The Quoddy Tides

2006 November 24

Group to appeal dismissal of LNG lease lawsuit

by Edward French

Two lawsuits brought by a group of Passamaquoddy tribal members against the Bureau of Indian Affairs (BIA) concerning approval of a ground lease between the tribe and Quoddy Bay LNG have been dismissed in U.S. District Court. Nulankeyutmonen Nkihtaqmikon (We Take Care of the Land), a group of six Pleasant Point residents — David Moses Bridges, Vera Francis, Hilda Lewis, Deanna Francis, Reginald Stanley and Mary Bassett — will be appealing the ruling to the First Circuit Court of Appeal.

On November 16, U.S. District Judge John Woodcock Jr. found that the court lacked jurisdiction to decide the matter. He agreed with the Bureau of Indian Affairs' argument that the group lacked standing to file the lawsuits and had filed them too early.

One of the lawsuits, filed last November against Robert Impson, acting regional director for BIA, and Gale Norton, then U.S. Secretary of Interior, alleged that the BIA violated four federal laws in the process of approving the Quoddy Bay LNG lease. Those alleged violations are: BIA failed to conduct an environmental assessment on the impacts of siting a major industrial facility at Split Rock, as required by the National Environmental Policy Act (NEPA); BIA violated the National Historic Preservation Act (NHPA) by failing to consider the historic significance of the Split Rock site; BIA violated the Long Term Leasing Act by failing to consider the impact of the lease on Pleasant Point and failing to ensure that the tribe receives fair market value for the leased lands; and BIA violated the Indian Trust Responsibility by failing to ensure that the lease was in the best interest of the entire Passamaquoddy Tribe. In April 2006, the group filed a second suit alleging violations of the Endangered Species Act arising from the approval of the ground lease by the BIA. The group's objective in filing the suits was 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.

On May 23, 2005, the tribal government sent the ground lease to BIA for approval, and BIA approved it on June 1. Woodcock notes in his decision that, prior to approval, BIA did not execute a fair market value appraisal of the land, did not prepare an Environmental Assessment, did not allow for public comment from affected parties and gave no consideration to the historic, religious and cultural significance of Split Rock. But BIA made clear that approval was solely for the site investigation required for the Federal Energy Regulatory Commission permitting process in the development of an Environmental Impact Statement.

In his decision, Woodcock wrote, "Had the BIA given a final, irrevocable stamp of approval on the ground lease without considering any potential detrimental effects on the environment or on historic properties, NN [Nulankeyutmonen Nkihtaqmikon] would have a ripe claim under NEPA and NHPA. But since that is not the case here, NN's claims are not justiciable."

Concerning whether the group has standing to file the suit, Woodcock wrote that Nulankeyutmonen Nkihtaqmikon had not "challenged the actions the BIA actually approved, and any related risks to the environment based on those actions, but only the consequences they fear will occur some time in the future, if other approvals are obtained."

He continued, "The plaintiffs have chosen their field of battle. If they had selected to fight at the beachhead, claiming injury even with the first test boring, this would be a different case. Instead, they have focused their challenge on the terminal's ultimate construction. Having limited their challenge to something that may not happen, the plaintiffs are vulnerable to the charge that they have alleged 'an injury at some indefinite future time.'"

The group also maintained that as individual tribal members protected by the Leasing Act they have an enforceable right based on the BIA's alleged failure to adequately protect tribal property and resources, but Woodcock found that mere tribal membership is not sufficient to assert a violation of the Leasing Act on behalf of the tribe.

Concerning the appeal, Vera Francis comments, "We will be asking the First Circuit to review Judge Woodcock's decision because the court's decision misconstrued the nature of our claims and the nature of the BIA's action. The court erred by stating that no injury has occurred because the LNG facility is not far enough along in the construction and operation process. The federal laws in this case are procedural and allow for judicial review once the BIA takes a final agency action — in this case approving the ground lease agreement. The court incorrectly concluded that the BIA had not given a final approval of the lease. Nothing in the lease allows for the BIA to go back and review or revoke its approval. Therefore, plaintiffs have suffered an injury because the BIA approved the entire ground lease agreement and this approval was done without following the requisite environmental review and protection of tribal interests."

"Though a full review of our case could have avoided a protracted administrative process, it places a great burden onto tribal members demonstrating their legal right to Passamaquoddy land and waters," Francis continues. "We should not be the ones penalized simply because BIA has done one thing and when questioned says another, while allowing Passamaquoddy interests to be exploited. At best the BIA is in an awkward position, but if it intends to further challenge Passamaquoddy rights, we are confident about our responsibility to take care of our land."