Nulankeyutmonen Nkihtaqmikon v. Impson, No. CV-05-168-B-W.

• Decision Date: 14 August 2008
• Docket Number: No. CV-05-168-B-W.
• Citation: 573 F.Supp.2d 311
• 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

573 F.Supp.2d 311

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.

August 14, 2008.

COPYRIGHT MATERIAL OMITTED

Benjamin R. Rajotte, David K. Mears, Justin E. Kolber, Patrick A. Parenteau,

Teresa B. Clemmer, Environmental and Natural Resources Law Clinic, Vermont Law School, South Royalton, VT, Lynne A. Williams, Law Office of Lynne A. Williams, Bar Harbor, ME, for Plaintiffs.

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

ORDER ON DEFENDANT'S RENEWED MOTION TO DISMISS ON EXHAUSTION GROUNDS

JOHN A. WOODCOCK, JR., District Judge.

Directed by the First Circuit to determine whether exceptions to the administrative exhaustion requirement justify judicial retention of this case, the Court concludes that none of the exceptions applies. Despite the Bureau of Indian Affairs' inept defense of this action, characterized by contradiction and delay, the benefit of belated administrative review exceeds the need for immediate judicial resolution.

I. STATEMENT OF FACTS

A. Procedural History

On January 11, 2008, Defendants submitted what they term a Renewed Motion to Dismiss, contending that the Plaintiffs did not meet the administrative exhaustion requirement on their claims.¹ Defs.' Renewed Mot. to Dismiss and Incorporated Mem. in Supp. of Defs.' Renewed Mot. (Docket # 78) (Defs.' Mot.). Plaintiffs responded on February 4, 2008, arguing that exhaustion under the APA does not apply in this case, and alternatively, that one of the exceptions should be employed. Pls.' Opp'n to Mot. to Dismiss (Docket # 80) (Pls.' Opp'n). Defendants replied on February 15, 2008. Defs.' Reply in Supp. of Defs.' Renewed Mot. to Dismiss (Docket # 85) (Defs.' Reply). The Court held oral argument on July 1, 2008.

B. The Facts Underlying the Exhaustion Issue

The First Circuit and this Court previously described in detail the facts in this law suit. Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d 18 (1st Cir.2007) (NN); Nulankeyutmonen Nkihtaqmikon v. Impson, 462 F.Supp.2d 86 (D.Me.2006) (NNI). For the purposes of the Court's exhaustion determination, the salient facts are: In May, 2006, the Pleasant Point Passamaquoddy Reservation and Quoddy Bay, LLC formalized a ground lease agreement to allow Quoddy Bay to develop a LNG terminal on a three quarter acre portion of tribally owned land known as Split Rock, pending federal approval of the project. The Tribal Council approved the lease on May 19, 2005, and pursuant to the Indian Long-Term Leasing Act of 1955 ("Leasing Act"), 25 U.S.C..§ 415, sent the lease to the BIA for review. Franklin Keel, Regional Director of the Eastern Region of the BIA, approved the lease on June 1, 2005.

A group of private citizens, who are residents of the Pleasant Point Passamaquoddy Reservation in Maine, oppose the construction of the terminal and banded together under the name Nulankeyutmonen Nkihtaqmikon (NN).² Together with several individual plaintiffs, they did not appeal the BIA's approval of the lease to the Interior Board of Indian Appeals (IBIA); rather, they filed a lawsuit in this Court, challenging the BIA's approval of the lease on multiple grounds: failure to comply with the procedural requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq., the National Historic Preservation Act (NHPA), 16 U.S.C. § 470, et seq., the Leasing Act, and the Endangered Species Act (ESA), 16 U.S.C. § 1531, et seq.

Instead of answering the Complaint, the BIA moved to dismiss on January 24, 2006. Defs.' Mot. to Dismiss (Docket # 12). On November 16, 2006, after extensive briefing and an oral argument, the Court granted the BIA's motion to dismiss, concluding that the Plaintiffs lacked standing and that their claims were not ripe for adjudication. NNI, 462 F.Supp.2d at 112 (Docket # 49). The Court did not address exhaustion, because it was not raised.

On December 8, 2006, the Plaintiffs appealed. Notice of Appeal (Docket # 51). The first reference to exhaustion of administrative remedies appeared in the BIA's responsive brief before the First Circuit, which was filed on April 12, 2007. The First Circuit issued its opinion on September 14, 2007, and its mandate on November 8, 2007. NN, 503 F.3d at 18 (Docket # 56); J. (Docket # 65). The First Circuit directed the Court to "consider whether Plaintiffs merit an exception to the exhaustion requirement." Id. at 34. On December 7, 2007, the Defendants filed an answer to the second amended complaint, asserting as its sole affirmative defense that the Plaintiffs had failed to exhaust administrative remedies. Defs.' Answer to Pls.' Second Am. Compl. (Docket # 70).

II. STANDARD OF REVIEW

Defendants move for dismissal under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). "In ruling on a motion to dismiss, a court must `accept all well-pleaded facts of the complaint as true and draw all reasonable inferences in favor of the plaintiff.'" Moss v. Camp Pemigewassett, Inc., 312 F.3d 503, 506 (1st Cir.2002) (quoting Aybar v. Crispin-Reyes, 118 F.3d 10, 13 (1st Cir.1997)). A defendant is entitled to dismissal only if it "`appears to a certainty that the plaintiff would be unable to recover under any set of facts.'" State St. Bank & Trust Co. v. Denman Tire Corp., 240 F.3d 83, 87 (1st Cir.2001) (quoting Roma Constr. Co. v. aRusso, 96 F.3d 566, 569 (1st Cir.1996)); see also Nethersole v. Bulger, 287 F.3d 15, 18 (1st Cir.2002) (accepting, in the context of a 12(b)(6) review, "all factual allegations in the complaint and drawing all reasonable inferences in [the plaintiff's] favor"). However, the Court "need not credit a complaint's bald assertions or legal conclusions." Glassman v. Computervision Corp., 90 F.3d 617, 628 (1st Cir.1996) (citation and internal quotation marks omitted).

III. DISCUSSION

A. Statutory and Regulatory Background

Under the Administrative Procedure Act (APA), "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."³ 5 U.S.C. § 702. However, judicial review is not available if the aggrieved party has not exhausted his administrative remedies. 5 U.S.C. § 704. This requirement permits "the agency an opportunity to apply its expertise and correct its mistakes, it avoids disrupting the agency's processes, and it relieves the courts from having to engage in `piecemeal review which at the least is inefficient and upon completion of the agency process might prove to have been unnecessary.'" Rhode Island Dept. of Envtl. Mgmt. v. United States, 304 F.3d 31, 40 (1st Cir.2002) (quoting FTC v. Standard Oil Co., 449 U.S. 232, 242, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980)).

B. The First Circuit Decision

In NN, the First Circuit addressed the BIA's argument that the Court lacked subject matter jurisdiction because the Plaintiffs failed to exhaust their administrative remedies. Citing 25 C.F.R. §§ 2.4(e) and 2.6, the First Circuit noted that "BIA regulations require an appeal to the [IBIA] before lease approve is `final,' and therefore subject to judicial review under the APA." NN, 503 F.3d at 33. The First Circuit ruled that although this exhaustion requirement is not jurisdictional, it is mandatory, and at the same time, "subject to certain exceptions." Id. The First Circuit directed this Court to "consider whether Plaintiffs merit an exception to the exhaustion requirement." Id. at 34.

In its discussion of the exceptions to the exhaustion requirement, the First Circuit cited two lines of cases: White Mountain Apache Tribe and Frederique-Alexandre. Id. White Mountain Apache Tribe addresses "exceptional circumstances," such as futility, "where exhaustion may not be required." White Mountain Apache Tribe v. Hodel, 840 F.2d 675, 677 (9th Cir.1988). Frederique-Alexandre describes common law exceptions to the exhaustion requirement, such as "waiver, estoppel, and equitable tolling." Frederique-Alexandre v. Dep't of Natural and Envtl. Res., 478 F.3d 433, 440 (1st Cir.2007). The First Circuit noted that Frederique-Alexandre cited Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). Finally, for guidance on remand, the First Circuit cited Casanova, which remanded a case to the district court "for development of the record with regard to the issue of exhaustion of administrative remedies." Casanova v. Dubois 289 F.3d 142, 147 (1st Cir.2002). In accordance with the First Circuit's directive, the Court considers first the need to develop a further record to support the parties' respective positions and then addresses both types of exhaustion exceptions—White Mountain and Frederique-Alexandre.

C. The Exhaustion Requirement and Law of the Case

Before reaching those issues, however, the Court will address what remains for it to decide on the exhaustion issue. On remand, the Plaintiffs engaged in a futile attempt to convince the Court that the First Circuit erred when it issued NN and that this Court is free to decide under Supreme Court authority that exhaustion does not apply. To set the stage, the Plaintiffs point out that under, Darby, where the APA applies, "an appeal to `superior agency authority' is a prerequisite to judicial review only when expressly required by statute or when an agency rule requires appeal before review and the administrative action is made inoperative pending that review."⁴ Darby v. Cisneros, 509 U.S. 137, 154, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993) (emphasis in original).

They focus on the second Darby requirement—that the administrative action must be made inoperative pending the administrative review. Pointing...