Nulankeyutmonen Nkihtaqmikon v. Impson

• Decision Date: 16 November 2006
• Docket Number: No. CV-05-168-B-W.,CV-05-168-B-W.
• Citation: 462 F.Supp.2d 86
• Parties: NULANKEYUTMONEN NKIHTAQMIKON, et al., Plaintiffs, v. Robert K. IMPSON, Acting Regional Director, Eastern Region, Bureau of Indian Affairs, et al., Defendants.
• Court: U.S. District Court — District of Maine

462 F.Supp.2d 86

NULANKEYUTMONEN NKIHTAQMIKON, et al., Plaintiffs, v. Robert K. IMPSON, Acting Regional Director, Eastern Region, Bureau of Indian Affairs, et al., Defendants.

No. CV-05-168-B-W.

United States District Court, D. Maine.

November 16, 2006.

COPYRIGHT MATERIAL OMITTED

David K. Mears, Justin E. Kolber, Patrick A. Parenteau, Environmental and Natural Resources Law Clinic, South Royalton,

VT, Lynne A. Williams, Law Office of Lynne A. Williams, Bar Harbor, ME, for Plaintiffs.

Rebecca J. Riley, Sara E. Culley, U.S. Department of Justice, Environmental & Natural Resources Div., Washington, DC, for Defendants.

ORDER ON DEFENDANTS' MOTION TO DISMISS THE COMPLAINT

WOODCOCK, District Judge.

Nulankeyutmonen Nkihtaqmikon¹ (NN) is a group of private citizens who are residents of the Pleasant Point Passamaquoddy Reservation (Pleasant Point Reservation) in Maine.² Formed to oppose construction of a Quoddy Bay Liquefied Natural Gas (LNG) terminal on the Pleasant Point Reservation, NN has filed civil actions seeking declaratory and injunctive relief against the Bureau of Indian Affairs (BIA) and the Department of the Interior. Specifically, Plaintiffs seek a declaration that the BIA violated federal law in approving a ground lease between the Passamaquoddy Tribe at Pleasant Point, Maine (Tribe) and Quoddy Bay, LLC (Quoddy Bay). Arguing that Plaintiffs lack standing on all claims and that several of their claims are not ripe, Defendants seek dismissal of the complaint under Rule 12(b)(1) of the Federal Rules of Civil Procedure. This Court finds that it lacks jurisdiction to adjudicate this matter, and therefore grants Defendants' motion to dismiss and supplemental motion to dismiss (Docket # s 12 and 32).

I. Procedural History

Before proceeding further, it is worth sifting through the case's procedural history. On November 2, 2005, Plaintiffs filed suit in this Court, asserting violations of the National Environmental Policy Act (NEPA), the Indian Long-Term Leasing Act (Leasing Act), the National Historic Preservation Act (NHPA), and the Administrative Procedure Act (APA). Compl., Nulankeyutmonen Nkihtaqmikon v. Impson, No. 05-168, 2005 WL 3624172 (D.Me. Nov.2, 2005). On January 24, 2006, Defendants moved to dismiss Plaintiffs' Complaint. See Defs.' Mot. to Dismiss, Nulankeyutmonen Nkihtaqmikon v. Impson, No. 05-168, 2006 WL 352137 (D.Me. Jan.24, 2006) (Defs.' Mot.)

On April 18, 2006, the same parties initiated a second civil action, alleging violations of the Endangered Species Act (ESA) arising from the approval of the ground lease by the BIA. Compl., Nulankeyutmonen Nkihtahkomikumon v. Kempthome, No. 06-50, 2006 WL 1315357 (D.Me. Apr. 18, 2006).³ To complicate matters, on May 17, 2006, Plaintiffs to Civil No. 05-168 filed an Amended Complaint alleging an additional violation of the Religious Freedom Restoration Act (RFRA) and the American Indian Religious Freedom Act (AIRFA). First Amended Compl., Nulankeyutmonen Nkihtaqmikon v. Impson, No. 05-168, 2006 WL 2263246 (D.Me. May 17, 2006).⁴

On June 1, 2006, the parties jointly sought to consolidate civil actions 05-168 and 03-50, and on June 8, 2006, this Court ordered consolidation. See Joint Mot to Consolidate Cases, Nulankeyutmonen Nkihtaqmikon v. Impson, No. C5-168 (Docket # 29); Order Granting Without Objection Mot. to Consolidate Cases, Nulankeyutmonen Nkihtaqmikon v. Impson, No. 05-168 (Docket # 30); Nulankeyutmonen Nkihtaqmikon v. Impson, No. 06-50 (Docket # 11). After consolidation, Defendants filed a Supplemental Motion to Dismiss on July 3, 2006, arguing that Plaintiffs' additional ESA, RFRA, and AIRFA claims fell afoul of the same standing and ripeness concerns raised in the earlier motion to dismiss. Defs.' Suppl. Mot. to Dismiss (Docket # 32) (Supplitiot.). On August 21, 2006, NN filed a stipulation of dismissal of Count 5 of their First Amended Complaint, which contained the RFRA, AIRFA, and Trust Obligation claims. First Am. Compl. at 24 (Docket # 28); Stip. of Dismissal of Count 5 Without Prejudice of Count Five of Plaintiff's First Am. Compel. and Filing of Pls.' Second Am. Compl. (Docket # 38). Plaintiffs' Second Amended Complaint, filed the same day, removed only the claims under RFRA and AIRFA and reasserted the Trust Obligation claim in a new Count 2. Second Am. Compl. at 21. For the purpose of Defendants' motion to dismiss and supplemental motion to dismiss, the Plaintiffs are left with claims under: (1) NEPA; (2) the Indian Long-term Leasing Act; (3) NHPA; (4) APA; and (5) ESA.⁵

II. Standard of Review

Rule 12(b) provides in relevant part: "[e]very defense, in law or fact, to a claim for relief in any pleading ... shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter ...." Fed.R.Civ.P. 12(b)(1). "A motion to dismiss an action under Rule 12(b)(1) ... raises the fundamental question whether the federal district court has subject matter jurisdiction over the action before it." United States v. Lahey Clinic Hosp., Inc., 399 F.3d 1, 8 n. 6 (1st Cir.2005) (citation omitted). The burden falls on the plaintiff "clearly to allege facts demonstrating that he is a proper party to invoke federal jurisdiction." Dubois v. United States Dep't of Agric., 102 F.3d 1273, 1281 (1st Cir.1996) (citation and internal quotation marks omitted). See also R.I. Ass'n of Realtors v. Whitehouse, 199 F.3d 26, 30 (1st Cir. 1999); Lord v. Casco Bay Weekly, Inc., 789 F.Supp. 32, 33 (D.Me.1992).⁶

In a Rule 12(b)(1) motion, "[t]he court, without conversion, may consider extrinsic materials and, to the extent it engages in jurisdictional factfinding, is free to test the truthfulness of the plaintiff's allegations." Dynamic Image Technologies, Inc. v. United States, 221 F.3d 34, 37-38 (1st Cir.2000). See also Aversa v. United States, 99 F.3d 1200, 1209-10 (1st Cir.1996) ("In ruling on a motion to dismiss for lack of subject matter jurisdiction ... the district court must construe the complaint liberally, treating all well-pleaded facts as true and indulging all reasonable inferences in favor of the plaintiff .... In addition, the court may consider whatever evidence has been submitted ...."). Here, the parties have introduced into the record and relied on six affidavits by the individual Plaintiffs, along with five additional documents the majority of which formed a part of the administrative record, which this Court will consider in ruling on the motion.⁷

III. Factual Background

A. The Tribe

The Passamaquoddy Tribe is federally-recognized and consists of two distinct reservation areas: Indian Township and Sipayik, or Pleasant Point. Compl. ¶¶ 60, 62-64 (Docket # 1). Each reservation has its own elected tribal government including a Governor, other officers, and a tribal council. Letter from BIA Eastern Area Director (Acting) Franklin Keel to the Environmental Protection Agency dated Nov. 14, 1996 at 1 (Docket # 12 — Ex. 1) (Defs.' Ex. 1). A Joint Tribal Council manages lands held in common. Id. A resolution of this Joint Tribal Council authorizes each entity to lease tribal land within their respective reservations. Resolution passed by the Joint Tribal Council dated June 12, 1996 (Docket # 12 — Ex. 3)(Defs.' Ex. 3).

B. The Ground Lease

The Tribe executed a ground lease agreement with Quoddy Bay to allow the development of a LNG terminal. Letter from the Pleasant Point Reservation to Franklin Keel dated May 23, 2005. (Docket # 12 — Ex. 4) (Defs.'Ex.4.) This lease was approved by the Tribal Council on May 19, 2005. Id.; Compl. ¶ 90. According to Plaintiff Hilda Lewis, a member of the Tribal Council, the final version of the lease agreement was passed out to Tribal Council members just fifteen minutes before the start of the May 19th meeting. Aff. of Hilda Lewis ¶ 9 (Docket # 7) (Lewis Aff). During the meeting, Ms. Lewis moved to place a moratorium on any voting until the Tribal Council had an adequate opportunity to review the terms of the lease; the motion was denied and questions about the lease from Council members were disallowed. Id. ¶ 10. On May 31, 2005, a Tribal Council meeting was held to vote on whether to waive a fair market appraisal of the leased land. Id. ¶ 11. The Council voted 4-3 in favor of waiving any appraisal. Id. In approving the lease and waiving appraisal, the Tribal Council relied on legal advice from an attorney paid by Quoddy Bay. Id. ¶ 12. Hilda Lewis informed Defendants of her concerns regarding the lease approval process, but was told by Robert K. Impson, then Director of the BIA for the Eastern Region, that there was "nothing I can do about internal tribal matters." Id. ¶ 14. Franklin Keel, Acting BIA Eastern Area Director, later told her that the BIA "must necessarily rely on the actions of the Tribal Council to express the will of the tribe." Id. ¶¶ 15-16.

" The leased property, known as the Split Rock site, is on Pleasant Point Reservation land. Def's Mot. Ex. 2 (Docket # 12 — Ex. 2c) (Ground Lease Agreement). Split Rock has sacred meaning to the Passamaquoddy people, as it is used for a number of tribal ceremonies, and the location is also an important site for recreational, cultural, and historical purposes. Compl. ¶¶ 6, 68.⁸ During the initial stage of the lease, the "Permitting Period," Quoddy Bay's use of the premises is limited to:

[A] non-exclusive right and license to enter upon and restrict access to the Premises, at any time and from time to time, to inspect, to examine, to survey, and to conduct, soil tests, borings, installation of water monitoring wells, and other engineering, geotechnical, archaeological, and architectural tests and studies on the Premises, and otherwise to do that which, in Tenant's reasonable discretion, is necessary to conduct due diligence, to secure Permits and to determine the suitability of the Premises for the LNG Project.

Ground...