmental org aniz ations’ claims as arising under only § 1 005(a) of the Geothermal Steam Act. B L M’s 1998 deci s i o n t o continue the 2 6 unproven leases in the Glass Mountain Unit under § 1005(a) was issued simultaneously with its decision to reverse and vacate its e arlier decision to

ex tend those leases on a lease-by -lease basis under § 1005(g ). The panel held, thus, that the environm e n tal o rg aniz ations’ challeng e to B L M’s decision s i ssued on May 18, 1998 implicated both § 1005(a) and § 1005(g ).

* T h e Ho n o rab le Ro sly

n O. S ilv er, Sen io r District J u d g e f o r th e Un ited States District Co u rt f

o r th e District o f

A rizo n a, sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.P I T R I V E R T R I B E V

. B L M 3

B e cause B L M must conduct environmental, h istorical, and cultural r e view under the National Environmental Policy Act and the National Historic Preservation Act before
g ranting lease ex tensions under § 1005(g ), the panel held that the e nvironmental org aniz at i o n s ’ c l a i m f e l l within § 1005(g )’s z one-of-interests, and the org aniz ations h ad stated a claim under § 1005(g ).

The panel declined the environmental org aniz at ions’ invitation to rule on the merits o f i t s Geothermal Steam A ct claims, and remanded for further proceeding s.

COUNSEL

J a son S. Georg e (arg

ued), Evan H. Stein (arg

ued), Certifie d L aw Students, Palo Alto, California; D e b o r ah Ann Sivas, Matthew J

. Sanders, and Alicia E. Thesing

, Mill s L e ga l Clinic o f Stanford L aw School, Stanford, Calif o r n i a, for Plaintiffs-Appellants.

David Tay lor Shelledy (arg ued), Assistant United States Attorney , and B enjamin B

. W ag ner, United States Attorney

, Sacramento, California, for Defendants-Appellees B ureau o f L and Manag ement, United States D epartment o f the I nterior, United States F orest Service, and Unite d States Department of Ag r iculture.

Rosemary A ntonopoulos, D u b l in, California; Thomas L

. Sansonetti, Holland & Hart L L P, Chey enne, W y oming

, for Defendant-Appellee Calpine Corporation.P I T R I V E R T R I B E V

. B L M 4

OP INION

CHRI STEN, Circuit J udg e:

The P i t River Tribe and several reg ional environmental
org aniz ations (collectively Pit River) a ppeal from the district court’s order g ranting judg ment on th e p l eading s on Pit River’s action c halleng ing the B ureau of L and Manag ement’s (B L M) continuation of 2 6 g eothermal leases in northeastern California’s Medicine L ake Hig hlands. Pit River’s complaint alleg ed that B L M’s decision violated the Geothermal Steam A c t , the N ational E n vironmental Policy Act (NEPA), t h e National Historic Preservation Act (NHPA), and the
g overnment’s f

iduciary trust oblig ation to I ndian tribes. The district court concluded Pit River lacked prudential standing
to bring its Geothermal Steam Act claims because the c laims did n ot fall within the z one of i n t e r e s ts of the Act’s lease-continuation provision, 30 U.S.C. § 1005(a). 1 The district court r ejected Pit River’s other claims on th e basis that B L M h ad no d iscretion to consider environmental, historical, or cultural interests before cont i n uing the leases under §1005(a).

W e conclude that the district court incorrectly treated Pit Ri v er’s claims as a

rising under o nly § 1005(a) of the Geothermal Steam A ct. B L M’s 1 998 decision to c ontinue the 26 unproven leases in the G lass Mountain u nit under § 1005(a) wa s issued simultaneously with its decision to

1 In lig h t o f t

h e S u p r e m e C o u rt’ s recen t case, Lexma rk In tern a tio n a l, In c. v. S ta tic Co n t

ro l Co mp o nen ts, In c ., th e zo n e- o f

- in terests in q u i ry m ay

n o l o n g er be co n sid ered an elem en t o f “ p ru d en tial stan din g ,” b u t t h e

su b stan ce o f th e t e s t r e m ain s u n ch an g ed f o r th e p u rp o ses o f t

h is case. 1 3 4 S. Ct. 1 3 7 7 , 1 3 8 7

– 8 8 (2 01 4 ).P I T R I V E R T R I B E V

. B L M 5

reverse and vacate its earlier decision t o extend those leases

on a lease-by

- lease basis under § 1005(g ). Thus, Pit River’s challeng e to the decisions issued on May 18, 1998 implicates both § 1005(a) and § 1 0 0 5(g ). B ecause B L M must conduct environmental, h istorica l, and c ultural review u nder N EPA and NHPA before g ranting lease ex tensions 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 f

alls within § 1005(g ) ’s z one of interests and Pit River has stated

a claim under § 1005(g ). According ly

, we reverse the district court’s decision.

BACK G ROUND

I. The P laintif

fs’ Interests

The Medicine L ake Hig hlands are part o f t h e Pit River Tribe’s a ncestral homeland. T ribal m embers “consider the
reg ion sacr e d and continue to use numerous important spiritual and cultural sites within the hig hlands.” Pit River I
, 469 F .3d at 772. T he complaint alle ge s that e x ploration o f and development on g eothermal leases will interf e r e with tribal members’ use of the Medicine L ake H i ghlands “ for a variety of spiritual an d t r aditional cultural purposes” that “depend on the phy sical, environmental, and visual integ rity of these areas, and t h ei r quietude.” T he complaint alleg e s that the non-tribal plaintiffs have e n vironment a l, recreational, aesthetic, a nd scientific interests in the Medicine L ake H i g h l a n d s t h a t are inconsistent with g eothermal developme n t

.

II. The G eotherm al Steam A ct

W hen interest in g eothermal power development first beg an to g row in the 1960s, the United States Department o fP I T R I V E R T R I B E V

. B L M 6

the I n terior d etermined that it lacked statutory authority t o dispose of g e othermal r esources on f e d eral land. Robert B

. Keiter, The O ld Faithful Protection Act: Congress, National Park Ecosystems, and Private Property Rights

, 14 Pub. L a nd L

. Rev. 5
, 9 (1993). Cong ress recog niz ed the necessi t y o f creating a leg al framework g o ver n ing the development o f
g eothermal resources on federal land, see W agner v. Chevron Oil Co.
, 321 F

. Supp. 2d 1195, 1198 ( D. Nev. 2004)

, a n d in 1970 it e nacted the Geothermal Steam Act for the ex press purpose o f “promot[ ing ] th e d evelopment of g eothermal leases on federal lands.” 2 Geo-Energy Partners-1983 Ltd. v

. Salazar

, 613 F .3d 946, 949 (9th Cir. 2 0 10) (citing 30 U .S.C. § 1001, et seq ; W

agner , 321 F . Supp. 2d at 1198).

The Geothermal Ste am Act a u thoriz es “the Secretary o f the I nterior to ‘issue leas e s f o r the development a

nd utiliz ation of g eothermal steam’ on f ederal land and in national forests.” Pit River I
, 469 F .3d at 772–73 ( quoting 30 U.S.C. § 1002). Geothermal leases o n f e d e ral land have

a primary term of ten y ears. 3 0 U .S.C. § 1005(a) (1998). At the end of that term, the Secretary must g rant a continuation of the lease for a term up to 40 additional y e ars if “g eothe r m al steam is produced or utiliz ed in commercial quantities.” Id. Section 1005(d) defines “produced o r utiliz ed in commercial quantities” to include “the completion of a w ell capable of producing g eothermal s t e am in commercial quantities so long as the Secretary d e t e rmines

2 Co n g ress am en d ed th e Geo t h e r m a l Steam A ct in 1 9 9 8 an d 2 0 0 5

. Ex cep t w h ere o th erw ise n o ted

, w e ref er to th e statu te an d reg u latio n s in ef f ect w h en t h e c h allen g ed l ease co n tin u atio n s w ere ap p ro v ed in May 1 9 9 8

. S ee Pit River I

, 4 6 9 F.3 d at 7 8 1 (h o ld in g th at am en d m en t s to lease

co n tin u atio n an d e x t e n sio n p ro v i sio n s of th e Geo th erm al Steam A ct sh o u ld n o t b e ap plied retro activ ely ). B o th parties ack n o w led g e th at th is

v ersio n o f th e statu te an d reg u latio n s ap p l y in th is case.P I T R I V E R T R I B E V

. B L M 7

that d ilig ent efforts are b e ing made to wa r d the utiliz ation o f the g eothermal steam.” Where g eothermal steam has not been produced or utiliz ed in commercial quantities b y the e nd of the initial, ten-y ear lease term, t h e Secretary may extend the l e a s e for successive f ive-y ear terms if certain conditions

are met. Id. § 1 005(g ). Under § 1005(g )’s f i v e-y e ar

ex tension provision, B L M must c o n duct a review pursuant to NEPA a nd NHPA considering the cultural, hi s t o r i c al, a nd environmental effects of its leasing decision b efore making its lease-ex tension determinatio n. Pit River I
, 469 F .3d at 781, 784–89.

The Geothermal Steam Act also authoriz es the Secretary
to approve “cooperative or u nit plan[ s] ” u nder which multiple leases are manag ed as a unit. 30 U.S.C. § 1017 (1998); 43 C.F .R. § 3280.0-2 (1997). The purpose o f cooperative o r unit plans is to “conserv[ e] n atural reso u rces,” 4 3 C.F .R. § 3280.0-2 (1997), and “provide for more e fficient development and production of g eothermal r esources.” Geo-Energy Partners-1983 , 613 F .3d at 949. The Secretary has relatively broad discretion to set the terms of a unit p lan and to regulate the leases within the plan. 30 U.S.C. § 1017 ( 1998). The Secretary must review unit plans every fi v e y ears “and, after notice a nd opportunity for c o m m e n t, eliminate f

rom in c l u s i o n i n such plan any lease or part of a lease not reg arded as reasonably necessary to cooperative or unit operations under the plan.” Id.

III. The G lass Mountain Leases

The Department of the I nterior issued a p rog rammatic

e nvironmental impact statement (EI S) in 1 973 address i n g

n a t ionwide implementation of the G eothermal Steam Act. Pit River I
, 469 F .3d at 773. W ith several e x ceptions not relevantP I T R I V E R T R I B E V

. B L M 8

here, t he EI S did not address g eothermal development in particular locations. Rather, the EI S sug g ested th a t i s suing individual leases may require subsequent, mo r e p a r t i culariz ed EI Ss. Id. I n 1981, B L M a n d the F orest Service issued an Environmental Assessment (EA) evaluating “whether to allow g eot h ermal leasing and casual use ex ploration on approx imately 266,800 acres of National F orest land in the Medicine L ake Planning Unit, a n d an adjacent 26,750 acres.” Id. After completion of this EA, the F orest Service issued a F inding of No Sig nificant I mp ac t f or potential g eothermal leasing in the Medicine L a ke Planning Unit of the Modoc, Klamath, and Shasta-Trinity National F orests.

I n 1982, BL M entered into a “Unit Ag reement for the Development and Ope r a tion of the Glass Mountain Area,” which eventually included the 26 unproven leases at issue in this appeal. The Unit A g reement included e x h austive rules
g overning the manag ement of leases within the unit. Among
many other p rovisions, the Unit Ag r eement required the unit operator to submit a plan o f o peration establishing deadlines for prog ress in ex ploration and e n suring “proper protection o f the environment and conservation of the natural resources o f the Unit Area.” A rticle 17.4 o f the Unit A g reement provided that “[ d] rilling and/o r p r o d ucing o perations performed

. . . up o n any tract of Unitiz ed L ands will be accepted a nd deemed to be p erformed upon and for the benefit of each a nd
every tract of Unitiz ed L and.”

B L M and the F orest Service issued a supplemental EA in 1984, this time addressing “the ex ploration, development a nd production phases of the g e o t h e r m a l p rog ram.” Id. at 774. T h is document recog niz e d the cultural and historic al importance of the Med i c i n e L ake area to modern Native American g roups. Id. at 774–75. F ollowing completio n o fP I T R I V E R T R I B E V

. B L M 9

the 1984 EA, B L M issued the “Glass Mountain Geothermal Decision Record,” authoriz ing leasin g on an additional 41,500 acres within the Medicine L ake Hig h lands.

B e tween 1 982 and 1988, B L M g ranted the 26 leases that

are the subject of this appeal. I n 1989, B L M determined that

a different lease within the Glass Mountain Unit was capable of producing g eothermal steam in c o mmercial quantities (the “pay ing -well determination”). I n N ovember 1990
, o n e o f Calpine Corporation’s predece ssors 3 requested five-y e ar

ex tensions for 23 leases it owned within the Glass Mountain Unit pursuant to 43 C.F .R. § 3203.1-4(c). 4

I n the course of process ing this lease-ex tension application, B L M’s Cal i f ornia State Office communicated with the Nevada State Office, w h i c h advised that 40-y e ar lease continuations should be g ranted to all of the unproven Glass Mountain leases pursuant to Articl e 1 7

. 4 of the Unit Ag reement. The California Office disag reed, concluding that under § 1005 and its implementing reg ulations, “the 40 y e ar

ex tension [under § 1005(a)] may only be applied to the lease with the well capable of production and not to t he other committed leases in the unit.” T he California Office reasoned that the statute and its “implementing reg ulations refer specifically t o individual leases

. . . , not leases within a

3 A t v ario u s tim es relev an t to th is d iscu ssio n , o th er en tities o w n ed so m e

o r all of th e leases at issu e h ere. Calp in e w as p reced ed as th e Glass Mo u n tain Un it op erato r b y Un i o n Oil Co m pan y an d Calif

o rn ia En erg y Gen eral Co rp o ratio n

. T o av o id co n f u sio n , an d b ecau se it d o es n o t af f ect

o u r an aly sis, w e ref

er to all u n it op erato rs an d lease o w n ers as “ C alp in e”

o r “ Calp in e’ s p red ecesso r” th ro u g h o u t th i s o p in io n

.

4 4 3 C.F.R. § 3 2 0 3 .1

- 4 (c) im p l em en ts th e lease- ex ten sio n req u i rem en ts

o f 3 0 U.S.C. § 1 00 5 (g )(1 ).P I T R I V E R T R I B E V

. B L M 10

‘cooperative p lan, communitiz ation ag reement, or a unit p lan of development or operation’ as provided for lease ex tensions under 43 CF R 3203.1-4(b).” See 43 C.F .R. § § 3 2 03.1-3, 3203.1-4 (1997). The California Office r equested a n opinion from the Department o f

I nterior Solicitor General to resolve this difference of int e rpretation, but it appears that such opinion was never issued.

I n J u ly 1 991, under § 1005(a), BL M continued f or up to 40 additional y ears the one lease in the Glass Mountain Unit

on which the pay ing -well determinat i o n had been made. Under § 1005(g ), it also continued for five y ears the 22 other leases in the Glass Mountain Unit owned by Calpin e ’s predecessor. I n September 1991, Calpine requested five-y e ar

ex tensions for two o ther le a s e s i t h eld within the Glass Mountain Unit. 5 I n October 1991, C alpine’s predecessor requested that B L M rescind the f ive-y ear lease ex tensions
g ranted in J uly of that y ear and instead g rant 40-y ea r l e a se continuations to all of the unproven leases wit h in the Glass Mountain Unit pursuant to Article 17

. 4 of the lease
ag reement. B L M g ranted ex tensions for Calpine’s two leases in March 1992, but declined to g rant Calpine’s predecessor’s request for 40-y

e ar lease continuations.

I n 1 995, B L M found Calpine’s predecessor “in default o f meeting reasonable d i l ig ence in the unit,” but approved the 1994/1995 plan of operation o n t h e c ondition that the unit operator “will drill at least one well on a federal lease within and c ommitted to the Glass Mountain Unit” before May 17,

5 No p arty req u ested ex ten sio n o f tw o ad ditio n al Glass Mo u n tain L eases, CA CA 2 1 92 9 an d 2 1 9 3 3 in 1 9 9 1

. Presu m ab ly th is is b ecau se B L M issu ed th ese leases in 1 9 8 8
, so th eir p rim ary term s w ere n o t s ch ed u led to en d

u n til 1 9 9 8.P I T R I V E R T R I B E V

. B L M 11

1996. B L M later rescinded the requir e ment to drill a well, but noted that the unit operator should have submitted a Participating Area desig nation based on the 1989 pay ing -well determination by F ebrua r y 13, 1994. T houg h that date h ad
pas s e d, B L M g ave the unit operator 6 0 day s to submit a participating area desig

nation. 6

I n N o v e mber 1996, Calpine’s p r edecessor ag a i n r e q u e s t e d that B L M rescind its lease ex tensions and retroactively g rant 40-y ear continuations o f the unproven G lass Mountain leases
pu rs u a nt to Article 17.4 of the Unit Ag reement. I n two decision letters, B L M reversed course and g ranted th is request on May 18, 1 998. O ne letter vacated the 24, five-y e ar lease ex tensions g r anted in 1991 and 1992:

On J uly 18, 1991, and March 20, 1992, based
upon lessee’s requests, this office iss u ed decisions g ranting five y ear ex tensions under 43 CF R 3203.1-4(c) to 25 g eothermal leases. 7 This decision applies to the 24 leases which

a re c urrently committed to the Glass Mountain Unit

. . . . However, the G l a ss Mountai n Unit contains a well capable o f production, and it h a s been determined throug h a careful review and interpretation o f the r eg ulations that the decision to g rant 24 o f the 25 ex tensions was in error.

6 T h e reco rd d o es n o t i n d i cate w h eth er a p articip atin g area d esig n atio n

w as ev er su

b m itted

.

7 T h e 2 5 th

lease ex ten sio n ap p lied to lease CA CA 1 1 70 7 , w h ich is n o t a p art o f th e Glass Mo u n tain

Un it an d n o t p art o f

th is ap p eal.P I T R I V E R T R I B E V

. B L M 12

The other letter g ranted 40-y ear cont i n u at i ons to the 26 8 unproven Glass Mountain leases:

This decision affects 26 of the 27 g eothermal leases currently committed to the Glass Mountain Unit a

n d Unit Ag reement

. . . . One lease c ommitted to the Unit, CACA 12372, has been determine d to be capable o f
p r o d u ction, as the result of a pay ing well determination, e ffective F ebruary 13, 1989,

a n d was g ranted an additional term under 43 [ C.F .R. §] 3203.1-3. 9

B a sed upon the pay ing well determination a nd the subsequent g ranting of an additional term to le a s e C ACA 12372 u nder 43 [ C.F .R. §] 320 3.1-3, all leases committed to the Glass Mountain Unit at that time should also have been g ranted additional terms a s a result o f Article 17.4 of the Glass Mountain Unit Ag reement, which states:

“ D r i l l i n g a n d / o r p r o d u c i n g operations performed hereunder upon any tract of U

nit i zed Lands will be accepted and deemed to b e performed
upon and for t h e b enefit of each and every tract of Unitized Land.”

8 T h is n u m b er in clu des th e t

w o u n p ro v en l eases th at w ere n o t ex ten ded in 1 9 9 1 o r 1 99 2

.

9 4 3 C.F.R. § 3 2 0 3 .1

- 3 i m p lem en ts th e lease- co n tin u atio n req u i rem en ts

o f 3 0 U.S.C. § 1 00 5 (a) an d (d ).P I T R I V E R T R I B E V

. B L M 13

Therefore, b ased o n the above, it is the B ureau of L and Manag ement’s determination that the 26 leases which are commi t ted to the Glass Mountain Unit be g ranted an additional term [ up to 40 y ears]
, effective F ebruary 13, 1989.

(Emphasis in orig inal.). B L M did not e x plain its leg al rationale f

or this chang ed statutory interpretation in either o f the letters issued May 1 8
, 1998

. An internal B L M memo recommending the c h ang e reflected the ag ency ’s uncertainty
reg arding w hether t h e Geothermal Steam Act and its implementing reg ul a tions r equired lease continuation a nd

ex tension determinations to be made on a lease-by -lease basis, and noted that there w as disag reement b e tween the Califor n i a and Nevada offices on this point, but it does not

ex p lain the rationale for adopting the view advance d b y the Nevada office.

IV. P rocedural History

A. Pit River I

I n 2002, some of the plaintiffs here, including the Pit River Tribe, filed sui t challeng ing a separate decision made by B L M in 1998 g ranting fiv e

- y ear ex tensions under § 1 005(g ) to two leases in a different unit not at issue here. P i t R i v e r I

, 479 F .3d at 777–78. T h e plaintiffs alleg ed th at g ranting these ex tensions without conducting environmental review violated N EPA, N HPA, the Geothe r mal Steam Act, the National Fo r e s t Manag e ment Act, a nd the federal
g overn m e n t ’s trust oblig ations to the Pit River Tribe. Pit River Tribe v. BLM

, 306 F

. Supp. 2d 929, 934 (E.D. Cal. 2004). The d istrict court entered summary judg ment in favor of B L M on all claims. Pit River I , 479 F .3d at 778.P I T R I V E R T R I B E V

. B L M 14

On appeal, a panel of our court first con s i d ered whether Pit River h ad Article I I I standing to bring its claims. Id. at 778–80. B L M arg ued that Pit River suffered no injury in fact and that its claims reg arding the 1998 lease ex tensions were not r edressable because the 1998 lease ex tensions were supplanted by new e x tensions in 2002. I d. at 779. W e rejected these arg u m e n t s, h olding that Pit River adequately demonstrated inj u r y i n f act and redressability

. 1 0 Id. at 779–80. The panel then considered whether, u nder the 1998 version of the Geothermal Steam Act, B L M was required to conduct review under NEPA and NHPA before g r anting lease

ex tensions under § 1 0 0 5(g )

. Id. at 780–88. Pit River I observed that the 1998 version o f § 1 005(g ) provided that
g eothermal leases “ may b e e x tended for successive 5-y e ar periods,” and concluded that the u se of “may ” rather than “shall” g a ve B L M d iscretion whether to g ra nt lease

ex tensions. Id. at 780 (quoting 30 U.S.C. § 1005(g )(1) (1998)). P i t River I h eld that, because the decision to g rant t he ex tensions under § 1005(g ) was discretionary

, a nd because earlier prog r ammatic and g enera l leasing EI Ss did
not adequately c onsider the effects of ge o thermal development on specific leases, “ [ t] he ag encies violated their duties under NEPA and NHPA and their fiduciary duty to the Pit River Tr i be by failing to c omplete an environmental impact statement before ex tending Calpine’s leases in 1998.” Id. at 788.

On remand, the parties d isputed whethe r the leasing
process would need to beg in anew, thereby n ecess i tating a

new competitive bidding process. Pit River Tribe v. U .S. Forest S erv. , 615 F .3d 1 069, 1074 ( 9th Cir. 2010). The district court concluded that the lease ex tensions should not

10 T h e co u rt d id n ot ad d ress p ru den tial stan din g

. S ee id

. at 7 7 8

– 8 0

.P I T R I V E R T R I B E V

. B L M 15

be vacated, but remanded the case to the ag encies to conduct
proper NE PA a

nd NHPA review, and to permit tribal consultation. Id. Pi t R i v e r a p pealed, but we upheld the district court’s order. 1 1 Id. at 1085.

B. Pit River II

I n 2004, while Pit River I w as pending

, the plaintiffs here filed two separate complaints challeng ing B L M’s May 18, 1998 decisions to vacate its earlier-g ranted lease ex ten s i o n s for the 26 u nproven Glass Mountain leases and to g rant lease continuations instead. Pit River Tribe v. BLM
, Case No. 04- 0956 (E.D. Cal., f

iled May 1 7, 2 004) and Save M edicine Lake Coal. v. BLM

, No. 04-0969 (E.D. Cal., filed May 18, 2004). Adjudication of these c a s e s was delay ed pending the resolution of Pit River I a nd while the pa r t i e s en g ag ed in settlement neg o tiations. I n 2012, t h e d istrict court consolidated P it River Tribe a nd Save Medicine Lake

, a

nd the plaintiffs ag reed to file an amended complaint. Pit River stipulated that it would “only assert causes of action r e l a t e d
t o the May 18, 1 998 lease ex tensions a nd to F eder al Defendants’ alleg ed failure to provide public re c o r d s in
response to Plaintiffs’ F reedom of I n formation Act request.”

Pit River’s amended complaint alleg ed that B L M’s 1998 decision to c ontinue the leases violated the Geothermal Steam Act, NEPA, NHPA, and the ag ency ’s fiduciary trust oblig ation to I ndian tribes. Pit River’s Geothermal Steam A ct claims, which are set out in Parag raph 107 of th e a mended complaint, specifically

alleg ed:

11 W e rev ersed in p art o n l y t o co rrect tw o m in o r erro rs in th e d istrict

co u rt’ s o rd er. Id

. at 1 0 8 5

.P I T R I V E R T R I B E V

. B L M 16

F ederal Defendant s B L M and Department o f the I nterior violated the Geothermal Steam A ct , 30 U.S.C. § 1001 et seq ., and it s implementing reg ulations in that they :

a. Unlawfully failed to terminate or eliminate the L eases from the Gla s s Mountain Unit Ag reement wh e n the Unit Operator failed to

c o mply with the reasonabl e d i l i ge n c e requirements of the a p proved Pla n o f Operation in 1995, a

nd this violation is
ong oing and continues to this day ;

b. Unlawfully failed to c o ntract the Glass Mountai n U nit Ag reement to include only L e ase CA12372 w hen the Unit Operator failed to submit a schedule f or establishing the Participating Area for W ell N o

. 31-17, a s required by the Unit Agr e ement, by the fifth anniversary of B L M’s determination that such well was capable of commercial produc t ion, and this v iolation is ong o ing and continues to this day ;

c. Unlawfully fai l e d to terminate the 26 L eases identified in parag raph 1 hereof for failure to comply with the “due dilig ence” a nd “bona fide efforts” requirements of the GSA, and this v iolation is ong o ing and continues to this day ;

d. Unlawfully and retroactively continued the 26 L eases identified in parag raph 1 hereof for

an a dditional period of 40 y ears in May 1998P I T R I V E R T R I B E V

. B L M 17

in the absence of any commercial production,

as defined by the GSA, on those L eas e s during the primary

lease term; and

e. Unlawfully failed t o e nsure that activities and operations authoriz ed by the 1998 L ease Continuatio n D e ci s i o n fo r the L eases i d entified in parag raph 1 would protect the quality of natural, cultural, and sce n ic
resources; accomm o date other land uses; protect people and w ildlife from unacceptable noise levels; a

nd prev e nt undue deg radation o f the land.

The a mended complaint also a lleg e d that B I A violated the F reedom of I nformation Act ( FOI A). Defendant Calpine moved for summary judg ment on Pit Ri v e r ’ s F OI A c laims and for judg ment on the pleading s und e r F e deral Rule o f Civil Procedure 12(c) on all other claims.

The district cour t gr a nted summary judg ment on Pit River’s F OI A c laims, 1 2 a n d e n t ered judg ment on the pleading s on the remaining c laims. The court concluded that Pit River w aived all of the claims alleg ed in Parag raph 107 o f the complaint ex cept for t h e claim in subparag raph (d) that B L M unlawfully continued the 26 unproven l e a ses in May 1998. The court then concluded Pit River lacked prudential standing t o bring its Parag r aph 107(d) claim because Pit River did not f

all within the “z one of interests” of the Geothermal Steam Act’s lease-continuation provision, § 1005(a). The court dismissed Pit River’s NEP A, NHPA, and fiduciary duty c laims o n t h e basis that B L M lacked

12 P it Riv er d oes n o t ap peal th e d ism issal o f th e FOIA claim s.P I T R I V E R T R I B E V

. B L M 18

discretion to consider environmental, c u l tural, or historic factors, or to consult with I n d ian tribes in considering whether to g rant lease-continuations under § 10 0 5 (a )

. A pivotal conclusion in t h e d i strict court’s ruling was its decision that Pit River’s challeng e to B L M’s 1998 dec ision rested on only the lease-continuation provision, § 1005(a).

STANDARD OF REVIEW

This court reviews a motion for judg ment on the pleading s under Rule 12(c) de novo. Goldstein v. City of Long Beach

, 715 F

. 3 d 7 50, 753 (9th Cir. 2 0 13). “Analy sis under Rule 12(c) is ‘substantially identical’ to analy sis under Rule 12(b ) ( 6 ) b ecause, under b oth rules, a court must determine whether the facts alleg ed in the complaint, taken a s true, entitle the plaintiff to a leg al remedy .” Chavez v. United States
, 683 F .3d 1102, 1 108 ( 9th Cir. 2 01 2 ) (citations a nd internal quotation marks omitted).

D ISCUSSION

I. P it River’s G eotherm al Steam Act Claim s

B e cause the Geothermal Steam Act does not ex pressly provide f o r a private rig ht of action, Pit River relied on the Administrative Procedure Act (APA) to bring its challeng e to B L M’s 1998 decisions to vacate its lease ex tension decisions and continue the 2 6 unproven Gla s s Mountain leases as a unit. Under § 10(a) of the APA “[ a ] person suffering leg al
wrong because o f ag ency action, o r adversely a ffected o r ag g r ieved by

ag ency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. B L M does not dispute that Pit River h as Article I I I standingP I T R I V E R T R I B E V

. B L M 19

to bring its c laims. 1 3 I n addition to Articl e I I I s t a nding

, in order to bring

a cause of action under § 10(a), the interests a plaintiff asserts “ must be ‘arg uably within the z one o f interests to be protected o r reg ulated by the statute.’” MatchE-Be-Nash-S

h e

- W ish Band of Pottawatomi I ndians v

. Patchak

, 132 S. Ct. 2199, 2210 (2012) (quoting Ass’n o f Data Processing Serv. Orgs., Inc. v

. Camp
, 3 9 7 U .S. 150, 153 (1970)). T he district cour t r easoned that because “[ t] he
statute and reg ulations applicable he r e

. . . do not permit, much less require, consideration of e n vironmenta l concerns

or competing land uses when B L M acts on continuation o f an

ex isting lease,” Pit River’s interests do n o t fall within the statutory lease-continuation provision’s “z o ne of interests.”

A. The “zone of

interests” test

The Supreme Court first a r ticulated the z one-of-interests
test in 1970 in Data Processing

. 397 U.S. at 153. The Court stated that standing “ concerns, apart f r o m the ‘case’ o r ‘controversy ’ test, the question whether the interest soug ht to be protected by the complainant is a rg uably within the z o ne of interests to be protected or r e gu l a ted by the statute o r constitutional g uarantee in question.” Id

. I n 1987, the Supreme Court ex p lained in Clarke v. Securities Indust r y Association , that:

13 Pit River I estab lish es th at th e req u irem en ts of A rticle III stan d in g are

m et h ere: P it Riv er su f

f ered an in

j u ry i n f act th at is f

airly traceab le to B L M’ s co n d uct an d th at w o u ld lik ely b e red ressed b y a f av orab le d ecisio n

. See 4 69 F.3 d at 7 7 8– 8 0 (h old i n g th at P it Riv er h ad stan d in g to ch allen g e B L M’ s ex t en sio n o f g eo th erm al leases in Med i cin e L ak e Hig h lan d s).P I T R I V E R T R I B E V

. B L M 20

T he ‘z one of interest’ test is a g uide fo r deciding whether, in view of Cong res s ’ evident intent to m a ke ag ency action
p r e s u m p t i v el y r e v i e w a b l e, a p a r t i c u l a r pla i n t iff should b e heard to complain of a particular ag ency decision. I n c ases where the plaintiff is not itself t h e subject of the contested reg ulatory a c tion, the test denies a rig ht of review if the plaintiff’s in t e rests a re

so marg inally r e lated to or inco n sistent with the purposes implicit in th e statute that it
cannot rea sonably be a ssumed that Cong ress intended to permi t the suit. The test is not meant to be especially d e m a nding ; in particular, there n ee d be n o indication o f
cong ressional p u rpose to benefit the would-be plaintiff.

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

. The

z one-of-interests test should be a pplied c o n sistent with Cong r ess’s intent “to make ag ency action p resumptively reviewable” under the APA. Match-E-Be-Nash-She-W ish

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

The Supreme Court has often charact eriz ed the z one-ofinterests te s t as a “ prudential standing ” requirement. See,
e.g. , Fed. Election Comm’n v. Atkins

, 524 U.S. 11, 20 ( 1 998); Bennett v. Spear
, 520 U.S. 154, 163 ( 1997). B u t last y e ar, in Lexmark International, Inc. v. Static Control Co m p onents, Inc
., the court rejected the “ p r udential standing ” l a bel a nd made clear that whether a plaintiff’s claims are w i t h in a statute’s z one of intere s t s is not a jurisdictional question. 134 S. Ct. 1377, 1387–88 (2014); see also Chaudhry v. City of L.A.
, 7 5 1 F .3d 1096, 1109 (9th Cir. 2014) (“[ U] nlikeP I T R I V E R T R I B E V

. B L M 21

standing

, ‘the absence of a valid

. . . cause o f action does not i mplicate subject-matter jurisdiction.’” (quoting Lexmar k

, 134 S. Ct. at 1387 n.4)). The Court ex plained:

A l thoug h w e admittedly have placed [the

z o n e-of-interests] tes t under the “prudential” rubric in the past, it does n ot belong there

. . . . W h ether a p laintiff comes w ithin “the z one o f i n t e r ests” is an issue that requires us to determine, using traditional tools of statutory i n t e r p r e t a t i o n , w h e t h e r a l e g i s l a t i v e l y conferred cau se of action encompasses a particular p l aintiff’s claim. As J udg e Silberman o f the D.C. Circuit recently observed “prudential standing is a misnomer”

as a pplied to the zone-of-interests a naly sis, which asks wh e t h er “this particular class o f
p e r sons ha[ s] a rig ht to sue under this substantive statute.”

Id. at 1387 (citations o mitted) (quoting Ass’n of B a ttery Re cyclers, Inc. v. EPA
, 716 F

. 3d 667, 675–76 (D.C. Cir. 2013) (Silberman, J ., concurring )).

Be c ause Lexmark a d dressed a claim arising under th e L anham Act rather than under § 10 of the APA, the Supreme Court d i d n o t directly revisit its APA z one-of-interests
p recedent. Id. at 1 383. B u t in discussing the Cour t ’ s p r i o r APA decisions, Lexmark reaffirmed its consistent statement “that the [ z o ne-of-interests] test ‘forecloses suit o nly when a plaintiff’s interests are so marg inally related to or inconsistent with the purposes impl i ci t in the statute that it cannot reasonabl y b e assumed’ that Cong ress authoriz ed thatP I T R I V E R T R I B E V

. B L M 22

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

B. P it River’s claim s fall w ithin the applicable z one of interests.

The pivotal quest ion here is whether Cong ress intended
to create a cause of action encompassing Pit River’s c laims when it enacted the Geothermal Steam Act. See id. at 1387. The parties dispute whether the c ourt may look to the Geothermal Steam Act’s overall statutory scheme to determine whether Pit River’s claims fall w ith i n t h e Act’s

z one o f interests, but Bennett v. S p e ar c learly answered this question. Bennett held, “[ w ] h e t h er a p laintiff’s interest is ‘arg uably

. . . protected

. . . by the statute’ within the meaning of the z one-of-interests test i s to be determined not b y reference to the o verall purpose o f t h e A ct in question

. . . , but by reference to the particular provision of law upon which the plaintiff relies.” 520 U.S. a t 175–76 (first two alterations in orig inal) (quoting Ass’n of Data Pro ce s s ing S erv. Orgs., Inc. v. Camp
, 397 U .S. 150, 153 (1970)). W e ag ree with the district court that, c ontrary to Pit River’s arg ument, Pit River’s ability to challeng e the subject l e a s e s cannot be determined by looking to the broad objectives of the Geothermal Steam Act. B ut we do not ag ree that Pit River’s claims can be fairly described a s arising o nly from § 1005(a).

I n 2 012, w hen Pit River’s two c ases were consolidated into one, Pit River stipulated that it would “only assert causes of action r elated to the May 1 8, 1998 lease ex tensions” in its amended complaint. At the h earing on B L M’s and Calpine’s motions for judg ment o n the pleading s, Pit River ex p lained that the amended complaint’s alleg ations reg arding inclusion of the unproven leases within the Glass Mountain Unit wereP I T R I V E R T R I B E V

. B L M 23

pleaded only as facts, not as d istinct leg al challeng es. The district court interpreted this ex planation as meaning that Pit River waived all of its Geothermal Steam Act claims ex cept those in Parag raph 107(d) of the amended complaint, which alleg ed B L M “[ u] n lawfull y a nd retroactively continued the 26 L eases

. . . for an additional p eriod of 40 y ears in May 1998 in the absence of a n y commercial production.” The district court concluded that Pit River’s remaining Geothermal Steam Act claim relied on only the Act ’s l e a secontinuation provision, § 1005(a). B ut neither the stipulation

no r t h e amended complaint ex pressly limited Pit River’s claims to any particular p rovision of the Geot h ermal Steam Act, and Pit River never limited its claims only to § 1005(a). The transcript from the hearing on the motio n for judg ment on the pleading s makes this clear.

F irst, 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 n ot merely challeng ing B L M’s lease continuation decision under § 1 005(a), but was also challeng ing B L M’s decision to reverse course and decide that the leases c ould be continued under § 1005(a) as a unit rather than being subject to lease-by -lease e x tensions under § 1005(g ). As counsel ex plained:

Our view is twofold. One is a leg al issue a nd

one is a factual issue. F irst of a ll, on the leg al issue,

. . . B L M had t a k e n t he position the leases were not u nder this mandatory

ex tension but under a discretionary ex tension and then chang e d [ its] mind[ ]

.

. . .P I T R I V E R T R I B E V

. B L M 24

[ A] t the time the decisions we re made, there

was a provision, 1005(g ), that allowed for these fi v e- y ear ex tensions, and that’s, in fact what the B L M believed it was orig inally

ex tending these leases under. . . .

. . .

So the first question is whether they were properly under 10 05(a) or 1005(g ) as it

e x isted at the time

. . . . [W ] e believe tha t decision whether to renew under § 1005( a) or 1005( g) is a challengeable decision. B u t even if we were under Section 1005(a),

. . . the
ag ency has to find that g eothermal steam is produced or utiliz ed in commercial quantities.

(Emphasis added.).

The distri c t court acknowledg ed this arg ument, asking B L M’s counsel: “W hy don’t the plaintiffs have a rig h t to challeng e that determination? T h at’s the leg al question she
say s ex ists now. I g rant y o ur motion if 1005(a) applies. I f 1005(g ) applies, that p r e s e nts different issues and problems for y ou.” After B L M responded that it was “precisely the application of 1005(a) that the plaintiffs challeng e here,” the district court pressed further:

How d o they challeng e then the decision o f B L M then to

. . . , as [ Pit River’s counsel]
arg ues, at one point B L M is proceeding under 1005(g ) and then a second opinion comes out and say s: No, no. 1005(a) a pplies. W hy don’t th ey h a ve a rig ht to c halleng e that decision?P I T R I V E R T R I B E V

. B L M 25

I f they disag ree, someone should have a rig ht to challeng e it, shouldn’t they ?

B L M’s counsel’s answer was not especially responsive:

Not necessarily . I t is not necessarily the case that any party has stan d i n g to challeng e a particular administrat ive action. That is the D o ctrine of Standing

. B ecause they l a c k standing

, the question: How do they challeng e it just doesn’t arise. They don’t. They cannot challeng e a decision under that provision o f the statute.

The district court c onclude d t h a t Pit River had actually abandoned its challeng e to B L M’s decision to a pply § 1005(a) rather than §1005(g )

. The court said to Pit River’s counsel:

You’re arg uing t o me, ag ain, the evidence is
g oing to show that they didn’t qualify

, that the secretary or the so l icitor or whoever makes the decision, that the leases s h o u ld be

ex tended g ot it completely w rong

. Ag ain, a s I understand t h e g overnment’s response to that is: Too late. I t doesn’t matter

. Y o u ’ve abandoned those c laims

. Y ou should have challeng ed those, that decision earlier. Ag ain, it comes back to me—th e r e ’s two decisions here: W ere those c ond i tions actually met? Second, d o w e have to g rant the lease

ex tensions? This lawsuit is o nly about: W e re the lease e x tensions leg al? And so, ag ain, I ’ m having a hard time g etting p ast how we startedP I T R I V E R T R I B E V

. B L M 26

t his arg ument, which is, none of that i s relevant.

B ut Pit River did n o t c o ncede that it had abandoned its challeng e to B L M’s May 18, 1998 chang e of course; instead, it made c l e ar, as it stated in the district court h earing

, that it thoug ht “ the court needs t o look at what was done here in order to determine whether the B L M’s last-minute reversal to make this a ministerial, rath e r than a discretionary decision,

was p r oper u n der the law.” A d d i t i onally

, contrary to the district court’s sug g estion, Pit Ri v e r could not have chal l e n g ed the decision earlier because it appears that B L M f i rst c ommunicated its chang ed interpretation of § 1 005 a nd
t h e i mplementing reg ulations when it issued the 1998 lett e r retroactively c ontinuing the unproven Glass Mountain leases.

Pit Riv e r ’s challeng e plainly included whether B L M lawfully vacated its earlier § 1 005(g ) ex tension decisions a nd chang ed its interpretation of § 1 005 to continue the leases for
up to 40 y ears. B ecause Pit River’s o pera t i v e complaint challeng es B L M’s announcement that the leases w ere subject
to continuation rather than e x ten s i o n , we conclude that Pit River’s claims include a challeng e under § 1005(g ). Pit River I held that B L M must c onduct NEPA and NH P A r eview before g ranting d iscretionary ex tensions under the 1998 version of §1005(g ). 1 4 469 F .3d at 788.

14 A m en d m en ts t o th e Geo th erm al Steam A ct in 2 0 0 5 elim in ated B L M’ s d iscretio n t o co n sid er en v iro n m en t al an d cu ltu ral f acto rs in m ak in g leaseex ten sio n d ecisio n s u n d er § 1 0 0 5 (g ). Pit River I
, 4 6 9 F.3 d at 7 8 0

. T h u s, if Calp i n e elected to h av e its leases su b j ect to th e u

p d ated reg u latio n s, see 4 3 C.F.R. § 3 2 00

. 7 ( 2 0 0 7 ), f u tu re ex ten sio n s o f th ese leases m ay n o t b e

su b j ect to NEP A

o r NHP A

rev iew

. Id

.P I T R I V E R T R I B E V

. B L M 27

II. The m erits of P it Riv e r ’ s G eotherm al Steam Act claim s

Pit River arg ues it is entitled to judg ment on the merits o f its Geothermal Steam Act claims, in particular its claim that B L M improperly continued other leases within the Glass Mountain Unit rather than addressing the leases wit hin the Unit o n e

- b y -one to d etermine whether ex tensions of those leases should be g ranted. Pit River a sks our court to remand to the district c ourt with instructions to enter judg ment in its favor. W e decline to do so. The district court did not consider the merits of Pit River’s Geothermal Steam A ct claims, a nd determining whether B L M violated provisions o f the Geothermal Steam Act will require c areful analy sis. The district c ourt should u ndertake 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 d istrict court
to ex a mine in the first instance issues not previously reached that mig ht require factual development). Moreover, under F ederal Rule of Civil Procedure 12(c), a p l a intiff is not entitled to judg ment on the pleading s if the defendant’s

answer raises issues of fact o r a f firmative defenses. Gen. Conference Corp. of Seventh-Day Adventists v. Seventh-Day A d ventists Congregational Church

, 887 F .2d 228, 230 (9 t h Cir. 1989). I n this c ase, the defendants’ answers d o both. W e therefore decline Pit River’s invitation to rule on the merits o f its Geothermal Steam Act claims.

III. P it River’s NEP A, N HP A, and F iduciary Duty Claim s

The district court concluded that Pit R i v er’s NEPA, NHPA, and fiduciary duty claims failed because § 1005(a) is non-discreti onary

—B L M is not permitted to considerP I T R I V E R T R I B E V

. B L M 28

environmental factors in making lease continuation decisions and any environmental review would b e s u perfluous. W e

a gr e e wi t h t h e d istrict c o urt that § 1 0 0 5 ( a ) i s non-discretionary

, see Pit R i ver I
, 469 F .3d at 7 80 (citing Dep’t o f Transp. v. Pub. Citizen , 541 U .S. 752, 768 (2004)), but, as discussed, the district court incorrectly circumscribed Pit River’s claims. I f

Pit River prevails on its claim that the leases here were elig ible only for ex tension under § 1005(g ), B L M will be required to comply with N E P A a n d NHPA, i n c luding by consulting with affected tribes. Id. at 78 7

– 8 8

. Therefore the district court erred by g ranting judg ment on the pleadin gs o n Pit River’s NEPA, N HPA, and fiduciary duty claims.

CONCLUSION

W e REVERSE the distri c t court’s judg ment a nd REMAND for further proceeding s c onsistent w ith this opinion.