At issue today is the result of direct adverse interventions by no less than the Secretary of Interior himself

By Dave Skinner

In summer 1982, the Bureau of Land Management (which is responsible for administering the federal mineral estate) issued oil and gas lease rights to Sidney Longwell of Louisiana. The lease covers about 10 sections of Lewis and Clark National Forest land a couple of miles south of Highway 2 on Hall Creek east of Summit on Marias Pass.

At the time, that part of the LCNF (the Badger-Two Medicine or B2M) was multiple-use land under the forest plan – you know, back in the “Land of Many Uses” era?

At issue today is the result of direct adverse interventions by no less than the Secretary of Interior himself, Bruce Babbitt, ending with a 1998 indefinite suspension based (when other means wouldn’t work) upon compliance requirements of the National Historic Preservation Act (NHPA). The NHPA is about protecting “identified historic properties” and, under Section 106 of NHPA, Indian tribes must be consulted when activities might adversely affect “properties” off the reservation.

Scads of other stuff happened in the meantime, but in May 2013, Mr. Longwell asked the Interior to lift Secretary Babbitt’s 20-year suspension and was denied. In June 2013, 31 years after the lease was awarded, Longwell, represented by the Mountain States Legal Foundation, sued in the District of Columbia federal district court to exercise his rights. The case was assigned to Judge Richard J. Leon.

The lawsuit spurred the usual move-countermoves in court, as well as outside. Within a week in April 2015, Blackfeet officials announced they’d asked the Department of Interior to cancel all remaining leases in the Badger-Two Medicine. The very next day (April 23) the Blackfeet met with Longwell for a third NHPA “Section 106” consultation. In short, the Tribe absolutely opposes drilling on the Hall Creek lease (which is not yet officially included in the B2M “Tribal Cultural District”). The tribe offered Longwell a chance to lease and drill on the east side of the reservation toward Cut Bank, and if Longwell accepted, they’d sweeten the deal by honoring him with an Indian name. No deal.

On April 30, Longwell’s lawyers asked for expedited oral arguments, which took place before Judge Leon on June 10. Leon is famous as the “metadata” judge, among other things, and Washington Post has reported Leon as having “often used his position to hold government officials accountable.”

So, what happened at the hearing? Fairfield Sun Times publisher/editor/reporter Darryl Flowers, Montana’s leading reporter on petroleum doings, kindly sent along a copy of the uncorrected hearing transcript after I groveled for it, on behalf of my loyal readers, of course.

Some gems, which came in discussion with Department of Justice attorney Ruth Ann Storey:

Judge Leon: “I think the people at these agencies are lucky they haven’t been deposed about their actions in these – in this matter. I think they might find it very awkward to be under oath and have to answer questions about the speed at which they have performed their tasks here. I think you’d be hard-pressed to defend that conduct.”

Judge Leon: “Are you aware of any other situation that your clients, which are multifold here, I might add, have dragged their feet this long? Can you point this Court to any example?”

Ms. Storey responded: “I would have – no.”

Judge Leon: “I’d like to know if there is another example of agency recalcitrance that even approximates, approximates what we’re seeing here: 28 years to resolve these issues. It’s Kafkaesque. I mean, it really, really is troubling. It’s very troubling.” The judge then asked Ms. Storey to send him a follow-up letter indicating if she could find any comparable cases of agency delay.

Ms. Storey responded June 22 regarding “an example of agency failure to act that approximates the 28-year time frame in this case.” She was “unable” to find any, “however the [Solenex] case is unique […]”

Yes it is, in a very specific way. From Merriam Webster: of, relating to, or suggestive of Franz Kafka or his writings; especially: having a nightmarishly complex, bizarre, or illogical quality <Kafkaesque bureaucratic delays>

I can’t wait to see what Judge Leon does next.

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