Judge dismisses LNG lease lawsuit

Posted Aug. 21, 2008, at 10:57 p.m.
Last modified Jan. 29, 2011, at 7:18 a.m.

BANGOR, Maine – A federal judge has dismissed a Maine Indian group’s lawsuit against the Bureau of Indian Affairs over the leasing of Passamaquoddy tribal land for a proposed liquefied natural gas terminal but harshly criticized the way the agency conducted the process.

U.S. District Court Judge John Woodcock called the bureau’s handling of the case “unskillful” and said that in the future he expects the bureau “to proceed in a manner consistent with its special expertise and solemn charge.”

The judge’s decision, if it withstands appeal, would send questions over the approval of the lease to the Interior Board of Indian Appeals. That panel, according to Woodcock, should have reviewed the Bureau of Indian Affairs’ decision before the lawsuit was filed, as is stipulated in the bureau’s rules.

Woodcock issued the opinion, dated Aug. 14, last week, but it was not available through the court’s electronic case filing system until early this week. The ruling was issued after a hearing held earlier this summer on several motions including one filed by the bureau asking that the case be dismissed because the Passamaquoddy group had not sought an administrative review before the Interior Board of Indian Appeals before filing the lawsuit.

In the 34-page opinion, Woodcock also addressed the direction he was given last year by the 1st Circuit Court of Appeals in Boston when it reversed his earlier decision to dismiss the Indians’ claims. It was the second, but more important, decision the judge has issued since the July 1 hearing on motions filed by both sides.

“By failing to give the plaintiffs notice [of the approval of the lease], as required,” Woodcock wrote, “and failing to stay the effective date of its approval as required, the BIA did precisely what its regulations were promulgated to avoid — making critical agency decisions, failing to notify the interested parties, and allowing the consequences of the decision to become immediately effective without measuring the public interest.”

The Passamaquoddy group is represented by Teresa Clemmer of the Environmental and Natural Resources Law Clinic at the Vermont Law School. The Bureau of Indian Affairs is being defended by attorneys with the U.S. Department of Justice in Washington, D.C.

Clemmer said Thursday that she would ask the 1st Circuit Court of Appeals to review Woodcock’s most recent decision.

“We are very disappointed,” she said. “We feel that Judge Woodcock very narrowly construed the review the 1st Circuit ordered him to make and is contrary to U.S. Supreme Court decisions, the Administrative Procedures Act and the Endangered Species Act. We wish he had taken our arguments on those issues into account.”

Andrew Ames, a spokesman for the Justice Department in Washington, D.C., said that attorneys were pleased that the judge agreed with the government in the case but declined to comment further.

We Take Care of Our Land — Nulankeyutmonen Nkihtaqmikon in the Passamaquoddy language — had filed three lawsuits in U.S. District Court in Bangor since November 2005 because its members believe their viewpoints were not represented in May 2005 when the Pleasant Point Tribal Council signed a partnership agreement with Quoddy Bay LLC.

The group’s ultimate objective is to reverse the lease decision with the Oklahoma developer and reopen discussions. Members also want to provide an opportunity for all tribal members to vote on the project.

Clemmer said after the hearing in July that ultimately her clients want the hearing process reopened. They also want the Bureau of Indian Affairs to consider an environmental impact statement, consult with the National Marine Fisheries Service about impacts on endangered whales and with the tribal historic preservation officer about cultural impacts before making its decision on the lease. The group also wants the Bureau of Indian Affairs to analyze the fair market value of the lease.

In addition, the law clinic also would seek to recoup its legal fees and costs from the government through the settlement process.

Negotiations held earlier this year to reach a settlement on those issues were not successful, Clemmer said Thursday.

Woodcock issued a ruling on a separate motion in the case on July 10. He denied the Passamaquoddy group’s request to compel the Bureau of Indian Affairs to share a memo their attorney believed dealt with the fair market value of the lease. The judge ruled that under the Freedom of Information Act, the group was not entitled to read it because it was “predecisional and deliberative.”

Although the Bureau of Indian Affairs prevailed in the case, Woodcock noted that the agency “has not offered a reason it failed to comply with its own regulations” and called its actions in handling the lawsuit “inexplicable.”

“The court has no basis to know whether the BIAs mishandling of this case is symptomatic of a broader agency practice,” the judge wrote. “… The court must deal only with the case before it and the best it can do on this broader question is to document and highlight its concern, and if this agency practice reappears in other cases, courts can take appropriate action.”

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