Nulankeyutmonen Nkihtaqmikon v. Impson

• Citation: 503 F.3d 18
• Decision Date: 14 September 2007
• Docket Number: No. 06-2733.,06-2733.
• Parties: NULANKEYUTMONEN NKIHTAQMIKON, David Moses Bridges, Vera J. Francis, Hilda Lewis, Deanna Francis, Reginald Joseph Stanley, Mary Bassett, Plaintiffs, Appellants, v. Robert K. IMPSON, Acting Regional Director, Eastern Region, Bureau of Indian Affairs; Gale Norton, Secretary of the Interior, United States Department of the Interior, Defendants, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

503 F.3d 18

NULANKEYUTMONEN NKIHTAQMIKON, David Moses Bridges, Vera J. Francis, Hilda Lewis, Deanna Francis, Reginald Joseph Stanley, Mary Bassett, Plaintiffs, Appellants, v. Robert K. IMPSON, Acting Regional Director, Eastern Region, Bureau of Indian Affairs; Gale Norton, Secretary of the Interior, United States Department of the Interior, Defendants, Appellees.

No. 06-2733.

United States Court of Appeals, First Circuit.

Heard June 8, 2007.

Decided September 14, 2007.

Patrick A. Parenteau, with whom Justin E. Kolber and David K. Mears, of the Environmental and Natural Resources Law Clinic, Vermont Law School, were on brief, for appellants.

M. Alice Thurston, Attorney, Environment and Natural Resources Division, U.S. Department of Justice, with whom Matthew J. McKeown, Acting Assistant Attorney General, Caroline M. Blanco, Sara E. Culley, Rebecca J. Riley, Elizabeth Ann Peterson, John Harrington Assistant Regional Solicitor, Department of the Interior, and Stephen L. Simpson, Assistant Solicitor for Trust Responsibility, Department of the Interior, were on brief, for appellees.

Before TORRUELLA and LIPEZ, Circuit Judges, and FUSTÉ,^* District Judge.

TORRUELLA, Circuit Judge.

This appeal arises from the Bureau of Indian Affairs ("BIA") approval of a lease of Passamaquoddy tribal land to a developer who wishes to construct a Liquified Natural Gas ("LNG") terminal in part on that land. Nulankeyutmonen Nkihtaqmikon¹ ("NN"), a group of tribe members who oppose construction of the LNG terminal, and several individual tribe members (collectively, "Plaintiffs") challenge the district court's dismissal of their case for lack of jurisdiction. After careful review, and based in large part on the BIA's change of position on appeal regarding the finality of its lease approval, we conclude that Plaintiffs have standing and that their claims are ripe for review, and therefore that the district court has jurisdiction to adjudicate Plaintiffs' claims. We thus reverse the dismissal of this suit by the district court and remand the case for further action consistent with this opinion.

I. Background

A. Quoddy Bay Lease

The complicated nature of this case requires a slightly extended introduction. Part of the complexity stems from the fact that neither of the litigants are parties to the lease agreement that precipitated this dispute. The lease at issue is between the Pleasant Point Passamaquoddy Reservation² and Quoddy Bay, LLC ("Quoddy Bay"), a developer seeking to construct an LNG terminal on tribal lands. In May 2005, these parties formalized a ground lease agreement ("Quoddy Bay Lease"), which would allow Quoddy Bay to develop a LNG terminal on a 3/4-acre portion of tribally owned land known as Split Rock, pending federal approval of the project. The fifty-year lease is a complex and multistage contract, contemplating four distinct phases: Permitting, Construction, Operations, and Removal and Remediation. The latter periods call for heavily invasive construction and operation of the LNG terminal. The permitting period, however, allows only less-invasive testing and surveying, necessary for obtaining Federal Energy Regulatory Commission ("FERC") approval.³ During this initial period, Quoddy Bay 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.⁴

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. On June 1, 2005, the BIA approved the lease.⁵ At the same time, the BIA issued a Categorical Exclusion Checklist, indicating that

lease approval is solely for the site investigation required for the [FERC] permitting process in the development of an [Environmental Impact Statement ("EIS")] . . . . [C]omplete environmental analysis and EIS development [will] be conducted through the FERC permitting process. Continuing the lease beyond the investigation period is contingent upon FERC permit approval, acceptability of the EIS analysis and insignificant impact on the leased property. The BIA will be a Cooperating Agency for the EIS development through FERC.

The BIA determined that the site investigation fell within the definition of a Categorical Exclusion, such that an EIS was not required prior to approval of the lease.⁶

B. Plaintiffs

In opposition to the LNG project, a group of private citizens banded together to form NN. NN members live on Passamaquoddy Tribal lands in Maine, though none possess individual ownership rights in Split Rock. They oppose the construction of the Quoddy Bay LNG terminal out of concern that "it will fundamentally and permanently transform the Split Rock site from a natural beach area with historical, cultural, religious, and recreational significance, to an industrial zone that will not be accessible to the members of the group."

Plaintiffs — NN and individual tribe members — live within a mile of Split Rock and/or use the leased land for traditional tribal ceremonies, community events, and recreation. According to Plaintiffs, Split Rock is the Tribe's "only remaining community space."

C. Procedural History

On November 2, 2005, Plaintiffs initiated this suit claiming that the BIA's approval of the Quoddy Bay Lease violated the Leasing Act, 25 U.S.C. § 415; the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321 et seq.; the National Historic Preservation Act ("NHPA"), 16 U.S.C. § 470 et seq.; the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706; and the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. Specifically, Plaintiffs complain that the BIA failed to appraise the land, to prepare an environmental assessment, to provide an opportunity for public comment, or to consider the historical, religious, and cultural significance of the leased land. Plaintiffs later added a claim that, by violating the above statutes, the BIA had breached the federal government's fiduciary duty to Indian citizens (the "Trust Obligation" claim).⁷

The BIA moved to dismiss for lack of jurisdiction, contending that Plaintiffs lacked standing and that their claims were not yet ripe. On November 16, 2006, the district court dismissed all of Plaintiffs' claims, concluding that the NEPA, NHPA, and Trust Obligation claims were not ripe and that Plaintiffs lacked standing to bring the NEPA, NHPA, ESA, and Leasing Act claims.⁸ Nulankeyutmonen Nkihtaqmikon v. Impson, 462 F.Supp.2d 86 (D.Me. 2006). Plaintiffs now appeal the dismissal.

II. Standard of Review

We review de novo the district court's decision to dismiss for lack of jurisdiction on standing and ripeness grounds. Mangual v. Rotger-Sabat, 317 F.3d 45, 56 (1st Cir.2003). The plaintiff has the burden of clearly alleging definite facts to demonstrate that jurisdiction is proper. Dubois v. U.S. Dep't of Agric., 102 F.3d 1273, 1281 (1st Cir.1996). We then construe such facts and the reasonable inferences drawn therefrom in favor of the plaintiff. See N.H. Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 12 (1st Cir.1996).

III. Finality of Lease Approval

Plaintiffs ask us to forego review of the standing and ripeness issues and instead remand the case to the district court based on the BIA's "reversal of position" regarding the finality of its lease approval. Plaintiffs claim that the BIA argued before the district court that lease approval was limited to site investigation and was revocable upon further review by the BIA, and that the district court relied heavily on these representations. On appeal, the BIA concedes that its lease approval is final. It argues instead — but to the same effect — that "implementation of the lease is contingent upon multiple factors, including FERC authorization," and that therefore Plaintiffs' alleged injuries resulting from construction of the LNG terminal are too attenuated to satisfy standing and ripeness requirements.

Because we review the standing and ripeness issues de novo, and because we have all the information we need to decide these issues, we see no reason to remand. We approach the standing and ripeness issues assuming — as everyone agrees — that the BIA has completed its lease approval process and will not have another opportunity to review the lease. For purposes of our review, we also assume, as alleged by Plaintiffs, that the BIA has failed to meet its federal obligations with respect to the lease approval. Whether or not this is true is a question on the merits of Plaintiffs' case, which we need not address at this stage of the proceedings.⁹

IV. Standing

The doctrine of standing addresses whether a particular plaintiff has "such a personal stake in the outcome of [a] controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). The core of the doctrine arises from the constitutional requirement that federal courts act only on "Cases" or "Controversies." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); see also U.S. Const. art. III, § 2. In addition, "[s]tanding doctrine embraces several judicially self-imposed limits on the exercise of federal jurisdiction, such as the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative...