                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


PIT RIVER TRIBE; NATIVE                  No. 13-16961
COALITION FOR MEDICINE LAKE
HIGHLANDS DEFENSE; MOUNT                    D.C. No.
SHASTA BIOREGIONAL ECOLOGY               2:04-cv-00956-
CENTER; SAVE MEDICINE LAKE                 JAM-JFM
COALITION; MEDICINE LAKE
CITIZENS FOR QUALITY
ENVIRONMENT,                               OPINION
               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.


      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
Highlands that 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 may require 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 predecessors3 requested 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.5 In 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

    In November 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 extending Calpine’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
     anniversary of 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,12 and 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.13 In 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.’” Match-
E-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-of-
interests 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 marginally related 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-She-
Wish, 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 lease-
continuation 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
challenging BLM’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
retroactively continuing 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 lease-
extension 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.
