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Nkihtaqmikon v. Impson

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Before Torruella, Ripple, *fn2 and Boudin, Circuit Judges.

This appeal is the second in continuing litigation by a group of members of the Passamaquoddy Tribe called Nulankeyutmonen Nkihtaqmikon–the phrase means “We Protect the Homeland,” and we refer to the group as NN–to challenge a Bureau of Indian Affairs (“BIA”) decision; the decision approved a lease of a plot of Passamaquoddy land for the construction and operation of a liquefied natural gas (“LNG”) facility, contingent on federal regulatory approval being obtained from the Federal Energy Regulatory Commission (“FERC”). The relevant facts, which have been discussed in previous decisions,*fn3 are as follows.

In May 2005, the tribal authorities in charge of the Pleasant Point reservation agreed to a lease with Quoddy Bay, LLC (“Quoddy Bay”), that would allow Quoddy Bay to construct a LNG facility on a 3/4 acre portion of the tribe’s land known as Split Rock. The lease contemplates four phases: permitting, construction, operations, and removal and remediation. In the first “permitting” phase, Quoddy Bay is entitled to test and survey the land as needed to obtain FERC approval for construction, and the latter phases, if the project moves ahead, allow for construction and operation of the LNG facility. Absent FERC approval, the project cannot proceed and the lease can be terminated by the Tribe.

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