Judge criticizes Indian bureau on LNG Government officials accused of ‘playing hide and seek’ with data request

BANGOR – A federal judge Friday sternly scolded attorneys representing the U.S. Bureau of Indian Affairs for not providing documents to the opponents of a proposed liquefied natural gas terminal on tribal land in Washington County.

“It seems to me that the BIA’s position is ‘Catch-22’ cubed,” U.S. District Judge John Woodcock said during a hearing on the federal agency’s motions to dismiss three separate lawsuits filed by members of the Passamaquoddy tribe who oppose the Split Rock project on the Pleasant Point reservation.

Attorneys from the U.S. Department of Justice representing the Bureau of Indian Affairs tried to argue that the case over access to documents should be dismissed because tribal members now have all the information they requested. Woodcock, however, continued to criticize the way the group’s requests for documents under the Freedom of Information Act were handled. We Protect Our Homeland – Nulankeyutmonen Nkihaqmikon in the Passamaquoddy language – requested at least 17 documents related to the lease of tribal land to an Oklahoma developer.

“First the BIA said, ‘We don’t have it,'” Woodcock stated as the two-hour hearing in U.S. District Court in Bangor got under way. “Then it said, ‘You’ve already got it.’ And when they asked again, the answer was ‘You don’t have a right to it and if you think you do, you’re going to have to sue us to get it.'”

Woodcock did not rule on the motions Friday, but made it very clear that the Bureau of Indian Affairs should have made available to the LNG opponents documents about the tribe’s leasing of land to Quoddy Bay LLC, the Oklahoma developer who wants to build an LNG terminal on Indian land.

“It’s plain to me that these documents should have been disclosed,” he continued. “Aren’t you playing hide and seek with the very people [the bureau] is supposed to have a trust relationship with? You really make groups sue you to get documents?”

While Woodcock chastised the bureau for making it too difficult for the plaintiff to obtain the public documents, he still indicated he would grant the government’s motion for summary judgment, essentially dismissing the case, because the LNG opponents now have all the documents they requested.

Woodcock took under advisement Friday a separate motion by the bureau to dismiss two other complaints filed by We Protect Our Homeland because the group did not have standing to sue the agency and because it had filed the lawsuits too soon.

Woodcock gave no indication of how he stood on that motion and no timetable under which he would issue a decision.

The six Passamaquoddys who brought the complaint, all residents of Pleasant Point, are David “Moses” Bridges, Vera J. Francis, Hilda Lewis, Deanna Francis, Reginald Joseph Stanley and Mary Bassett.

They filed two of the lawsuits last year and a third earlier this year because they believe their viewpoints were not represented in May 2005 when the Pleasant Point Tribal Council signed a partnership agreement with Quoddy Bay. The Bureau of Indian Affairs approved the lease two weeks later.

The lawsuits named as defendants Robert K. Impson, the acting regional director for the Eastern region of the Bureau of Indian Affairs, and Gale Norton, then-secretary of the U.S. Department of the Interior.

We Protect Our Homeland is represented by the Environmental and Natural Resources Law Clinic at the Vermont Law School in South Royalton, Vt. Although students helped prepare briefs, two law school professors argued against dismissal of the lawsuits.

In combination, the two lawsuits over the lease allege that the bureau violated several federal laws in the process of approving it. The complaints contend that:

. The bureau failed to conduct an environmental assessment on the impacts of locating a major industrial facility at Split Rock as required by the National Environmental Policy Act.

. The bureau violated the National Historic Preservation Act by failing to consider the historic significance of the Split Rock site.

. The bureau violated the Long Term Leasing Act by failing to consider the impact of the lease on the nearby Pleasant Point community and by failing to insure that the tribe receives fair market value for the leased lands.

. The bureau violated the Indian Trust Responsibility by failing to insure that the lease was in the best interests of the entire Passamaquoddy Tribe.

. The bureau violated the Endangered Species Act by failing to consult with the National Marine Fisheries Service about the impact the proposed facility would have on marine life, especially the endangered whale population.

The tribal members’ ultimate objective is to reverse the lease decision and reopen discussions. They also want to provide an opportunity for all tribal members to vote on the project.

About 25 Passamaquoddys attended the proceeding Friday in federal court in Bangor. Vera Francis, one of the plaintiffs, issued a press release outside the courthouse after the hearing.

“While relieved that their case is finally in the courts,” it said, “several elders remain concerned about how the effort for LNG has already had a negative effect on the Passamaquoddy community.”

The press release quoted several tribal members who oppose the proposed LNG plant. Among them was Lorraine Francis, who said, “Because it has already affected Mother Earth, Passamaquoddy Bay and the underwater creatures, we are not the same now. It surely must affect the ancestors, too.”

The press release also said that the court was not the only path the group would pursue in its efforts to keep the terminal from being built. We Protect Our Homeland will seek intervenor status with the Federal Energy Regulatory Commission concerning the licensing of the proposed terminal.

“We are the owners and occupants of the lands in question,” Bridges, one of the plaintiffs, said after the hearing. “BIA failed in its trust responsibility, and there is no other seacoast Passamaquoddy culture that can take the place of ours if it’s destroyed.”