Ninth Circuit Decisions May Make It Easier To Obtain Federal Permits For Projects Impacting Tribal Resources

Two recent Ninth Circuit decisions interpret the scope of the federal government’s fiduciary obligation to protect off-reservation tribal resources. In Gros Ventre Tribe v. BLM[1] and the Pit River v. USFS[2], the tribes attempted, unsuccessfully, to sue federal agencies under common law fiduciary theories for decisions affecting resources on tribal land. In both cases, the Court concluded that the tribes were limited to their statutory rights, and declined to recognize a common law claim against the government for breach of its trust responsibilities.

The Court rejected the Tribe’s argument that there is a “general trust obligation” that imposes a fiduciary duty on the government in decision-making that impacts tribes. The existence of a general trust obligation has, in the past, been implicitly recognized by federal agencies in permitting decisions.[3] The Gros Ventre Tribe and the Pit River Tribe decisions may make it easier to obtain federal permits for projects impacting off-reservation tribal resources.

Background

Gros Ventre Tribe. The Gros Ventre and Assiniboine Tribes (“Gros Ventre Tribe”) reside on the Fort Belknap Indian Reservation, located in north-central Montana. Two cyanide heap-leach gold mines are located outside, but near the southern boundary of, the Fort Belknap reservation, in the Little Rocky Mountains mining district. The Little Rocky Mountains mining district is a location long used by the Gros Ventre Tribe for subsistence, social, and religious purposes. The district is also Montana’s largest gold producer. The Bureau of Land Management (“BLM”) approved the expansion of the two mines in 1996, despite the Montana Department of Lands’ conclusion that acid rock drainage from the mines had become a wide-spread environmental problem.

In 1998, the Gros Ventre Tribe appealed the expansion of the two mines to the Interior Board of Land Appeals. While the appeal was pending, the mining companies went bankrupt and announced they would abandon the expansion plans and reclaim and close the mines.[4] The BLM subsequently rescinded its expansion approval and issued a new decision requiring the reclamation of the mines.

In 2000 the Gros Ventre Tribe filed suit, claiming that the federal government breached its trust responsibility to the Gros Ventre Tribe by failing to protect the tribe’s trust resources in approving, permitting, and failing to reclaim the mines. The Gros Ventre Tribe also alleged violations of the National Environmental Policy Act (“NEPA”), the National Historic Preservation Act (“NHPA”), the Administrative Procedure Act (“APA”), and the Federal Public Lands Management Act (“FPLMA”).[5] The federal government won at the district court,[6] and the Gros Ventre Tribe appealed.

Pit River. California’s Medicine Lake and the surrounding highlands are of great spiritual significance to the Pit River Tribe and other tribes in the region. As is the case with the Gros Ventre Tribe and Montana’s Little Rocky Mountains, the Medicine Lake highlands are within the Pit River Tribe’s ancestral homelands, but do not lie within the boundaries of the tribe’s reservation. The federal government designated the general area of the Medicine Lake Highlands as the Glass Mountain Known Geothermal Resource Area (“Resource Area”) under the 1970 Geothermal Steam Act,[7] making the area subject to development and utilization of geothermal steam under leases issued by the Secretary of the Interior, acting through the Forest Service (“USFS”) and BLM.

In 1995 a California energy company, Calpine, submitted a plan of utilization for a power plant project that would disturb 50 acres of land approximately 3 miles from Medicine Lake. While the EIS for the project was being prepared, BLM renewed Calpine’s leases for an additional 5 years, without conducting any environmental review. The final EIS for the project, issued in 1998, mentioned but rejected the “no action alternative” because, according to BLM and the USFS, it “would not meet the purpose and need for the proposed action,” namely, the development of the geothermal resource on the leases in order to economically produce and deliver electrical energy.

In 2000, BLM and the USFS approved Calpine’s project, despite the agencies’ conclusion that there was no mitigation possible to offset the significant impact to “the very nature and intrinsic value of the Medicine Lake area.” The Record of Decision that BLM and the USFS issued stated that leases had been issued for the right to develop geothermal resources on federal lands, and the vested property right thereby created both required approval of the permit, and superseded an Executive Order regarding the protection of Indian Sacred Sites.

In 2002, BLM and the USFS extended the power company’s leases for an additional 40 years. Shortly thereafter, the Pit River Tribe filed suit, alleging violations of NEPA, the NHPA, the National Forest Management Act (“NFMA”), and the APA. The tribe claimed that the agencies’ failure to undertake any environmental review prior to extending the leases violated the statutes, and the government’s fiduciary obligations to the tribe. BLM and the USFS prevailed at the district court,[8] and the Pit River Tribe appealed.

The Ninth Circuit’s Decisions

On appeal, the Ninth Circuit held in Pit River Tribe that by failing to consider the no-action alternative, the federal agencies had failed to take the requisite “hard look” at whether the leases for geothermal power development should have been extended.[9] In breaching their statutory obligations, the Court concluded, the BLM and USFS also breached their “minimum fiduciary duty” to the Pit River Tribe. In so ruling, the Court noted that it was not addressing any of the other fiduciary duty arguments raised by the Pit River Tribe, “in particular … the question of whether the fiduciary obligations of federal agencies to Indian nations might require more” than just compliance with the statutes.[10]

A different three-judge panel of the Ninth Circuit court concluded in Gros Ventre Tribe that the Gros Ventre Tribe failed to state claim for breach of trust against BLM because the tribe could not articulate a statute or treaty imposing a specific duty to manage non-tribal resources for the benefit of the tribe with which the federal government had failed to comply.

According to the Court, the Gros Ventre Tribe could not establish a statutory duty to it that the government had breached so as to constitute a breach of trust. In the absence of a statute or treaty that requires the federal government to provide particular services or benefits to a tribe, there is no general trust obligation that imposes a duty on the government to take action beyond complying with generally applicable laws.[11] “Although we [have] recognized that ‘the United States does owe a general trust responsibility to Indian tribes … unless there is a specific duty that has been placed on the government with respect to Indians, this responsibility is discharged by the agency’s compliance with general regulations and statutes not specifically aimed at protecting Indian tribes.’”[12]

Although both the Pit River and the Gros Ventre panels relied on Morongo Band of Mission Indians for the proposition that the federal government satisfies its fiduciary responsibility to Indian tribes by complying with generally applicable regulations and statutes, the Pit River Court left open the question of whether the government’s fiduciary obligations might require more.[13] The Gros Ventre panel, in contrast, construed the government’s fiduciary obligations narrowly, and concluded that compliance with generally applicable regulations and statutes was all that is required of the government to satisfy its fiduciary obligations to tribes, and no more may be demanded.[14]

Continued Debate

In February, 2007 the United States filed for reconsideration of the Pit River decision.[15] At the same time, opponents of the project have staged a series of protests of the United States’ continued efforts to develop Medicine Lake for geothermal power.[16]

Conclusion

While the outcomes of the Gros Ventre Tribe and the Pit River Tribe cases were very different, both the decisions stand for the principle that, in the absence of a specific treaty obligation or statutory duty owed to a tribe, tribes do not have a common law claim for breach of fiduciary duty against the federal government.