Passamaquoddy suit to stop gas terminal finds new life

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BOSTON - A federal appeals court has ruled that a group of Passamaquoddy Indians can move forward with a lawsuit they hope will stop a liquefied natural gas terminal development on tribal land.

The three-judge panel's ruling Sept. 14 reversed a federal district court judge's decision last November that the group, Nulankeyutmonen Nkihtaqmikon (''We Protect Our Homeland''), lacked legal standing to sue the BIA for approving in 2005 a land lease between the tribe and Quoddy Bay LLC, an Oklahoma developer seeking to construct an LNG terminal on a three-quarter-acre parcel of tribal land at Split Rock.

Additionally, the appeals panel ruled that the group's claims were ripe for review even though the LNG terminal has not been approved by the Federal Energy Regulatory Commission. The decision was written by 1st Circuit Court of Appeals Judge Juan R. Torruella.

In May 2005, the tribal government and Quoddy Bay LLC formalized a 50-year land lease agreement that included four distinct phases: permitting, construction, operations, and removal and remediation. The lease was sent off to the BIA May 19, 2005, for review, in accordance with the Indian Long Term Leasing Act of 1955.

The BIA approved the lease on June 1, 2005, ''solely for the site investigation required for the FERC permitting process in the development of an Environmental Impact Statement,'' according to the court document. 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.

Nulankeyutmonen Nkihtaqmikon members said they opposed the LNG project out of concern that it 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. The Nulankeyutmonen Nkihtaqmikon members live on tribal land within a mile of Split Rock and use the leased land for traditional tribal ceremonies, community events and recreation.

They filed a lawsuit on Nov. 2, 2005, claiming that the BIA's approval of the lease violated the Leasing Act, the National Environmental Policy Act, the National Historic Preservation Act, the Administrative Procedures Act and the Endangered Species Act. They also claimed that the BIA had violated its trust obligation by violating those statutes.

The BIA moved to dismiss the case. In its ruling last November, the federal district court said the group had no standing to bring the claims and the claims would not be ripe until after FERC had completed its environmental review.

In finding that the group has legal standing, the panel said the group's ''concrete and particularized interest is clear: They not only live very near Split Rock, but they also use the land and surrounding waters for a variety of ceremonial and community purposes.''

In dismissing the lawsuit, the federal court said in part that the claims were not ripe ''because the lease approval process is not complete'' and further stated that ''had the BIA given a final, irrevocable stamp of approval on the ground lease ... Nulankeyutmonen Nkihtaqmikon would have a ripe claim.''

But during the appeal, the BIA conceded that its lease approval is actually final, Torruella wrote in the appeals court ruling.

''The BIA now concedes that its approval was final, and therefore now is the appropriate time to complain that the agency failed to do its duty,'' Torruella wrote.

Torruella also did away with the BIA's argument that the group's claims are not ripe because ''the existence of the dispute itself hangs on future contingencies that may or may not occur,'' meaning that there is still no certainty that the LNG terminal will be approved.

''This argument misses the mark,'' Torruella wrote. ''The dispute before us is not over the hypothetical construction and operation of an LNG terminal, but the allegedly improper approval of the lease that is the prerequisite to the terminal. While the construction of the terminal is hypothetical and uncertain at this juncture, the approval of the lease is complete. The BIA has made its decision,'' Torruella wrote.

The case has been remanded to the federal court.

Chief Rick Phillips-Doyle, head of the Passamaquoddy Tribe at Sipayik, could not be reached for comment.