On Friday, September 14, the United States Court of Appeals for the First Circuit ruled in favor of Nulankeyutomonen Nkihtahkomikumon (“NN”) in our lawsuit against the U. S. Bureau of Indian Affairs (“BIA”). The First Circuit overturned a decision by the U. S. District Court in Maine that dismissed NN’s case. This result means that NN can proceed with its lawsuit before District Court Judge Woodcock.

NN spokesperson Vera Francis stated, “This ruling means that we get our day in our court. All we want is the opportunity to explain to the District Court why BIA’s approval of the lease violated the law and their obligation to the Tribe. We were sorely disappointed when the case was dismissed, and are now elated that we will have the chance to present our case.”

The Split Rock site near the easternmost coast of Maine is an area of major historical, cultural, and spiritual importance to the Passamaquoddy people. NN is a group of concerned Passamaquoddy Tribal members who are deeply committed to protecting this sacred place. The proposed LNG terminal would prevent Tribal members from their traditional access to ancestral waters. Further, this project would present a broad range of environmental impacts to this ecologically rich and pristine part of the Maine coastline.

 

For these reasons, NN filed its lawsuit challenging the BIA’s approval of a lease of Passamaquoddy Tribal land to Quoddy Bay, LLC. The lease purports to authorize the construction of a liquefied natural gas (“LNG”) terminal at the Split Rock site on the Passamaquoddy Pleasant Point Reservation.
BIA failed, however, to comply with the requirements of several federal major federal laws, including the National Environmental Policy Act, the National Historic Preservation Act, the Endangered Species Act, and the Indian Long-term Leasing Act. These laws require BIA to consider the cultural, historical, and environmental impacts of the proposed terminal before approving the lease. Due to this abdication of federally required responsibilities, NN believes that BIA’s approval of the lease is invalid.

BIA sought to have NN’s case dismissed, and the District Court granted the United States’ motion. The District Court based its decision in large part on BIA’s assertion that the lease was conditioned on completion of appropriate studies in the course of the Federal Energy Regulatory Commission (“FERC”) licensing process. In light of those assertions, the District Court ruled that the harms NN asserted were too remote, and so held that it did not have standing to bring the suit. The District Court also held that the lawsuit was not ripe. The doctrines of standing and ripeness are proceduralrequirements intended to prevent lawsuits from being filed unless the plaintiffs can show that their interests will suffer actual harm and that the harm is imminent.

In their arguments before the First Circuit, however, the United States changed its story and conceded that the lease was in fact final. For this reason, among others, the First Circuit held that NN can proceed with its claims. The Court of Appeals stated that NN has “clearly established a demonstrable risk” to their interest Split Rock from BIA’s failure to comply with federal law. This means that NN has standing to pursue its claims and that those claims are ripe for review by the District Court.

“The law students and I are looking forward to our case on behalf of NN” said David Mears, of the Environmental and Natural Resource Clinic at Vermont Law School and attorney for NN. “The BIA did not come close to complying with the federal laws that apply to a lease approval for a project like this one, this ridiculously conceived project which will have devastating and long-term impacts on the Passamaquoddy Tribal community and their relationship to this amazing and beautiful place.”

The Court’s ruling means that BIA cannot simply pass the buck on a decision that will change the way of life on the Pleasant Point Reservation forever. Instead, BIA must respond to NN’s well-considered position that BIA is required to fulfill their own statutory obligations to the Passamaquoddy people. BIA must confront the fact that the agency must fulfill its obligation to fully consider the long-term impacts of the LNG terminal on our community’s health and wellbeing, as well as on our profoundly spiritual connection to the land and sea.

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