First Circuit Kicks out Challenge to LNG Facility

No substantive issue reached, just consternation at repetition of unripe claim

In Nulankeyutmonen Nkihtagmikon v. Impson, handed down today, the First Circuit rejected a challenge by a group of members of the the Passamaquoddy Tribe in Maine over a Bureau of Indian Affairs (BIA) decision to allow the lease of a plot of Passamaquoddy land for the construction and operation of a liquefied natural gas ("LNG") facility. The lease was approved by tribal authorities in May 2005. The BIA looked at the lease under the Indian Long-Term Leasing Act, 25 U.S.C. § 415, and rubber stamped it in a week--albeit only for the permitting phase, and subject to FERC approval. This FERC approval was to include NEPA review (though, given 2005 amendments to the Natural Gas Act, and subsequent FERC implementing regulations, the NN group had reason to doubt how rigorous this was going to be.)

NN filed suit in the District of Maine, challenging the BIA approval for failure to properly follow the requirements of NEPA, 42 U.S.C. §§ 4321-4327, the National Historic Preservation Act, 16 U.S.C. § 470 et seq., the Indian Leasing Act, and the APA, 5 U.S.C. §§ 701-706, by not conducting environmental and other reviews or providing opportunity for public comment. The BIA succeeded in getting the case dismissed for failure to exhaust administrative remedies, since NN had not exhausted the available administrative review at Interior.

What happened next is textbook How To Sink Your Own Case. As the panel describes it: "Back in the district court, NN preserved its administrative remedies, and then, instead of arguing any 'exception' excused its failure to exhaust, told the district court that this court had erred by imposing the exhaustion requirement in the first place." (This reminds me of a case that was before the Tenth Circuit the year I was clerking, Park Lake Resources v. USDA, 378 F.3d 1132 (10th Cir. 2004). In that case, a suit by a mining organization challenging a "research forest" designation that put it off limits to mining, also brought twice, the Tenth Circuit held: "our dismissal of the earlier action for lack of ripeness requires dismissal of this action as well. Plaintiffs can overcome the previous dismissal only by showing satisfaction of the conditions for ripeness set forth in [the prior suit]. Having failed to do so, Plaintiffs cannot proceed with their claim." Doh.) The district court said, no, you have not yet exhausted your remedies, no dice. NN appealed. The First Circuit, in today's opinion, repeated itself--forcefully.

So although, as an environmentalist, I may be sad that this LNG terminal in what is presumably very beautiful country has not yet been stopped, as a lawyer, I have to shake my head. When your panel has to remind you that "when our mandate issued, it established the law of the case," you haven't done your most basic homework, and should be sent home.