Nkihtaqmikon v. Imson

Oct 28: In the U.S Court of Appeals, First Circuit, Case No. 08-2122. The appeal is the second in continuing litigation by a group of members of the Passamaquoddy Tribe called Nulankeyutmonen Nkihtaqmikon (NN) -- the phrase means "We Protect the Homeland," -- to challenge a Bureau of Indian Affairs (BIA) decision which approved a lease of a plot of Passamaquoddy land for the construction and operation of a liquefied natural gas (LNG) facility, contingent on Federal regulatory approval being obtained from the Federal Energy Regulatory Commission (FERC).

Based on a previous ruling by the Appeals Court in this case that the "exhaustion of agency remedies was 'mandatory' under governing precedent," the district court on remand dismissed the case -- leaving NN to pursue its internal Interior Department appeals before resuming (if necessary) litigation in the district court.

As stated by the Appeals Court, NN's main argument against the prior decision is that "unless a statute requires exhaustion, judicial review of agency action under the APA, applicable where no other statutory channel of review is provided, does not require exhaustion unless there is both internal agency review available and the final agency action is rendered inoperative during such review."

The Appeals Court rules that the NN "attack is foreclosed by our mandate unless our earlier decision was plainly wrong and following it would cause a serious injustice. Neither condition has been satisfied. . . None of these developments affects our analysis in the present appeal. The district court's judgment is affirmed."

Access the complete opinion (click here).