Appeals Court to Decide Fate of Final Badger-Two Medicine Lease

Panel of judges could reverse or remand lower court’s decision to reinstate a previously canceled energy claim near Glacier National Park

By Tristan Scott
John Murray, Blackfeet Historic Preservation officer, talks about oil and gas leases in the Badger-Two Medicine area on May 6, 2015. Greg Lindstrom | Flathead Beacon

Blackfeet leaders and conservation partners whose advocacy to save the Badger-Two Medicine dates back nearly 40 years saw their efforts pared into a 40-minute legal argument this week as one of the nation’s most prestigious courts considered their appeal to permanently retire the last remaining oil and gas lease on land held sacred to the tribe.

Appearing on Jan. 21 before the U.S. Court of Appeals for the District of Columbia, attorneys with the Department of Justice presented arguments defending the cancellation of the last remaining oil and gas lease on land that is culturally and ecologically sacred to the Blackfeet. The panel of three appellate judges also heard from intervenors in the case, including a coalition of Blackfeet traditionalists called the Pikuni Traditionalist Association, as well as conservation advocates with the Blackfeet Headwaters Alliance and Glacier-Two Medicine Alliance who have long sought to protect the Badger-Two Medicine area from lingering threats of industrial development, which flourished in the early 1980s despite public protest and questions of legal validity that have persisted for decades.

Since then, energy companies have voluntarily relinquished dozens of leases as recognition of the Badger-Two Medicine area’s cultural and ecological significance grows.

The final lease belongs to Solenex LLC, a Louisiana-based company whose 6,200-acre lease was canceled by the government in 2016, but reinstated in 2018 after the D.C. District Court ruled in favor of Solenex. The case is currently in the U.S. Court of Appeals on appeal.

It’s the latest turn in a legal fight that has dragged on for years as Blackfeet leaders and conservation groups have worked to permanently protect the 130,000-acre Badger-Two Medicine, an area flanking Glacier National Park.

The last two remaining leases were originally canceled by the Interior Department under President Barack Obama, but U.S. District Judge Richard J. Leon ruled in September 2018 that the action was improper. Attorneys representing the Interior filed a notice of appeal challenging Judge Leon’s decision to reinstate the leases.

One leaseholder, Texas-based Moncrief Oil and Gas Master’s, subsequently relinquished its lease, leaving Solenex as the final holdout.

Advocates of the Badger-Two Medicine, including representatives of the Blackfeet Nation, said the recent hearing buoyed their confidence even as they expressed caution following a tortuous legal journey that has delivered key victories and devastating setbacks.

“It was short, but what really impressed me was that the judges were very engaged and asked questions about the leases and whether there’s an unmitigable impact to cultural, tribal and wildlife issues that weren’t hit upon before,” Rep. Tyson Running Wolf, D-Browning, said in a phone interview from Washington, D.C. “I’ve been here for the previous hearings and this one felt like the judges were more engaged. I thought us being in the courtroom, that it was powerful for them to see that there are tribal members here and that we’re concerned and engaged in the movement to protect the Badger-Two Medicine.”

Timothy Preso, the attorney representing appellants Blackfeet Headwaters Alliance, Glacier-Two Medicine Alliance, Montana Wilderness Association, National Parks Conservation Association, Pikuni Traditionalist Association and Wilderness Society, said the Bureau of Land Management’s (BLM) decision to issue the lease was made without tribal consultation, and therefore invalidly issued, leaving cancellation as the only proper remedy.

The Interior Department’s decision to cancel the lease in 2016 was appropriate, Preso argued, because BLM failed to consider the impacts of its issuance on the Tribe’s treaty rights during the National Environmental Policy Act (NEPA) process and failed to consult with the Tribe pursuant to the National Historic Preservation ACT (NHPA) to consider its effects on historic and cultural resources.

Preso asked the court to reverse the lower court’s decision to reinstate the canceled lease on the merits of the case, which are grounded in the notion that “the Secretary has to have the power to protect the public’s interest in the public’s lands and that concern is front and center in this case.”

“The challenged lease cancellation decision protects an area that the Blackfeet Tribe has described as its last traditional sacred territory,” Preso told the judges. “It’s an area that offers important habitat for grizzly bear, elk and numerous other sensitive species adjacent to Glacier National Park.”

On the other side, Preso acknowledged that Solenex has a right to protect its financial interests — a right the company is exercising through various channels, including a contract claim in federal court to recoup damages. Meanwhile, the appellants maintain their willingness to explore a compensatory arrangement with Solenex in exchange for the lease cancellation, he said.

“Solenex has options,” Preso said. “There is no such safety net for the public’s interest in these lands, for the Tribe’s interest and for my clients’ interest.”

John Murray, the Blackfeet Tribal Historic Preservation Officer, said he remains “cautiously optimistic” that the Tribe will prevail in its latest legal effort to furnish permanent protections on the Badger-Two Medicine region, a designated Traditional Cultural District where generations of Blackfeet have visited on vision quests, and which is the site of the Tribe’s creation story.

“I’m not one to read tea leaves, and I’m certainly no legal groupie, but I was very impressed with how our attorney represented us,” Murray said.

Representing Solenex in the case, which was heard on appeal before Judges Merrick Garland, David Tatel and Patricia Millett, attorney David McDonald argued Interior’s cancellation of the lease was unlawful because it lacked authority and was barred by the passage of time. Moreover, the government’s “decades-long delay in completing Solenex’s permit to drill was so egregious that it required intervention,” McDonald said.

But Brian Toth, counsel for the Department of Justice, reiterated the Interior’s position that the issuance of the lease violated NEPA and NHPA and that cancellation remains the only way to cure the “unmitigable impacts to the Tribe’s cultural history.”

The court can now either remand the decision back to the district court for further consideration, or reverse the decision on the case’s merits and permanently cancel the lease.

Peter Metcalf, executive director of the Badger-Two Medicine Alliance, attended the hearing along with Running Wolf, Murray and other stakeholders in the region who are pooling their efforts to ward off development in the Badger.

“I left optimistic that they heard our argument,” Metcalf said. “I think both the Department of Justice and particularly Tim Preso emphasized that the Department of Interior’s decision to cancel that lease was well within the Secretary’s authority as someone who is charged with caring for the public’s interest in public lands, and in this case the authority to look out for the Blackfeet and the cultural values that land holds. I’m hopeful the judges determine that cancellation was appropriate because there was no other way to mitigate the impacts.”

“We are encouraged that we may be nearing the end of this 35-year odyssey,” he added.

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