Tribe Loses Suit to Keep Oil and Gas Drilling Off 'Aboriginal' Land

Tribe Loses Suit to Keep Oil and Gas Drilling Off 'Aboriginal' Land

Plenty of plaintiffs have come up with ideas on how to stop oil and gas drilling near their homesteads without much success in Texas courts.

Add to that list the Alabama-Coushatta tribe of Texas, who took a very different tack in trying to stop oil and gas drilling on their 2.8 million acres of land, much of it in East Texas.

The background to the Fifth U.S. Circuit Court of Appeals July 9 decision in The Alabama-Coushatta Tribe of Texas v. United States of America is as follows, according to the opinion.

The tribe sued the U.S. Department of Agriculture and U.S. Secretary of the Interior Sally Jewel in her capacity in the Eastern District of Texas, alleging that they weren’t doing enough to prevent drilling on the land that the tribe holds by “aboriginal title.” Aboriginal title is a unique form of title to real property, loosely analogized to a “perpetual right of occupancy” and an “ultimate reversion in fee” to the sovereign. Aboriginal title is an equitable possessory interest, which is not superior to that possessed by the United States.

The tribe did not seek monetary relief but sued to force the government to protect the tribal land from drilling.

But a U.S. magistrate judge ruled that the defendants actions were not reviewable under §702 of the Administrative Procedures Act that provides that a person suffering a legal wrong because of an agency action is entitled to judicial review if an agency “failed to act in an official capacity”—a report adopted by a district court.

And the Fifth U.S. Circuit Court of Appeals affirmed that ruling.

“The tribe’s complaint is structured as a blanket challenge to all of the government’s actions with respect to all permits and leases granted for the natural resource extraction on a significantly large amount of land covering several national parks in Texas,” wrote Chief Judge Carl Stewart in an opinion joined by Judges James Dennis and Jennifer Elrod.

“The fact that the tribe is not seeking wholesale reform of every single mineral permit, lease or sale granted by these agencies but only those related to the lands on which the tribe claims aboriginal title, does not diminish the scale of relief sought by the tribe. The challenge is to the way the government administers these programs and not to a particular and identifiable action taken by the government,” Stewart wrote.

Matthew Littleton, a U.S. Department of Justice attorney who represented the defendants on the case, declined to comment on the decision. Scott Crowell of Sedona, Ariz.’s Crowell Law Offices, who represents the tribe, did not return a call for comment.

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