July 16, 2008
Passamaquoddy Group’s LNG Suit Against BIA Moves Forward
By Gale Courey Toensing, Indian Country Today, Oneida, N.Y.
Jul. 16--BANGOR, Maine -- A lawsuit filed against the BIA almost three years ago by a group of Passamaquoddy Indians opposing the construction of a liquefied natural gas terminal on the tribe's coastal land has taken a step toward resolution.Attorneys for the group Nulankeyutmonen Nkihtaqmikon (We Take Care of Our Land) and several others from the Pleasant Point Passamaquoddy Indian community attended a hearing in U.S. District Court in Bangor in front of Judge John Woodcock July 1.
Woodcock heard arguments on two motions filed by the Passamaquoddy group and one motion for dismissal of the lawsuit filed by the BIA's attorneys.
The long-standing legal conflict is rooted in a May 2005 50-year lease agreement between the tribal government and Quoddy Bay LLC, an Oklahoma developer seeking to construct an LNG terminal on three-quarters of an acre of tribal land at Split Rock on Passamaquoddy Bay. The lease included four distinct phases: permitting, construction, operations, and removal and remediation.
The BIA approved the lease June 1, 2005, "solely for the site investigation required for the federal Energy Regulatory Commission permitting process in the development of an environmental impact statement," according to court documents. The BIA said that the site investigation did not require an EIS before the lease was approved, and that continuing the lease would be contingent on FERC approval.
But Nulankeyutmonen Nkihtaqmikon members sued the BIA in November 2005, and during the course of the government's first appeal to dismiss the lawsuit, the BIA conceded that in approving the lease it had actually approved the entire LNG project.
Members say the LNG project would permanently change the Split Rock site from a natural beach area with historical, cultural, religious and recreational significance to an industrial zone that would not be accessible to them. They live on tribal land within a mile of Split Rock and use the land for traditional tribal ceremonies, community events and recreation.
Their lawsuit alleges that the BIA failed to comply with federal laws in approving the lease, and argues that the lease was entered into without proper community input.
"Before approving the lease, BIA failed to prepare an environmental impact statement, failed to consult with the National Marine Fisheries Service about impacts on endangered whales, failed to consult with the tribal historic preservation officer about cultural impacts, and failed to analyze the fair market value of the lease. We are asking the court for an order setting aside BIA's lease approval and directing BIA to fully comply with all applicable federal laws," the group wrote in a media release in late June.
"Our ultimate objective is to reopen the lease decision and provide an opportunity for all tribal members to vote on whether this project is truly in the best interests of the community based on sound environmental and economic information."
The BIA initially moved to dismiss the lawsuit based on a lacked standing and the case wasn't "ripe" for review. Woodcock ruled in the BIA's favor; but last September, a three-judge panel of the 1st Circuit Court of Appeals reversed his decision and remanded the case the federal court.
Now the government lawyers have moved to dismiss the case based on the issue of "exhaustion" -- a claim that the Passamaquoddy group should have exhausted all avenues of administrative appeal by taking their complaint to the Interior Board of Indian Appeals before lodging their lawsuit in court, said Teresa Clemmer, the Passamaquoddy group's attorney. Clemmer is connected with the Environmental and Natural Resources Law Clinic at the Vermont Law School in South Royalton, Vt. The BIA's attorneys are with the Justice Department.
But Woodcock expressed some concern about the long delays in the case and indicated that the case could move forward by the end of the year.
"We're hopeful the judge will allow us to get to the merits of the case and deny the government's motion to dismiss on this exhaustion issue," Clemmer said.
Woodcock heard arguments in the group's request to submit new documents into the case concerning the potential environmental impacts on water quality, bald eagles and critical habitats of various endangered or listed species in the area including the right whale.
The judge also considered the group's request for access to a memo written by Randall Trickey, the BIA's regional real estate appraiser.
"We think his opinion was very important to the decision [to approve the LNG lease] whether he agreed with it or not. One of the things the BIA failed to do was a fair market appraisal for the lease and they made a determination without having the benefit of a fair market appraisal," Clemmer said.
The government has withheld the document under the "deliberative process" exemption -- a questionable concept that claims an agency's internal discussions should be free from public scrutiny because it would discourage candor and frankness among public servants when they are advising official decision makers.
The memo was issued the same day as the decision, Clemmer said, "and even assuming it is privileged we think our interest outweighs the privilege."
If the case moves forward, it will likely be decided on motions for summary judgment. If it is dismissed, the Passamaquoddy group and its attorneys will consider an appeal to the 1st Circuit Court.
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Copyright (c) 2008, Indian Country Today, Oneida, N.Y.
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