Environmental and Natural Resources Law Clinic
Saving Passamaquoddy Bay
Nulankeyutmonen Nkitahkomikon (We Take Care of the Homeland) is a group of members of the Passamaquoddy Tribe living on the Pleasant Point Reservation in Maine. In 2005, the group became concerned about a proposed liquefied natural gas (LNG) terminal to be located on a part of the reservation known as the Split Rock site. Passamaquoddy Bay is a beautiful, unspoiled body of water that is the center of the cultural, economic, and spiritual life of the Passamaquoddy people. Split Rock has been the location of traditional Passamaquoddy Tribe ceremonies since time immemorial. The construction of the proposed LNG terminal would have destroyed the cultural and spiritual value of Split Rock. The project would also impact the ecology of the bay and the quality of the environment on the Pleasant Point Reservation. Finally, the project would lead to the movement of large tankers through the treacherous waters of Head Harbour Passage and the migration routes of the endangered right whale.
On behalf of Nulankeyutmonen Nkitahkomikon, the clinic filed a challenge to the U.S. Bureau of Indian Affairs’ approval of a lease authorizing construction of the LNG terminal in the U.S. District Court for the District of Maine. The suit was based upon the failure of the bureau to comply with the National Environmental Policy Act, the National Historic Preservation Act, the Endangered Species Act, and the Indian Long-term Leasing Act. The District Court denied our Motion for Partial Summary Judgment and we appealed to the U.S. Court of Appeals for the First Circuit.
The First Circuit concluded that our clients must exhaust administrative remedies before litigating the issue of whether the U.S. Bureau of Indian Affairs (BIA) improperly approved the long-term lease without first preparing an environmental impact statement or consulting with other agencies about harmful impacts on endangered species and tribal culture. We then initiated an appeal with the Interior Board of Indian Appeals (IBIA), and in 2010 BIA terminated the LNG lease while our appeal was pending. In that appeal, the clinic sought confirmation that the lease could not be revived, and on January 25, 2013, the IBIA issued an order vacating the BIA's original approval of the lease. As a result, our clients have reached success after more than seven years of perseverance.
In addition, we received a favorable ruling from the district court judge in our ancillary lawsuit involving our Freedom of Information Act (FOIA) requests for records from BIA in support of our claims. The court held that BIA had violated its obligation to conduct a search “reasonably calculated to uncover all relevant documents" and warned BIA that it must take steps to improve its compliance with FOIA. Our Passamaquoddy clients are pleased and hopeful that the court's rebuke will prompt BIA to be more responsive to public information requests in the future. The court has also granted the ENRLC a significant attorney fee award, which will offset the costs of pursuing this action and help us to continue providing pro bono legal assistance in matters serving the public interest.