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June 7-13, 2006

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Deborah Sivas

Photograph by Felipe Buitrago
Bad Medicine: Deborah Sivas, lead attorney for the tribes suing to block the Medicine Lake project, says San Jose's Calpine doesn't understand the devotion Native Americans have to keeping the area pristine.

Trouble With Tribes

In the battle between Native Americans and a power plant project, the warpath leads to San Jose

By Sercan Ersoy

AMERICAN history classes don't spend much time on the Indian Wars. Even university level courses generally skip over the more-than-a-century-long series of battles between the U.S. government and every tribe from Georgia to the West Coast. But while that conflict might have officially ended in the 1890s, the Indian Nations are still skirmishing with the federal government—and now a Silicon Valley energy company—over the land they still control.

The conflict spilled over into San Jose earlier this year when Native American activists protested at the headquarters of locally based energy provider Calpine over two geothermal power plants the company wants to build in the Medicine Lake Highlands in Siskiyou County, near the California-Oregon border.

Calpine, with the support of the federal Bureau of Land Management, is proposing power plants the company says would create enough energy to supply 50,000 people. But Native Americans are angry because Medicine Lake has been considered a sacred place for many of the area's tribes for thousands of years—they compare the prospect of industrializing the area to the suggestion that Vatican Square be opened for drilling—and they're suing to block the project.

Of the handful of tribes in the area, the Pit River Nation has been the most vocal in its opposition.

"It's part of our religion that it's a sacred place to go and bathe and drink the water," Pit River citizen Radly Davis says. According to Davis, the lake itself has as much significance to them as well known religious sites like Jerusalem have to Jews, Christians and Muslims.

"When the world was still moist," he says, "the creator stopped there and rested and left part of his spirit there." That's how important it is.

While all three of the big Western religions follow some variation of Genesis—where God spends a week creating the world and then decides to take a quick rest when he's done—the tribes' ancient religion goes further and pinpoints an actual spot where they believe the creator went to relax. It's a place, they believe, where young men can absorb some of the creator's spirit by swimming in the lake and drinking its water.

Neither the BLM (which manages the federal land the tribes call home) nor Calpine dispute the tribes' religious claims.

"I can't argue with the tribes," says BLM spokesman Sean Hagerty. "They believe those are sacred to them and I can't argue with that."

Hagerty thinks the power-plant project is far less intrusive than the tribes believe it will be.

"I think they're looking at the projects as something that's not natural to the area," he says, "but I do believe that the industrial site is not what the opposition is picturing. I think [they] just don't want to see any changes up there ... but it won't be the nightmare they claim it to be."

Hagerty is indeed correct—the tribes don't want any development on their land. They believe that to hold on to the Lake's sacred value, the surrounding area has to be pristine. The BLM and Calpine insist that with the minimal air and water pollution their research indicates the plant would cause, the tribes could still use Medicine Lake just as they had before.

"The best way to quantify geothermal [is] to look at what the existing emissions are from coal," said Calpine's PR director Kent Robertson. According to Robertson, the project doesn't violate any federal or state environmental laws and Calpine has taken thousands of steps to mitigate the effects of each pollution-causing aspect.

"You have equipment at this site that prevents the emissions from going into the atmosphere," he says. "To say that the projects have gone through an exhaustive environmental review is something of an understatement."

But according to Deborah Sivas, Stanford Law School professor and lead attorney on behalf of the tribes, simply minimizing pollution rates can't undo the impact of the power plants.

"The big concern of the Pit River Tribe is that this project would industrialize the area," she says. "The lawsuit is focused on the fundamental change the project would cause."

Battle Lines

The philosophical chasm between the two sides of this issue has become more and more pronounced since the 1980s, when the U.S. Geological Survey discovered large amounts of geothermal energy underneath the volcanic caldera where the highlands sit, and granted renewable 10-year leases to Calpine and CalEnergy (which Calpine later bought) to industrialize the area.

A potential power plant at Medicine Lake first became an issue in 2001, after the Bush administration appointed new heads to both the bureau and the Department of the Interior, who had their own ideas for how federal lands should be managed. Ironically, under President Clinton, the BLM along with the U.S. Forest Service recommended in 2000: "After careful consideration of all perspectives and factors, balancing the need for renewable energy and the need to protect the visual and cultural values associated with the unique and highly significant historical properties in the Medicine Lake Caldera, we have concluded that the interests of the public would best be served by selecting the no action alternative."

The tribes' spiritual arguments won out then, but since the 2001 reversal, the bureau and Calpine have left the courts and bureaucrats to define what kind of environment the tribes need to practice their religion.

"Officials have determined that the tribes ... can continue their activities unimpeded," Robertson says. "We're in no position to pass judgment. It's the agencies and the courts that do that."

As a result, the tribes have been forced to shift from religious to more pragmatic legal arguments, hoping to prove that some part of the project will destroy the area.

"There are not a lot of good legal handles making those kinds of [spiritual] claims," Sivas says, "so we've been focusing more on the environmental claims."

But with the wide acceptance of geothermal power as clean and environmentally sound it has been an uphill battle. Another issue is that the BLM issued the initial leases without doing what's known as government-to-government consultations with the tribes or an environmental impact statement (both of which are mandatory) until after the deals had gone through.

"They put the cart before the horse, so to speak," Sivas says.

But so far this hasn't panned out either—the bureau insists that once it issued the leases, it couldn't then go back and unissue them.

Despite all this Sivas doesn't seem discouraged and intends to fight the project in court as far as it will go. But other advocates of native rights, like Bradly Angel, executive director for San Francisco-based Green Action, have continued to focus on what they call "environmental racism."

"There are civil rights laws we believe are being violated," he said, "sacred rights protections that are not being upheld."

Angel is focusing on more direct opposition, with Green Action working with tribal citizens to organize massive protests against the project, like the one in front of the Calpine building in San Jose back in January.

"Anything within the realm of nonviolent resistance is being considered," Angel says. "They need to drop this project or they will be committing a grave error and be facing ever-increasing protest."

With Calpine currently in bankruptcy, it may be some time before anything gets resolved in this latest conflict over Native American land. (According to Sivas, corporations in bankruptcy proceedings are immune from civil litigation unless a judge gives the OK.) But for the time being, both sides are convinced their side will prevail.

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