The Dixie Valley toad is found only in Nevada and its entire population lives in a thermal spring-fed wetland in the remote Dixie Valley. (Credit: Chad Mellison/USFWS)
A Nevada tribe and conservation advocates urged the U.S. 9th Circuit Court of Appeals Wednesday to reverse an order allowing ongoing construction and development of a geothermal energy project in Churchill County they say threatens to destroy a sacred site and drive the rare Dixie Valley toad to extinction.
Attorneys for the Center for Biological Diversity and the Fallon Paiute-Shoshone Tribe previously succeeded in getting a district judge to temporarily pause construction of the project, but the ruling was later overturned.
Months later, the U.S. Fish and Wildlife Service announced the agency would move to protect the toad under the Endangered Species Act on an emergency basis.
The agency concluded that the geothermal project poses an immediate and significant risk to the well-being of the Dixie Valley toad, adding that an “emergency listing is necessary to prevent losses that may result in its extinction.”
“This case presents a challenge to a geothermal project of extraordinary consequence. A project that will destroy and prohibit access to significant portions of a sacred site visited by the tribe for thousands of years. The Fish and Wildlife Service, the expert agency, has determined it is likely to cause the extinction of an endangered species, the Dixie Valley toad,” said attorney Wyatt Golding during oral arguments.
The members of the 9th Circuit three-judge panel— Jay Bybee, Consuelo Callahan and Daniel Collins— heard oral arguments Wednesday from attorneys representing the Bureau of Land Management, the project developer Ormat Nevada, and the tribe and conservation group involved in the lawsuit.
The panel did not immediately rule on the appeal brought by the Center for Biological Diversity and the Fallon Paiute-Shoshone Tribe, the judges saying they needed additional time to consider the arguments.
Attorneys for the tribe and conservation group said that no matter what the final ruling by the panel on allowing Ormat to continue construction, they intended to sue BLM under the Endangered Species Act in the coming weeks.
In the meantime, attorneys for the tribe and conservation group say each day construction on the project continues brings greater harm to the endangered toad and the spring.
Attorneys for Ormat told judges that if the project is not completed by December it would cost the developer $30 million in future revenue over a 20 year period, arguing that an injunction would harm the company.
Construction is ongoing on the site and is on track to be completed by December, despite the Dixie Valley toad being listed as endangered by the U.S. Fish and Wildlife Service.
“It’s puzzling why it hasn’t stopped,” said Golding. “It absolutely should because the expert agency has determined that this very project is likely to cause the extinction of an endangered species, which is highly unusual.”
The first phase of the project would be about half a mile from the nearest spring, something the tribe argues would violate the Religious Freedom Restoration Act by causing an unjust burden to tribal members’ religious practices.
Judge Collins expressed concern over the BLM’s finding that the project would have “no significant impact” despite its potential effects on the tribe’s religious practices.
“That’s awfully close and this would be a fairly large and, when operational, noisy plant,” said Collins. “Suppose you were building a large noisy factory a half mile from the Grotto of Lourdes,” the judge said, referring to a Catholic site in France, “could you reasonably say that doesn’t have a significant impact on the religious activities at that site?”
Attorneys representing Ormat told judges that while the 10-acre facility being developed in the first phase of the project would be visible from Dixie Spring “it’s not an obstruction.”
An Interior Department attorney, Michelle Melton, said that the final project would “not dominate the landscape,” meaning under BLM’s policy the project is not considered a significant impact to tribal spiritual practices.
Tribal representatives argued that on the contrary, the two geothermal power plants and 18 or more geothermal wells included in the final project would have a significant impact.
“It’s been a sacred site to the tribe for thousands of years and that’s been well documented,” said Golding, adding that the tribe would not be allowed to continue their religious practices once the project is constructed and portions of the land are made private property.
“They’ll be forced to pray to the geothermal project instead of their origin site Fox Peak,” Golding said. “We have a government action that is forcing the tribe to use waters affected by the project instead of the sacred unharmed waters of the spring.”
The Bureau of Land Management’s decision that the planned geothermal energy project by Ormat would not have a significant effect on the environment means the project does not need to go through a more rigorous environmental impact study. The agency instead reached an agreement with the developer and other agencies to develop a later plan to “lessen, minimize or mitigate the adverse effect to the site” once construction starts.
“This is an enormous operation,” Golding said. “We have years and years of the tribe saying ‘you’re building a power plant on our sacred site’ and the BLM ignoring that.”
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