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Passamaquoddy group defeats LNG project on sacred ground

SIPAYIK, Maine – After five years of legal struggle by a group of Passamaquoddy Tribe members, the BIA has canceled a long term lease with an Oklahoma-based developer, ending its plan to construct a liquefied natural gas terminal on Passamaquoddy Bay.

The BIA announced April 23 that it had canceled the tribe’s 50-year lease with Quoddy Bay LNG, a company that had planned since 2005 to build a controversial liquefied natural gas terminal and pipeline on a three-quarter acre portion of shoreline land owned by the Passamaquoddy Tribe.

The group Nulankeyutmonen Nkihtaqmikon, which means “We Take Care of Our Land,” considers the land sacred and has opposed the project from the start. The group argues that the massive industrial plant threatened to devastate both the delicate ecological balance of the area and the land’s cultural and spiritual traditions. The land is located at a place called Split Rock on Passamaquoddy Bay that is used for traditional ceremonies, community events and recreation.

The Passamaquoddy tribal council signed a 50-year land lease in 2005 with Quoddy Bay LNG to allow the company to develop the terminal. The lease was approved the same year by the BIA. But after a number of twists and turns in the process, including Quoddy LNG’s announcement in 2008 that it would postpone or withdraw its application from a state review process and stop quarterly lease payments to the tribe, the tribal council terminated the lease last June.

The BIA’s decision was prompted in part by the tribe’s decision to terminate the lease. The BIA also cited Quoddy Bay LNG’s failure to respond to an earlier notice of lease violation.

“We don’t prematurely declare victory, but we are definitely declaring it now,” said Vera Francis, an organizer with NN. “Today’s victory is on behalf of our descendants because it is what our ancestors expect from us. To value and defend that which has sustained us – Passamaquoddy Bay – is what defines and shapes our future.”

“Split Rock rests easier today,” said Mary Bassett, NN member. She vowed that NN and its supporters will continue to work hard to protect Passamaquoddy Bay and that “all land, all humans, and animal life deserve a healthy environment.”

Chief Rick Phillips-Doyle, who heads the Passamaquoddy reservation at Sipayik, could not be reached for comment.

The group’s legal battle was fought by the Vermont Law School’s Environmental and Natural Resources Law Clinic led by Professor Teresa Clemmer, the clinic’s associate director, on a pro bono basis.

“BIA’s decision represents a big victory for the long-term interests of the tribe and is a testament to our clients’ determination and willingness to hang in there for the long haul,” Clemmer said. “We’ve gotten very involved in this process and we’ve gotten to know the members of the tribe and we’re very happy for them.”

The epic legal battle began in 2005 when NN sued the BIA in federal court claiming its lease approval was invalid because the agency had not conducted the necessary environmental reviews, interagency consultation, or fair market appraisal. The BIA responded with a motion to dismiss, claiming the group had no standing, and the lawsuit went through a number of appeals, remands, and legal arguments involving standing, ripeness, exhaustion and other procedural arguments raised by the U.S. Department of Justice in its defense of the BIA.

The Vermont Law School prevailed in a companion lawsuit involving NN’s Freedom of Information Act requests for records from BIA. A federal judge in Maine recently ruled that the BIA had violated FOIA by failing to promptly release the requested documents.

NN still has an appeal pending with the BIA’s Interior Board of Indian Appeals, which was filed as a strategic move in case its First Circuit Court of Appeals agreed to the BIA’s argument that the group had not exhausted all avenues of administrative appeal before taking its complaint to the courts.

Quoddy LNG has 30 days to appeal the BIA’s lease cancellation. Clemmer said that NN’s IBIA appeal would be canceled if Quoddy LNG does not appeal the BIA decision.

Quoddy Bay LNG President Don Smith could not be reached by press time. The Bangor Daily News reported, however, that Smith said the BIA had canceled the lease because his company had not responded in a timely fashion to a request for an explanation of why the contract should not be terminated.

“I had thought we had responded to the BIA,” Smith said.

Smith said his firm has spent $17 million on the project so far and when the economy improves he intends to find a financial partner to help bring the project to fruition, the Bangor newspaper reported.