​​​​​​​​​​In 2005, a group of members of the Passamaquoddy Tribe living on the Pleasant Point Reservation in Maine became concerned about a proposed liquefied natural gas terminal that was to be located on the reservation. Passamaquoddy Bay is a beautiful, unspoiled body of water that is the center of the cultural, economic, and spiritual life of the Passamaquoddy people. The terminal would have been located on the Split Rock site, which has long been the location of traditional Passamaquoddy Tribe ceremonies. The construction of the proposed LNG terminal would have destroyed the cultural and spiritual value of Split Rock, and would have impacted the ecology of the bay and the quality of the environment on the Pleasant Point Reservation. The project also would have lead to the movement of large tankers through the treacherous waters of Head Harbour Passage and the migration routes of the endangered right whale.

Environmental law clinic filing a challenge to help save Passamaquoddy BayOn behalf of the tribal members, Nulankeyutmonen Nkitahkomikon (We Take Care of the Homeland), the Clinic filed a challenge to the United States Bureau of Indian Affairs’ approval of a lease authorizing construction of the LNG terminal in the United States District Court for the District of Maine. The suit was based on the failure of the Bureau to comply with the National Environmental Policy Act, the National Historic Preservation Act, the Endangered Species Act, and the Indian Long-term Leasing Act. The District Court denied our Motion for Partial Summary Judgment and we appealed to the United States Court of Appeals for the First Circuit.

The First Circuit concluded that we must exhaust administrative remedies before litigating the issue of whether the Bureau improperly approved the long-term lease without first preparing an environmental impact statement or consulting with other agencies about harmful impacts to endangered species and tribal culture. We then initiated an appeal with the Interior Board of Indian Appeals (IBIA). However, in 2010, the Bureau terminated the LNG lease while our appeal was pending with the IBIA. In the IBIA appeal, the Clinic sought confirmation that the lease could not be revived, and on January 25, 2013, the IBIA issued an order vacating the Bureau's original approval of the lease. As a result, our clients have reached success after more than seven years of perseverance.

Passamaquoddy Bay whale jumping out of the waterIn addition, we received a favorable ruling from the District Court in our ancillary lawsuit involving our Freedom of Information Act (FOIA) requests for records from the Bureau. The Court held that the Bureau had violated its obligation to conduct a search “reasonably calculated to uncover all relevant documents" and warned the Bureau that it must take steps to improve its compliance with FOIA. The Court also granted a significant attorney fee award to the Clinic, helping to offset the costs of pursuing this action and providing pro bono legal assistance in matters serving the public interest.

Selected Pleadings

Nulankeyutmonen Nkitahkomikon et al. Opposition to Motion to Dismiss (March 2006)

Nulankeyutmonen Nkitahkomikon et al. Amended Complaint (May 2006)

Nulankeyutmonen Nkitahkomikon et al. Brief to the First Circuit (February 2007)

Order of Interior Board of Indian Appeals (January 2013)