Nulankeyutmonen Nkihtaqmikon v. Impson

United States Court of Appeals
For the First Circuit
No. 06-2733

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.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before
Torruella and Lipez, Circuit Judges,
and Fusté,* District Judge.

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.

September 14, 2007

*
Of the District of Puerto Rico, sitting by designation.
 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

1
"Nulankeyutmonen Nkihtaqmikon" translates into English from the
Passamaquoddy language as "We Protect the Homeland." It is
pronounced "Nu-lahnk-kay-yoot-mah-nin Nee-kaht-mee-kahn."

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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

2
The Passamaquoddy Tribe, a federally recognized Indian tribe,
maintains two separate reservations, Pleasant Point and Indian
Township, both in Maine. While each Reservation has its own
elected tribal government, a Joint Tribal Council manages lands
held in common. The Joint Tribal Council has authorized each
community to lease tribal land within its own reservation.
3
For LNG import facilities located onshore and near shore in
state waters, FERC has "to approve or deny an application for the
siting, construction, expansion, or operation of an LNG terminal."
15 U.S.C. § 717b(e)(1). FERC reviews proposed LNG facilities with
the cooperation of numerous federal, state, and local agencies, and
with the input of other interested parties. 71 Fed. Reg. 14,200-
201 (March, 21, 2006) (explaining the process FERC will undertake
to review the Quoddy Bay LNG project).

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 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.

4
At oral argument, Plaintiffs suggested that even during the site
investigation period, Quoddy Bay was granted a right to exclude.
Our analysis, however, does not depend on this allegation.
5
The lease approval itself is a brief, one-sentence form attached
at the end of the lease. It was signed by the Director of the
Eastern Region of the BIA, Franklin Keel, and stated simply,
"Approved: Secretary of the Interior."

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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.

6
The National Environmental Policy Act of 1969, 42 U.S.C. § 4321
et seq., requires federal agencies to assess environmental impact
before taking any "action[] significantly affecting the quality of
the human environment." 42 U.S.C. § 4332(2)(C). A detailed EIS is
not required, however, for "categor[ies] of actions which do not
individually or cumulatively have a significant effect on the human
environment and which have been found to have no such effect in
procedures adopted by a Federal agency in implementation of these
regulations." 40 C.F.R. 1508.4. The BIA has adopted procedures
governing which of its activities constitute such "Categorical
Exclusions," and in this case, using the Checklist, determined that
the Quoddy Bay Lease fell within its exclusion for "data gathering
activities." See National Environmental Policy Act; Revised
Implementing Procedures, 53 Fed. Reg. 10,439, 10,442 (Mar. 31,
1988).

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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

7
The procedural history of this case is explained in more detail
in the district court's opinion. See Nulankeyutmonen Nkihtaqmikon
v. Impson, 462 F. Supp. 2d 86, 89-90 (D. Me. 2006).

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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

8
The APA claim was dismissed because, without the other statutory
claims, NN had no private right of action. Nulankeyutmonen
Nkihtaqmikon, 462 F. Supp. 2d at 112.

-7-
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

9
In particular, the argument that the BIA will participate in the
FERC permitting process -- and therefore that the BIA will have
other chances to prevent the construction of the LNG terminal --
properly goes to the merits of the case, i.e., whether the BIA has
fulfilled its duties.

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for illumination." Baker v. Carr, 369 U.S. 186, 204 (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 (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 branches, and the requirement that a

plaintiff's complaint fall within the zone of interests protected

by the law invoked." Allen v. Wright, 468 U.S. 737, 751 (1984).

We begin with the challenged constitutional elements of standing

before moving on to the additional prudential concerns.

A. NEPA, NHPA, and ESA Claims

To satisfy the "irreducible constitutional minimum of

standing," Plaintiffs must show (1) that they have suffered an

injury in fact, (2) that the injury is fairly traceable to the

BIA's allegedly unlawful actions, and (3) that "it [is] likely, as

opposed to merely speculative, that the injury will be redressed by

a favorable decision." Lujan, 504 U.S. at 560-61 (internal

quotation marks omitted). An "injury in fact" is "an invasion of

a legally protected interest which is (a) concrete and

particularized and (b) actual or imminent, not conjectural or

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hypothetical." Id. at 560 (internal citations, footnote, and

internal quotation marks omitted).

In cases of alleged procedural harm, however, plaintiffs

receive "special treatment." Dubois, 102 F.3d at 1281 n.10

(internal quotation marks omitted). "The person who has been

accorded a procedural right to protect his concrete interests can

assert that right without meeting all the normal standards for

redressability and immediacy." Lujan, 504 U.S. at 572 n.7. For

example,

one living adjacent to the site for proposed
construction of a federally licensed dam has
standing to challenge the licensing agency's
failure to prepare an environmental impact
statement, even though he cannot establish
with any certainty that the statement will
cause the license to be withheld or altered,
and even though the dam will not be completed
for many years.

Id.

The case before us is very similar to the above example

described by the Supreme Court in Lujan. Plaintiffs allege that

they have been harmed by the BIA's failure to follow the procedures

required by NEPA, NHPA, and ESA before approving the Quoddy Bay

lease,10 bringing their claims within the procedural standing

10
For example, Count One of Plaintiffs' Second Amended Complaint
alleges, inter alia, that "[t]he BIA breached its duty under NEPA
by issuing a Categorical Exclusion for the lease approval because
the effects of the ground lease constitute extraordinary
circumstances that preclude it from categorical exemption under
Appendix 2 of the BIA's Departmental Manual." Count Three alleges
that "[t]he BIA breached its duty under section 470a(d)(6) of the

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analysis. With immediacy concerns relaxed, to establish an injury

in fact, Plaintiffs need only show that NEPA, NHPA, and ESA were

"designed to protect some threatened concrete interest" personal to

Plaintiffs. Id. at 572-73 nn.7-8; see also Ashley Creek Phosphate

Co. v. Norton, 420 F.3d 934, 938 & n.2 (9th Cir. 2005) (focusing on

the question of whether the procedures at issue "protect the

plaintiff's concrete interest"). Here, Plaintiffs' concrete and

particularized interest is clear: They not only live very near

Split Rock, but they also use the land and surrounding waters for

a variety of ceremonial and community purposes. See, e.g., Lujan,

504 U.S. at 572 n.7 ("[O]ne living adjacent to the site for

proposed construction of a federally licensed dam has standing to

challenge the licensing agency's failure to prepare an

environmental impact statement . . . ."); Dubois, 102 F.3d at 1282-

83 (finding sufficient interest where litigant regularly visited

and "engaged in recreational activities" in the subject area); see

also Ashley Creek Phosphate Co., 420 F.3d at 938 ("[P]laintiffs who

use the area threatened by a proposed action or who own land near

the site of a proposed action have little difficulty establishing

a concrete interest."). The now-approved lease constitutes a

NHPA by failing to consult with the tribe before approving the
ground lease on a site of religious and cultural significance to
the Passamaquoddy Tribe and which is eligible for listing on the
Registry of Historic Places." Plaintiffs' ESA complaint alleges,
inter alia, that the BIA failed to consult with the National Marine
Fisheries Service as to the impacts of the lease on certain whales.

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"change in land use," which allegedly endangers the environment,

the historic preservation of tribal land, and protected animal

species in the area. The statutes in question were specifically

designed to protect against these very dangers by requiring federal

agencies, like the BIA, to consider these dangers before taking

action. See Massachusetts v. Watt, 716 F.2d 946, 952 (1st Cir.

1983) (discussing the purposes of NEPA). Plaintiffs have therefore

alleged a sufficient injury in fact to establish standing to pursue

their procedural claims under NEPA, NHPA, and ESA.

The BIA focuses its arguments on the causation

requirement of standing. The agency characterizes Plaintiffs'

alleged injury as the harm to Split Rock, and consequently,

Plaintiffs' interests in the land, resulting from the impacts of

the construction of the LNG terminal. It goes on to argue that any

such harms are not fairly traceable to the BIA's lease approval

because the LNG terminal cannot be constructed until Quoddy Bay

receives FERC approval, which is unpredictable.11 Sea Shore Corp.

v. Sullivan, 158 F.3d 51, 56 (1st Cir. 1998) ("[T]he injury is not

imminent because it depends upon several tenuous contingencies.").

This argument misapprehends the injury claimed by Plaintiffs.

While it is true that the potential harm to Split Rock, and

11
While the BIA frames this argument as one involving causation,
it is actually a question of imminence under the injury-in-fact
analysis. As stated above, and shown by the Lujan example,
immediacy is not of particular concern here.

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therefore to Plaintiffs, as a result of the construction of the LNG

terminal is not certain, the procedural injury alleged by

Plaintiffs has already occurred. See Watt, 716 F.2d at 952

("[W]hen a decision to which NEPA obligations attach is made

without the informed environmental consideration that NEPA

requires, the harm that NEPA intends to prevent has been

suffered."). The procedures at issue seek to minimize the risk of

future harm by "influenc[ing] the decisionmaking process; [their]

aim is to make government officials notice environmental [and

other] considerations and take them into account." Id. The lease

contemplates construction and operation of a LNG terminal, and it

is the risks posed by the implementation of the lease which the BIA

is required to consider under NEPA, NHPA, and ESA. As discussed

above, Plaintiffs have clearly established a demonstrable risk to

their interests in Split Rock as a result of the BIA's alleged

failure to adequately assess the dangers associated with the lease

as required by federal law. Cf. Sierra Club v. Marsh, 872 F.2d

497, 500 (1st Cir. 1989) ("[T]he [irreparable] harm consists of the

added risk to the environment that takes place when governmental

decisionmakers make up their minds without having before them an

analysis (with prior public comment) of the likely effects of their

decision upon the environment.").

Finally, Plaintiffs meet the redressability requirement

of Article III standing. All that is required in cases of

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procedural injury is "some possibility that the requested relief

will prompt the injury-causing party to reconsider the decision

that allegedly harmed the litigant." Massachusetts v. EPA, 127

S. Ct. 1438, 1453 (2007). Here, although Plaintiffs cannot

establish with any certainty that the requested procedures will

change the BIA's collective mind, there is at least a chance that

proper consideration would convince the BIA to withhold approval of

the lease.

Although the BIA does not challenge Plaintiffs'

prudential standing to pursue the NEPA, NHPA, and ESA claims on

appeal, it is clear from our discussion above that "the violations

and injuries alleged in the complaint are the sort that [these

statutes] were specifically designed to protect," and that

Plaintiffs are asserting their own interests, rather than those of

third parties.12 Dubois, 102 F.3d at 1283 (internal quotation marks

omitted). We accordingly find that Plaintiffs have established

standing to pursue their procedural claims under these statutes.

12
NN's organizational standing is clear: the interests asserted
and evaluated are those of the individual members, see Dubois, 102
F.3d at 1281 ("A membership organization . . . may assert the
claims of its members, provided that one or more of its members
would satisfy the individual requirements for standing."); the
interests in Split Rock are "germane to the objectives for which
[NN] was formed," id. at 1281 n.11; and there is no reason the
claim or requested relief "requires the personal participation of
affected individuals," id.

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B. Leasing Act Claim

The prudential standing concern at issue here is whether

Plaintiffs' Leasing Act claim "fall[s] within the zone of interests

protected by the law invoked."13 Allen, 468 U.S. at 751. "The

'zone of interest' test is a guide for deciding whether, in view of

Congress' evident intent to make agency action presumptively

reviewable, a particular plaintiff should be heard to complain of

a particular agency decision." Clarke v. Sec. Indus. Ass'n, 479

U.S. 388, 399 (1987).

We disagree with the district court's conclusion that

Plaintiffs do not fall within the zone of interests protected by

the Leasing Act. It is true, as the district court emphasized,

that the Leasing Act requires federal approval when "'restricted

Indian lands, whether tribally or individually owned, [are] leased

by the Indian owners.'" Nulankeyutmonen Nkihtaqmikon, 462 F. Supp.

2d at 110 (quoting 25 U.S.C. § 415(a)). The district court also

agreed that "Plaintiffs are almost certainly correct that the

Leasing Act was intended to protect 'Indian tribes and their

members.'" Id. (quoting San Xavier Dev. Auth. v. Charles, 237 F.3d

1149, 1153 (9th Cir. 2001)). But we do not read the former passage

referring to "Indian owners" to suggest that the duty owed by the

13
Neither party raises constitutional standing concerns on appeal,
and we see no obstacle to constitutional standing for the same
reasons discussed above with respect to standing under NEPA, NHPA,
and ESA.

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BIA under the Leasing Act is limited to the land owners regulated

by the Act. But see Bullcreek v. U.S. Dep't of Interior, 426 F.

Supp. 2d 1221, 1230 (D. Utah 2006) (denying standing to tribal

members with no property interest in the leased land because the

act refers to "Indian Landowners"). Rather, it clearly appears to

us to be a limitation on the leases subject to the Leasing Act.

The federal government's duty under the Leasing Act,

through the BIA, is to ensure that the parties to a lease of Indian

land have given adequate consideration to the impacts of the lease

on, inter alia, neighboring lands and the environment. 25 U.S.C.

§ 415(a). The land owners presumably have a vested interest in a

lease's approval, so it stands to reason that they would rarely

challenge the BIA's failure to comply with federal law in approving

the lease. Congress surely intended, therefore, for other tribal

members whose interests would be adversely affected by the lease's

impacts to complain of the agency's action. See Clarke, 479 U.S.

at 399. This conclusion is bolstered by the BIA's own regulations,

which allow "any person whose interests could be adversely affected

by a decision in an appeal" to request review of an agency action.

25 C.F.R. § 2.2; see also id. § 162.113 (allowing appeal of BIA

lease approvals pursuant to 25 C.F.R. pt. 2).

Furthermore, "[t]he ['zone of interests'] test is not

meant to be especially demanding." Clarke, 479 U.S. at 399-400

("[I]n particular, there need be no indication of congressional

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purpose to benefit the would-be plaintiff."); see also Dennis v.

Higgins, 498 U.S. 439, 461 (1991) ("The plaintiff need only

demonstrate a plausible relationship between his interest and the

policies to be advanced by the relevant provision." (internal

quotation marks omitted)). When a plaintiff is not the subject of

the regulatory action, as here, prudential standing requirements

may be satisfied so long as "the plaintiff's interests are [not] so

marginally related to or inconsistent with the purposes implicit in

the statute that it cannot reasonably be assumed that Congress

intended to permit the suit." Id. Here, Plaintiffs have

demonstrated, as discussed above, their concrete and particularized

interest in the lands and environment surrounding Split Rock.14

These interests are explicitly addressed in the Leasing Act as ones

that the BIA must consider before granting approval of the lease.

They are therefore not peripheral interests. Plaintiffs' interests

are also consistent with the statute, which was "intended to

protect . . . Native American interests," Rosebud Sioux Tribe v.

McDivitt, 286 F.3d 1031, 1036-37 (8th Cir. 2002) (referring to 18

14
The BIA suggests that we not consider Plaintiffs' argument that
the zone of interests protected by the Leasing Act encompasses
Plaintiffs' environmental concerns, because they make this argument
for the first time on appeal. Plaintiffs, however, point to
specific language in their complaint and in the transcript that
shows they raised the issue before the district court.
Additionally, though not dispositive, the BIA is hardly in an
equitable position to make such a claim considering its shift in
position on crucial issues from the stance it took before the
district court as comparted to that before us.

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U.S.C. § 416, an analog to § 415), and to ensure that the parties

to the lease have adequately considered its impacts. Thus, we find

that Plaintiffs meet the prudential standing requirement that their

interests arguably fall within the zone of interests protected by

the Leasing Act.15 See Ass'n of Data Processing Serv. Orgs., Inc.

v. Camp, 397 U.S. 150, 153 (1970) ("The question of standing . . .

concerns, apart from the 'case' or 'controversy' test, the question

whether the interest sought to be protected by the complainant is

arguably within the zone of interests to be protected or regulated

by the statute or constitutional guarantee in question.").

V. Trust Obligation Claim

The district court also dismissed Plaintiffs' claim of

breach of fiduciary duty to the extent that it was a separate cause

of action from the Leasing Act claim.16 Nulankeyutmonen

Nkihtaqmikon, 462 F. Supp. 2d at 111 ("[A] generalized claim of

violation of a fiduciary duty, which is not tethered to any statute

15
Contrary to the BIA's assertions, we cannot -- and will not --
affirm the dismissal at this stage of the proceedings on the ground
that the BIA complied with the Leasing Act. Further, it is
irrelevant to our analysis whether "[t]he true gravamen of
[Plaintiffs'] complaint apparently lies with the Tribal Resolution
authorizing the lease." Plaintiffs' have chosen their battleground
and their opponent, and our review for standing is limited to the
allegations of injury asserted in this suit.
16
The district court was unclear as to whether Plaintiffs intended
to assert a Trust Obligation claim apart from the Leasing Act
claim. Nulankeyutmonen Nkihtaqmikon, 462 F. Supp. 2d at 110.
Plaintiffs' explanation is no more enlightening on appeal, but we
assume for purposes of our review that this was their intention.

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or regulation, cannot stand."). On appeal, Plaintiffs argue that

"the district court erred because the Indian Leasing Act is a

codification of the trust duty," citing Brown v. United States for

the proposition that "'[t]he scope and extent of the fiduciary

relationship . . . is established by the regulation[s]' that

control this type of leasing . . . [and] 'define the contours of

the United States' fiduciary responsibilities.'" 86 F.3d 1554,

1563 (Fed. Cir. 1996) (emphasis omitted) (quoting Pawnee v. United

States, 830 F.2d 187, 192 (Fed. Cir. 1987), and United States v.

Mitchell (Mitchell II), 463 U.S. 206, 224 (1983)).

Although the district court and the parties addressed

this issue in their discussions on standing, we construe the

court's dismissal as one for failure to state a claim, and

accordingly review de novo. See Palmer v. Champion Mortgage, 465

F.3d 24, 27 (1st Cir. 2006).

We agree with the district court that Plaintiffs' Trust

Obligation claim cannot stand alone. Despite Plaintiffs' vague

assertions to the contrary, we can find no law in support of an

enforceable fiduciary duty owed by the federal government to

Plaintiffs qua individuals who are not landowners. As Plaintiffs

acknowledge, the "general trust relationship between the United

States and the Indian people" is insufficient to establish specific

fiduciary duties. United States v. Navajo Nation, 537 U.S. 488,

506 (2003). Substantive statutes and regulations must expressly

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create a fiduciary relationship that gives rise to defined

obligations. See id.; United States v. White Mountain Apache

Tribe, 537 U.S. 465, 474 (2003). Brown found a fiduciary

relationship between the government and Indian land owners who

could lease their lands only subject to the Secretary's approval

under the Long-Term Leasing Act precisely because the Secretary was

acting in part to protect the land owners' financial interests, a

traditional fiduciary capacity. Id. at 1562-63. In other cases

finding enforceable fiduciary duties, too, the government had

extensive management control over Indian-owned resources, and the

duties arising from the government's fiduciary responsibilities

were owed to the owners of the resources being managed. Compare

Mitchell II, 463 U.S. at 224 (finding fiduciary relationship

between government and Indian allottees where Secretary had "full

responsibility to manage Indian resources and land for the benefit

of the Indians"); Pawnee, 830 F.2d at 190 ("[T]he United States has

a general fiduciary obligation toward the Indians [who own the oil

and gas leases in question] with respect to the management of those

oil and gas leases."), with United States v. Mitchell (Mitchell I),

445 U.S. 535, 542 (1980) (finding no fiduciary duty to Indian

allottees where "[t]he Act [in question] does not unambiguously

provide that the United States has undertaken full fiduciary

responsibilities as to the management of allotted lands").

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 Here, Plaintiffs are not land owners and the BIA does not

manage their interests in a fiduciary capacity. While Plaintiffs

have standing to complain of the BIA's failure to comply with

federal law because they fall within the zone of interests

protected by the Leasing Act, they cannot claim a specific trust

relationship created by the Secretary's general obligation to

consider their interests before approving a lease. See Brown, 86

F.3d at 1562 ("[T]he statutory criteria that constrain the

Secretary's exercise of his or her approval power are . . . in the

nature of zoning, safety, or environmental concerns, which are the

traditional general welfare concerns of government when acting in

a non-fiduciary capacity." (internal quotation marks omitted)).

Although Plaintiffs have no fiduciary duty claim, their

Leasing Act claim generally encompasses the same allegations, and

the dismissal of the "separate" Trust Obligation claim in no way

impairs their claimed right to the relief requested. The district

court should therefore treat their references to the "Trust

Obligation" as commensurate with the Leasing Act, which, as

Plaintiffs explain, derives from the general trust obligation

assumed by the federal government toward the Indian people. See

Morton v. Mancari, 417 U.S. 535, 552 (1974) ("Literally every piece

of legislation dealing with Indian tribes and reservations, and

certainly all legislation dealing with the BIA, [are] derived from

historical relationships and explicitly designed to help only

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Indians."); see also Seminole Nation v. United States, 316 U.S.

286, 296-97 (1942) ("Under a humane and self imposed policy which

has found expression in many acts of Congress and numerous

decisions of this Court, [the government] has charged itself with

moral obligations of the highest responsibility and trust."

(footnote omitted)). To the extent that the Trust Obligation claim

is one and the same as the Leasing Act claim, Plaintiffs have

established standing for the same reasons.

VI. Ripeness

Whereas standing asks "who" may bring a claim, ripeness

concerns "when" a claim may be brought. R.I. Ass'n of Realtors,

Inc. v. Whitehouse, 199 F.3d 26, 33 (1st Cir. 1999). With respect

to administrative decisions, the ripeness doctrine seeks "to

prevent the courts, through avoidance of premature adjudication,

from entangling themselves in abstract disagreements over

administrative policies, and also to protect the agencies from

judicial interference until an administrative decision has been

formalized and its effects felt in a concrete way by the

challenging parties." Abbott Labs. v. Gardner, 387 U.S. 136, 148-

49 (1967). To determine whether a particular claim is ripe, we

generally evaluate "the fitness of the issues for judicial decision

and the hardship to the parties of withholding court

consideration." Doe v. Bush, 323 F.3d 133, 138 (1st Cir. 2003)

(quoting Abbott Labs., 387 U.S. at 149).

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 Plaintiffs' remaining claims -- aside from the Trust

Obligation claim -- allege that the BIA failed to comply with

various federal laws before approving the Quoddy Bay lease. These

claims of procedural injury are clearly ripe under Ohio Forestry

Ass'n, Inc. v. Sierra Club: "[A] person with standing who is

injured by a failure to comply with [statutory] procedure may

complain of that failure at the time the failure takes place, for

the claim can never get riper." 523 U.S. 726, 737 (1998). The BIA

now concedes that its approval was final, and therefore now is the

appropriate time to complain that the agency failed to do its

duty.17

The BIA argues, however, that Plaintiffs' claims are not

ripe because "the existence of the dispute itself hangs on future

contingencies that may or may not occur." Texas v. United States,

523 U.S. 296, 300 (1998). As we stated above with respect to

standing, however, this argument misses the mark. Contrary to the

BIA's characterization, Plaintiffs' alleged injury is the BIA's

failure to follow federal law before approving the lease. The

dispute before us is not over the hypothetical construction and

operation of an LNG terminal, but the allegedly improper approval

17
The district court ruled that Plaintiffs' claims were not ripe
"because the lease approval process is not yet complete."
Nulankeyutmonen Nkihtaqmikon, 462 F. Supp. 2d at 97. It further
stated, however, "Had the BIA given a final, irrevocable stamp of
approval on the ground lease . . ., NN would have a ripe claim
. . . ." Id. at 98.

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of the lease that is the prerequisite to the terminal. While the

construction of the terminal is hypothetical and uncertain at this

juncture, the approval of the lease is complete. The BIA has made

its decision.

The BIA also argues that the alleged procedural failures

have not yet occurred, even though its approval is final, because

FERC will consider the impacts of the lease during the permitting

process. Moreover, the BIA will serve as a cooperating agency and

contribute to review of the LNG project. These points are well-

taken, but they do not go to ripeness. Whether the BIA can fulfill

its statutory obligations by participating in the FERC process is

a question on the merits of Plaintiffs' claims.

VII. Exhaustion

In the alternative, the BIA argues that the district

court lacks subject matter jurisdiction because Plaintiffs failed

to exhaust their administrative remedies. BIA regulations require

an appeal to the Interior Board of Indian Appeals before lease

approval is "final," and therefore subject to judicial review under

the APA. 25 C.F.R. §§ 2.4(e), 2.6.

Plaintiffs correctly argue in response that exhaustion is

not a jurisdictional bar in this case. Exhaustion of

administrative remedies is a jurisdictional requirement only when

Congress clearly ranks it as such. Cf. Arbaugh v. Y&H Corp., 126

S. Ct. 1235, 1237 (2006) ("[W]hen Congress does not rank a

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statutory limitation on coverage as jurisdictional, courts should

treat the restriction as nonjurisdictional in character."). We

have previously held that the APA's finality requirement is not

jurisdictional in nature. R.I. Dep't of Envtl. Mgmt. v. United

States, 304 F.3d 31, 40 (1st Cir. 2002) ("[T]he issue of whether

the APA provides for judicial review of the nonfinal ruling is not

one that, precisely speaking, implicates the subject-matter

jurisdiction of the court."). Furthermore, the BIA has pointed to

no "sweeping and direct" language in the Leasing Act itself -- nor

do we find any -- that suggests that Congress intended exhaustion

to be a prerequisite to federal court jurisdiction to review BIA

lease approvals. Casanova v. Dubois, 289 F.3d 142, 146 (1st Cir.

2002) ("[T]he PLRA's exhaustion requirement . . . does not contain

the type of sweeping and direct language that would indicate a

jurisdictional bar rather than a mere codification of

administrative exhaustion requirements." (internal quotation marks

omitted) (quoting Ali v. Dist. of Columbia, 278 F.3d 1, 5-6 (D.C.

Cir. 2002))).

Although exhaustion is not a jurisdictional issue, it is

mandatory, see id. at 147; R.I. Dep't of Envtl. Mgmt., 304 F.3d at

40 ("Even though the asserted lack of finality does not directly

challenge the subject-matter jurisdiction of the district court,

the question of whether the state otherwise has a valid cause of

action is an important one that we address as a threshold issue."),

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subject to certain exceptions, White Mountain Apache Tribe v.

Hodel, 840 F.2d 675, 677 (9th Cir. 1988) ("There are exceptional

circumstances where exhaustion may not be required."); see also

Frederique-Alexandre v. Dep't of Natural and Envtl. Res., 478 F.3d

433, 440 (1st Cir. 2007) ("[T]he exhaustion requirement is not a

jurisdictional prerequisite, but rather is subject to waiver,

estoppel, and equitable tolling . . . ." (citing Zipes v. Trans

World Airlines, Inc., 455 U.S. 385, 393 (1982))). On remand, the

district court should consider whether Plaintiffs merit an

exception to the exhaustion requirement. See Casanova v. Dubois,

289 F.3d 142, 147 (1st Cir. 2002) ("[W]e remand this case to the

district court for development of the record with regard to the

issue of exhaustion of administrative remedies.").

VIII. Conclusion

For the reasons stated above, we reverse the district

court's dismissal of Plaintiffs' NEPA, NHPA, ESA, and Leasing Act

claims. We also reverse dismissal of the APA claim, given that

Plaintiffs' other claims are revived. See Nulankeyutmonen

Nkihtaqmikon v. Impson, 462 F. Supp. 2d at 112 (dismissing APA

claim because other claims were dismissed). We affirm the district

court's dismissal of the "Trust Obligation" claim to the extent

that Plaintiffs intended a cause of action separate from the

Leasing Act claim. Each party shall bear its own costs.

Affirmed in part, reversed and remanded in part.

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