Judge denies FOIA lawsuit against BIA by tribal members -- The Quoddy Tides, Eastport, Maine

A Freedom of Information Act (FOIA) lawsuit brought by a group of Passamaquoddy tribal members against the Bureau of Indian Affairs (BIA) has been denied by a U.S. District Court judge. Judge John Woodcock ruled on June 22 that Nulankeyutmonen Nkihtaqmikon (We Protect the Homeland) did not have a right to any additional documents from BIA concerning BIA's approval of a ground lease agreement between the tribe and Quoddy Bay LLC, a liquefied natural gas company that is proposing an LNG terminal at Split Rock, Pleasant Point.

The group had charged that the BIA failed to conduct an adequate search to respond for its request for records; that the BIA wrongfully withheld documents; and that the BIA engaged in an impermissible practice of "delayed disclosure."

BIA approved the ground lease between the tribe and Quoddy Bay LLC on June 1, 2005, and Nulankeyutmonen Nkihtaqmikon (NN) subsequently filed three Freedom of Information Act requests for documents from BIA. The group eventually filed three lawsuits against BIA, but two of them, concerning alleged violations by the BIA in the process of approving the Quoddy Bay LNG lease, were dismissed by Woodcock in November 2006. That decision was appealed to the First Circuit Court of Appeal in Boston.

The aim of the group is to reopen the lease decision and to provide an opportunity for tribal members to vote on whether the project is in the best interest of the community based on environmental and economic information.

In his June 22 ruling concerning the FOIA requests, Woodcock did criticize the BIA's actions. He wrote, "The court readily acknowledges that the chronology of this case is disturbing. After all, NN made its first FOIA request on June 8, 2005; the BIA released the redacted versions a year later; and now over two years later, its requests for FOIA documents remain unresolved. It is difficult to construe such a delay as a 'reasonable delay.' A FOIA requester should not have to undertake multiple requests, administrative appeals and legal action in order to obtain documents the law allows it to obtain."

He continued, "It is also disturbing that the requested documents are central to an issue of public and tribal significance, the building of an LNG terminal on tribal lands, and that NN has taken a dissident view of the project, one that challenges its construction. Without commenting on the merits of the project, the court is concerned that the delay in disclosing the documents leaves the BIA open to the charge that it has stonewalled the FOIA request, because it asks for documents that will lead to increased public scrutiny. If so, such actions are contrary to the letter and spirit of FOIA."

However, Woodcock ended up concluding that the BIA did not actually engage in an illegal practice. "Perhaps the BIA should have found these documents during its first search; nevertheless, its failure to do so does not justify a finding that the BIA engaged in an impermissible pattern of practice of delayed disclosure." Finding that BIA nearly always invoked proper FOIA exemptions to the disclosure of documents, the judge stated, "The vast bulk of the BIA's delay was caused by inefficiencies, rather than a 'practice of unjustified delay.'"