What is evident is that the BIA has raised one procedural hurdle after another to avoid getting to the merits of the case. While the First Circuit has ruled in our favor on the standing and ripeness issues, and has held that the BIA’s lease approval decision was final and approved the entire project (see: court document 4/12/07, p. 21), the BIA’s reasoning for not doing an environmental review remains flawed. However, the precedent set by the First Circuit in which tribal members can challenge actions of the BIA is as significant as it is encouraging.

 

Though Judge Woodcock didn’t rule in our favor concerning the exhaustion claim, the government waited two years before raising the exhaustion issue. According to the government an IBIA appeal could take upwards to two more years. In this case, the BIA’s administrative record could only be described as sparse, which goes toward showing its apparent inadequacy.

 

We will preserve our interests in an IBIA appeal by filing notice simultaneously with the appeal to the First Circuit. Requesting a stay on the IBIA proceedings while waiting on the First Circuit’s decision is a prudent course. Arguments concerning the narrow interpretation of Judge Woodcock’s latest decision dismissing the exhaustion issue and not taking into consideration our extra-record evidence will be addressed. Our extra-record evidence addressed the nature and scope of an LNG terminal and project, endangered whales, environmental impacts, as well as cultural impacts.  We offered expert testimony by Andrea Bear Nicholas and a comprehensive analysis -- the BIA provided barely a paragraph when it gave its rubber stamp to approve the ground lease.

Rather than being consistent with Supreme Court decisions, and subsequent court decisions, Judge Woodcock took a rigid approach to the First Circuit’s directives. However, his obiter should send a strong message to potential investors that this ground lease is problematic.

 

We aim to get to the merits of our case, even as the BIA continues to work closely with the company in obtaining amendments to the contract/ground lease. NN also aims to continue to pursue those critical elements that the BIA has overlooked including the fair market appraisal of Native land.

As to the most recent amendment to the ground lease approved by the tribal council, the BIA has yet to determine its impact. The question remains, how will the court view a party changing things last minute in order to moot a case?

 

BIA’s attempt to moot our case only goes to show their continual abdication of their duty to the tribe; postponement of a decision for an EIS until FERC decides is a prime example of this.  In the words of Judge Woodcock, the actions of the BIA are inexplicable.

No matter its positive spin, the company has long closed its doors, locked out those who once were employed there, and is having financial difficulty. The company has not secured anything close to viable for a project of this magnitude, it does though continue to have a problematic ground lease. The company has essentially withdrawn from the Maine BEP process, and its FERC application has long since been suspended.

Read BDN Article about Judge Woodcock’s decision:

http://bangornews.com/detail/49320.html