Louisiana Man Wins Energy Lease from Reagan, But Has Waited Decades as Federal Officials Appease Tribe! Tribe and Enviro Extremists Say No Drilling; MSLF Fights Back!
Jun 15, 2015 | by William Perry Pendley
An American Indian tribe in Montana says a Louisiana man may not use his property, which lies in a national forest, because the land is sacred to tribal members. For over two decades federal officials let the Tribe have its way despite a 5-3 Supreme Court of the United States opinion in 1988 by Justice O’Connor: “Whatever rights the Indians may have to the use of [a sacred] area…those rights do not divest the Government of its right to use what is, after all, its land.” Now a federal court must decide if the Tribe’s opposition is legal given its clear, self-serving, economic conflict of interest.
In 1982, the Bureau of Land Management (BLM) issued to Sidney M. Longwell of Baton Rouge, a 6,247 acre oil and gas lease in the Badger-Two Medicine Area of the Lewis and Clark National Forest—south of the Glacier National Park, the Great Northern Railroad, and U.S. Highway 2, east of private lands, and southwest of the Blackfeet Reservation in Glacier County in northwestern Montana. In 1983, an application for permit (APD) to drill a single well was submitted to evaluate the potential of that part of the famed Overthrust Belt, whose unique geology may yield “100 trillion cubic feet of natural gas” there. After repeated reviews under the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA), seventy-six (76) appeals, and an Interior Board of Land Appeals (IBLM) ruling, the BLM, with the U.S. Forest Service, the Montana Department of Fish, Wildlife, and Parks, and the U.S. Fish and Wildlife Service, approved the APD—in 1985, once again in 1987, yet again in 1991, and finally in January of 1993— subject to onerous mitigation measures and a mandate for added reviews if producible quantities of gas were discovered.
Nonetheless, the Clinton administration tried to kill the lease. In June of 1993, Secretary Babbitt suspended lease activity purportedly so Congress might act and extended the suspension in 1994 and 1995; but it was a ruse. The area could not be designated as a federal wilderness because the Tribe has reserved rights to hunt and gather wood there. Then in 1996, Secretary Babbitt continued the suspension ostensibly to comply with the NHPA—a fifth time—and then repeated that same suspension in 1997; in 1998, he made it indefinite. In June of 2013 Mr. Longwell sued Secretary Jewell and others to end the decades-long suspension.
The delay—maintain federal lawyers who argue that the federal judge may not order the Secretary to permit Mr. Longwell to use his property—is due to the government’s “diligent” efforts to comply with the NHPA given the cultural concerns of the Blackfeet Tribe regarding part of the 400,000 acres it ceded to the United States in 1895, and as to which the Tribe retained rights to cut and remove timber and to hunt and fish. Yet, weeks after the APD’s 1983 submission, the Tribe passed a resolution to join with an oil company to develop hydrocarbons there. Moreover, in 1983, federal and private scrutiny of the 23-acre drill site and three alternative access routes found no “cultural resources” and declared, “[N]o religious site or activities were identified in the project area….” That same conclusion was reached in 1993. Similarly, the Tribe’s sole challenge of the drilling site plan came—not on religious or cultural grounds but—from the Tribe’s mistaken belief that it owned mineral rights in the area.
Meanwhile, the Forest Service concluded that a “traditional cultural district” (TCD) of some 90,000 acres existed on federal lands beyond the APD drill site, which was designated with the Tribe’s concurrence. Less than two years later, however, the Tribe demanded expansion of the TCD’s boundary. To appease the Tribe, federal officials bankrolled the Tribe and its consultants in generating multiple studies to expand the TCD first to 120,000 acres and then to 165,000 acres, thus enveloping the drilling site but excluding nearby private lands. If history is any indication, another 30 years of study beckon. Sadly, it is years Mr. Longwell does not have; 43 when he won the lease, he is 77 today.
Federal officials say they are helpless given the Tribe’s intractable position that no oil and gas drilling take place on the ceded lands due to the land’s “spiritual and religious power,” but one official admitted that a five million dollar payment to the Tribe would remove all objections. In fact, in 2013, the Tribe published a slick, twelve page prospectus listing “Oil and Gas Development Opportunities” on its nearby tribal lands. In other words, the Tribe has no qualms about drilling on its lands—where it will receive liberal royalty payments and that are just outside of the TCD on federal lands—but the Tribe wants to prevent Mr. Longwell from drilling on his lease.
Federal officials, in addition to their sloth, ineptitude, and bad faith in the performance of their duties, have ceded federal lands and their valuable resources to the Tribe. Whether that is lawful will be determined in court, perhaps even by the Supreme Court of the United States.
Two legal issues are involved in this crucial litigation that was brought by MSLF on behalf of Mr. Longwell. First, may federal officials refuse to take final action for as long as they want and federal judges have no right to tell them when they have taken too long? As astonishing as it sounds, federal lawyers in this case say, “Yes!” Second, does the NHPA provide for a veto by tribes over the use of the public’s land and its extremely valuable oil and gas resources? MSLF says, “No!” The NHPA is only a procedural statute (like NEPA) that asks federal officials to stop, look, and listen. Surely, after thirty-two years, that has been accomplished. Now federal officials, perhaps under federal order, must allow Mr. Longwell to use his valuable property to the benefit of himself, the surrounding community, and the American people.
Thank you for your support of MSLF in this historic battle against the unconscionable conduct of federal officials. Your support is vitally important.
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